text:
    John Koons, Appellant, v. City of Mount Vernon et al., Appellees.

    1. Injunctions — taxpayer’s right to restrain misappropriation of public funds. A taxpayer may have an injunction against corporate authorities to prevent their misappropriating the public funds.
    2. Municipal corporations — city council required to fix definite compensation for city attorney. Under Cahill’s St. ch. 24, f 89, and Constitution, Art. IX, § 11, providing that compensation of a public officer, including a city attorney, may not be altered during his official term, and under statutes regulating appropriations and providing the purpose thereof shall be specified in detail, the city council in making appropriations for a city attorney’s compensation must provide for a definite sum therefor.
    3. Municipal corporations — invalidity of tax levy ordinance not fixing definite sum. A tax levy ordinance • which fails to show a sum certain, was appropriated for the purpose named is invalid in that regard.
    4. Municipal corporations — license fee appropriations of uncertain amount. Án appropriation of unascertained income from license fees of a municipality is an exception to the general rule that an ordinance is invalid as to appropriations of uncertain amounts for named objects.

      ■ 5. Municipal corporations — compensation of city attorney for special work. Under an ordinance fixing salary of a city attorney at a stated monthly sum and" additional unfixed amounts as compensation for special work, he can only receive the fixed monthly salary.
    6. Municipal corporations — invalidity of indefinite appropriation for city attorney’s compensation. Placing a provision for an unascertained added compensation to a city attorney in the original ordinance providing for his compensation does not make such indefinite compensation valid.
    7. Municipal corporations — city attorney’s compensation to he a definite amount except as to fines. A city attorney’s compensation should be made in a definite amount except when he is to receive part of -the fines collected for violations of the city ordinances, appropriations from which would not require a tax levy.
    8. Municipal corporations — invalidity of ordinance fixing city attorney’s compensation in special cases. An ordinance fixing a city attorney’s compensation for services in special assessment cases without providing the services should be those necessary to complete the cases is invalid as not fixing the definite compensation required by statute.
    9. Municipal corporations — city attorney’s right to compensation upon a quantum meruit. A city attorney may not demand payment for services rendered the city in special assessment eases upon the theory of quantum meruit.

    ■ Appeal by plaintiff from the Circuit Court of Jefferson county; the Hon. Julius C. Kern, Judge, presiding. Heard in this court at the October term, 1923.
    Reversed and remanded with directions.
    Opinion filed March 10, 1924.
    Noleman, Smith & Dallstream, for appellant.
    Curtis Williams and Conrad Schule, for appellees.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Presiding Justice Barry

delivered the opinion of the court;

Appellee Williams became city attorney for the City • of Mt. Vernon, on May 2, 1921, for a period of two years. A city ordinance provided that-he should be entitled to a salary of $50 per month, fees in each case for the violation of an ordinance equal to one-half of the fine, penalty or forfeiture paid in money, and in addition to said salary and fees he should lie entitled to charge and receive compensation for all services rendered in connection with special assessment and special taxation cases at the rate of one per cent of the estimated cost of the improvement, but in no case less than $50, nor more than $350, except in cases for the construction of sidewalks where the compensation should not be less than $10, and in case the city council should order a general revision of the ordinances he should be allowed a reasonable compensation for his services in that regard.

During this term of office Mr. Williams was paid his salary of $50 per month. On February 1, 1923, he presented his bill for $2,264.34 for services in seven special assessment cases which was allowed by the city council. Thereupon, appellant, as a citizen and taxpayer of said city, filed a bill to enjoin payment on the ground that it would be an unlawful diversion of the public funds to pay the same. Upon a hearing the court dismissed the bill for want of equity. A taxpayer may have an injunction against the corporate authorities to prevent them from misappropriating the public funds. City of Chicago v. Nichols, 177 Ill. 97; Lindblad v. Board of Education of Normal School Dist., 221 Ill. 261.

Appellant contends that the city attorney is not entitled to additional compensation in special assessment cases because the city council did not comply with Cahill’s St. eh. 24, j[ 89, which provides that a city attorney may receive a salary, fees or other compensation to be fixed by ordinance and when so fixed the same shall not be increased or diminished to take effect during the time for which he was appointed. Section 11 of Art. IX of the Constitution, Cahill’s St. Const. Art. IX, § 11, p. 22, also provides that the fees, salary or compensation of no municipal officer who is elected or appointed for a definite term of office shall be increased or diminished during such term. While the statute says that a city attorney may receive a salary, fees or other compensation to be fixed by ordinance the council, by the ordinance, says he shall receive a salary, fees and other compensation.

Cahill’s St. ch. 24, If 92, requires city councils, within the first quarter of each fiscal year, to pass an ordinance termed the annual appropriation bill, appropriating such sums as may be deemed necessary to defray all necessary expenses and liabilities of the corporation for .the year. That ordinance is required to specify the objects and purposes for which the appropriations are made and the amount appropriated for each object or purpose. “No further appropriations shall be made at any other time within such fiscal year,” unless under conditions not here involved. Paragraph 94 of said act prohibits the council, or any officer or department of the corporation, from adding to the corporate expenditures, in any one year, anything above the amount provided for in the annual appropriations bill of that year, except as is therein specially provided.

Paragraph 95, Cahill’s St. ch. 24, of said act provides that no expense shall be incurred by any officer or department of the corporation unless an appropriation shall have been previously made concerning such expenses. Paragraph 102, Cahill’s St. ch. 24, requires that all warrants drawn upon the city treasurer shall state the particular fund or appropriation to which the same is chargeable. By paragraph 115, Cahill’s St. ch. 24, ff 115, the council is required, annually, on or before the third Tuesday in September of each year, to ascertain the total amount of the appropriations legally made for corporate purposes and to be collected from the tax levy of that fiscal year, “and, by an ordinance specifying in detail the purposes for which such appropriations are made and the sum or amount appropriated for each purpose respectively, shall levy the amount so ascertained upon all the property subject to taxation within the city or village as the same is assessed and equalized for State and county purposes for the current year. ’ ’

We think it is very evident, from the foregoing provisions, that when the legislature declared that a city attorney may receive a salary, fees or other compensation, “to be fixed by ordinance,” it intended to require the city council to make definite and certain the amount to be paid for his services. This is apparent from the provisions that “and when so fixed the same shall not be increased or diminished to take effect during the time for which he was appointed.” Unless the compensation be fixed at a sum certain it cannot be told whether it has been increased or diminished. Both the annual appropriation bill and the tax levy ordinance are required to specify not only the objects for which appropriations are to be made, but also the amount appropriated for each purpose and if the ordinance shows that an uncertain amount is appropriated for some purpose it is invalid in that regard. People v. Arnold Bros., 282 Ill. 305. There-seems to be an exception to that rule in the case of appropriations of unascertained income from license fees. McGovern v. City of Chicago, 281 Ill. 264, but, although not stated, the reason for such an exception must be that in such a case there would be no tax levy required.

Under the ordinance the compensation to be paid the city attorney is uncertain in amount except as to $50 per month and nothing more than that- sum could be legally included in the appropriation bill and the tax levy ordinance for any fiscal year. It could not be known in advance whether any services would be rendered in special assessment cases, the number of such cases, or what the estimated cost of any improvement might be. In one year the salary might be but $600 and for the next year $2,864:34, as claimed in the case at bar. If the council had fixed his salary at $600 per year and the ordinance contained no other provision it would not be contended, seriously, that a subsequent ordinance could be enacted fixing his salary for the second year at $2,864.34. The ordinance fixed his salary at $50 per month with a proviso that if he rendered other services usually performed by a city attorney he should receive additional compensation therefor. Does the fact that the provision for. uncertain additional compensation was put in the original ordinance alter the case? We think not. It was simply an attempt to do indirectly what could not be doné directly by a subsequent ordinance. Suppose the. ordinance had not fixed any definite salary other than, to say that he should receive not less than $5 nor- more than $25 every time he was consulted by a city officer, a committee of the council or the board of local improvements in reference to corporation business and that in special assessment cases he should receive compensation on the same basis stated in the ordinance in question. Could it be successfully contended, ;in such case, that the council had fixed his compensation as required by the statute? We think not, for the reason that no definite amount had been fixed.. .To permit the payment of $2,264.34 as additional cqrppensation in the case at bar would be to increase his salary during his term of office in violation of the express prohibitions of the constitution and the statute. If it is permissible to allow a city attorney a salary, fees and other compensation when the statute says he may receive a salary, fees or other compensation we are of the opinion that the amount or amounts to be allowed must be made definite and certain unless, perhaps, when he is to receive a portion of the fines collected because in such case no tax levy would be required.

The ordinance in question provides for additional compensation for services rendered by the city attorney in connection with special assessment. cases. It does not provide that the services shall be such as are necessary to carry the cases to a conclusion. If he had started the special assessment cases for which he now-claims compensation- and had died or resigned before any of them reached a hearing he, or his estate, would be entitled to $2,264.34 under the terms of the ordinance because he had rendered services in connection with such cases. If a successor were then appointed to fill the unexpired term and he rendered services in connection with the same cases he would also be entitled to a like sum for his services in that regard. The fact that such a situation might arise shows that the city council has not fixed the compensation at a definite sum as required by the statute. The city attorney may not lawfully demand payment as upon a quantum meruit for services rendered. 22 R. O. L. 532.

An ordinance fixed the compensation of a village attorney at $450 per year with a proviso that in all special assessment cases and in cases in the State and Federal courts in which the village was a party he should be allowed the usual and customary fees of attorneys practicing in such courts over and above the said $450. The village attorney by direction of the board of trustees took charge of certain special assessment cases and performed the necessary services with reference thereto. He sued the village for his services in that regard and recovered a verdict and judgment for $600. The court held that the ordinance did not comply with the requireménts of the statute except as to the $450 per annum which he had received and the judgment was reversed. McGovney v. Village of Melrose Park, 145 Ill. App. 329. We cited that case with approval in Koons v. Richardson, 227 Ill. App. 477, where the compensation of a city engineer was involved.

We are of the opinion that the court erred in dismissing the bill for want of equity. The cause is reversed and remanded with directions to enter a decree in accordance with the prayer of the bill.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Barry

license: Public Domain

text:
    Rolla C. Cramer, Appellant, v. Board of Education, Appellee.

      Schools — promise to indorse certificate as not qualifying- teaelier. Under Cahill’s St. ch. 122, K 291, providing a teacher must have a certificate of employment for the entire period thereof upon entering on his duties, a certificate of qualification for first grade schools must be indorsed for teaching in high school grades and the promise of the county superintendent to so indorse will not take the place' of the indorsement.
    Appeal by plaintiff from the Circuit Court of Jasper county; the Hon. William B. Wriqht, Judge, presiding. Heard in- this court at the. October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    Davidson & Fithian, for appellant.
    A. E. Isley, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Presiding Justice Barry

delivered the opinion of the court.

The record discloses that on May 4, 1922, appellant was employed as a teacher in appellee’s high school for the following year. Appellant then held a first grade elementary certificate issued by the superintendent of schools of Edgar county. He also had a written statement from the school superintendent of Jasper county to the effect that he had promised to indorse appellant’s first grade certificate for high school grades and that he expected to live up to the promise. When he learned that appellant had applied to appellee for.a position as teacher in its four-year high school he declined to indorse the certificate. His reason for so doing was that appellant was not a high school graduate and was not competent to teach a four-year high school and when he promised to indorse the certificate he did so on the understanding that appellant was to apply for a position in another school that had a two-year high school.

Appellant admits that his certificate was never indorsed by the county superintendent of Jasper county. When appellee’s school opened appellant appeared at the schoolhouse and tendered his services, which were not accepted. Later he brought suit to recover for a breach of the contract, which resulted in the direction of a verdict at the close of appellant’s evidence.

Appellant concedes that his first grade elementary certificate did not authorize him to teach above the ninth and tenth grades without an indorsement thereon by the county superintendent of Jasper county. He contends, however, that the promise of said county superintendent that he would indorse it was equivalent to an indorsement and rendered him as eligible as if it were actually indorsed. The only authority cited in support of that contention is San Juan County School Dist. No. 1 v. Ross, 4 Colo. App. 493, 36 Pac. 560, but it is admitted that the case is not on all fours with the case at bar. On the other hand, it has been held that where a certificate is required as a condition precedent to the right to enter upon an employ, ment or to exercise a privilege, a promise to grant the certificate on application will not satisfy the require, ments of the law. Kester v. Walla Walla County School Dist. No. 34, 48 Wash. 486, 93 Pac. 907.

Under a former statute the county superintendent was authorized to issue a first grade certificate to be valid for two years in his county. It also provided: “The county superintendent may, at his option, renew certificates at their expiration by his endorsement thereon.” A teacher to whom several first grade certificates had been issued upon due examination again applied to the county superintendent for another certificate and offered to submit to an examination. The county superintendent issued a new certificate but dated .it back one year. Mandamus was brought to compel him to correct the date of the certificate and the defendant sought to justify his action by claiming that it was intended as a renewal of a former certificate. The court said: “It cannot be said that the certificate, issued in September, 1902, and dated back as of July, 1001, was a mere renewal of a former, certificate. The certificate could only be renewed in the manner pointed out in the statute. * * * The mode, providéd by the statute for the renewal of the certificate, is by indorsement thereon, and, in the case at bar, there was no' such indorsement renewing appellee’s certificate, but a new certificate was issued to him, reciting that it was of the first grade, and that appellee possessed the necessary qualifications to teach.” VanDorn v. Anderson, 219 Ill. 32-39.

We are. of the . opinion that a promise to indorse a certificate .does not meet the requirement of the statute that it shall be indorsed. Under the statute in force prior to July’l, 1893, no person could be employed to teach who had not at the time of . employment a certificate of qualification. Wells v. People, 71 Ill. 532; Stevenson v. School Directors, 87 Ill. 255. The payment of his salary could be enjoined at the suit of a taxpayer. Board of Education of Galesburg v. Arnold, 112 Ill. 11. The present statute is substantially the ¿ame . except that he is required to have his certificate of" qualification at the time he enters upon his duties and if must be for the entire period of his employments Cahill’s St. ch. 122, If 291; Pollard v. School Dist. No. 9, 65 Ill. App. 104; School Directors Dist. No. 2 v. Orr, 88 Ill. App. 648. We are of the opinion .that the court, did not err in directing a verdict in favor of appellee and the judgment is affirmed.

Affirmed.


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    Tri-Pond Drainage District, Appellee, v. Frog Pond Drainage District, Appellant.

    1. Contracts — construction of instrument most strongly against party drafting same. A drainage district’s claim that a written statement prepared by it as a receipt for its share of constructing with another a common ditch was also its release from future maintenance thereof compels the court to construe any uncertain language in the statement most strongly against said defense to the second district’s suit for the defendant’s share of maintenance costs.
    2. Frauds, statute of — enforceability of parol agreement m nature of perpetual easement. Under Cahill’s St. cli. 59, 1f 1, denying action on any parol contract not to be performed within a year; a parol agreement by one drainage district to maintain a common ditch without .expense to another is, being in the nature of a perpetual easement, invalid and no defense .to the former’s suit for the latter’s share of maintenance expense.
    3. Easements — validity of paról agreement by drainage district to maintain common ditch without expense to another district. An agreement by a drainage district perpetually to maintain a drainage ditch used in common with another district is in the nature of a grant of a perpetual easement, and hence, invalid if made by parol.
    4. Drainage — invalidity of settlement agreement covering construction cost of drainage ditch not approved by county court. A written statement by two drainage districts in settlement of construction costs of a common ditch, offered by one as a release from sharing in its maintenance with ■ another district, but not approved by the comity court as required by Cahill’s St. eh. 42, If 99, is invalid and no defense to the latter’s suit for the former’s share of such maintenance.
    5. Drainage — when district not exempt from liability for maintenance of common ditch. Under Cahill’s St. ch. 42, 89, providing one drainage district must pay another for its share of maintaining a common ditch, one district’s claim that a written statement -with another exempts it from sharing in maintenance of a common ditch is contrary thereto and no defense to the other district’s suit to collect such share.
    Appeal by defendant from the Circuit Court of Crawford County; the Hon. Julius C. Kern, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.

      Bradbury, Gaines & Bradbury and Wesner & Wesner, for appellant.
    Jones & Lowe, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Presiding Justice Barry

delivered the opinion of the court.

Both districts were organized under the Levee Act, Cahill’s St. ch. 24, f[ 1160 et seq. The territory of appellee is immediately east of and adjoins that of appellant. The boundary line between them is the east line of the public highway running north from Palestine. At the northern limits of the village the said highway crosses Sugar Créele on an iron bridge about 80 feet in length and 15 or 20 feet high. Sugar Creek flows in an easterly direction and has a well defined channel for a distance of about 200 rods east of the bridge aforesaid at which point the waters spread over the lowland and make their way to La-mo tte Creek and thence into the Wabash River. Appellee was organized in 1910 and its commissioners proceeded to locate its drains. They found it would be proper to run lateral No. 1 from the outlet of Sugar Creek to a point in the creek about 200 rods east of the said iron bridge. They also found that the channel of the creek from that point to the bridge was sufficient without widening or deepening it and let a contract for that lateral in 1911.

About that time appellant was organized and its commissioners found that its most feasible outlet was through Sugar Creek and appellee’s lateral No. 1. They found that if they widened and deepened Sugar Creek west of the east line of the public highway it would be necessary to remove and rebuild the iron bridge at a great expense. They then agreed with appellee that if it would extend its lateral No. 1 to the east line of said highway and widen and deepen the channel of Sugar Creek up to that point they would pay appellee a just proportion of the entire cost and expense of the additional work incident thereto. As it could not then be determined just what that proportion would be it was agreed that appellee should go ahead and do the work and if they could not agree when the work was completed they would submit the matter to John C. Maxwell, judge of the county court, and abide by his decision as to what would be reasonable and proper. The work was done and the parties being unable to agree the question was submitted to Judge Maxwell, who found that appellant should pay $1,617.95 as its reasonable share of the expense. Thereupon one of appellant’s commissioners caused an instrument to be prepared and upon payment of the money appellee’s commissioners, at his request, signed the said instrument, which is as follows:

“Palestine, Ill., July 15th, 1914.
“In the Matter of the Tri-Pond Drainage District v. Frog Pond Drainage District.

“Received of Frog Pond Drainage District the sum of Sixteen Hundred Seventeen and 95-100 Dollars ($1617.95), the same being the amount found to be due Tri-Pond Drainage District by the County Judge of Crawford County, Illinois, on account of the expense of enlarging ditch for outlet for Frog Pond Drainage District, the enlargement of said outlet being made necessary by Tri-Pond Drainage District on account of Frog Pond Drainage District emptying into said ditch in Tri-Pond Drainage District, said ditch having been cut through the Horning land west to the bridge across the creek just north of the corporate line of Palestine, Illinois.

“The said amount being awarded to said Tri-Pond Drainage District in full settlement for the right to empty into said ditch and of all claims of every kind and character that said Tri-Pond Drainage District now has or may have .on account of 'Frog ÍPond Drain-...' age District emptying into said ditch.

“W. J. Fitzpatrick Moses Plunkett .
C. J. Norton
Drainage Commissioners of. . Tri-Pond Drainage District of ... Crawford Cgunty, Illinois.”

In 1922 it became necessary to redredge said lateral No. 1. and the commissioners of both districts entered into a written contract for that purpose, each district to pay one-half of the expense. • The contract was subjeet to the approval of the. county court but the court. refused to approve it, Appellant then refused, to pay any part of the necessary expense. on .the ground that it had paid appellee for a perpetual outlet as evidenced by the instrument above set out. .

Appellee then filed its bill, the gist of which is that it never, at any time, agreed to furnish and-perpetually maintain for appellant an outlet through said lateral No, 1; that appellant never, paid appellee for th.e perpetual maintenance of such an outlet, but simply paid its just proportion of the original expense; that no consideration was paid therefor and that appellee was without, power or authority to make such,.a contract-without the approval of the county court; and that the last clause in said instrument was inserted, therein through fraud, accident or mistake. Appellee prayed, that the said.instrument be reformed by striking out said clause. -Issues were joined and the cause heard, by- the. chancellor in open court and a decree rendered, in accordance with the prayer of the bill.

After a careful consideration of this case it is gur opinion that appellee produced evidence that is clear and convincing that it never -agreed to perpetually, maintain an outlet for appellant, and that it neyer received any consideration for such.-an agreement. ..'We do not see how the written instrument can be construed as such a contract. It contains no such promise. It was prepared by appellant and if the language is uncertain and the intention obscure and open to construction, it should be construed most strongly against appellant. Rankin v. Rankin, 216 Ill. 132-138. If appellant were attempting to compel appellee to repair or redredge the outlet at the expense of the latter, it is quite apparent that the court would be unable to find any language in the instrument that would support the claim.

If such a contract were made in 1911, it would be a parol contract and obnoxious to the statute of frauds. Radomski v. E. R. Stege Brewery, 258 Ill. 325. It would be in the nature of a perpetual easement and invalid because not in writing. City of Berwyn v. Berglund, 255 Ill. 498. In 1911 when the parol agreement was made whereby appellant agreed to pay its proportion of the actual cost of the additional work, the statute (J. & A.) pars. 4432, 4433, provided a method of having the lands in appellant’s district assessed in favor of appellee therefore in case the parties could not agree as to the amount, that should be paid. That law was repealed in 1913 and the Act of June 28, 1913, substituted. Cahill’s St. ch. 42, fí 88 et seq. Under the Law of 1913 the parties may agree but before the agreement has any force or effect it must be submitted" to and approved by the county court. If ;they cannot agree the statute provides a method for collecting the same. Such a contract as is claimed by appellant, if entered into at the date of the written instrument, could be valid only when approved by the county court. Cahill’s St. ch. 42, ft 53, provides that when appellee located its ditch of sufficient capacity to carry off the waters that flowed into it, and also to properly drain the land taxed for construction of the same, such land should not be again taxed or assessed for the purpose of improving any lands of any drainage district lying above the lands so drained and assessed. Under Ill. St. (J. & A.) pars. 4432 and 4433 and Cahill’s St. ch. 42, fí 88 et secq., the landowners in appellant’s district have been liable, at all times, for a reasonable proportion of the necessary expense of keeping the outlet in proper condition. To give effect to the alleged agreement as claimed by appellant would be to relieve its landowners from a burden imposed by the statute and to place the same upon the landowners in appellee’s district, thereby making them pay for the improving of the lands in another district in violation of the express provision of the statute. If such an agreement were made it would be illegal and void as being in contravention of the statute. Commissioners of Lake Fork Special Drain. Dist. v. People ex rel. Bodman, 138 Ill. 87; Kickapoo Drain. Dist. v. City of Mattoon, 284 Ill. 393.

Under the law and the evidence, the decree could not be otherwise than in favor of appellee and the same is affirmed.

Affirmed.


text:
    Jennie Nalty, Appellee, v. Federal Casualty Company, Appellant.

    1. Insurance — what is timely premium payment. That an insurance company agent at times advanced premium payments for an insured at the proper time, because he knew insured was responsible, does not affect the fact that the premiums were promptly paid.
    2. Insurance — homicide as death hy accidental means. The act of a policeman on a street corner in informing men that he would like to ' speak to them is not followed by a result to be expected when they at once shoot him dead and such homicide is death by accidental means within the meaning of his accident insurance policy.

      3. Insurance — when burden of proving liability exception falls on insurer. When a beneficiary of a policy covering death by violent, accidental means makes a prima facie ease thereof, the burden is then upon the insurer to prove death was from a cause excepted in the policy.
    4. Insurance — when trial finding of unintentional hilling of insured not reversed. In an action on an accident policy covering death by violent, unintentional means, if it appears one of two inferences may be drawn from the facts, the trial court has the right on waiver of jury to say that the killing of insured by strangers, after he as policeman asked them to speak with him, was not intentional on their part so as to exclude his beneficiary from insurance.
    5. Insurance — how to construe contracts of. Contracts of insurance are strictly construed against the insurer and liberally for the insured and one capable of two equally reasonable interpretations will be construed under the one which will enable the insured to recover.
    6. Insurance — which of two conflicting policy clauses adopted. The one of two conflicting clauses in an insurance policy will be adopted which will afford the most protection to the insured.
    7. Insurance — clause insuring death from, shooting as excluding intentional hilling exception. An accident insurance policy which in plain type covers death by gunshot wounds is to be construed as thereby excluding an exception in favor of the insurer in fine type that the insurance should not cover death by another’s intentionally killing insured.
    Appeal by defendant from the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    Warnock, Williamson & Burroughs and Kramer, Kramer & Campbell, for appellant.
    M. R. Sullivan, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant, on November 29,1912, issued an accident policy of insurance to Pat J. Nalty. It contained a provision that in case of his death by accident, appellee, who was his wife, should be the beneficiary. By the terms of the policy appellant agreed that if the insured received bodily injuries effected through esternal, violent and accidental means and death resulted solely from such injuries within 90 days from date of accident, it would pay appellee $1,000. It also provided that for each consecutive month immediately preceding the date of the accident that the policy shall have been maintained in continuous force, one per cent of the original principal sum of this policy shall be added to the benefit provided for loss of life, but the total of such additions shall never exceed 60 per cent of such original sum.

Appellee filed her declaration to the March term, 1923, of the circuit court, in which she averred that appellant issued the policy on November 29, 1912; that the insured paid all premiums thereon from that date until Ms death and kept the policy in continuous force during all of that time; that on July 22, 1922, the insured lost his life; that his death resulted directly and independently of all other causes from bodily injury effected through external, violent and accidental means; that deceased kept, performed and complied with all of the terms and conditions of the policy, a copy of which was set out in haec verba; that by reason of the premises the appellant became liable to pay appellee the shm of $1,600. Appellant pleaded the general issue and three special pleas. The first special plea averred that the insured’s death' did not result directly and independently of all other causes from bodily injuries effected through external, violent and accidental means. The second set out the provision of paragraph (M) of the policy, in substance as follows: “In the event of death, * *, due wholly or in part to, or .resulting .directly or indirectly from, injuries intentionally inflicted upon the assured by himself or by any other person;. * * *, —then in any such case referred to in this paragraph, the limit of- the company’s liability, shall be-twenty per. cent o.f the amount which would otherwise -be payable under this policy.” It then avers that the death of insured resulted from injuries intentionally inflicted upon him by another person and that the limit of appellant’s liability, if any liability otherwise exists, is 20 per cent of the amount, if any, which would otherwise be payable under the policy. The third special plea avers that the policy was not kept in continuous force from the date of its issue until the death of the insured and that, in any event, there was nothing due under the 60 per cent accumulation clause of the policy.

A demurrer was interposed to the special pleas and sustained on the ground that they amounted to the general issue. A jury was waived and on a trial before the court the matters set up in the special pleas were relied upon as a defense to the action; The court found the issues in favor of appellee and assessed her damages at $1,600 and entered judgment for that amount.

The contention that the insured did not keep the policy in continuous force and that, in any event, appellee is not entitled to anything under the accumulation clause is not supported by the evidence. On the contrary the undisputed evidence is that the monthly premiums were paid promptly to appellant. It may be that in some instances the insured did not actually pay the agent within the specified time, but the agent testified that he knew that the insured was responsible and that he advanced the premiums for him and that he promptly paid the same to appellant even though he had not yet collected from the insured. If appellant is otherwise liable it is also liable for 60 per cent' of the amount of the policy under the accumulation clause.

The assured lost his life at the Newman Hotel corner in Granite City. The hotel is on the east side of 19th street on one of the corners of the intersection of that street with C street. The latter street runs east and west and intersects 19th at right angles. At the time of the accident appellee lived with her husband on the second floor on one of the corners of this street intersection cater-cornered from the hotel. But two witnesses testified to the circumstances of the shooting, appellee in her own behalf and Boss Johnson on the part of appellant. The insured and said Johnson were police officers in Granite City. Appellee says that soon after midnight on July 21,1922, she was standing at her window looking down on the street to see if her husband was coming and that she saw him at the hotel corner; that while she was looking at him three men came out of the hotel and as he advanced toward them they began shooting from both hands; that other people were on the corner besides Mr. Johnson and her husband; that the men who did the shooting were facing the people on the corner and shooting at them or in that direction. She says that her husband had no gun in his hand before or after the shooting began; that he was shot three times before he fell and was not shot after he fell and that so far as she knew her husband was not acquainted with the men who did the shooting.

Mr. Johnson says he was on duty that night and shortly after midnight was talking to the insured on the hotel corner; that he (the witness) examined a strange car that was standing there and took the number of the Missouri license and the insured said he would call St. Louis and find out who owned the car; that about that time these men came out of the hotel and as they passed the witness and the deceased the latter said to them: “Oh, just a minute, I would like to speak to you.” He says that at that instant a man stepped behind him (the witness) and shot him saying : “You will arrest us, you son of a b-. ’ ’ Mr. Johnson says that he was shot first and that the men then began shooting at the deceased and continued to do so after he was down. He did not notice any other people on the corner at the time of the shooting.

It is evident that the death of the insured was produced'by external and violent means. Was it effected-through accidental means? We are of the opinion that his act of speaking to the men who did the shooting was attended with an unusual and unexpected result, — one which could not have been reasonably anticipated and which he did not intend to produce; that is, it was not the natural or probable consequent of his act, and was not the result of design but was produced unexpectedly and by chance. That being true, the injury was caused by accidental means within the meaning of the policy. Robison v. United States Health & Accident Ins. Co., 192 Ill. App. 475-477; Hutton v. States Accident Ins. Co., 267 Ill. 267; Higgins v. Midland Casualty Co., 281 Ill. 431; 4 Cooley, Briefs on Ins. pp. 3156-3160; Elliott, Ins. fifí 391-392. An effect which does not ordinarily follow and cannot be reasonably anticipated from the use of those means, an effect which the actor did not intend to produce, and cannot be charged with the design of producing, is produced by accidental means. Western Commercial Travelers’ Ass’n v. Smith, 85 Fed. 401, 40 L. R. A. 653; Lickleider v. Iowa State Traveling Men’s Ass’n, 184 Iowa 423,166 N. W. 363, 168 N. W. 884, 3 A. L. R. 1295. The policy.expressly provides that: “It also covers all bodily injuries caused solely by accidental means, such as: * * * gunshot wounds * * *.” Injury and death from such wounds are clearly recognized as resulting from “accidental means.” It is quite apparent, therefore, that the death of the insured resulted directly and independently of all other causes from bodily injuries effected through external, violent and accidental means.

When appellee made a prima facie case of death from external, violent and accidental means the burden was then upon appellant to show that the death resulted from an excepted cause. 14 R. C. L. 1437; General Accident, Fire & Life Assur. Corp. v. Hymes, 77 Okla. 20,185 Pac. 1085, 8 A. L. R. 318; Lickleider v. Iowa State Traveling Men’s Ass’n, 184 Iowa 423, 166 N. W, 363, 168 N. W. 884, 3 A. L. R. 1295; Union Accident Co. v. Willis, 44 Okla. 578,145 Pac. 812, L. R. A. 1915 D 358; Robinson v. Hawlkeye Commercial Men’s Ass’n, 186 Iowa 759, 171 N. W. 118.

What is the. meaning of the provision of paragraph , (M) .in the policy, that: “In the event of death, * . * *, due. wholly "or in part to, or resulting di- . rectly or indirectly from, injuries intentionally inflicted upon, the assured by.-himself or by any other .person?” - If the slayers, of the insured were oh trial for murder and it appeared that they shot into a crowd of persons on the street under the circumstances disclosed by this record, they would be held, and properly so, to have .intended to kill and murder him without further proof of a specific intent. Dunaway v. People, 110 Ill. 333; People v. Cohen, 305 Ill. 506. We . are of the opinion, however, that the parties contracted . with .reference to the actual intention of the slayer and not the intention, which the law presumes against a wrongdoer.. “The.question arises under a contract by / which it was stipulated that the association should not be liable on account of injuries intentionally inflicted on‘the- assured by any other person.. ‘Intentional injuries’ inflicted oil the assured by some other person, ■ within the meaning of this contract refers to injuries -which the other person actually directed against the .. .insured and intended to inflict. upon him. The parties ■ contracted with reference to the actual intention of - -the person, inflicting the injury, rather than such- an ; Intention as the law presumes as against a wrongdoer. * * * In such a case if an act is shown which : would naturally and reasonably result in injury to some one of several persons, it -may be presumed that the author of the act intended to injure some one, but it cannot be presumed, as against any one except the author of the act, that he intended the injury for the particular person who received it.” Travelers’ Pro tective Ass’n of America v. Fawcett, 56 Ind. App. 111, 104 N. E. 991; Union Accident Co. v. Willis, 44 Okla. 578,145 Pac. 812, L. R. A. 1915 D 358; Utter v. Travelers’ Ins. Co., 65 Mich. 545, 32 N. W. 812.

Under an accident policy providing that there shall be no liability for injury “intentionally inflicted” by another person, recovery may be had for the death of the insured caused by another who threw a brick with intent to injure but with no intent to kill the insured. Robinson v. Hawkeye Commercial Men’s Ass’n, 186 Iowa 759, 171 N. W. 118. Where another struck the insured in the face and he fell on a hard pavement and fractured his skull, it was held that the insurer was not released if the blow, and not the fatal result, was intentionally inflicted. Union Accident Co. v. Willis, 44 Okla. 578, 145 Pac. 812, L. R. A. 1915 D 358. Where the insured was a deserter, and killed in a bawdy house by a sheriff, it was held that the design of the sheriff was not to kill, but to arrest, and it could not be held that the death was caused by design. Utter v. Travelers’ Ins. Co., 65 Mich. 545, 32 N. W. 812. Assured came to his death by a blow inflicted by a third person while attempting to blackmail him. It was held proper to instruct that if death was caused by this blow, there might still be a recovery if the jury believed from the evidence that when the blow was struck the assailant did not mean to kill the deceased; that such provisions merely relieve from a death caused by the act of one whose design was to cause death from the act, and do not include every case where a blow not intended to kill unfortunately and undesignedly produces death. Richards v. Travelers’ Ins. Co., 89 Cal. 170, 26 Pac. 762. In Railway Officials’ & Employes’ Accident Ass’n, of Indianapolis v. Drummond, 56 Neb. 235, it was held that within the meaning of the contract his death was accidental so far as insured was concerned, because the court found that robbery and not death was intended.

In Corpus Juris, vol. 1, p. 442, the rule in such cases is stated to be that the existence of an intent on the part of the person inflicting the injury is necessary; and this intent mu'st be to inflict the injury actually inflicted, and be directed against the insured, and not against another or a class of individuals; and where death ensues from the injury, it is necessary that the person inflicting it should have intended to kill. In Allen v. Travelers’ Protective Ass’n of America, 163 Iowa 217, 143 N. W. 574, the court said: “The defendant’s defense rested at this point wholly upon the question of the intent of the burglar. Such intent could be ascertained only by inference from the circumstances shown. The question of intent is usually and peculiarly a jury question. Even the legal presumptions which might obtain as against the burglar would not necessarily obtain against Carmody or the beneficiary of his insurance. If the burden of proof were on the plaintiff as to such intent, a different question would be presented at this point. Inasmuch as the burden was upon the defendant, a verdict could not be directed in its favor without holding that it had proved the intent affirmatively and conclusively. It is the exceptional case where the court can properly direct a verdict in favor of the party having the burden of proof. And this is especially so where a vital fact is sought to be established only by inference from attending circumstances.”

Even if all the facts are admitted or uncontradicted, nevertheless, if it appears thát either one or two inferences may fairly and reasonably be deduced from those facts, there still remains a question of fact to be determined by the court where a jury is waived. In such cáse the finding of the trial court cannot be set aside by this court on. the ground that it is not sus-. tained by the evidence. Mah See v. North American Acc. Ins. Co. of Chicago, Illinois, 190 Cal. 421, 213 Pac. 42, 26 A. L. R. 123. We cannot say that the court was not warranted in finding that appellant failed to prove that the slayers of the insured actually intended to kill him. The court could reasonably find that their real intention was to avoid arrest and incidentally to injure the officers as an aid to their escape. If the court believed the testimony of appellee in preference to that of Mr. Johnson it could very well find that shooters were firing at or toward a number of persons on the corner and that their fire was not directed especially at the insured.

In Travelers’ Protective Ass’n of America v. Fawcett, 56 Ind. App. 111, 104 N. E. 991, a man named Hoal entered a bank for the purpose of robbing it. The large vault was open and he ordered the men in the bank to throw up their hands and enter the vault. The president, cashier and two clerks partly complied with the command and stood as closely as they could stand together near the door of the vault. Hoal then began shooting with a revolver in each hand. The first shot was fired into the ceiling. He shot promiscuously into the group of four men. He shot around the walls of the bank to the front and to the side, firing eleven shots in all. The cashier, who was the insured, was killed and the president was seriously wounded. The trial court found that the robber did not actually intend to kill the insured and rendered judgment in favor of the beneficiary and it was affirmed.

Then again, contracts of insurance are construed strictly against the insurer and liberally in favor of the insured, and where two interpretations, equally reasonable, are .possible, that construction shall be adopted which will enable the beneficiary to recover. Zeman v. North American Union, 263 Ill. 304. And where there are conflicting clauses in the contract, the one which affords the most protection to the insured will control. Monahan v. Fidelity Mut. Life Ins. Co., 242 Ill. 488.

In the first part of the policy appellant agreed that if the insured received bodily injuries through external, violent and accidental means and death resulted therefrom within 90 days from date of accident, it would pay appellee $1,000 and an additional amount under the accumulation clause. By paragraph (M) it' limited its liability to one-fifth of that amount in case death resulted from injuries intentionally inflicted upon the insured by himself or any other person. In a later provision it stated, without qualification, that the policy covers “all bodily injuries caused solély by accidental means, suchas: * * *, gunshot wounds, * ’* *, injuries inflicted by robbers or highwaymen, *' * *, whether such ‘accidents happen at home, in the store or on the street, * * *, and in all the ordinary vocations of life.”

By this latter clause injuries caused by gunshot wounds and injuries inflicted by robbers or highwaymen are clearly recognized as occurring from accidental means. It seems to us that it would not be unreasonable to say that by said clause appellant intended to distinguish and remove such injuries from the class designated in paragraph (M) as “injuries intentionally inflicted.” Where a-contract for accident insurance contained somewhat similar provisions, the court held that a death caused by a robber ivas not within the clause excepting “injuries intentionally inflicted.” Allen v. Travelers’ Protective Ass’n of America, 163 Iowa 217, 143 N. W. 574, 48 L. R A. (N. S.) 600.

Appellant herein was appellee in Hessler v. Federal Casualty Co., 190 Ind. 68, 129 N. E. 325, 14 A. L. R. 1329. In the opinion in that, case the arrangement of the various provisions . of and. indorsements on .the policy are set out at some length, from which it appears that the policy is just like the one in the case at bar. except as to the names of the assured and the beneficiary and the amount of the insurance. , In the Messier case, supra, the insured was killed by a robber who entered the store where he was employed and commanded decedent to “Hold up your hands; I want your cash.” While decedent was obeying the command another employee approached the robber from the rear and slightly to the left and when the robber became aware of the presence of such other employee he shot the insured who died within an hour. In that case the defendant, appellant here, claimed that under paragraph (M) its liability was limited to 20 per cent of the policy because the injury which caused the death was intentionally inflicted by the robber. The trial and Appellate Courts decided in favor of the company. The Supreme Court of Indiana held that where the meaning of a policy of insurance is ambiguous, or it is so drawn as 'to be fairly susceptible of different constructions, it will be construed strictly against the insurer, and that construction will be adopted which is most favorable to the insured. The court also said: “And the unequivocal statement on the back of the policy, presented -in a manner to catch the eye of the insured; that ‘it also covers all bodily injuries caused solely by accidental means, such as * * * gunshot wounds, * * * injuries inflicted by robbers or highwaymen * * * at home, in the office, store, shop,’ etc., expressly referred to in the opening lines of the policy by the expression that the insurance is ‘subject to. all of the provisions * * * herein contained and indorsed hereon, ’ forbids that a Emitation which purports to reduce the amount of liability in case of ‘injuries inflicted upon the insured by himself or by any other person,’ hidden away in small type, in clause (M) following, without further headline, other clauses placed under the headline in capital letters of ‘ SIXTY PER CENT ACCUMULATION,’ shall receive a construction that will defeat the recovery in this case of all but 20 per cent of the face of the policy.”

“It will be observed that the enumeration on the back of the policy of what it ‘also covers’ does not suggest that in this particular it is subject to any limitations or conditions that would defeat or reduce the declared liability in case of an injury caused by gunshot wounds, inflicted by robbers in the store where the insured was employed.”

In Travelers’ Ins. Co. v. Dunlap, 160 Ill. 642, at page 647, the court said: “A policy of insurance should not be so framed as to be susceptible of one construction in the hands of the soliciting agent, and of quite a different one in the hands of the adjuster. ’ ’ The policy in question is of that character. The insured paid his premiums for almost ten years. The conspicuous portions of the policy were calculated to cause him to believe that he had insurance in case he was shot in the performance of his duty. In our opinion the provision to the effect that the policy covers all bodily injuries caused solely by gunshot wounds should be construed as taking such cases out of the operation of paragraph (M).

For the reasons aforesaid the judgment is affirmed.

Affirmed.


text:
    Joseph Knaus, Appellee, v. Southern Railway Company, Appellant.

    1. Negligence — when proximate cause not jury question. Although the question of proximate cause is generally for the jury, yet if the undisputed, evidence shows that the damages may not be fairly attributed to the negligence charged it becomes a law question for the court.
    2. Negligence — limit to jury awarding damages. A jury will not be permitted to award damages capriciously where not caused by the negligence charged.

      3. Negligence — what constitutes proximate cause. Only such injuries as are the natural and probable consequences of the negligence charged and such as an ordinarily prudent person might have foreseen would probably occur can be said to be proximately caused by the negligence.
    4. Master and servant — what liability for improbable consequences. A railway cannot be held liable for damages due to its employee jumping down from its train against a grain door left lying on a bumper block on the track, his injury from the grain door being too improbable a consequence for the master to have reasonably foreseen it.
    Appeal by defendant from the City Court of Bast St. Louis; the Hon. William F. Borders, Judge, presiding. Heard in this court at the October term, 1923.
    Reversed with finding of facts.
    Opinion filed March 10, 1924.
    it. E. Costello and Kramer, Kramer & Campbell, for appellant.
    T. M. Webb, for appellee.

       Received from clerk of Appellate Court, August 8, 1927.

   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee recovered a judgment for $2,000 for personal injuries occasioned by the alleged negligence of appellant. It is admitted that the parties were engaged in interstate commerce at the time of the accident. Appellee was in the employ of appellant as a member of a switching crew in the yards at East St. Louis. Appellant has a switch in that city which serves the Corno Mills Company, at the north end of which is a bumping block consisting of two large ties placed side by side and 8 inches apart on top of the rails of the said track with a block on either end and all bolted to the rails.

Appellee’s crew placed a car on said switch on the night of January 24,1923, and the north wheels thereof went upon and over the south tie of the block. In trying to get the car back in place the crew used a grain door about 6 feet long and 20 inches wide and in the effort the west end of the south tie of the block was pulled south until it was 5 or 6 feet from the west end of the north tie.

Appellee averred in his declaration that appellant carelessly and negligently permitted and allowed the said grain door to be and remain on the top surface of the north tie of said block and extending in the same general direction and that the said door was likely to tip when persons or objects came in contact with it and to produce injury to the employees of appellant there engaged, of which appellant knew, or would have known by the exercise of ordinary care. He further averred that said grain door was in the position aforesaid on January 26, 1923, when it became necessary for his crew to remove some cars from said switch and to replace others thereon.

He also averred that a car was “kicked” over the scales on said switch; that he was on the north end of said car and was in the act of setting the brake when his left foot slipped from the footboard and to avoid falling he turned and jumped to the ground between the ties of the bumping block; that in so doing his right foot struck the southerly edge of the said grain door which tilted upward and forward and came in contact with his right knee and permanently injured the kneecap and the muscles and tendons connected therewith. The facts were substantially proved as laid in the declaration.

Appellant contends that the alleged negligence in leaving the grain door on the north tie of the bumping block was not the proximate cause of the injury and for that reason the court erred in refusing, to direct a verdict in. its favor. Appellee argues that the question of proximate cause is a question of fact for the jury. While that is true, ordinarily, yet if .it clearly appears from the undisputed evidence that the damages suffered may not, by any fair process of reasoning, be. attributed to the negligence charged, it becomes a question of law.. Upon the question whether or not there is actionable negligence in a given case the .'jury will not be permitted, arbitrarily or capriciously, to award damages not caused by the negligence charged. Such were.our holdings in Terminal R. Ass’n v. Larkins, 112 Ill. App. 366-369.

Appellee also, argues in support of the court’s ruling that’ the leaving of anything on or near the block which might endanger the safety of switchmen would constitute actionable negligence; that the test as to proximate cause is' whether" appellant should have reasonably contemplated that some employee might be injured in some way on account of the presence of the grain door on the block; that the law makes appellant responsible for any injury to any employee in any way or manner, from, the existing conditions which it could have foreseen, by the éxercise of ordinary care, might happen as the result of its negligence. The trouble with that argument Is it is not supported by the law.

In Hartnett v. Boston Store of Chicago, 265 Ill. 331, at page 334, the court said: “What constitutes proximate cause has been defined in liiimerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the/negligence, although it- is not essential that the persqn charged with negligence should have foreseen the .precise injury which might result from his act.”

In Jenkins v. LaSalle County Carton Coal Co., 264 Ill. 238, at page 240,.the court said: “While it is not necessary that the person guilty of the negligent act or • omission -should forsee the precise form, of the injury, to. constitute proximate cause the injury-must be the natural and probable consequence of the negligence and be df'siich a’character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence.”

In Seith v. Commonwealth Elec. Co., 241 Ill. 252, at page 259, the court said: “To constitute proximate cause the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought' to have foreseen might probably occur as a result of the negligence. It is not necessary that the person guilty of a negligent act or omission might have foreseen the precise form of the injury, but when it occurs it must appear that it was a natural and probable consequence of his negligence. ’ ’ Damages, to be recoverable, must be the natural and reasonable result of the defendant’s act. He cannot be held responsible for injuries which could not reasonably have been foreseen or expected as the result of his misconduct. Phillips v. Dickerson, 85 Ill. 11; Braun v. Craven, 175 Ill. 401.

It is very evident, therefore, that if the injury to appellee was not the natural and probable consequence of the alleged negligence, he was not entitled to recover. It is equally clear that if his injury was not of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the alleged negligence, it cannot be said that the negligence charged ivas the proximate cause of the injury. We are compelled to hold, under the law and the undisputed evidence, that appellee’s injury was not the natural and probable consequence of leaving the grain door on the north tie of the block. Appellant is not charged with any negligence which caused appellee tó lose his balance and to jump from the car. We cannot hold that his injury was of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the grain door being where it was. it was highly improbable that an injury of such a character as that sustained by appellee would have resulted. It was an extraerdinary occurrence and would not reasonably have been foreseen or expected by a reasonably prudent person. It is not sufficient, under the law, that the accident happened and appellee was injured. While it is very unfortunate for appellee, yet we are not warranted by the law and the evidence in holding that appellant should compensate him for the injuries sustained. The judgment is reversed with a finding of facts.

Reversed with finding of facts.

The clerk will incorporate in the judgment the following finding of facts: “The Court finds that the negligence charged against appellant was not the proximate cause of the injury to appellee.”


author: Mr. Justice Boggs

text:
    The People of the State of Illinois, Defendant in Error, v. William C. Hubbard, Plaintiff in Error.

    1. Witnesses — contradictory statement as not affecting weight of testimony. The weight of the testimony of a witness is not destroyed by contradictory statements as to dates and other matters of no importance in the case.
    2. Attorneys and counselors — admissibility of evidence on criminal prosecution. In a prosecution of one for holding himself out as a solicitor without being licensed to practice law, a receipt for money, although not showing for what purpose given, and although made out to the father of the woman desiring a divorce, is properly admitted in evidence along with the testimony of the woman that she paid the money to the defendant for him to obtain a divorce for her.
    3. Attorneys and counselors — orknmal liability for acting as solicitor without being licensed. One shown to have accepted retainers to obtain divorces, without having a license to practice law, held guilty of acting as a solicitor contrary to law and is subject to the penalties prescribed in Cahill ’& St. ch. 38, 281.

      4. Criminal procedure — judgment not reversed for contradictory evidence. In a criminal case the judgment against the defendant, of whose guilt there is no reasonable doubt, will not be reversed as against the evidence merely because the -evidence is contradictory.
    Error by defendant to the County Court of Franklin county; the Hon. Sydney M. Ward, Judge, presiding. Heard in this court at the October term, 1923.
    Affirmed.
    Opinion filed March 10, 1924.
    J. E. Carr, for plaintiff in error.
    Roy C. Martin, for defendant in error.

       Received from clerk of Appellate Court, August 8, 1927,

   Mr. Justice Boggs

delivered the opinion of the court.

An information consisting of three counts was filed in the county court of Franklin county, charging plaintiff in error: First. With holding himself out as authorized to practice law in the State of Illinois. Second. With representing himself as authorized to practice law in the State of Illinois. Third. “Not having been regularly licensed to practice law in the Courts of the said State of Illinois, did then and there unlawfully hold himself out as- a solicitor in chancery. ’ ’

A plea of not guilty having been entered by plaintiff in error, a trial was had, and a verdict returned finding him guilty on the third count of said information. Judgment was entered on the verdict and plaintiff in error was fined $200 and costs and sentenced to the county jail for 30 days. To reverse said judgment this writ of error is prosecuted.

The principal ground urged by plaintiff in error for a reversal of said judgment is that the verdict is not supported by the evidence.

Section 1 of chapter 38, ft 281, Cahill’s Revised Statutes, provides as follows: “That any person residing in this State not being regularly licensed to practice in the courts of this State, who shall in any manner hold himself out as an attorney at law or solicitor in chancery or represent himself either verbally or in writing, directly or indirectly, as authorized to practice law, shall he denied guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than $25, nor more than $500, or imprisonment in the county jail not exceeding one year, or by both fine and imprisonment, at the discretion of the court.”

Plaintiff in error resides and maintains an office in the village of Ziegler in said county, and was the acting city attorney of said village.

Helen Psepiorkoski, a witness for the People, testified that she went to plaintiff in error’s office about the month of January, 1922, and that she: “Had a conversation with defendant at the time I visited his office; talked to him about a divorce. I asked him if he was a lawyer and he said ‘Yes.’ I told him about my case; told him my husband was a drunkard and gambled; was all kinds of a brute. Defendant said he would take the case. I asked him how much it would take, and he said $45.00 Paid him $20.00 at that time. I paid him $20.00 the first of January, 1922, and $23.00 on the 3d of January, 1922. He was going to file the divorce in Benton. I have a receipt showing I paid him $45.00.”

Another witness, one Minnie Mabon, testified on behalf of the People that she: “Went to see him (plaintiff in error) about my husband; told him my husband had left me. He told me he would do what I wanted; get me a separation or divorce. I agreed for him to get me a divorce, as John Mabon had left me and left me with nothing. He said he was a lawyer and could get a divorce for me. I paid him $15.00; didn’t ask for a receipt.”

One Jacob Gabor, a witness on behalf of the People, testified that in February, 1923, he had a conversation with plaintiff in error in regard to a lawsuit he had in Ziegler, and that he paid plaintiff in error $15 in connection therewith, and that “Mr. Hubbard (plaintiff in error) told me he got license. Lawyer like any other man.”

Plaintiff in error testified on his own behalf, to the effect that he did not undertake to represent the witnesses Helen Psepiorkoski and Minnie Mabon; that he in effect told the father of Helen Psepiorkoski that he was only the city attorney, and could not practice in the circuit court. “He (Antoni Psepiorkoski) wanted to know what I thought about her having a case, and I told him she had a mighty good one. I referred her to Mr. Carr. Mr. Carr filed her bill. * * * I didn’t represent to either of them — the young lady or her father — that I was a lawyer, qualified to practice law in the courts of record.”

In connection with the testimony of the witness Mrs. Minnie Mabon, plaintiff in error testified that she (Mrs. Mabon) had her husband arrested for wife neglect. He further testified: “I said to her, ‘Minnie, I can’t get you a divorce, but I can take you to a man that can if that will be any accommodation to you.’ She said, ‘I wish you would do it.’ ” He further testified that he took said witness to Mr. Carr at West Frankfort, and introduced her to him.

In connection with the transaction with the witness Jake Gabor, plaintiff in error testified that it had to do with a ease in justice court; that the case was appealed from the justice court to the circuit or county court, and that after the appeal he returned the $15 which Gabor had paid him. Plaintiff in error further testified that he told this witness that he had no license to practice in the State of Illinois.

One William 0. Hill, a witness for plaintiff in error, testified that plaintiff in error told .Gabor: “I don’t tend to any business over there (referring to the circuit or county court). Mr. Carr tends to all that. I am only a city attorney. If you want to get him it will cost you $15. I will call Mr. Carr and see him for you about it.” Aside from the testimony of the witness William O. Hill, plaintiff in error is not corroborated with reference to his version of the conversations and transactions with the parties in question.

It is the contention of counsel for plaintiff in error that the witness Helen Psepiorkoski made such contradictory statements with reference to the transaction had with plaintiff in error that her testimony is entitled to but little weight. An examination of her testimony, however, discloses that the contradictions had to do with the dates on which she had her conversations with plaintiff in error, and certain other matters of no vital importance, but so far as the substance of her statements is concerned, she did not in effect contradict herself.

Plaintiff in error contends that the court erred in admitting the receipt for $45 given by plaintiff in error, for the reason that the receipt does not state the purpose for which the money was paid, and also for the further reason that the receipt was made out to Antoni Psepiorkoski. The court did not err in admitting this receipt in connection with the testimony of the witness Helen Psepiorkoski, as it was a circumstance in the case to be considered by the jury with all the other evidence in the case. The testimony of said witness, we think, explains the purpose for which the receipt was given and how it came to be made to her father. At any rate, it was proper to go to the jury to consider, with all the other evidence in the case.

We have carefully examined the evidence in the record, and are satisfied that it was a question for the jury as to what the evidence proved, and we hold that the evidence is sufficient to support the verdict of the jury that plaintiff in error was holding himself out as a solicitor in chancery.

In People v. Boucher, 303 Ill. 375, the court, in discussing a question of this character, says at page 380: “The court will not reverse a judgment in a criminal case upon the ground that it is contrary to the evideuce, unless it clearly appears that there is a reasonable doubt of the defendant’s guilt, and it cannot be said that there is a reasonable doubt of the defendant’s guilt merely because the evidence is contradictory, or because more witnesses testify in favor of the defendant than in favor of the prosecution.”

To the same practical effect is the holding of the Supreme Court in People v. Hohimer, 271 Ill. 515-519; People v. Grosenheider, 266 Ill. 324-329.

No complaint is made by plaintiff in error as to the rulings of the court on the instructions.

For the reasons above set forth, the judgment of the trial court will be affirmed.

Judgment affirmed.


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    The People of the State of Illinois ex rel. Roy C. Martin, State’s Attorney of Franklin County, Defendant in Error, v. Joe Kuca, Plaintiff in Error.

    1. Injunction — purposes under Prohibition Act. Sections of the Prohibition Act relating to injunctions are for the, purpose of restraining the maintenance of a nuisance and for the abatement thereof, and not for the purpose to enjoin the commission of a crime or misdemeanor.
    2. Contempt — illegal possession of liquor not triable in proceeding. The question whether a defendant violated the law against possessing intoxicants must be tried on indictment or information before a jury and not on hearing for contempt for violation of a liquor nuisance injunction.
    3. Injunction — as not applicable to enforce criminal law. Courts of equity will not exercise their injunctive powers to enforce the criminal law by restraining criminal acts.

      . 4. Contempt — what record must show in liquor proceeding. Although a proceeding for contempt of a' liquor nuisance injunction is summary, the record must show in what particular the party charged with contempt has violated court’s order.
    5. Contempt — when information for injunction contempt will be examined by the Appellate Court. In order to determine whether a court exceeded its jurisdiction in sentencing for alleged contempt in violating a liquor nuisance injunction, the Appellate Court will examine the information to ascertain the nature of the alleged contempt.
    6. Contempt — liquor nuisance injunction as not conferring jurisdiction over crime. If an information charging contempt of an injunction against maintaining a liquor nuisance is found to charge a crime, the court will have no jurisdiction to find the defendant guilty of contempt thereunder.
    7. Injunction — when objection to double injunction order barred on review. By appearing at a subsequent term to that at which he had consented to a liquor nuisance injunction against him and consenting to a second order, the defendant cannot raise in the Appellate Court for the first time any question as to the validity of the second order.
    8. Contempt — how far contempt of liquor nuisance injunction may be punished. Sentence of fine and imprisonment for contempt of a liquor nuisance injunction is authorized by statute which is the only authority for such order, but a further sentence of working out on the streets any fine unpaid is not so authorized and such order demands reversal.
    Error by defendant to the County Court of Franklin county; the Hon. S. M. Ward, Judge, presiding. Heard in this court at the October term, 1923.
    Reversed and remanded.
    Opinion filed March 10, 1924.
    Moses & Pulverman and Layman & Johnson, for plaintiff in error.
    Roy C. Martin, for defendant in error.

       Received from clerk of Appellate Court. August 8, 1927.

   Mr. Justice Boggs

delivered the opinion of the court.

• Plaintiff in error, Joe' Kuca, was found guilty of contempt of court hy the county court of Franklin county for the violation of an injunction, and was sentenced to the county jail for ten months and was fined $1,000 and costs of suit. It .was further ordered by the court that “if, at the expiration of the jail sentence, the fine was not paid in full, that the plaintiff in error was adjudged and ordered to work out said fine and costs in the streets and alleys of the City of Benton, under the direction and supervision of the commissioner of streets and alleys, at the rate of $1.50 per day until said fine and costs should be paid in full, and plaintiff in error to remain in jail while not at work.” To reverse said judgment, this writ of error is prosecuted.

The bill for injunction was filed by the People of the State of Illinois, on relation of Boy C. Martin, State’s Attorney of Franklin County, against plaintiff in error and Josephine Kuca, his wife,, running to the January, 1923, term of the county court, charging therein that plaintiff in error and his said wife were in the occupation and possession of a certain building therein described, in West Frankfort; that plaintiff in error had been operating in said building a general store and a pretended soft drink parlor “when in truth and in fact the same has been used by him as a place where intoxicating liquor is unlawfully kept, the same being sold in violation of the laws of the State of Illinois, as complainant is informed and believes, and that the said Joe Kuca in said building unlawfully possesses stills for the manufacture of intoxicating liquor; and that said place is a common nuisance as defined by section 21 of an Act known as the Illinois Prohibition Act. ’ ’ A temporary injunction was issued, restraining the plaintiff in error and his said wife “from using or permitting the said building to be used as a place where intoxicating liquor is unlawfully sold and unlawfully kept.” Thereafter, at the January term of said court, said matter came on for hearing on the motion of the People, for an order or decree making said temporary injunction perpetual. The plaintiff in error and his said wife appeared in open court, and consented that a decree should be entered by the court making said injunction perpetual. Thereupon the court entered the following order: “That the defendants Joe Kuca and Josephine Kuca be enjoined perpetually from unlawfully keeping or possessing intoxicating liquor in any place in the State of Illinois.

“It is therefore ordered and adjudged by the Court that the said Joe Kuca and said Josephine Kuca be enjoined from using or permitting the building located on lot Eight (8) in Block Six (6) in South Park Addition to the City of West Frankfort, Illinois, as a place where intoxicating liquor is unlawfully kept.”

Said order further provided for the giving of a bond by said parties for the opening of said building, as provided by statute.

Thereafter, on June 4, a petition for a Avrit of attachment was filed in the clerk’s office of said court by the state’s attorney, alleging that plaintiff in error “had knowledge of the provisions of said injunction, and although he was advised by the Court in open court as to the consequences of same, that he did, on June 2, 1923, in Franklin county, Illinois, unlawfully possess intoxicating liquor in violation of the provisions of the Illinois Prohibition Act, and in total disregard and disrespect of the orders of the court in said decree, which perpetually enjoined him from again unlawfully possessing intoxicating liquor at any place in the State of Illinois; and that by reason thereof the said Joe Kuca has wilfully violated the temporary injunction rendered against him on January 8, 1923.” A hearing was had, and thereafter, on June 22, the court made the folloAving finding: “The Court finds from the evidence that the matters and things alleged in said petition are true in substance and in fact, and that the defendant Joe Kuca is in contempt of court by reason of his having violated the provisions of the injunction heretofore granted against him, as charged in said petition.” And thereupon the court sentenced said plaintiff in error, as above set forth.

The principal ground relied upon for a reversal of said judgment is that the court erred in adjudging plaintiff in error to be in contempt of court for the unlawful possession of liquor in violation of the order of the court to the effect that “the defendants, Joe Kuca and Josephine Kuca, be enjoined perpetually from unlawfully keeping or possessing intoxicating liquor in any place in the State of Illinois,” it being the contention of counsel that that provision of said order was beyond the jurisdiction of the court and therefore void.

Evidently the trial court, and counsel representing the People, lost sight of the provisions of the Prohibition Act providing for writs of injunction. Section 21 of said act, Cahill’s St. ch. 43, IT21, defines what shall constitute a nuisance, as follows: “Any room, house, building, boat, vehicle, structure, or place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of this Act, or where any mash, still or other property designed for the illegal manufacture of liquor is kept, and all intoxicating liquor, mash, still or other property kept and used in maintaining the same, is hereby declared to be a common nuisance; a single unlawful sale or barter, or a single act of manufacturing liquor unlawfully shall constitute a nuisance as herein defined.” Section 22, Cahill’s St. ch. 43,1f 23, provides, among other things:' “Upon the trial of the cause, on finding that the material allegations of the petition are true, the court shall order that no liquor shall be manufactured, sold, bartered or stored, in such room, house, building, boat, vehicle, structure, or place, or any part thereof.” A study of the various sections of the Prohibition Act relating to injunctions will disclose that they are to issue for the purpose of restraining the maintenance of a nuisance, and for the abatement thereof and not for the purpose of enjoining the commission of a crime or misdemeanor. The petition on which the contempt proceeding is based does not set forth a violation of the injunction so far as it pertains to the maintenance of a nuisance in the building referred to. It is directed to an alleged violation by unlawfully possessing liquor contrary to the provisions of said injunction order. Section 3 of said act, Cahill’s St. ch. 43, If 3, makes it a misdemeanor to possess intoxicating liquor for an unlawful purpose, and other sections of the act provide a penalty therefor. If plaintiff in error has violated the law by unlawfully possessing intoxicating liquor, he should be punished therefor under the provisions of the act relating thereto. That question, however, must ‘ be tried by a jury on an indictment or information specifically charging him with the violation of said statute making it a misdemeanor to possess intoxicating liquor for an unlawful purpose. It was not the intention of the statute to take 'away from the individual the right of trial by jury where charged with violation of the Prohibition Act.

It is the contention of counsel for the People that the Prohibition Act makes the injunction order personal against those to whom it is directed, and on them throughout the state. There is some language in the act which might bear out that construction; however, this fact must not be lost sight of, that the injunction authorized by the statute has for its ultimate purpose the enjoining of a nuisance, and such injunctions should therefore be limited to that purpose. Where acts complained of violations' of the criminal law, courts of equity will not, on that ground alone, interfere by injunction to prevent their commission, as they will not exercise their powers for the purpose of enforcing the criminal law by restraining criminal acts. People v. Prouty, 262 Ill. 218; People v. Mussatto, 216 Ill. App. 519; 14 R. C. L. sec. 78. In People v. Prouty, supra, the court, at page 221, in discussing this subject, says: “ ‘The court has no jurisdiction in matters merely criminal or merely immoral which do not affect any right to property.’ (Citing Sheridan v. Colvin, 78 Ill. 237.) ‘It is no part of the mission of equity to administer the criminal law of the State or to enforce the principles of religion and morality, except so far as it may be incidental to the enforcement of property rights, and perhaps other matters of equitable cognizance.’ (Cope v. Fair Association of Flora, 99 Ill. 489.) ‘Injury to property, whether actual or prospective, is the foundation upon which the jurisdiction of courts of equity rests.’ (People v. McWeeney, 259 Ill. 161.) ‘Again, it is objected that it is outside of the jurisdiction of a court of equity to enjoin the commission of crimes. This, as a general proposition, is unquestioned. A chancellor has no criminal jurisdiction. Something more than the threatened commission of an offense against the laws of the land is necessary to call into exercise the injunctive powers of the court. There must be some interferences, actual or threatened, with property or rights of a pecuniary nature.’ (In re Debs, 158 U. S. 564.) ”

While a contempt proceeding is a summary one, at the same time the record must show in what particular it is charged that the party who is sought to be adjudged in contempt of court has violated the court’s order. Section 25 of the Illinois Prohibition Act, Cahill’s St. eh. 43, if 26, provides, among other things: “The proceedings for punishment for contempt shall be commenced by filing with the clerk of the court from which such injunction issued information under oath setting out the alleged facts constituting the violation, whereupon the court or judge shall forthwith cause a warrant to issue under which the defendant shall be arrested. A trial may be had upon affidavits, or either party may demand the production and oral examination of the witnesses.” It follows, therefore, in this character of cases, that in order to determine whether or not the court exceeded its jurisdiction, the information filed, charging the alleged contempt, must be examined for the purpose of ascertaining the nature of the alleged contempt. In this case plaintiff in error is charged with unlawfully possessing “intoxicating liquor in violation of the provisions of the Illinois Prohibition Act,” etc. Said order amounted in effect to an injunction against the commission of a crime or misdemeanor. The court therefore had no jurisdiction to enter such order, and plaintiff in error could not be legally adjudged in contempt for disobedience thereof. “A party cannot be guilty of contempt of court for disobeying an order which the court had not authority of law to make.” Leopold v. People, 140 Ill. 552, 557; Weigley, Bulkley & Gray v. People, 51 Ill. App. 51. We therefore hold that the information filed by the state’s attorney, and the finding of the court adjudging plaintiff in error in. contempt, were not sufficient on which to base said order. The information does not charge and the court does not find him guilty of a violation of the injunction so far as it pertained to the maintenance of a nuisance. Sections 21 and 22, Illinois Prohibition Act.

The question was raised in this case by plaintiff in error, as to whether or not the court had jurisdiction to enter the injunction order issued by it at the January term, 1923, for the reason that the record discloses that at the December probate terms of said court a like order had been entered, by consent of the plaintiff in error and his wife, Josephine Kuca. As plaintiff in error entered his appearance at the January term of the county court of said county, and consented to the issuing of said injunction order, waiving any and all errors that might be involved therein, he has barred himself from raising the question in this court for the first time. It appears from the argument of counsel for the People that the reason for having the order entered at the January term was that the statute provides that county courts shall have jurisdiction to issue injunction orders under the Prohibition Act, and the state’s attorney was of the opinion that the county court at its probate term would not have such jurisdiction, and for that reason the matter was heard at the January term of said court. Plaintiff in error having acceded thereto, he is not in a position to question it in this court for the first time.

The judgment in this case cannot be permitted to stand for another reason. In the order adjudging plaintiff in error to be in contempt, the court, in addition to the jail sentence and fine, ordered that plaintiff in error, in event said fine was not paid at the expiration of his jail sentence, should work out such fine and costs on the streets and alleys of the City of Benton, as hereinabove set forth. Section 25 of the Prohibition Act, Cahill’s St. ch. 43, f[ 26, fixes the punishment that the court may inflict for a violation of the injunction order provided for therein, as follows: “Any person found guilty of contempt under the provisions of this section shall be punished by a fine of not less than $500.00 nor more than $1,000.00 or by imprisonment of not less than ninety days nor more than ten months or by both fine and imprisonment. ” No provision is made for an order that the party fined shall work out such fine. Since the statute fixed the punishment, the court is limited thereby. “Since a charge of contempt is not a charge of crime, to be tried by a jury, penal service such as hard labor cannot be imposed on one imprisoned for contempt; nor can imprisonment in a house of correction be imposed as a penalty for contempt.” 13 C. J. p. 82, sec. 140. Courts are not authorized to make orders of this character except by statutory provision. The only statutory provision that we know of in this State providing for an order of this character is section 10, div. XIV, Criminal Code, which provides: “Any person convicted, in a court of this State having jurisdiction, of any crime or misdemeanor, the punishment of which is confinement in the county jail, may be sentenced by the court in which such conviction is had, to labor for the benefit of the county, during the term of such imprisonment, in the workhouse, house of correction, or other place provided for that purpose by the county or city authorities.” Cahill’s St. ch. 38, i( 783. That section, however, is only applicable to persons convicted “of any crime or misdemeanor” punishable by confinement in the county jail. As a contempt is neither a crime nor a misdemeanor, this section would have no application to plaintiff in error.

For the reasons above set forth, the judgment of the trial court will be reversed and the cause will be remanded.

Judgment reversed and remanded.