author: Mr. Justice Shurtleff

text:
    A. E. Hudson, Trading as A. E. Hudson Company, Appellant, v. John Walters, Commissioner of Highways of the Town of Pennsylvania, Mason County, Illinois, Appellee.
    Gen. No. 8,561.

      Opinion filed April 27, 1932.

      Scott W. Lucas and Clarence W. Heyl, for appellant.
    Thos. P. Eeep, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

Appellant brought suit against appellee, who is the highway commissioner of the Town of Pennsylvania, in Mason county, upon three township warrants upon the road and bridge fund of the town. The declaration was based specially upon the warrants and also the common counts were filed. There was a judgment entered in the beginning-, but upon the motion of certain taxpayers of the township the judgment was opened and leave was given to plead. A stipulation was entered that appellees could present any proofs that tended to defeat the action the same as though proper pleas were filed. A jury was waived and the cause heard by the court.

Appellant is a dealer in farm and road machinery. The proofs showed that on March 15, 1929, appellant and appellee entered into a written contract by the terms of which appellee purchased from appellant a Monarch tractor, for use upon the roads of the town, for a consideration of $3,817.50, and the tractor was delivered to appellee the same day. In payment for the tractor, under the terms of the contract, appellee delivered to appellant a Fordson tractor, then owned by the town for a consideration of $405, leaving a balance of -$3,412.50 for which appellee gave appellant three town road warrants,, one for the sum of $1,100 to become due July 15, 1929, one for the sum of $1,150 to become due September 1, 1929, and the third for the' sum of $1,162.50 to become due also on September 1, 1929. The first warrant which became due July 15, 1929, was paid on September 28, 1929, in the full amount of $1,122.55, principal and interest, and claimed to have been paid out of the tax levy made for road and bridge purposes in September, 1928, for the year 1929. The other two warrants were never paid, but on September 4,1929, after the making of the tax levy for 1930, two new warrants were made out and signed in proper form, payable solely from the 1929 taxes when collected and in anticipation of the tax, “which is already legally levied by the duly constituted officers of said township or road district,” etc., one for the sum of $1,150 and one for the sum of $1,162.50, each payable to the order of said appellant, and were delivered to appellant. The two orders of March 15, 1929, of like amounts due September 1, 1929, were delivered up to appellee and marked canceled. It was shown that the tax levy of said town for road and bridge purposes levied in September, 1928, for the ensuing year amounted to the sum of $6,324.51, of which the sum of $1,500 was appropriated for the purchase of machinery and the balance for other district purposes.

It was further shown that on the third day of September, 1929, there was a tax levy made for said town for road and bridge purposes amounting to the sum of $6,293.23, of which the sum of $2,400 was appropriated for the purpose of the purchase of machinery and the balance for other district purposes.

There was another warrant or order involved in this suit for the sum of $114.16 for miscellaneous items of oils, greases and repairs used by' the township, over which there is no dispute and admitted to be owing by appellee to appellant. At the time the two warrants were canceled on September 4,1929, an additional warrant was given to appellant in the sum of $65.91, presumably for interest, which was paid. From the records it was shown that on March 15, 1929, there was a balance in the road and bridge fund of $39.66, but it could not be determined from the treasurer’s record to what fund it belonged, whether it had been levied for the purchase of machinery or for some other purpose.

The court held that of the funds on hand and levied on March 15, 1929, subject to the payment for said purchases, were the following:

The amount appropriated for machinery in September, 1928.....$1,500.00

The amount on hand March 15,1929 39.66

The amount appropriated for oils, greases and repairs........... 114.16

Total............ $1,653.82

And the court charged appellant:

Payment of the order for........$ 65.91

Payment of the order for........ 1,122.55

Total............ 1,188.46

leaving a balance of..... $ 465.36

for which the court gave appellant a judgment against appellee. Appellant has appealed and appellee, claiming a refund of the amounts paid, has filed cross errors.

It was claimed by appellant that the exchange of orders in September, 1929, was a new settlement for the tractor. It is not disputed but that appellee had use for the tractor and from the date of its purchase it was in operation upon the roads in Pennsylvania township and did good service. However, the tractor was purchased in March, 1929, and the rights of the parties must be determined as of that date. On March 15, 1929, appellee’s contract to purchase road machinery, except for the amount of $1,539.66, was void and appellee was without power to make a purchase for a greater sum. (Commissioners of Highways v. Newell, 80 Ill. 587; Brauns v. Town of Peoria, 82 Ill. 11; People v. Chicago, T. H. & S. E. Ry. Co., 315 Ill. 589; Deyo v. Commissioner of Highways, 256 Ill. App. 3.)

The contract to the extent of $1,539.66 was valid so far as it was carried ont and executed. (Town of Bruce v. T. Lyle Dickey, 116 Ill. 527.) Appellee contends that the burden of proof was upon appellant to show that the item of $39.66 was levied for the purpose of buying- road machinery. On the contrary, the burden of proof was upon appellee to show that this item was levied and collected for some other purpose. (Adams v. Commissioners of Highways, 151 Ill. App. 68; Henderson v. Palmer, 71 Ill. 579); and this principle is made substantially a rule of pleading in Euziere v. Highway Commissioner of Town of Rockville, 346 Ill. 131. The orders or warrants issued on September 4, 1929, are illegal and void for the reason that there were not sufficient funds on hand to complete the contract during the year the transaction occurred and when the contract was entered into, and such contracts cannot be completed and bills paid out of funds levied or provided for a succeeding year. (Commissioners of Highways v. Newell, 80 Ill. 587; Brauns v. Town of Peoria, 82 Ill. 11.) This is true regardless of the fact that the superintendent of county highways approved the warrants. Appellee had no power or authority to use funds levied and appropriated for highway purposes, other than the purchase of machinery for the item in question. (Deyo v. Commissioner of Highways, 256 Ill. App. 3; People v. Wabash Ry. Co., 316 Ill. 403; People v. Chicago, T. H. & S. E. Ry. Co., 315 Ill. 589.)

We find no error in the record upon any of the assignments of error made by appellant.

Appellee has assigned cross errors that the circuit court should have found the entire contract void and ordered a refund of the amounts paid to appellant and a return of the Ford truck, and that it was error not to so find. We cannot agree with this contention. No fraud is charged in fixing the value of the Ford truck, or in the truck purchased, and no offer or attempt has been made to rescind the contract or return the truck purchased within a reasonable time. Appellee did have power and authority, under this record, to purchase the truck in question for a consideration not to exceed the sum of $1,539.66 and an. exchange of the Ford truck, and so far as the contract is executed to the satisfaction of both parties it was not within the power of the circuit court to interfere with that arrangement in this suit. It may be that either party to the contract had the right, within a reasonable time, by returning or offering to return the goods purchased, or the moneys paid to rescind the contract and a proper forum might have afforded relief. There is no such question in this case.

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

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Shurtlbff

license: Public Domain

text:
    Glenn F. Bunch, Plaintiff in Error, v. Rollin McAllister, Defendant in Error.
    Gen. No. 8,608.

      Opinion filed April 27, 1932.
    Burnett M. Chiperfield, Claude E. Chiperfield and Robert B. Chiperfield, for plaintiff in error.
    Boyd, Ratcliff & Weber and Walker & O’Hara, for defendant in error.
   Mr. Justice Shurtlbff

delivered the opinion of the court.

This was an action of trespass on the case brought by Glenn E. Bunch, plaintiff in the court below, against Rollin McAllister, defendant in the court below, to recover damages alleged to have been sustained by him in an automobile accident which occurred on the 31st day of October, 1927.

The declaration consisted of one count and averred that on October 31, 1927, Glenn F. Bunch, plaintiff, was riding in a certain Chevrolet motor car, of which he was the owner, being driven by one Ernest Lovitt in a westerly direction along the north half of the paved portion of a certain public highway known as State Bond Issue Route 9, situated about one and one-half miles distant from the City of Canton in Fulton county; that the defendant, Rollin McAllister, was then and there possessed of and driving a certain Reo truck along the paved portion of said highway in an easterly direction; that while the plaintiff was in the exercise of due diligence the defendant so negligently drove the said Reo truck that when it was about 50 feet west of the said Chevrolet automobile it suddenly turned from the south side of the paved portion of said public highway to the north side thereof and was then and there driven with great speed at and towards the car in which the plaintiff was then and there riding, and did violently collide with the automobile of the plaintiff; that the car in which the plaintiff was riding, in attempting to escape injury, then and there turned in a northerly direction off said pavement and onto the unpaved portion of said public highway; that at the time of said collision the truck driven by defendant was wrongfully upon the north side of said public highway where the plaintiff’s car had the lawful right to be.

Plaintiff in error alleges that he suffered severe injuries growing out of the collision.

The plea of the general issue was filed to the declaration. The cause was tried in the circuit court of Fulton county on the 27th day of January, A. D. 1930, resulting in a verdict in favor of the defendant in error being returned by the jury.

Plaintiff in error has brought the record by writ of error to this court for review.

In this case the proofs for plaintiff in error show that plaintiff in error, with the witness Lovitt driving plaintiff in error’s Chevrolet car, were driving west on the highway north of the black line. Defendant in error was driving his truck on the south side of the black line or about on the line, and when the cars were about 50 feet apart, defendant in error’s truck turned to the left, went over the black line and struck the left front wheel of plaintiff in error’s Chevrolet, while Lovitt was pulling the Chevrolet to the north and over the shoulder of the pavement to the north of the cement slab which the Chevrolet left. They testified defendant in error’s truck faced to the northeast and that the right front wheel of the truck struck the left front wheel of the Chevrolet.

Defendant in error and his witness Sharron, who was riding with him, testify to an entirely different state of facts. They testify that defendant in error was traveling all the time from Canton east with a truck load of hogs on the south side of the black line, and that just before they reached Van Dyke corner, a dirt road leading to the south and the County Farm, the Chevrolet car had swerved to the south and over the south shoulder of the cement upon the gravel and at first appeared like it was trying to make the Van Dyke corner south, but instead of turning to the south, it continued directly toward the truck and a head-on collision, and that when within 30 to 40 feet of the Chevrolet, defendant in error turned his truck to the left and north, and that his front wheels were just over the black line when the collision occurred. The actual collision occurred about 15 steps west of the center of the Van Dyke dirt road. The actual collision was testified to by one witness in each car, in addition to the drivers. Two other drivers going east behind defendant in error, witnesses Brush and Whitehead, saw the

lights of plaintiff in error’s Chevrolet south of the truck. Whitehead testified, “I saw the lights of a car which collided with the truck coming from the opposite direction. I saw one' light on the south side of the truck just before the accident.” Whitehead was 40 to 60 rods back of defendant in error’s truck. Brush testified: “I saw a car coming from the east or saw the lights of a car. I saw the lights of this car make a kind of a whip and I saw the truck look as though he made some kind of a whip too, or movement, or something of the kind, like that (illustrating) and they collided. When I first saw the lights, they were on the north and whipped to the south. I did not see them after they whipped to the south, until the time of the collision.” Brush was about 1,000 feet behind defendant in error. Neither witness could state the exact line defendant in error’s truck was traveling in the highway.

In this cause the court gave 21 instructions for plaintiff in error and 17 instructions for the defendant in error. Upon the giving of certain of these instructions for defendant in error and the refusal of certain instructions offered by plaintiff in error, plaintiff asks for a reversal of said judgment.

Plaintiff in error especially complains of defendant in error’s second instruction as follows: “If you believe from the evidence in this case that the defendant McAllister immediately prior to the collision in question ivas driving in an easterly direction upon the south side of the black line down the middle of the hard road and that the car in which the plaintiff was riding approached from the east on the south side of the black line down the middle of the hard road and that it was reasonably apparent to the defendant that a collision was imminent and if you further believe that the defendant Avhen thus confronted -with impending danger of a collision, if you find from the evidence he was so confronted turned to the left and onto the north side of the black line down the middle of said hard road and that in so doing the defendant did what an ordinarily prudent man would have done under similar circumstances, then the defendant was not guilty of negligence in turning onto the north side of the black line and would not under the conditions above outlined be liable in this case.”

And defendant in error’s third instruction as follows :

“The court instructs the jury that if you believe from the evidence in this case that at the time the accident occurred, the car of the plaintiff was being driven by the witness Lovitt, for the plaintiff, or under the plaintiff’s direction and control, and if you further believe from the evidence that the said Lovitt in driving said car negligently drove to the south side of the center line of the road, and that the act of Lovitt in so driving said car contributed to the injury complained of, then under such state of proof the plaintiff cannot recover, and you should find your verdict for the defendant.”

And defendant in error’s thirty-sixth instruction as follows: 1 The court instructs the jury that if you believe from the evidence in 'this case that the defendant, McAllister, immediately prior to the accident in question, was placed in a sudden emergency, with peril imminent, as the result of the car in which plaintiff was riding being driven on the south side of the road, then you are instructed that under such state of proof the defendant would not be required to use the same degree of self-possession, coolness and judgment as when there is no imminent peril but if under such circumstances the defendant acted as an ordinary prudent person would have acted he would not be guilty and you should find your verdict in his favor. ’ ’

As to instructions numbers 2 and 36, plaintiff in error contends that the' giving of these instructions was error, for the reason that they omit the element of due care on the part of defendant in error in getting himself into the position he found himself in prior to the accident. This rule was observed in Chicago, M. & St. P. Ry. Co. v. Halsey, 133 Ill. 248, where a similar state of facts existed, and the court submitted an abstract instruction, not requiring the jury to find any of the facts in the case; and in North Chicago St. R. Co. v. Cossar, 203 Ill. 608, 612, where a woman had ridden upon a bicycle into a crowded intersection, and was injured by a street car; but in Chicago & E. I. R. Co. v. Storment, 190 Ill. 42, 45, the court gave the following instruction: “Although you may believe, from the evidence, that the plaintiff jumped or stepped from the train in question after it was in motion, whereby she received the injuries complained of, yet if you further believe, from the evidence, that while the plaintiff was descending the steps of said train the same was suddenly, carelessly and without warning to her set in motion by the defendant, and that the plaintiff was thereby placed in a perilous position, then it is for you to determine, from the evidence, whether the plaintiff acted as a reasonably prudent person would have done under like circumstances; and if you believe, from the evidence, that under the surrounding circumstances the plaintiff was not guilty of negligence, but acted as a reasonably prudent person would have done under like circumstances, then the fact of her so stepping or jumping from said train while the same was in motion will not prevent the plaintiff from recovering in this case.” This instruction states nothing as to the due care of the plaintiff in coming to the steps and attempting to get off the train. It is presumed that passengers upon a railway train sometime, somewhere will want to get off from the train in an orderly manner, just as drivers upon the highway, by rule and by statute, are expected to drive to the right of the center line or black mark. In the Storment case the court said: “The instruction informed the jury they had the right to take-into consideration all the circumstances surrounding the plaintiff from the time she left her seat in the car until she reached the platform, and if they found, from the evidence, that while she was descending the steps to the platform the train was suddenly and without notice to her set in motion, and she was thereby placed in a perilous position, and that while so situated she did what a reasonably prudent person would have done under like circumstances for her own safety, the fact that she stepped or jumped from the train while the same was iii motion would not defeat a recovery. We see no error in this instruction. If a person, while in the exercise of due care for his own safety, be placed in a perilous position by the wrongful act of another, if his conduct in attempting to extricate himself from such peril is that of a reasonably prudent person acting in view of such peril, he may recover, if injured.”

The instructions submit to the jury the question of defendant’s due care prior to the point of “imminent danger,” all of the facts as to whether defendant was confronted with “imminent danger” and are not subject to the criticism made.

Plaintiff in error contends that the second instruction is erroneous in that it assumes, as a matter of law, that plaintiff in error was negligent for driving on the left-hand side of the road, citing Chandler v. Gifford, 223 Ill. App. 486. When, the action arose in Chandler v. Gifford, supra, there was no law directing the lanes of traffic and the court said: “While many cities and. villages have ordinances requiring* automobiles to keep to the right of the center of the street and where such ordinance has been enacted it is negligence per se to drive to Úie left of the center of the street (Star Brewery Co. v. Hauck, 222 Ill. 348; Lake Shore & M. S. Ry. Co. v. Parker, 131 Ill. 557; Grabill v. Block, 218 Ill. App. 659); this is not the rule in this State where such ordinance has not been enacted.”

Since that time, paragraph 161(2), chapter 121, Cahill’s Revised Statutes, in force at the time of the accident in question, provides: “Upon State highways, upon which have been constructed paved or hard-surfaced roads having two traffic lanes, every person operating or driving a vehicle shall, whenever practicable, keep to the right of the center line of the paved or hard-surfaced portion, and shall have the right of way on that traffic lane. ’ ’

The instruction is not subject to the criticism made. Plaintiff in error, in his seventeenth instruction, enunciated the same principle as to the defendant in error, and if the instruction was erroneous plaintiff in error can take no advantage of it.

Instructions 2 and 36 do not assume the existence of any facts; they leave it to the jury to determine whether plaintiff in error’s car was on the left-hand side of the road and the defendant in error’s car was on the right-hand side of the road. The instructions were based upon the evidence, which was defendant in error’s theory of the case.

As to the instruction number three, no such construction can be placed upon this instruction as contended by plaintiff in error and we find no error in the giving of this instruction.

Plaintiff in error criticizes instruction number 31 given for defendant in error, as follows: “The court instructs the jury that there is no presumption of negligence arising against the defendant from the simple fact of itself that the plaintiff was injured in connection with the truck of the defendant, or as a result of a collision with defendant’s truck.” v

This instruction was refused in West Chicago St. R. Co. v. Petters, 196 Ill. 298, 300, and the court said: “We think the appellant was not prejudiced by the refusal of the trial court to give this instruction to the jury. This class of instructions, which select one item of evidence or one fact disclosed by the evidence and state that a certain conclusion does not follow, as a matter of law, from that fact, are calculated to mislead and confuse a jury. The case of Drainage Com’rs v. Illinois Central Railroad Co., 158 Ill. 353, was reversed on this character of instructions. If an instruction of this nature were held proper, it would be possible for a defendant to select each ‘mere fact’ constituting the entire chain of facts by which negligence was proved, and enable the court to instruct the jury that each of these links in the chain did not, of itself, constitute negligence, and while each particular link might not, of itself, constitute negligence, yet the whole, taken together, would, and thereby the court would be enabled to instruct the jury on the facts and take away the consideration of facts from them.” Such instructions should not be given, but we are not able to conclude, in this case, that the giving of this instruction in any manner prejudiced the jury or is reversible error.

The instruction held reversible error in Drainage Com’rs v. Illinois Cent. R. Co., 158 Ill. 353, 357, was upon an entirely different subject matter and applied an erroneous rule of law to a set of facts within the province of the jury to determine.

Plaintiff in error criticizes the giving of defendant in error’s twenty-sixth instruction as follows: “The court instructs the jury that if you believe from the evidence that the plaintiff has not made out and proved his case by the greater weight of preponderance of the evidence, and under the instructions given by the court, he is not entitled to recover, then your oaths prohibit you from bringing in a verdict in his favor for any sum of money merely because you may sympathize with him. This case must be tried according to the law and the evidence and not according to the sympathies of the jury”; and cites Molloy v. Chicago Rapid Transit Co., 335 Ill. 164, 171, where the following instruction was given: “ ‘ The court instructs the jury that while as a matter of law the burden of proof is upon the plaintiff and it is for her to prove her case by a preponderance of the evidence, still, if the jury find that the evidence bearing upon the plaintiff’s case preponderates in her favor, although but slightly, it would be sufficient for the jury to find the issues in her favor. ’ ”

The court said: “Instructions similar to this one have been criticised by this court in many cases. The instruction first states that it is for the plaintiff to prove her case by the preponderance of the evidence, and refers to the evidence bearing on plaintiff’s case without any” statement as to what the case is or what it is necessary for her to prove, but it refers the whole case to the jury without any limitations. It opened the door for the jury to take any view of plaintiff’s case which they saw fit to take and to arrive at a verdict for any reason which might seem to them to be sufficient, without any rule to guide them. An instruction must limit the right of recovery to the negligence charged in the declaration. (Herring v. Chicago and Alton Railroad Co., 299 Ill. 214; Hachett v. Chicago City Railway Co., 235 id. 116; Ratner v. Chicago City Railway Co., 233 id. 169.) ”

In the Molloy case the instruction was a plaintiff’s instruction. In the case at bar the instruction is a defendant’s instruction. In the case at bar plaintiff in error in his instructions 17 and 19 fully set out the nature of his case and the negligence charged.

Plaintiff in error criticizes the thirty-second instruction given for defendant in error as follows: “The court instructs the jury that by his declaration in this case the plaintiff charges that the defendant was negligent in the operation of his Eeo truck in that when within about 50 feet of the Chevrolet car in which plaintiff was riding, the defendant turned said truck and drove it with great speed from the south side of the public highway to the north side' thereof at and toward the car in which plaintiff was riding so that, the Reo truck of the defendant was caused to and did collide with the plaintiff’s automobile, although the plaintiff’s car left the pavement on the northerly side and turned in a northerly direction off of the pavement in order to escape collision with defendant’s truck. In order to recover in this case it is incumbent upon the plaintiff to prove the said charge by a preponderance of the evidence in this case and if you find that he has failed to so prove the said charge in his said declaration then your verdict should be for the defendant.” It is objected that the instruction does not contain the element of due care, charged in the declaration on the part of plaintiff in error. The instruction does contain in substance, the charge of negligence set out in the declaration on the part of defendant in error. Plaintiff in error, in several instructions, had mentioned the “negligence” of the defendant, and defendant in error was entitled to submit to the jury the charge of negligence contained in the declaration. In the recent case of Buckley v. Mandel Bros., 333 Ill. 368, our Supreme Court, at page 373 says: “When the plaintiff sets out in his declaration the negligent acts of the defendant relied on as a basis for a recovery he must establish those negligent acts, and cannot recover by reason of negligent acts of the defendant not averred in the declaration as a ground of recovery, even though the acts proven show the defendant was guilty of negligence which caused the injury.” There was no error in the giving of this instruction.

It is objected that 10 of defendant in error’s instructions are instructions which by their terms direct a verdict for the defendant in error, and plaintiff in error cites Kravits v. Chicago City Ry. Co., 174 Ill. App. 182, and what the court said on page 186 as follows: “ ‘It was never contemplated, under the provisions of the practice act, that the court should be required to give a vast number of instructions, amounting, in the aggregate, to a lengthy address/ and such a practice is ‘mischievous and ought to be discontinued/ and ‘does not enlighten the minds of a jury on the issues submitted to them, but rather tends to introduce confusion. ’ Adams v. Smith, 58 Ill. 417, 419; Chicago City Ry. Co. v. Sandusky, 99 Ill. App. 164, 168; Chicago, P. & M. R. Co. v. Mitchell, 159 Ill. 406, 407; West Chicago St. R. Co. v. Petters, 196 Ill. 298, 302; Donnelly v. Chicago City Ry. Co., 235 Ill. 35, 39. Under the facts of this case we are inclined to the opinion that" the giving of such a large number of instructions, many of which directed a verdict for defendant, constituted prejudicial error. ’ ’ This is a correct rule of law, but plaintiff in error was guilty of the same offense. Ten of plaintiff in error’s instructions either directed a verdict against the defendant or contained the statement: “that if the jury find the defendant guilty,” or words of similar import, then that plaintiff’s damages should be assessed. From the number of instructions submitted in this cause, the court would have been warranted in refusing all.

Plaintiff in error complains of the court’s refusal to give his instructions four and five as follows: “4. The court instructs the jury that the degree of care to be exercised by drivers of motor vehicles depends upon the character of the vehicle used, and that the more dangerous the use of such vehicle may be and the greater its liability to do injury to others the higher is the degree of care and caution to be exercised by the person charged with the duty of its operation, management and control.

“5. The court instructs the jury that when it is said in these instructions that the plaintiff, Glenn Bunch, was required to exercise ordinary care for his own safety, it is meant that he was required to exercise that degree of care which an ordinarily prudent and cautious person situated as plaintiff was before and at the time of the accident would have exercised for his or her own safety.” Instruction number four does not state a correct rule of law and there was no testimony upon which to base it. Instruction number five was fully covered by other instructions given for plaintiff in error.

Another question is raised in this case. The cause was tried at the January term of the circuit court of Fulton county and a verdict rendered on the twenty-eighth day of January, 1930, at which time a motion was made to set aside the verdict and for a new trial. On April 23, 1930, the January term of court adjourned for the term. At the second term thereafter, namely the September term, 1930, the motion for a new, trial was heard and overruled, and then for the first time a motion for a bill of exceptions was made and allowed and an order entered therefor. It is contended by defendant in error that no bill of exceptions having been taken to the January term, A. D. 1930, ho errors of law occurring upon the trial or exceptions to the giving or refusing of instructions can be heard upon this review, citing: Finch & Co. v. Zenith Furnace Co., 245 Ill. 586, 590; Taylorville Sanitary District v. Nelson, 334 Ill. 510, 513; and Yarber v. Chicago and Alton R. Co., 235 Ill. 589, 596. On. the other hand, plaintiff in error cites eases: People v. Gary, 105 Ill. 264; Hosking v. Southern Pac. Co., 243 Ill. 320, 328; and Grubb v. Milan, 249 Ill. 456, 460, holding to a different rule and that the bill of exceptions may be taken at the term in which judgment is entered. We have not found it necessary to pass upon this question in arriving at a determination of the case, and, therefore, we do not pass upon this question.

Finding no error in the record that will warrant a reversal of the judgment, the judgment of the circuit court of Fulton county is affirmed.

Affirmed.


text:
    School Directors of District Number 184 et al., Appellants, v. M. L. Briggs, Appellee.
    Gen. No. 8,611.
    Opinion filed April 27, 1932.
    Hogan & Coale, Leal W. Eeese, W. B. McBride and Hershey & Vogelsang, for appellants.
    Leslie J. Taylor, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

A motion is urged in this case to this court to re-transfer the cause to the Supreme Court of the State, upon the ground that the constitutionality of a statute is involved, and this court is without jurisdiction to pass upon that question.

The final decree was entered in the circuit court of Christian county upon August 24, 1931, the same being the first day of the August Term, 1931, and an order was entered for an appeal to the Supreme Court, bond fixed and a certificate of evidence ordered to be prepared. Thereafter on the twenty-third day of September, 1931, at the same term of court, a further order was entered in the circuit court of Christian county as follows: “Order requiring the complainants to enter into an appeal bond is vacated and complainants may prosecute an appeal without giving bond. The order granting the appeal to the Supreme Court is vacated and the appeal is allowed to the Appellate Court.” Nevertheless, appellants appealed the cause to the Supreme Court and the record, briefs, arguments and abstract were filed in that court upon November 11, 1931, to the December Term, A. D. 1931 of said court. And thereafter, on the third day of December, 1931, the Supreme Court being fully advised in the premises, and having examined and inspected the record and being of the opinion that this case was wrongfully appealed to that court, ordered that this case be, and the same is hereby transferred to the Appellate Court of the Third District of the State of Illinois, and the transcript and files herein have been transmitted to this court and are before us. We have examined the record, abstract, briefs and arguments in the case fully.

The statement of the case as made by appellants is as follows: “This is an appeal from a decree rendered in the Circuit Court of Christian County, which dismissed the bill in equity.

“The suit was filed by the School Directors of a number of underlying common school districts, which included territory formerly within a township high school district which had been dissolved, and was for the purpose of compelling an accounting and to secure proper distribution of the funds of the dissolved high school district.

“The facts of the case are as follows: An order of dissolution was entered in the Circuit Court of Christian County, Illinois, on the 24th day of March, A. D. 1927, dissolving high school district No. 309 of Christian County, holding the district to be null and void and ousting the Board of Education of said alleged district from jurisdiction over its territory.

“This judgment, which was final and not appealed from, was rendered following the decision of the Supreme Court in the case of People v. Buesinger, 324 Ill. 534, which was the same case.

“This de facto high school district had been in existence long enough to have levied and collected taxes, and at the time of its dissolution, Charles J. Walter, Jr., who was the Township Treasurer of South Fork Township, Christian County, Illinois, wherein the district was located, had in his hands belonging to said school district the sum of $21,272.71. However, it took a small sum of money to pay off the obligations incurred by the district prior to its dissolution, so that at the time of its dissolution there was in the hands of the Treasurer of the district, over and above all outstanding indebtedness incurred before that time, the sum of $19,602.58, and it became a serious question for the Treasurer to determine as to whom this money shall be distributed.

“Section 92 of the School Act as adopted in 1923 provided that in such case, after the district had been dissolved: ‘The County Superintendent of Schools shall direct the high school Board of Education to discharge all outstanding obligations and to distribute the remainder of the assets of the high school district to the underlying school districts and parts of districts.’

“This Act which was enforced from 1923 until 1925 was amended by the Legislature in 1925 and the following additional clause was added: ‘When a high school district is or has been organized or attempted to be organized under the laws of this State, and the organization is or has been declared to be invalid by a final decree of a court of competent jurisdiction, and a new high school district has been formed by vote of the people, or a new high school district is formed within two years of the decree of Court, by vote of the people and where the new high school district embraces in area and population not less than two-thirds of the discontinued school district, then any court having jurisdiction may order and direct the assets of the invalidly organized high school district, after the payment of all outstanding obligations, be paid to the treasurer of the new high school district for its use and benefit. ’

“After the dissolution of High School District No. 309, Mr. Charles J. Walter, Jr., the Treasurer of the district, who had the above funds in his hands, was advised by counsel that the district could incur no new obligations. He was further advised (for reasons which will be hereafter given) that the amendment of 1925 was unconstitutional, and that for his own protection, the payment of the said sum of $19,602.58 should be paid out to the underlying school districts and parts of districts in proportion to the assessed valuation of all the property of such school districts and parts of districts.

‘ ‘ Thereafter, upon written demand having been made to him by several of the underlying school districts, the said Charles J. Walter, Jr., did compute and ascertain the sums of money to which each of the underlying school districts were entitled, and did pay out to the several underlying school districts the sum of $19,602.58. .

“The distribution as to all of the school districts of which he was himself the Treasurer was, of course, made only on his own books as he was the Treasurer both of the dissolved high school district and also of the underlying school districts. The distribution which was due to the underlying school districts of which he was not the Treasurer was made by the payment of cash.

‘ ‘ Shortly after the above distribution was made the term of office of the said Charles J. Walter, Jr., as Township Treasurer of South Fork Township expired and the defendant M. L. Briggs was appointed by the Trustees to succeed him.

“Shortly after his accession to office the defendant M. L. Briggs, evidently being advised by his counsel that the amendment of 1925 was a valid amendment re-transferred the funds of these underlying school districts back to himself and purported to hold them as the funds of High School District No. 309.

“The ousted Board of Education of High School District No. 309 refused to obey the order of the Circuit Court ousting them of jurisdiction and dissolving the district, but continued to carry on a high school after the 24th day of March, A. D. 1927, up to the close of the school year. In so doing they had incurred additional expenses for teacher’s salaries, janitor’s services, rental of building, etc., during that interval. After the dissolution of the district, the Township Treasurer on the advice of counsel, refused to pay these additional orders and a suit for mandamus was filed against him in the Circuit Court of Christian County, to compel him to pay these orders. He appeared and answered the suit which was pending for trial in the Circuit Court of Christian County at the time the term of Charles J. Walter, Jr., as Township Treasurer, expired. As soon as the defendant M. L. Briggs succeeded to the office of Township Treasurer he suffered himself to be defaulted and, by what, in the opinion of counsel, amounted to a conspiracy among all parties concerned, permitted a judgment to be entered against him, ordering the payment of these illegal orders.

“Some time after that a new high school district was organized, which contained approximately 85 per cent of the territory formerly included within District No. 309, which new high school district was known as High School District No. 310, and the defendant M. L. Briggs contends that all the surplus money in hi$ hands now, belongs to the new district. This bill in equity was thereupon filed:

“ (1) To prevent a multiplicity of suits, and to compel an accounting of the funds belonging to the complainant underlying school districts, particularly as to those funds which had been illegally paid out by maintaining a high school after the district had been dis: solved.

“ (2) To compel him to pay back to these underlying school districts the amount of funds which they claimed was illegally taken from them.

“(3) To enjoin the defendant from paying out the funds in his hands to any newly organized high school district.

“All of the facts as above set forth were presented in evidence whén the cause was tried in the Circuit Court. The Chancellor, after considering the case, held that the 'amendment of 1925 to the School Act was constitutional, and therefore dismissed the bill at the cost of the Complainants.”

From the abstract, briefs and arguments in this cause it is shown that a mandamus suit was prosecuted in the circuit court of Christian county against appellee, as township treasurer, by various creditors of said high school district, the said creditors purporting to be superintendent, principal, various teachers and other creditors, and the cause tried and a writ of mandamus awarded, directing said appellant to make certain payments to said relators, but the amounts and full extent of said suit or suits are not shown by the abstract.

The abstract and brief and argument of appellant do not comply with the rules of this court. We can get little idea as to the controversy from either. They do not show, with any certainty, the amount of funds in controversy, nor the amount directed to be paid out by the judgment in mandamus, from which no appeal was taken. Counsel in their argument of the case state: “There are only two separate points of law involved in this case; one being that District No. 309 became extinct when the decree. of dissolution was entered against it on March 24th, A. D. 1927. In accordance with numerous cases heretofore cited this district could not incur any further obligations. It had no Board of Education, and there being no Board of Education there was no one authorized to continue the existence of the school after the date of its dissolution. It is therefore apparent that the funds on hand and held by the Treasurer of the Township in which District No. 309 was located are not properly chargeable with teacher’s salaries, janitor’s services, and rental of the high school building, all of which were incurred and were for services obtained subsequent to the dissolution of the district. The fact that the friends of this extinct high school were able to secure the appointment of a compliant Township Treasurer who was perfectly willing to let himself be defaulted in a mandamus suit brought to compel the payment of such illegal warrants, does not affect the ultimate decision of this case.

“It is apparent on the face of the record that Briggs, the defendant in this case, conspired with the authors of these illegal warrants for the purpose of getting an order from some court which might be alleged to authorize their payment.

“The constitutionality of the amendment of 1925 to the School Act, which provided that the funds levied for the benefit of one district might be used for the benefit of another district, even though the territory involved is not identical, has never been presented to this Court for consideration. We believe that only a casual examination of this statute will convince anyone that it is unconstitutional and void. It provides in effect that money collected from one locality may he used in part for the benefit of another.”

Substantially the only argument made by appellants is upon their fourth assignment of error, as follows: “4. The court erred in refusing to hold the Statute, chapter 122, paragraph 100, page 2509 Cahill’s Revised Statutes, as amended in 1925, unconstitutional, null and void. ’ ’

The suit or bill is not filed to attack, set'aside or review the mandamus proceedings, as no proper charges are made and none of the relators are made parties. We should be inclined to transfer this cause to the Supreme Court, but neither in the pleadings nor in the entire record is it shown anywhere that the constitutionality of any statute was presented to the lower court, any ruling thereon made or preserved, without which the Supreme Court would have no jurisdiction of this cause. (Barley v. Thompson, 299 Ill. 122, 124; Cleveland, C., C. & St. L. Ry. Co. v. McGrath, 195 Ill. 104; Opaque Cloth Shade Co. v. Veight, 161 Ill. 337; People v. Blue Mountain Joe, 129 Ill. 370, 375; Dean v. Northern Trust Co., 259 Ill. 148, 155; Stewart v. Department of Public Works & Buildings, 336 Ill. 513; Fitzsimmons v. Miller, 308 Ill. 85, 92; and Board of Education v. Board of Education, 312 Ill. 31, 33.)

As to the mandamus proceeding, the abstract shows the following: “Following is transcript of mandamus case, unnecessary to abstract in full. The substance of the petition is, that certain employees of district 309, which was a district that was dissolved because of decision of the Supreme Court, and which continued to operate the school after the dissolution of said district throughout April and May, and that Walter was treasurer and had on hand funds of said district, and that the employees, teachers, janitors, etc., and landlord for rent of building had not been paid for these two months, and that the board of education issued orders for their services and for the rental as follows:

J. W. White................$260.00

J. C. Roberts............... 200.00

Ruth Greenan ............. 177.78

Nina Maxey ................ 166.67

Frances Smith............. 166.67

Mabel Parks.....'.......... 166.67

and also sets out further orders to be issued and they were presented to Walter who refused to pay the same.

“Petition further sets out other additional orders for the same purpose to practically the same people and their allowance in May, and Walter, treasurer,, refused to pay the same.” And all that the abstract shows as to the judgment or “decree” in mandamus is the following: “Order of court with reference to mandamus directing the treasurer to pay the orders.

“File marks of decree.”

So it would seem that there had been a judgment or “decree” in the mandamus suit, ordering portions of these funds or all of them to be paid out to various persons, none of whom are parties to this suit and in a suit in the same court, from which no appeal has been taken. Under the circumstances in this case, we are not inclined to retransfer this cause to the Supreme Court and the motion to retransfer is denied.

Appellants in this court argue only the fourth assignment of error, that paragraph 100 of chapter 122, page 2509 of Cahill’s Revised Statutes, as amended in 1925, is unconstitutional. We have no jurisdiction to pass upon this question; therefore, the decree of the circuit court of Christian county is affirmed.

Affirmed,


text:
    The People of the State of Illinois, Defendant in Error, v. Pearla O. Beach, Plaintiff in Error.
    Gen. No. 8,614.
    Opinion filed April 27, 1932.
    A. M. Fitzgerald, for plaintiff in error.
    A. W. Schimmel, State’s Attorney, for defendant in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This case comes to this court upon writ of error to the county court of Pike county. Plaintiff in error was convicted under the first count of an information containing six counts charging him with- violating the Medical Practice Act, Cahill’s St. ch. 91, by treating human ailments without the use of drugs and without operative surgery and by rubbing and otherwise making examinations and manipulations without having a license. The second and fourth counts were dismissed by the People and the third count was dismissed by the court. The jury found the defendant not guilty as to the fifth and sixth counts, but found him guilty on the first count.

The first count of the information upon which plaintiff in error was convicted was as follows: “Information by A. W. Schimmel, State’s Attorney, against Pearla 0. Beach, charging that on April 17, 1931, Pearla 0. Beach did then and there unlawfully treat human ailments without the use of drugs or medicine, and without operative surgery, in that he did then and there treat one George G. Suprunowski for physical ailments by rubbing and otherwise making certain examinations and manipulations of the body of said George G. Suprunowski without him the said Pearla 0. Beach having a valid existing license as to so treat human ailments, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the same People of-the State of Illinois.”

The evidence for the People consists alone of testimony of George Suprunowski, who was an investigator of the department of registration. He testified that he had gone to Pittsfield where plaintiff in error resides, and that there he had, under the name of Charles E. Lane, solicited plaintiff in error to come to the Pitts-field House for the purpose of treating him; that while representing himself to be Lane he had falsely stated that he was suffering from some complaint; that he had attempted to disguise himself by spectacles and a cane, and that plaintiff in error had come there and given him a treatment; that a deputy sheriff by the name of Wendell Johnson had by prearrangement called at the room while plaintiff in error was there; that he gave plaintiff in error $2.50 for this treatment; that thereafter on the night of April 20 he obtained a confession from plaintiff in error which is marked People’s Exhibit 4; that this confession was admitted in evidence over the objection of plaintiff in error and after a hearing out of the presence of the jury; Suprunowski’s statements made at the time of obtaining the confession are partially corroborated by Ivis Johnson, the sheriff.

Plaintiff in error did not have a license to practice medicine. He testified that he had been treating human ailments in Pike county for 10 or 12 years; that he had treated human ailments for most of his life; that he did not give any medicine nor treat by manipulation or rubbing of any sort; that the nature of the aid he gave was divine and that he believed it a part of his religious duty to treat persons to whom he could give relief and that it was a part of his religious belief to bring assistance to persons suffering from human ailments by spiritual means; that he placed his hands on the clothing of persons because of the saying in the Bible that we must “be doers and not hearers only.” He is confirmed in his statement that he does not manipulate, give medicine nor in any manner mentioned in the Medical Practice Act attempt to practice medicine, by Bose Brooks, who is the clerk of the circuit court of Pike county; Mrs. Goldman, Elza Galloway, Ed Goldman, Ed Kaeser, and Mrs. Kirk.

A confession was offered in evidence which plaintiff in error testified was secured from him by threats and intimidation and with the officer’s gun lying upon the table, but as this confession does not change the situation as to plaintiff in error, under the conviction of the charge set out in count one, we omit the matter entirely except to suggest that under the proofs it was not properly admissible in evidence. In any event, if the jury were to hear the testimony, it should have been guarded by plaintiff in error’s third instruction, which the court refused to give, and which is as follows : ‘ ‘ The Court instructs the jury that if you believe in this case that the statement in writing purporting to have been obtained from the defendant was not freely and voluntarily made and given by him, but was obtained by others through assault, intimidation, coercion, abuse or threats, or as a result of any so-called third degree method, then and in such case you are to utterly disregard such statement and to' give it no consideration whatsoever, in arriving at your verdict in tliis ease.”

Plaintiff in error was convicted of violating the Medical Practice Act, as set out in count one of the information, and was sentenced to pay a fine of $500 and committed to The Illinois State Farm at Vandalia for a period of four months. He has brought the record to this court by writ of error for review.

The conviction in this case cannot stand. The whole proceeding is fictitious. The witness Suprunowski was an investigator for the department of registration. He had no ailment. By false pretenses, Suprunowski urged and persuaded plaintiff in error to do what plaintiff in error did. In People v. Schell, 240 Ill. App. 254, 258, the court said: “But an officer or prosecutor must not induce or solicit the commission of a crime by one ivho had no intent to commit it. (City of Evanston v. Myers, 172 Ill. 269; Grimm v. United States, 356 U. S. 604; People v. Peters, 265 Ill. 130.) In Love v. People, 160 Ill. 501, a defendant was prosecuted for a burglary in which he was induced to participate by a detective employed for the purpose of ferreting out lawlessness in the City of Momence. The detective planned the crime and with the consent of the owner of an office arranged for the safe therein to be burglarized and some money taken. The detective suggested the crime and induced the defendant to participate in it. The Supreme Court said: 1 To stimulate unlawful intentions for the purpose and with the motive of bringing them to maturity so the consequent crime may be punished, is a dangerous practice. It is safer law and sounder morals to hold, where one arranges to have a crime committed against his property or himself, and knows that an attempt is to be made to encourage others to commit the act by one acting in concert with such owner, that no crime is thus committed. The owner and his agent may wait passively for the would-be criminal to perpetrate the offense, and each and every part of it, for himself, but they must not aid, encourage or solicit him that they may seek to punish. ’ The opinion further says on page 505: ‘Such means and agents are more dangerous to the welfare of society than are the crimes they were intended to detect and the criminals they were to arrest.’ ”

Plaintiff in error was dismissed and found not guilty of all charge of violation of the Medical Practice Act, Cahill’s St. ch. 91, except the charge in count one, and we are not disposed to affirm a conviction in a fictitious case prepared as a trap and brought about and induced by the law enforcer, which amounts to a pure fiction.

For the reasons stated the judgment of the county court of Pike county is reversed.

Reversed.