text:
    Lewis H. Hays et al., Appellants, v. Matthew Martin, Individually and as County Clerk of White County, Illinois, and White County, Illinois, Appellees.
    1. Counties — right of citizens and taxpayers to maintain suit in equity to compel accounting by county clerk for. alleged illegally retained; fees and compensation. Citizens and taxpayers of a county are entitled to maintain a suit in equity to compel an accounting by a county clerk of such county for fee» and compensation alleged to have been illegally retained by him as such officer, it appearing that the county and its officers have failed or refused to institute proceedings to that end, and that complainants have no adequate remedy at law.
    2. Counties — county as proper party defendant in taxpayers’ suit to compel accounting by county clerk for alleged illegally retained fees and compensation. In a suit by citizens and taxpayers of a county to compel an accounting by a county clerk of such county for fees and compensation alleged to have been illegally retained by him as such officer, the county, having an interest in the subject matter of the controversy, is a proper party defendant.
    3. Counties — conditions limiting allowances to county clerk for hire of assistance and increase thereof during his term. There is no limitation fixed by the Constitution as to the amount which may be allowed for the hiring of deputies to assist a county clerk in the performance of his duties, and such amount may lawfully be increased during the term of a clerk’s office, provided that the original allowance was made as an item separate from the salary of the clerk.
    4. Counties — sufficiency .of evidence to show adequate accounting by county clerk for allowance by county board for “making out tax-books.” Where the evidence in a suit to compel a county clerk to account for compensation alleged to have been illegally retained by him as such officer fails to controvert his testimony that he regarded an appropriation by the county board to his office for “making out taxbooks” as one for the employment of clerks to do that work, and that he used such appropriation in that way, retaining nothing therefrom personally, he will not be required further to account for such appropriation, especially where it appears that the total appropriation for his office during the period for which accounting was sought was within the sum which legally could have been allowed for his salary alone, except during one quadrennial period, and then but slightly in excess thereof.
    5. Counties — duty of county clerk in respect of reporting and accounting for. fees for service as clerk of probate court. While a county clerk is entitled to report, as an earning of his office, the statutory fee for attendance as clerk of the probate court, for every day of the year except Sundays and holidays, he may not retain such fees personally, but must account for them as for other earnings of the office.
    6. Counties — sufficiency of evidence to show failure of county clerk properly to account for fees collected for computing and extending taxes. Evidence in a suit-to compel a county clerk to account for fees and compensation alleged to have been illegally retained by him as such officer held to show a failure fully to report and account for fees collected in certain years for computing and extending taxes.
    7. Limitations of action — inapplicability of statute to suit by taxpayers to compel accounting by county clerk for alleged illegally retained fees and compensation. Since a suit by citizens and taxpayers to compel a county clerk to account for fees and compensation alleged to have been illegally retained by him while acting as such officer is one on behalf of the county and hence of a public nature, the accounting is not restricted to the five-year period prior to the filing of the bill, the statute of limitations being inapplicable.
    8. Counties — audit and approval of county clerk’s account by county board as bar to taxpayers’ suit to compel accounting for alleged illegal allowances to clerk thereof. Citizens and taxpayers seeking the aid of a court of equity to compel an accounting by a county clerk for fees and compensation alleged to have been illegally retained by him while acting as such officer are not estopped to maintain the suit by reason of the fact that the accounts of such officer have been audited and approved by the county board of such county.
    Appeal by plaintiffs from the Circuit Court of White county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded.
    Opinion filed April 27, 1926.
    John A. MacNeil and Ulys Pyle, for appellants.
    Creighton & Thomas and Conger & Elliott, for appellees.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.

Appellants, being citizens and tax-payers of White county, filed a bill for accounting, running to the May term, 1925, of the circuit court, against Matthew Martin, individually and as county clerk of said county, alleging that at the general election, 1906, appellee Martin was elected county clerk of said county, and was re-elected at each quadrennial election thereafter, and is now serving in said capacity; that appellee Martin’s salary for his first term was fixed by the county board at $800 per year, for his second .and third terms at $1,200 per year, for the fourth term at $1,400 per year, and the present term at $1,500 per year; that in addition thereto said board also provided an additional sum of $200 per annum for the first term for making up the taxbooks, for the second and third terms $600 per annum, for the fourth term $650 per annum, and for the last term $450 per annum. It is charged in said bill that said sums for the making up of said tax-books were collected by appellee Martin and were illegally retained by him. It is further alleged that appellee Martin had illegally made charges against the county for services for attendance on the probate court, and that he had illegally collected and retained fees for extending the state, county and other taxes. Said bill also alleged that the county board had wrongfully approved the accounts and semiannual reports of said Martin, and that the approval thereof should be set aside. It was prayed in said bill that appellee Martin be required to account for said funds so collected and illegally retained by him, and that he be decreed to pay to the treasurer of said county any amount found to be due said county upon such accounting. To said bill the county of White was also made a party defendant.

Separate answers, denying the material allegations of said bill, were filed by said defendants, and appellants filed replications thereto. Said cause was heard in open court, a finding was made in favor of appellees, and a decree was rendered dismissing said bill for want of equity. To reverse said decree, said cause is brought to this court by appeal.

The first question arising on the record is as to whether appellants as such citizens and taxpayers have a standing in a court of equity to prosecute said bill.

It is the theory of counsel for appellees that appellants’ remedy, if they have one, is to file a petition for a writ of mandamus to compel the county authorities to institute suit against appellee Martin to recover whatever amount, if any, may be owing to said county. It is also insisted by appellees that, this being a matter in which the public is interested, such suit should be brought by the state auditor of public accounts, or in the name of the People. A long line of authorities is cited by counsel for appellees, which they insist support their contention.

Without going into a discussion of these cases, we are of the opinion that they do not sustain appellees’ theory, and we hold that a court of equity does have jurisdiction in this character of case. Jones v. O’Con nell, 266 Ill. 443; People v. Holten, 287 Ill. 225. In Jones v. O’Connell, supra, the court at page 447 says:

“This court * * * has uniformly held that the tax-payers are in equity the owners of the property of a municipality, and whenever public officials threaten to pay out public funds for a purpose unauthorized by law or misappropriate such funds, equity will assume jurisdiction to prevent the unauthorized act or to redress the wrong, and this is because the right and interest are equitable in their nature and are not recognized by courts of law.” Citing Colton v. Hanchett, 13 Ill. 615; Perry v. Kinnear, 42 Ill. 160; Beauchamp v. Board Sup’rs Kankakee Co., 45 Ill. 274; Stevens v. St. Mary’s Training School, 144 Ill. 336; Littler v. Jayne, 124 Ill. 123; Adams v. Brenan, 177 Ill. 194; Burke v. Snively, 208 Ill. 328. Further discussing this question, the court at page 449 says:

“It was contended that the bill would only lie in the name of a representative of the public. After stating that such was the rule in some States, and notably New York, the court said: ‘But the ruling in this State is different. It is here held, that where an unjust and illegal burden is being imposed on the taxpayer by the municipality, or the money or property of the municipality, to replace which taxation must be levied, is being wasted or squandered, the-tax-payer has such a direct interest that a bill to enjoin the threatened burden will lie, ’ * * * although a public official might maintain a suit in behalf of the State. ’ ’

And at page 450 the court also holds that tax-payers in this character of case are not required to proceed by mandamus to protect their rights.

And in People v. Holten, supra, the court at page 231, in discussing a question of this character, says: “If those charged with the duty of protecting and conserving the public money fail or refuse to act in such cases for the benefit of the tax-payers, from whom the money was collected and who have an interest ip its proper appropriation, the tax-payers may resort to equity to redress the wrong.”

It is contended by appellees that the cases of Jones v. O’Connell, supra, and People v. Holten, supra, do not apply and are not applicable to this case, for the reason that those were cases where a public official was sought to be enjoined from illegally paying out the funds of the public, but that in this case injunction is not sought, but an accounting is sought for funds already paid out.

In Jones v. O’Connell, supra, while injunction was sought as one of the grounds of relief, an accounting was also prayed for. While those cases are not on all fours with this case, we are of the opinion and hold that inasmuch as appellants, as tax-payers, have an equitable interest in the funds sought to be recovered, and inasmuch as they have no adequate remedy at law, that a bill will lie to enforce their equitable rights. The county of White has an interest in the subject matter of the proceeding, and was properly made party defendant to said bill.

The record discloses that appellee Martin was elected county clerk of White county in 1906, and has been successively re-elected at every general election thereafter, and was holding such office at the time the bill in this case was filed. At the September meeting, 1906, the county board fixed the salary, clerk hire, etc., of the county clerk as follows: ‘ County clerk, $800.00; making out taxbooks, $200.00; deputy hire, $600.00.” In the same manner the allowances were made by said board at the beginning of each term of appellee Martin as such county clerk, that is to say, his salary was fixed at so much, his deputy hire at so much, and the making of the taxbooks at so much. Appellee collected said sums for making up said taxbooks, in addition to his salary and deputy hire.

Appellants contend that appellee Martin’s salary having been fixed at a definite sum by the county board at the beginning of each term for which he served as county clerk, respectively, it could not be increased during that term, and that such an allowance amounted to an increase.

There is no limitation fixed by the Constitution as to the amount that shall be allowed for the hiring of deputy clerks to assist the clerk in and about the duties of his office. The amount allowed therefor may be increased during the term of a clerk’s office, if the exigencies of the business so require. County of La Salle v. Milligan, 143 Ill. 321-330; Coles County v. Messer, 195 Ill. 540-545; People v. Fuller, 238 Ill. 116-132. If the allowance to a clerk for his salary, deputy hire and . expenses of his office are in one gross sum, the board cannot legally increase the same, but if the allowance to the clerk for his salary is separate from the allowance for deputy hire and other expenses of his office, the amount allowed for deputy hire and other expenses may be increased by the board, where such increase is necessary.

Appellee Martin’s testimony discloses that he construed said allowance as an allowance for extra clerk hire on such taxbooks, and that he paid out such sums for that purpose and retained no part thereof for himself. There being no evidence in the record to the effect that he did not so pay out said sums therefor, we do not think he should be held to further account for the same, especially in view of the fact that said entire allowance, except for the last quadrennial period, was within the amount the board were authorized to allow as clerk’s salary, and as to the last period, it was only $50 per year in excess thereof.

It is also contended by appellants that appellee Martin wrongfully charged the county for attendance as clerk on the probate court at the amount provided by statute for the attendance of the clerk on the county court, for practically every day in the year except Sundays and holidays, and that this charge was illegal and that appellee should be held to account for the same.

There are twelve terms of the probate court in each year, beginning on the first Monday of each month, and the law provides that the county court shall be open for probate business each day of the term, so that if the county clerk does attend the probate court each day of the year, Sundays and holidays excluded, we know of no reason why he would not be entitled to report the same as an earning of the office, at the rate provided therefor. Cahill’s St. ch. 53, if 105. While this is an earning of the office, the county clerk does not draw pay therefor to be retained by him personally, except insofar as may be necessary to pay his salary and the expenses of his office for clerk hire, etc. Whatever the earnings of the office may exceed the amount necessary to pay such salary, clerk hire, etc., the same goes into the county treasury for the benefit of the county.

It is also contended that appellee Martin has collected the statutory per cent for extending the taxes in said county, and has collected therefor and retained the same to an amount in excess of the amount due him as salary.

The county clerk is allowed to charge for computing and extending each tax, on each description of real estate and each person’s personal tax, two cents for each extension. Callaghan’s Ill. Stat. Ann. ch. 53, 31. The record discloses that Mr. Martin collected from that source for the year 1919, the sum of $1,750.62; for 1920, $2,228.42; for 1921, $2,214.76; for 1922, $2,251.14; and for 1923, $2,305.40. He testified that these items were included in his semiannual reports under the heading ‘‘miscellaneous receipts,” and that other items were also reported under the same heading. The record does not bear out this statement for the reason that he received the $1,750.62 for the year 1919, on March 19 and 20, 1920, and in his semiannual report for the six months ending May 31,1920, he reported miscellaneous receipts of $650.75, or $1,099.87 less than he received for computing and extending taxes, to say nothing of other items of receipts which he was in the habit of reporting under the same title. Nor is it included in the report for the next six months. The same situation exists with reference to the amounts received for computing and extending taxes in the other years above mentioned. The record does not disclose the amount collected by Mr. Martin for extending taxes for the years prior to 1919. The inference is that the court did not allow appellants to go beyond five years prior to the filing of the bill.

The statute provides that county officers shall pay into the county treasury all fees or allowances received by them in excess of their compensation fixed by the county board. Section 10, art. 10. The statute provides that all fees, perquisites and emoluments received by county officers in counties of the first and second classes (above the amount of their compensation fixed by the county board, and for clerk hire and other necessary expenses) shall be paid into the county treasury. Callaghan’s Ill. Stat. Ann. ch. 53, ¶ 65.

There can be no question but that all money received by the county clerk for computing and extending taxes was an earning of his office and should be fully accounted for. From this record, we are of the opinion that he should be required to account in that regard.

The statute of limitations was set up by appellees as a bar to any accounting on funds received by the county clerk more than five years prior to the filing of the bill. This proceeding is on behalf of the county, and is public in its nature. Galbraith v. Littiech, 73 Ill. 209; Board Sup’rs Logan Co. v. City of Lincoln, 81 Ill. 156; Catlett v. People ex rel. State’s Attorney, 151 Ill. 16-23; City of Sullivan v. Tichenor, 179 Ill. 97-101.

Lastly it is contended by appellees that no accounting can be had in this case for the reason that the statute provides for the county board auditing the reports of the county clerk and other officers of the county, and that the record in this case shows that the same were so audited and approved, and that therefore, there being no charge of fraud, the transaction is closed and cannot be gone into by bill for accounting.

The county is not estopped by the county board passing and approving an account containing charges of illegal fees. Board Sup’rs Cumberland Co. v. Edwards, 76 Ill. 544; People v. Foster, 133 Ill. 496; People v. Czaszewicz, 295 Ill. 11.

For the reasons above set forth, the judgment of the trial court will be reversed, and the cause will be remanded for further proceedings in harmony with the holdings of the court herein.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Barry

license: Public Domain

text:
    Fred Malzahn and Augusta Malzahn, Appellees, v. Frederick Gronwald and Marie Gronwald, Appellants.
    1. Justices of the peace — sufficiency of evidence to support finding of failure to pay fee for filing appeal within statutory period. Evidence held not to show error in finding oí city court that appellants from judgment of justice court had failed to pay to the justice his fee for filing the appeal within the twenty-day period fixed by the statute.
    2. Justices of the peace — dismissal of appeal to city court for failure to pay fee of justice for filing appeal. An appeal from a judgment in justice court is properly dismissed where the city court finds that appellant failed to pay the fee of the justice for filing the appeal within the period fixed by statute.
    Appeal by defendants from the City Court of DuQuoin; the Hon. L. P. Habriss, Judge, presiding. Heard in this court at the March term, 1926.
    Affirmed.
    Opinion filed April 27, 1926.

      L. A. Cranston, for appellants.
    M. C. Cook, for appellees.
   Mr. Justice Barry

delivered the opinion of the court.

Appellees recovered a judgment against appellants on April 22,1925, before a justice of the peace. Appellants filed an appeal bond and the same was approved by the justice on May 12, 1925. The justice testified positively that the fee provided by law for the filing of the appeal was not paid to him within 20 days from the rendition of the judgment and that as soon as he received the fee he paid the same to the clerk of the city court. The fee was received by the city clerk on June 1, 1925. Counsel for appellants testified that from certain entries made by him on his cash book he can say positively that the fee was paid to the justice on May 6, 1925, because he does not put expenditures on his book that are not made. The justice further testified that there was delay in approving the bond, which was occasioned by the attorney telling him that he was going to Chicago and would pay the fee when he returned, and that he would say the conversation occurred on May 11. This was not denied by the attorney for appellants. If that testimony is true it is quite evident that the fee had not been paid on May 6. In the state of the record we would not be warranted in holding that the court erred in finding that the fee provided by law for the filing of the appeal was not paid within 20 days from the rendition of the' judgment.

The statute expressly provides that the party praying for an appeal shall within 20 days from the rendition of the judgment pay the fee provided by law for the filing of such appeal and enter into bond, etc. Cahill’s Ill. St. ch. 79, ¶ 116. The fact that the fee was paid to the clerk of the city court within 20 days after the approval of the appeal bond did not meet the requirements of the statute. Appellants having failed to comply with the statute the court did not err in dismissing the appeal. Conklin v. Tobey, 224 Ill. App. 142. The judgment is affirmed.

Affirmed.


author: Mr. Justice Higbee

text:
    The People of the State of Illinois ex rel. James Doherty, Plaintiff in Error, v. Preston E. Elliott, Defendant in Error.
    1. Mandamus — right to writ compelling payment for services of supervisor as judge of election on award by county board in amount greater than that allowed by statute. In view of Cahill’s St. ch. 46, If 64, which expressly fixes the compensation of clerks and judges of elections, a resolution of the board of supervisors awarding a judge of elections compensation other and greater than that provided in such statute would be void and hence would afford no basis for a writ of mandamus to compel payment pursuant thereto by the county clerk.
    2. Elections — right of supervisor serving as judge of election to compensation from county for posting notices of election. In view of Cahill’s St. ch. 46, If If 47, 48, and Cahill’s St. ch. 53, If 50, a supervisor who also served as judge of an election is not entitled to compensation from the county for posting notices of election, such service being performed as supervisor and being compensable, if at all, out of town funds.
    3. Mandamus — order of county board as basis for writ compelling payment for services of election judge for items not chargeable to county or without statutory authorization. Mandamus was properly denied on an application to compel a county clerk to certify for payment the amount of compensation approved by the county board of supervisors for services of a supervisor who also acted as judge of election in posting election notices, specimen ballots and cards of instruction, and for delivering election returns to the county clerk, where the compensation for posting notices of election was payable out of town funds, and there was no provision by statute for compensation for the other services.

      4. Elections — right of election judges to compensation for posting notices of election, etc., and for delivering election returns. In view of Cahill’s St. eh. 46, If 222, making it the duty of judges of elections to post cards of instruction and specimen ballots, and of paragraphs 63 and 230 thereof making it their duty to deliver election returns to the county clerk, of the fact that none of such paragraphs expressly provides for any compensation for such services, and of the fact that paragraph 64 of that chapter makes the only statutory provision for compensation of such judges, it is the intent of the statute that these services shall be performed without additional compensation.
    5. Officers and public employees — duty of officer to perform gratuitously services devolving upon incumbent for which no provision for compensation made by law. One who accepts a public office devolving upon the incumbent duties or services for which no compensation is fixed by law is compelled to perform such services gratuitously and cannot recover therefor.
    Error by plaintiff to the Circuit Court of Gallatin county; the Hon. Julius C. Kern, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed April 27, 1926.
    Jesse E. Bartley, for plaintiff in error.
    Creighton & Thomas, for defendant in error.
   Mr. Justice Higbee

delivered the opinion of the court.

This is a petition for mandamus on the relation of' James Doherty, plaintiff in error, filed to the October term, 1924, of the circuit court of Gallatin county against Preston R. Elliott, defendant in error. The petition alleges, in substance that from the 5th day of April, 1921, to the filing of the petition, plaintiff in error was supervisor of the Town of Ridgeway in the county of Gallatin, and that since the first Monday in December, 1922, defendant in error had been county clerk of that county and ex officio clerk of the board of supervisors thereof; that during this time the county of Gallatin had been under township organization; that during this period certain elections had been held at which plaintiff in error was one of the judges of the election; that in addition to serving as judge on the day of each of these elections, he also, in connection with such elections, spent one day in posting notices of election, one day in posting sample ballots and cards of instruction, and one day in delivering the ballots and other election supplies and returns to the county clerk, and in so delivering such returns traveled a distance of 24 miles; that at the .time of said elections the compensation of the judges and clerks thereof was by statute fixed at $6 per day, but that the services for the day of election and for each primary was limited to one day only, except at elections at which a president was elected, when the judges should be credited with two days ’ services; that after each of such elections, plaintiff in error made a certified and itemized statement of the amount due him, showing that in addition to his compensation for services on the day of election he was entitled for his other services hereinbefore mentioned, the sum of $16.20 at each election, or a total of $81; that thereupon it became the duty of the county clerk to present to the board of supervisors his certificate showing the compensation due to plaintiff in error as such judge; that defendant in error refused to make such certificate, but on the contrary certified to the board of supervisors only the compensation to which plaintiff in error was entitled for his services on the day of election and for registration; that the board of supervisors approved and allowed the compensation for plaintiff in error’s services on election day as certified by defendant in error and also approved and allowed the remaining $81.20 claimed by plaintiff in error, but that defendant in error neglected and refused and still does neglect and refuse to issue and deliver to plaintiff in error an order upon the county treasurer for such additional services.

The petition further alleges that the board of supervisors of Gallatin county had fixed the compensation of the supervisors for posting notices of election, specimen ballots and cards of instruction and for delivering the returns of election to the county clerk at $5 per day and five cents per mile for each mile of travel from the place of holding the election to the office of the clerk and return.

The petition prayed that a writ of mandamus be issued, directed to defendant in error, commanding him, to execute an order on the county treasurer for the sum of money credited and allowed by the board of supervisors, to plaintiff in error for his services in posting notices of election, specimen ballots and cards of instruction and for dehvering the returns to the county clerk, and present the same to the county treasurer to be countersigned and thereupon deliver the same to the relator, or in the event the same could not be done, that defendant in error be required forthwith and without delay to make out his certificate stating the compensation due plaintiff in error for posting ballots and cards of instruction and delivering election returns to the county clerk.

To this petition a general and special demurrer was filed. The grounds of special demurrer are that the allegations of the petition are vague, uncertain, irregular and informal; that the posting of notices of the several elections were not services rendered in behalf of the county, but were services which devolved upon plaintiff in error as supervisor of his town, and he was not entitled to any compensation therefor from county funds; that the posting of sample ballots and cards of instruction was a part of plaintiff in error’s duty as judge of the election for which no- compensation was fixed by law, and that he was not entitled to any compensation therefor; that the board of supervisors had no power to fix the compensation of the judges and clerks of the election and no power to direct defendant in error to issue orders on the county treasurer for any compensation other than that fixed by statute; that the compensation of plaintiff in error as judge of the election is fixed by statute and the board of supervisors had no power to add thereto, and the resolution to that effect was void; that the compensation of plaintiff in error as supervisor of his town is fixed by law, and the county board had no power to increase the same.

The court sustained this demurrer and plaintiff in error elected to stand by his petition and thereupon the court rendered judgment against plaintiff in error dismissing his petition and this writ of error resulted.

Paragraph 64, ch. 46, of Cahill’s Revised Statutes 1925, expressly fixes the compensation of judges and clerks of elections at $6 “per day for their services” and then provides “for the day of election and for each primary, judges and clerks of election shall be credited with only one day’s service each; but for the day of election on which the President of the United States is elected, judges- and clerks of election shall be credited with two days’ service each.” The board of supervisors is powerless to allow different fees or commissions from those fixed by statute (Board Sup’rs Cumberland Co. v. Edwards, 76 Ill. 544). Assuming that plaintiff in error is entitled to compensation as judge of the election for the services which he claims to have rendered, yet he would be entitled only to such compensation as is fixed by statute and the resolution of the county board fixing such compensation at a different rate than that of the statute would be void and plaintiff in error would not be entitled to this writ directing payment thereof.

Paragraphs 47 and 48, ch. 46, Cahill’s Revised Statutes 1925, make it the duty of sheriffs in counties not under township organization and of supervisors in counties under township organization to post notices of election and fix no compensation therefor. In our opinion, if plaintiff in error is entitled to compensation for posting notices of election, it must be as supervisor and not as judge of the election and such compensation is fixed by paragraph 50, ch. 53, Cahill’s Revised Statutes 1925, and is payable out of the town funds and not by the county.

Therefore, even though plaintiff in error was entitled to compensation for posting election notices, specimen ballots and cards of instruction and for delivery of returns to county clerk, he was entitled to such compensation for the first item from his town and to such compensation for the other items as is fixed by statute and defendant in error could not be compelled to issue him an order for same on the county treasurer for the amount fixed by the board of supervisors, even though the board had directed him to do so, and the demurrer was properly sustained to that portion of the petition.

The prayer of the petition was in the alternative, the second alternative being that defendant in error be directed to certify to the board of supervisors the compensation which plaintiff in error is entitled to as judge of elections. Since defendant in error had certified to the board the compensation to which plaintiff in error was entitled for his services on the different days of the election and plaintiff in error has been paid the same, this prayer of the petition raises the question as to whether plaintiff in error is entitled to compensation as judge of the election for his services in posting specimen ballots and cards of instruction and making delivery of the returns to the county clerk.

Paragraph 222, ch. 46, Cahill’s Revised Statutes 1925, makes it the duty of judges of the election to post cards of instruction and specimen ballots. Paragraphs 63 and 230, ch. 46, make it the duty of judges of the election to deliver the returns to the county clerk. Neither of these sections, however, expressly provides for any compensation for snob, services. The only provision of the statute providing for compensation for judges of election is paragraph 64, ch. 46, of said statute above quoted from. In our opinion this section expressly limits the compensation of judges of election to services on election day to one day in all elections except those at which a president of the United States is elected or a candidate for that office nominated. No compensation is fixed or allowed by statute for any other services and plaintiff in error having accepted a public office devolving upon him certain services or duties for which no salary or compensation is fixed by law is compelled to perform such services gratuitously and cannot recover therefor. (Koons v. Richardson, 227 Ill. App. 477.)

Under this interpretation of the law the demurrer was also properly sustained as to the alternative prayer of the petition and the judgment should, therefore, be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Boggs

text:
    The People of the State of Illinois, Defendant in Error, v. C. Edward Barnett, Plaintiff in Error.
    1. Appeal and error — waiver of constitutional questions 6y prosecuting error to Appellate Court where assignments present questions determinadle in that court. One who prosecutes a writ o£ error to the Appellate Court is deemed thereby to waive assignments of errors touching questions involving a determination of the constitutionality of a statute, where other assignments present questions which that court may determine.
    2. Medicine and surgery — power to examine and license applicants for permission to practice naprapathy. Under Medical Practice Act of 1923, Cahill’s St. ch. 91, and the Civil. Administrative Code, § 59, subsec. 6, Cahill’s St. ch. 24a, ff 59, subd. 6, the Department of Registration and Education has ample power to examine and license applicants for permission to practice naprapathy.
    3. Medicine and subgery — provisions of Medical Practice Act as including treatment of human ailments liy drugless methods. The title of Medical Practice Act of 1923, Cahill’s St. ch. 91, is broad enough to include not only the practice of medicine in all its branches, but also the limited treatment of human ailments without drugs or medicines, notwithstanding the fact that the act does not define the term “practice of medicine” so as to include such methods of treatment.
    Error by defendant to the County Court of St. Clair county; the Hon. W. R. Weber, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed April 27, 1926.
    F. J. Tecklenburg, for plaintiff in error.
    H. C. Lindauer, State’s Attorney, for defendant in error; Curt C. Lindauer, of counsel.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.

A jury being waived, plaintiff in error was tried, found guilty and sentenced to pay a fine of $100 and costs in the county court of St. Clair county, under an information charging among other things that he unlawfully attached the title “Doctor” to his name, indicative that he was engaged in the treatment of human ailments as a business, and that he did not possess a license so to do. To reverse said judgment, this writ of error is prosecuted.

The record discloses that plaintiff in error maintained an office in Belleville, above the door of which was the sign: “Dr. C. Edward Barnett, Naprapathy. Acute, Chronic and Nervous Diseases.” In the main door of the corridor of the building, on the directory appearing therein, were the words: “Dr. C. Edward Barnett, Naprapath.” A blotter from his office was also offered and admitted in evidence, on which was printed:

“Napr apathy
Cures When Others. Fail
Chartered Manipulation
World’s Greatest Healing Art
No Drugs, No Knife, No Risk Safe, Sane, and Sure
Phone
Office Bell 377
Bes. Bell 349-W, Kin. 650-B
Dr. C. Edward Barnett and staff
Dr. Porter W. Karr Naprapaths
46 First Natl. Bank Bldg. Belleville, Illinois.”

Plaintiff in error concedes that he has no license. It is his contention that no' provision is made in the Medical Practice Act of 1923 for the granting of a license for the treating of human ailments as a naprapath, and for that reason he did not apply therefor.

Section 9 of the Medical Practice Act of 1923 [Cahill’s St. ch. 91, ¶ 9], among other things, provides:

“Examinations of applicants who seek to practice any system or method of treating human ailments without the use of drugs or medicines and without operative surgery shall he the same as required of applicants who seek to practice medicine in all of its branches, excepting therefrom materia medica, therapeutics, surgery, obstetrics, and theory and practice, and shall be such in the judgment of the department (of Begistration and Education) as will determine the qualifications of the applicant to practice the particular system or method of treating human ailments without the use of drugs or medicines and without operative surgery which he specifically designated in his application as the one which he would undertake to practice.”

Plaintiff in error admits that said Act purports to make unlawful the treating of human ailments without the use of drugs, etc., but contends that said Act is not operative as to naprapathy for the alleged reason, as he contends, that there is no provision made for the licensing of naprapaths.

"While the Medical Practice Act of 1923 does not purport, in and of itself, to provide a means of examination and licensing of persona to practice medicine in all its branches, or for a limited treatment of human ailments, it specifically provides that the Department of Begistration and Education shall have charge of the same, subsection 6 of paragraph 59 of chapter 24a, Cahill’s Statutes, being as follows:

“The Department of Begistration and. Education shall have power to exercise the rights, powers and duties vested by law in the State Board of Health relating to the practice of medicine, or any of the branches thereof, or midwifery.”

It is the contention of counsel for plaintiff in error that the provisions above quoted do not provide for an examination of persons desiring to practice naprapathy; that the examination there provided for has to do with persons practicing medicine in all its branches.

One of the grounds set forth by plaintiff in error, in his motion for a new trial, was that the Medical Practice Act of 1923 is unconstitutional, and in the assignment of errors it is set forth that the trial court erred in overruling the motion for a new trial.

If plaintiff in error is undertaking to raise the constitutionality of said Act, he is not in a position to do so, having prosecuted his writ of error to- this court, and there being other questions raised by the assignment of errors which this court may pass on. He is therefore deemed to have waived any questions pertaining to the constitutionality of the Act. Drtina v. Charles Tea Co., 281 Ill. 259; City of Edwardsville v. Central Union Tel. Co., 302 Ill. 362; People v. Eaton, 233 Ill. App. 504-507.

However, the Supreme Court has held said Act constitutional. People v. Witte, 315 Ill. 282; People v. Walder, 317 Ill. 524. In People v. Witte, supra, the court had before it an information charging the practice of naprapathy. After setting forth the ailments treated by practitioners of that school, and the methods used by them in treating human ailments, the court at page 285 says:

“The General Assembly, in framing the Medical Practice Act, was confronted by the necessity of applying its provisions to the schools of medicine or medical practice now existing and to those which might arise from time to time. It was impossible to formulate a statute with particular reference to each. A plan of regulation was provided in a single, comprehensive enactment applicable alike to all schools, present and future. The plan divides licenses (Cahill’s Stat. 1923, ch. 91, ¶ 11), so far as physicians are concerned, into two classes, one of which confers the right to practice medicine in all of its branches, and the other to treat human ailments without the use of drugs or medicines and without operative surgery, the licensee under such a license to be restricted by its terms to the practice of the system or method which he specifically designated in Ids application as the one he would undertake to practice.”

The Supreme Court has frequently held that the term “practice of medicine” is not confined alone to those practitioners who may use drugs, etc. People v. Gordon, 194 Ill. 560; People v. Dunn, 255 Ill. 289; People v. Siman, 278 Ill. 257; People v. Krause, 291 Ill. 67; People v. Trenner, 144 Ill. App. 275; People v. Kane, 205 Ill. App. 32. In People v. Siman, supra, the court at page 257 says :

“The term ‘medicine’ is not limited to substances supposed to possess curative or remedial properties, but has also the meaning of the healing art, — the science of preserving health and treating disease for the purpose of cure, — whether such treatment involves the use of medical substances or not. In common acceptation, anyone whose occupation is the treatment of diseases for the purpose of curing them is a physician, and this is the sense in which the term is used in the Medical Practice Act.”

Counsel for plaintiff in error concedes that the Supreme Court has heretofore so construed the term “practice of medicine,” but insists that in those cases the court had before it practice acts in which the act itself, in defining what constituted the practice of medicine, included within it the treating of human ailments without drugs or medicine, and that therefore those cases are not applicable here, inasmuch as it is contended that the Medical Practice Act of 1923 does not so define the term “Medical Practice Act.”

The title to the Act of 1923 is as follows: “An act to revise the law in relation to the practice of the treatment of human ailments for the better protection of the public health, and to prescribe penalties for the violation hereof.” The title óf the Act is broad enough to include not only the practice of medicine in all its branches, but also the limited treatment of human ailments without drugs or medicine. "While section 1 of the Act is to the effect that the Act shall be known as the Medical Practice Act, that does not limit the scope of the Act to the practice of medicine in all its branches.

We are therefore of the opinion and hold that there is ample provision under the law as it now stands for the examination and licensing of persons desiring to practice naprapathy.

The record fully discloses, and it is practically admitted, that plaintiff in error was advertising to treat diseases, and that he maintained an office for such purpose, concededly without a license so to do. We therefore hold that the court did not err in finding plaintiff in error guilty and in imposing a fine for the violation of said Act.

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

Judgment affirmed.


author: Mr. Presiding Justice Thomson

text:
    Charles G. Bird, Appellant, v. Edith G. Trench, Appellee.
    Gen. No. 30,475.
    1. Brokers — proof of compliance with statute requiring registration as part of prima facie case in action for commission. It is not necessary for a real estate broker to show, as part of his prima facie case in his action to recover commission for services, that at the time of rendering such services he had procured a certificate of registration, as required by Cahill’s St. ch. 17a, Hit 1, 2.
    2. Licenses — presumption as to license or registration where question only collaterally involved. Even where the requirement as to the procuring of a license or of a certificate of registration is laid down in a statute, the presumption will be that such license has been procured or that registration has been had in compliance with such statute, until the contrary is shown, in any case where the question arises only collaterally, such as in a suit by one subject to such statute to recover fees, commissions or other compensation.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. Walter Brewer, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925.
    Reversed and cause remanded.
    Opinion filed May 5, 1926.
    Perley H. Bishop, for appellant.
    William D. Kerr and Guy M. Blake, for appellee.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.

The plaintiff brought this action against the defendant seeking to recover $2,000 which he claimed was the customary and reasonable commission due Mm from the defendant in payment of his services in procuring a purchaser of her property, at the price she placed upon it, such purchaser having been procured and having entered into a written contract to purchase the property on the terms which the defendant had named. After such purchaser had been secured and had executed a contract, the defendant declined to sign it and refused to sell her property. At the conclusion of the plaintiff’s case, the court directed a verdict for the defendant and entered judgment against the plaintiff. To reverse that judgment the plaintiff has perfected this appeal.

The sole question presented for our decision is whether it was necessary for the plaintiff to show, as part of his prima facie case, that at the time he purported to serve the defendant as real estate broker he had procured a certificate of registration, as required by the State statute. That statute [Cahill’s St. ch. 17a, ¶¶ 1 and 2] provides that “on and after January 1, 1922, it shall be uMawful for any person to act as a real estate broker * * * or to advertise or assume to act as such real estate broker * * * without a certificate of registration,” and further, that: “A real estate broker within the meaning of this Act is any person * * * who for a compensation or valuable consideration sells or offers for sale * * * or negotiates the purchase or sale or exchange of real estate * * * for others.”

The plaintiff admits that he could not recover in this action if it had been proven on the trial of the case that at the time he acted for the defendant he did not have a certificate of registration as required by the statute. But he contends that if that were .the situation, it was incumbent upon the defendant to prove it and that it was not a part of his prima facie case to show that he had secured the certificate of registration as required by the statute.

In onr opinion it was not necessary for the plaintiff to present evidence in the first instance tending to show that he had complied with the State law as to registration, for under the decisions, this is a matter which would be presumed in such a case as the one at bar, until the contrary was shown. Some confusion has arisen over the question of when the matter of having procured a license or registration, as the existing State law requires with regard to real estate brokers, is directly involved, and when it is only collaterally involved. "Where, under a law similar to the one applicable here, a person is. prosecuted for failure to comply with the requirements of the law, the question of whether he has or has not so complied is directly involved. But where such a person is suing for his commission or fee or other compensation, that matter is only collaterally involved.

In Williams v. People, 20 Ill. App. 92, a doctor was indicted on a charge of practicing medicine without having complied with the State law which required him to obtain a certificate of qualification from the State Board of Health, or a certificate from said board as to the genuineness of a diploma of some medical college. There, the question was presented directly. In the course of the opinion in that case, this court observed that.: “Where the question of license or qualification of a physician arises collaterally in a civil action between party and party, or between the doctor and the one who employed him, then the license or due qualification under the statute to practice, will be presumed, ’ ’ citing cases. In Munson v. Fenno, 87 Ill. App. 655, real estate brokers were suing to recover their commissions. There this court held that the plaintiffs were not required to submit proof in the first instance, that they were duly licensed. They sought to recover under the common counts and also a special count, in which they alleged that at the time in question they were real estate brokers, duly licensed as such. In that case a statute was not involved, for at that time there was no statute on this subject, but the law requiring a license was contained in a city ordinance. In that case the court seems to have disregarded the special count. In the case at bar, the plaintiff filed only the common counts with a copy of the account sued on and an affidavit of claim, in which no reference is. made to the question of whether plaintiff was a duly licensed or registered broker. In Good v. Lasher, 99 Ill. App. 653, a dentist was suing1 to recover compensation for his professional services rendered to the defendant and his family. That case involved a" State statute requiring one practicing dentistry to procure a license from the State Board of Dental [Examiners, and register the same with the county clerk in the county in which he practiced. The law further provided that a failure to so register a license for a period of six months should work a forfeiture of the license. In that case the evidence showed that the plaintiff had procured the necessary license on May 17, 1892, and that it had been registered with the county clerk of 'C'ook county in November 19, 1892. The court pointed out that the statute indicated an intention upon the part of the legislature to impose a forfeiture upon one who held his certificate or license for a period of six months after receiving it, without registering it, and that there was no evidence to show when the plaintiff had received his license and that he might have received it within six months of the date of its registration. This court then said: “The presumption is, in the absence of proof to the contrary, that it was within that period, for the presumption is in favor of the legality and regularity of the proceeding, ’ ’ citing cases. In County of Jo Daviess v. Staples, 108 Ill. App. 539, the court said that “the current of judicial decision in this state appears to be that in a suit for such services a license or due qualification under the law will be presumed, ’ ’ citing cases. ‘ ‘ Some doubt is cast upon those cases by what is said in North Chicago St. Ry. Co. v. Cotton, 140 Ill. 486, and in Tichenor v. Newman, 186 Ill. 264, though this point was not there presented for decision.” The two cases last referred to are relied upon in the case at bar by the defendant. In Brunswick v. Hurley, 131 Ill. App. 235, the principal question raised was that the plaintiff, who was a physician, was not a duly licensed practitioner of medicine and surgery under a certificate issued by the State Board of Health, and filed with the county clerk, as required by the statutes of the state, at the time he rendered his services to the defendant, which were the basis of the claim he' was making for compensation. Some judgment notes had been given by the defendant in that case and the plaintiff had taken judgment upon them. The court held that the fee question had been settled by the giving of those notes and therefore the question of whether the plaintiff was a duly licensed physician, under the State law, was not material, but the court added: “If the question was a material one, it was the subject of defense,” citing cases above referred to with approval. In Woodley v. Zeman, 178 Ill. App. 369, a contractor was suing for a balance which he claimed was due him, and one objection raised by the defendant on appeal was that the record did not show that at the time the contract there involved was made, the plaintiff had a license from the city authorizing him to do business as a mason contractor. This court there said: ‘ The question of a license is one collateral to the suit, and it has many times been held that in such circumstances the issuance of a license will be presumed unless proof to the contrary is presented by the other party to the litigation,” citing cases. In Beckers v. City of Kankakee, 213 Ill. App. 538, which was a suit by a lawyer to recover fees he claimed were due him from the defendant for legal services rendered by him, the 'defendant contended that the plaintiff had failed to aver or prove that he had been licensed to practice law in the State of Illinois and that, therefore, the judgment he had recovered could not stand. In the course of the opinion in that case the court referred to a number of cases, including those we have hereinabové cited, and said, “where a lawyer, physician, dentist and the like, is required by law to take out a license in order to permit him to practice his profession, in a suit by him to recover fees or compensation for services rendered, it will be presumed that he has such license until the contrary appears.” Again in this case the court referred to the two cases relied upon in the case at bar which we have already mentioned, saying: “Some doubt is cast upon the correctness of these decisions (the decisions the court was following) by what was said in North Chicago St. Co. v. Cotton, 140 Ill. 486, and in Tichenor v. Newman, 186 Ill. 264, expressing a different view, but in each of those cases the suit was not by a professional man against his patient or client for his compensation, and what was there said on the present subject was by way of illustration only, and the point here under consideration was not there involved and could not be decided.”

In North Chicago St. Ry. Co. v. Cotton, supra, a question arose as to the admissibility of the testimony of a doctor called by the plaintiff as ai witness. The court said that the case before it was one between third parties where the question of whether the doctor who was called as a witness was duly licensed to practice his profession arose only collaterally. The court then added: “If he were himself suing to recover for his professional services, he would doubtless be required to show affirmatively his compliance with the law,” intimating that in the latter situation, the question of whether the doctor was duly licensed as required by the statutes would be involved directly and not collaterally. In the case of Tichenor v. Newman, supra, one doctor was suing another on a partnership agreement to which they were both parties, and the court said it was not essential to the right of the plaintiff to maintain his. action, that he should affirmatively show that he had been licensed as required by the State statutes. The court then said that “the relation of physician and patient did not exist between the parties, and the action was not for the recovery of the fees or charges of a physician,” thus intimating that if such were the case the rule would be otherwise. In our opinion, such doubts as these cases may be considered as having raised on the question now before us have been removed by the Supreme Court by its decision in Abhau v. Grassie, 262 Ill. 636, where a building contractor was seeking to foreclose a mechanic’s lien against the property of the defendant, and the court pointed out that the record contained no evidence on the question of whether the complainant had a contractor’s license as required by the city ordinance and that no proof had been offered by either party on that subject. Among other things, it was contended by the defendant that the burden rested upon the complainant to show that he had such a license. On that question the Supreme Court said: “The general rule is that the burden of proof rests upon the one who substantially asserts- the affirmative of the issue, * * *. The weight of authority is, that whoever asserts a claim or defense which depends upon a negative must establish the truth of the allegation, * * *. It is, however, sometimes stated, that where the subject-matter of a negative averment lies peculiarly within the knowledge of the other, the averment is taken as true unless it is disproved by that other party. * * * It is not easy to lay down a general rule by which it may be readily determined upon which party the burden of proof will lie when a negative is averred in the pleading. Each case depends upon its own peculiar circumstances. * * * The authorities are not all in harmony as to who has the burden of proof on the question whether one of the parties is duly licensed to practice a certain profession or to do a certain class of business. * . * * Where the question arises directly on an indictment or in a penal action for violating the statute, where the prosecution is on behalf of the public, the authorities all agree that the burden of proof rests upon the defendant. * * * The weight of authority, however,, is to the effect that where the question of such a license is only collaterally involved, the license will be presumed unless proof to the contrary is presented by the other party.”

In view of the foregoing authorities, we are of the opinion that even where the requirement, as to the procuring of a license or of a certificate of registration, is laid down in a statute, the presumption will be that such a license has been procured or such registration has been had in compliance with such statute, until the contrary is shown, in any case where the question arises only collaterally, as is the case in a suit by one subject to such statute, seeking to recover his commissions, fees or other compensation.

The judgment of the circuit court will, therefore, be reversed and the cause will be remanded to that court for further proceedings not inconsistent with the views herein expressed.

Judgment reversed and cause remanded.

Taylor and O’Connor, JJ., concur*


text:
    Gregory T. Van Meter, Administrator of the Estate of Ralph A. Weber, Deceased, Appellee, v. Chicago Railways Company et al., Appellants.
    Gen. No. 30,494.
    1. Appeal and error — consideration of evidence for purpose of determining whether verdict should have been directed for defend* ant on ground of contributory negligence. For the purpose of determining whether a verdict should have been directed for defendant in an action of negligence, upon the ground that the plaintiff was chargeable with contributory negligence as a matter of law, the reviewing court must avoid weighing conflicting evidence and must consider all evidence in the light most favorable to plaintiff.
    2. Street railways — failure to look before crossing street close ahead of approaching car is contributory negligence as matter of law. Where the evidence in an action for death resulting from being struck by a street car shows that if decedent had looked before attempting to cross the street ahead of the approaching car, he must necessarily have seen that the car was close at hand, and the evidence fails to show any circumstances, tending to excuse a failure to look or which may be held reasonably to have given rise to a necessity to cross without looking, then if decedent did in fact cross without looking he must be held to have been guilty of contributory negligence as a matter of law.
    3. Street railways — sufficiency of evidence to show contributory negligence as matter of law of pedestrian attempting to cross street ahead of cars approaching from* opposite directions. Evidence in an action for death resulting from injuries sustained when decedent was struck by a street car held to show that he was guilty of contributory negligence as a matter of law in attempting to cross the street ahead of two street cars approaching from opposite directions, where he knew or should have known that one of them was less than 15 feet distant when he stepped upon its track, and that it was not intending to stop.
    Appeal by defendants from the Superior Court of Cook county; the Hon. E. M. Mangan, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925,
    Reversed with finding of facts.
    Opinion filed May 5, 1926.

      Busby, Weber, Miller & Donovan, for appellants; John B. Guilliams, Frank L. Kriete and Charles L. Mahony, of counsel.
    Irwin B. Hazen and Leroy V. Penwell, for appellee; Andrew J. O’Donnell, of counsel.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.

The plaintiff administrator brought this action under the Injuries Act [Cahill’s St. ch. 70] to recover for pecuniary loss sustained by the next of kin of Ralph A. Weber, deceased, by reason of his death, which resulted from injuries sustained when he was struck by a street car operated by the defendants. The issues were submitted to a jury and found for the plaintiff, the jury fixing the damages, at the sum of $5,000. Judgment having been entered in favor of the plaintiff for that amount, the defendants have perfected this appeal.

The injuries which caused the death of Weber were received by him when he was struck by a street car, on Harrison Street, in the city of Chicago, just east of the east crosswalk of Washtenaw Avenue, the latter being a north and south street without street car tracks, and Harrison Street being an east and west street containing a double track street car fine, operated by the defendants. The accident happened about four o ’clock in the afternoon on March 7, 1923.

The evidence shows that Weber approached Harrison Street from the south. He was apparently running along the sidewalk on the east side of Washtenaw Avenue, intending to take a westbound Harrison Street car at the northeast corner of the intersection. Witnesses testifying in behalf of the plaintiff stated that as he reached Harrison Street, he stood a moment at the south curb and looked in both directions and then proceeded across Harrison Street in a slightly northeasterly direction, and. a little east of the crosswalk, going either at a quick walk or trot. Two street cars were approaching, one from the east, which he was apparently intending to take, and the other from the west. The only other vehicle about was a taxicab which had passed on to the east and was approximately a block away at the time the deceased reached the corner. When the deceased, in passing over Harrison Street, stepped onto the eastbound street car track, the car which was approaching on that track, going east, was at most not over 15 feet away and the westbound car was also very close. The plaintiff was struck by the eastbound car at a point about half way between the center of that car and the north side of it. This had the effect of knocking him to the street in a northeasterly direction and in front of the approaching westbound car, and when the latter car was brought to a stop, the deceased was found lying between the rails of the westbound car track and under the front platform of the westbound car. That car was backed up a few feet, so as to make it possible to get Weber out, and he was removed to a hospital where he died on the following day, from the injuries he had received.

The defendants, make several contentions in support of their appeal, but in the view we take of the case, it will be necessary to consider only one of them, for after a careful consideration of the evidence and the arguments advanced by the respective parties, we have come to the conclusion that the deceased was guilty of contributory negligence as a matter of law, and that being the case, the trial court erred in denying the motions, submitted by the defendants at the close of the plaintiff’s case and at the close of all the evidence, asking that a peremptory instruction be given the jury directing them to find the issues in favor of the defendants on that ground. In considering this question we are, of course, obliged to avoid weighing conflicting evidence, and must only consider those facts and circumstances in evidence, most favorable to the plaintiff. Libby, McNeill & Libby v. Cook, 222 Ill. 206. When such facts and circumstances are considered, it is our opinion that all reasonable minds should agree that the deceased was guilty of contributory negligence.

At the time the deceased paused on the curb on the southeast corner of the intersection, he must have seen the eastbound car approaching, if he glanced to the west. If he did not look to the west, he must nevertheless be charged with such knowledge as would have come to him if he had looked. Some witnesses (testifying for plaintiff) testified that he looked both ways, and some that he looked only to the east. No witness testified that he looked to the west after leaving the curb. At the time he stepped upon the eastbound car track, no witness in the case placed the eastbound car farther away from him than 15 feet, and at that time no witness, in the case placed the car that was approaching from the east farther than 20 feet from the corner. According to all the testimony in the case there was nothing to obstruct the view of the eastbound car at any time between the time the deceased approached the intersection and the time he was struck. No circumstance appears in any of the evidence which, in our opinion, may reasonably be considered as in any way excusing the failure of the deceased to look to the west, if in fact he did not look in that direction and see the approaching eastbound car. All witnesses agree that the eastbound car did not stop at the west side of the intersection, and no witness placed the car west of the west curb of Washtenaw Avenue at the time the deceased paused at the curb line. As to all these matters, as counsel for the defendants point out, there is no conflict in the testimony.

It is true that failure to look before crossing a street car track is not always negligence per se, but it is likewise true that the circumstances may lie such as to make such' failure negligence per se. In our opinion, where the evidence shows that if one did look before crossing a street car track he must necessarily have seen a car approaching close at hand, and where the evidence fails to show any circumstances tending to excuse a failure to look or which may be held reasonably to have given rise to a necessity to cross the track without looking, then one who does cross without looking must be held guilty of contributory negligence as a matter of law. In the case at bar the deceased was an adult. He had been married a number of years and had two children; he was a machinist and had apparently lived in the city of Chicago a considerable time and had daily occasion to be on the streets. The evidence shows that the street was not in a slippery condition. There is nothing whatever in the evidence tending to show that anything happened to indicate that the eastbound car was going to stop at Washtenaw Avenue, but it is clear that it was. apparent at all times that it was not going to stop. Much of the evidence tends to show1 that as the deceased stepped on the eastbound car track, the car which was approaching from that direction was within arm’s length of him, but, taking the testimony most favorable to him, it was not over 15 feet away, and, according to all the testimony, a car was approaching from the other direction, on the other track, at almost as short a distance. Where an adult person, under those conditions, with nothing to interfere with his view of both cars, or to distract his attention, nevertheless, deliberately steps in front of one of them, walking toward the pocket which is certain to be formed when they meet, he must be held to be guilty of contributory negligence, as a matter of law. There is some difference in the testimony as to the speed of the eastbound car. Some evidence is to the effect that it was going 15 or 20 miles an hour and ran nearly 100 feet after striking the deceased before coming to a stop. Other evidence is to the effect that it was going 8 to 10 miles an hour and stopped in about 50 feet. Presumably, the evidence most favorable to the plaintiff, is that which was to the effect that the car was going 8 or 10 miles an hour. That, in our opinion, does not change the situation so far as the question of contributory negligence per seis concerned.

If the conduct of the deceased, as disclosed by the evidence most favorable to him, in this record, should be held not to amount to negligence per se, we are of the opinion that it would be difficult to imagine a case which would warrant such a holding. In our opinion the case at bar is clearly distinguishable from the case of Northern Trust Co. v. Chicago Rys. Co., 232 Ill. App. 246 (reversed in 318 Ill. 402, on ground not involved here). In that case the person injured crossed the street car track on the near side of the street where the approaching car might have stopped. The accident happened after dark and the headlight on the car was not burning. In the case at bar the accident happened in broad daylight and the deceased crossed the street a few feet beyond the crosswalk on the far side of the intersection. There is some discussion in the briefs about the failure of the motormari, on the eastbound car, to sound his. gong, and the testimony as to whether he did so sound his gong is conflicting, but in our opinion that element does not affect the decision of this case. On the plaintiff’s own theory of the case, the deceased looked toward the westbound car before leaving the curb. The testimony of the plaintiff’s witnesses was. to that effect. Of course, if he did so look, the only object in the sounding of the gong was accomplished, because the deceased must be held to have seen what was there to be seen, namely, the approaching car, giving no indication of being about to stop, according to the testimony of all the witnesses in the case, and already having passed beyond the west side of the intersection.

For the foregoing reasons, we are of the opinion that the trial court erred in denying the motion of the defendants for a peremptory instruction, and, therefore, the judgment appealed from is reversed with a finding of facts.

Judgment reversed with a finding of facts.

Taylor and O’Cohhor, JJ., concur.

Finding of.facts: We find as a fact that the deceased, Ealph A. Weber, was guilty of contributory negligence as a matter of law.


text:
    Verna Allman, Appellant, v. Estate of John Kelly, Deceased, Appellee.
    Gen. No. 30,521.
    1. Saving questions fob beview — sufficiency of assignments of error to preserve question of survival of cause of action. Where an appellant assigned as error the action of the trial court in sustaining defendant’s plea puis darrein continuance and in dismissing plaintiffs case at her costs, and afterwards, under leave of court, filed an additional assignment directed specifically to the action of the trial court in overruling her demurrer to such plea, such assignments effectually saved for review the question whether the plaintiff’s right of action survived the death of the original defendant.
    2. Appeal and eeeob — consideration of sufficiency of declaration on appeal from orders and judgment sustaining plea puis darrein continuance. On appeal from an order of thd trial court sustaining defendant’s plea puis darrein continuance and dismissing the action at plaintiff’s costs, and from a judgment against plaintiff for costs following the overruling of her demurrer to- a like plea to her amended declaration, the question of the sufficiency of the declaration as stating a cause of action against the original defendant is not open to consideration.
    3. Pleading — admissions by filing plea puis darrein continuance. When a plea puis darrein continuance is filed the cause of action is admitted to the same extent as if no other defense were urged other than the matter contained in such plea.
    4. Pleading — purpose of plea puis darrein continuance. A plea puis darrein continuance is interposed for the purpose of introducing new matter which has come to the knowledge of the party pleading it, subsequent to> a joinder in issue.
    5. Abatement and bevival — survival of action for forcible dispossession of vendee of lessee resulting in destruction of vendee’s business in premises. A declaration alleging that the owner of premises on- which plaintiff was conducting a garage business, which garage plaintiff had acquired by bill of sale from such owner’s tenant covering the leasehold and certain personal property in the garage, with force and arms dispossessed plaintiff of such premises and property, and installed another tenant therein, thereby destroying plaintiff’s profitable business of conducting such garage and depriving her of the leasehold, held not to state a cause of action for injury to either real or personal property, or for conversion thereof, within the meaning of Cahill’s St. ch. 3, if 125, providing for the survival of such, actions in the event of the death of such owner.
    Appeal by plaintiff from the Circuit Court of Cook -county; the Hon. John A. Swanson, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925.
    Affirmed.
    Opinion filed May 5, 1926.
    Forest Garfield Smith, for appellant.
    Gallagher, Shulman, Abrams & Henry and Ziv, Loomis & Silvertrust, for appellee.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.

The plaintiff, Yerna Allman, filed a' declaration in her suit against the defendant, John Kelly, in which she alleged that she was the owner of a garage business located in premises leased from the defendant, by virtue of an assignment of the lease, she having acquired this garage by a bill of sale from a former tenant, the bill of sale including certain personal property located in the garage, and the leasehold; that the business was being conducted at a profit when the defendant, with, force and arms, entered the garage and put all the automobiles, found therein, which belonged to customers of the plaintiff, out into the street, and put all other personal property of the plaintiff, which was in the garage, into the street, which resulted in destroying the plaintiff’s business and that thereafter the defendant installed another tenant in the garage business in the premises, thus, depriving the plaintiff of the use and enjoyment of the premises, and the profits she would have received in conducting her business therein. The defendant filed an appearance and filed a plea of the general issue. Afterwards the death of the defendant] was suggested and the executrix of his estate filed a special appearance, solely for the purpose of filing a plea puis darrein continuance. After this plea was filed, the plaintiff, pursuant to leave of court, filed an amended declaration, in which she complained of the same matters alleged by her in her original declaration, and claimed further that they amounted to a conversion of her business and personal property and a destruction of her leasehold and business she was carrying on in the leased premises. The defendant executrix filed another plea, puis darrein continuance, to the amended declaration, and the plaintiff demurred ore tenus to this plea. The trial court overruled the demurrer to the special plea, sustained the plea and entered judgment against the plaintiff for costs. To reverse that judgment the plaintiff has perfected this appeal.

The only question involved on this appeal is whether or not the plaintiff’s right of action survived the death of the defendant. The plaintiff contends that it did. iiecause she has sued for the conversion of personal property and the trespass upon her right to quiet enjoyment of her leasehold.

The defendant contends that the plaintiff’s assignment of errors is not sufficient. With that contention we are unable to agree. The second error assigned by the plaintiff is to the effect that the trial court erred in sustaining the defendant’s plea and in dismissing the plaintiff’s case, at her costs. Pursuant to leave granted by this court, on motion duly made, plaintiff has filed an additional assignment of error, specifically assigning as error the action of the trial court in overruling plaintiff’s demurrer to the plea.

The defendant further contends, in support of the judgment appealed from, that the plaintiff’s declaration fails to state a cause of action against the original defendant. In our opinion this question is not open for consideration on this appeal. As pointed out in 31 Cyc. 127, “defects in the declaration itself cannot be taken advantage of by a plea in abatement. In such cases a demurrer is the proper remedy. ’ ’ When a plea puis darrein continuance is filed, “the cause of action is admitted to the same extent as if no other defense had been urged than that contained in this plea. Everything is confessed except the matter, contested by the plea puis.” Angus v. Chicago Trust & Savings Bank, 170 Ill. 298; Ripley v. Leverenz, 183 Ill. 519. A plea puis darrein continuance is interposed for the purpose of introducing new matter or matter which has come to the knowledge of the party pleading it, subsequent to a joinder in issue. The only matter sought to be raised by the defendant, through the filing of this plea, is that subsequent to the last previous pleading the defendant, John Kelly, had died, leaving a will appointing Catherine Kelly executrix of his estate; “wherefore she prays judgment that the plaintiff ought not further to maintain her aforesaid action.” That put in issue the sole question of whether the cause of action stated by the plaintiff in her declaration survived the death of the original defendant. In our opinion, the trial court did not err in holding that it did not.

One thing of which the plaintiff complains in her declaration is that John Kelly dispossessed her, resulting in damage to and destruction of her business. In Jones v. Barmm, 217 Ill. 381, the plaintiff complained of the action of the defendant in instituting a persistent and malicious interference with the plaintiff’s business, in a number of ways set forth in the declaration. Pending a decision of the case, the defendant died, and the executrix of his estate was substituted as party defendant and she filed a plea in abatement, alleging the death of the original defendant and that the cause of action was not one which survived. The Supreme Court pointed out that the plaintiff’s contention was that the action did survive under the provisions of the Administration Act, Cahill’s St. ch. 3, ¶ 125, which provides that: “In addition to the actions which survive by the common law, the following shall also survive: Actions of replevin, actions to recover damages for an injury to the person, (except slander and libel), actions to recover damages for an injury to real or personal property, or for the detention or conversion of personal property, and actions against officers for misfeasance, malfeasance or nonfeasance of themselves or their deputies, and all actions for fraud or deceit.” The court then pointed out that the cause of action alleged in the declaration there filed was to a certain extent in the nature of an alleged slander uttered by the original defendant against the plaintiff’s business, which was one of the causes of action expressly excepted by the statute. The court then further pointed out that the damage complained of by the plaintiff was not to any particular piece of tangible personal property owned by him, “but was a damage to his business which could not be seen with the naked eye, but could only be estimated in a rough way by a money value or by loss of trade or profit. If the case comes under any provision of the statute it must be the one with reference to actions to recover damages for an injury to personal property. Taking into consideration the well known meaning of the term ‘personal property’ and the connection in which it is used in the statute, we are of the opinion that it was not the intention of the legislature that it should be applied to the right of action occasioned by the malicious interfering by one person with the business of another, but was intended to apply only to actions for damages to tangible articles and things movable, — to chattels, as distinguished from actions for damages to one’s business.”

But the plaintiff complains further that the actions of the defendant resulted in the destruction of her leasehold estate. In her declaration she alleged that on August 8, 1922, when the acts of the defendant complained of were done, she was in possession of the premises under a lease from the defendant, as owner, which had been assigned by a previous tenant, to her, the plaintiff. A leasehold interest is sometimes treated as personalty (Thornton v. Mehring, 117 Ill. 55) and sometimes as real estate (People ex rel. Healy v. Shedd, 241 Ill. 155, 165). Treating the leasehold estate possessed by the plaintiff in the case at bar, which she claims was damaged and destroyed by reason of the actions of the original defendant complained of, as personal property, it would seem to be clear that her cause of action, so far as it involved such leasehold estate, did not survive the death of the original defendant, in view of what the Supreme Court said in Jones v. Barmm, supra. The latter case was referred to with approval by the Supreme Court in the later case of Shedd v. Patterson, 312 Ill. 371, where that court said that in construing statutes “the court takes words in their ordinary and accepted meaning in popular use. (Citing cases.) The rule was applied to the survival statute in Jones v. Barmm, 217 Ill. 381, and personal property was held in the popular meaning to include only articles or things movable.” We reach the same result if we treat the plaintiff’s leasehold interest as real property. In Shedd v. Patterson, supra, the court said: “The statutes providing for the survival of actions vary considerably, and some may be broad enough to embrace an injury to a right or interest growing oitt of real estate, but our statute is limited, in terms, to actions to recover damages for an injury to real property.” After calling attention to the fact that in Jones v. Barmm, supra, the court, in applying the survival statute to personal property, had held that that term must be confined to its popular meaning, and considered as including “only articles or things movable,” the court said: “The same rule applies to real property, and the statute includes only such property in the common understanding.”

The plaintiff contends that she is complaining also of the acts of the original defendant, which she alleges, resulted in the conversion of her personal property, but in our opinion it is clear that the facts alleged by the plaintiff in her declaration are not such as to establish a conversion, and, therefore, the plaintiff may not successfully contend that her cause of action comes within that phrase of the survival statute which is to the effect that such actions shall survive. In support of her com tentions the plaintiff has called our attention to Genslinger v. New Illinois Athletic Club of Chicago, 229 Ill. App. 428, and Northern Trust Co. v. Palmer, 171 Ill. 383. In our opinion, neither of these cases is applicable to the situation presentéd in the case at bar. The court held in the first case that a certificate of membership in a club could be physically injured, within the meaning of the survival statute, but that the damages recoverable would only be nominal, and further that such a certificate of membership could be the subject of conversion within the meaning of the survival statute. The court distinguished the situation there presented from that involved in Jones v. Barmm, supra. In the Northern Trust Co. case, there, was an injury to tangible personal property of the plaintiff, and no such question was involved as is before us in the case at bar.

For the reasons stated, the judgment of the circuit court is affirmed.

Judgment affirmed,.

Taylor and O’Connor, JJ., concur.