text:
    Arthur Buesch, Appellee, v. R. E. McCullough, Appellant.
    1. Landlord and tenant — increased rent to tenant holding over. A landlord is not deprived of the right to demand and secure an increased rental from the tenant after the termination of the lease, by a provision that if the tenant shall occupy the premises from month to month after the expiration of the lease all the conditions and obligations thereof, except as to the term, shall be binding upon him.
    2. Landlord and tenant — implied contract for tenant holding over to pay increased rent. An implied contract for a tenant to pay increased rent is raised by his continuing to occupy the premises after the expiration of the lease after being told by the landlord that he would have to pay the increased rent if he remained in the premises, although the tenant made no reply to the landlord’s statement, or even if the tenant had said he would not pay the increase.
    3. Landlord and tenant — consideration for implied contract of tenant to pay increased rent. There is sufficient consideration to support a tenant’s implied promise to pay increased rent for occupancy after the expiration of the lease, where the landlord has the right to demand possession at the said expiration and intimates to the tenant that he will have to vacate and informs him that if he remains he will have to pay more rent.
    4. Evidence — new lease as not a parol agreement modifying sealed instrument. Parol evidence by a landlord to show the making of a new lease which was to become effective upon the termination of the original lease was not within the rule that a contract under seal cannot be modified or changed by proof of a subsequent parol agreement.
    Appeal by defendant from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed April 15, 1927.
    Rehearing denied July 29, 1927.

      Turner, Holder & Burlington, for appellant.
    P. C. Otwell, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant was a tenant of appellee under a written lease for a term of five years at a monthly rental of $120, which expired October 31, 1924. After the expiration of the lease, appellant continued to occupy the premises until July 1, 1925, and paid rent therefor at the rate of $175 per month up to April 1. This suit was brought to recover rent at the same rate for April, May and June and there was a verdict and judgment for $525.

Both parties admitted that prior tó the expiration of the lease they had a talk in which appellant agreed to pay $175 per month for the premises from November 1, 1924. There is a conflict in their testimony as to whether they ever reached an agreement as to the term for which appellant was to occupy the property.

Appellee says that the period for which the new lease was to be given was not then agreed upon but was to be settled later; that when he afterwards asked appellant for what length of time he wanted the new lease appellant said to make it read until February 28, 1926; that he prepared a new lease from November 1, 1924 to February 28,1926, at a monthly rental of $175, and left it with appellant who said he ivas then too busy to sign it; that he later asked appellant if he had signed the lease and was told that he had not, that he could get another building at $75 per month and was thinking seriously of taking it; that appellant never signed the lease and never gave any other reason for not doing so.

Appellant says that when he agreed to pay $175 per month it was on the understanding that appellee would give him a new lease for one year with the privilege of four years more; that a few days after that conversation he called appellee on the ’phone and asked him who should prepare the papers; that appellee then told him he would not give him such a lease; that later, but prior to October 31, 1924, appellee asked him what he intended to do and that he replied that he ivas still holding to the original arrangement; that appellee then intimated that he would have to vacate the premises; that appellant replied that it was impossible to vacate at that time and that he could not do so until after January, 1925; that appellee then told him that if he remained he would have to pay $175 per month; that appellant made no reply but continued to occupy the premises until July 1,1925.

Appellant further says that in December, 1924, after the talk last mentioned, appellee finally consented to draw up a lease to expire February 28, 1926; that two copies of such a lease were prepared by appellee and submitted to him but were never signed by either party because they could not agree on the conditions of the lease; that he called appellee’s attention to a clause in the lease that was not acceptable; that after the said lease was submitted to him he paid appellee the rent for November and December, 1924, at the rate of $175 per month and that he paid rent at the same rate until April 1, 1925. It is quite apparent that while the parties had some negotiations in regard to the making of a new lease they were unable to come to an express agreement with reference to the terms thereof.

Appellant contends that because he made no reply Avhen appellee told him that if he stayed he would have to pay $175 per month there was no contract on his ■ part to pay the increased rent and the same cannot be recovered. He insists that in the state of the proof appellee Avas only entitled to rent at the rate of $120 per month. That contention is based on the fact that the original lease contained a provision that if appellant should occupy the premises as a tenant from month to month after the expiration of the lease, all the conditions and obligations thereof, except as to the term of the lease, should be binding upon him.

We are of the opinion that said provision did not deprive appellee of the right to demand and secure an increased rental after the termination of the lease. It certainly did not give appellant the right to occupy the premises for such a length of time as he saw fit, at the same rental and against the will of appellee.

Appellant admitted on the witness stand that, before the expiration of the lease, appellee told him that if he remained in the premises he would have to pay $175 per month. While appellant made no reply to that statement, the fact is that he continued to occupy the building until July 1, 1925. It is well settled that under such circumstances the law raises an implied contract to pay the increased rent. Higgins v. Halligan, 46 Ill. 173-180; Griffin v. Knisely, 75 Ill. 411; Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151; Sherriff v. Kromer, 232 Ill. App. 589. In the latter case the Supreme Court denied a writ of certiorari.

Even if appellant had told appellee, at that time, that he would not pay the increased rent, yet if he continued thereafter to occupy the premises he would be liable therefor. Griffin v. Knisely, supra.

It is argued that if there was a new agreement for the payment of the increased rent, yet there was no consideration therefor. The case of Loach v. Farnum, 90 Ill. 368, is relied upon, but is not in point. In that case there was a written lease for three years and the lessor, during the term, agreed to reduce the rent. In the case at bar, appellee had the right to demand possession of the premises at the termination of the lease. He intimated to appellant that he would have to vacate, and informed appellant that if he remained he would have to pay more rent. There was a sufficient consideration to support appellant’s implied promise to pay the increased rent.

It is urged that the law is well established that a contract under seal cannot be modified or changed by proof of a subsequent parol agreement. The evidence objected to was not within that rule but was offered for the purpose of showing the making of a new agreement which was to become effective upon the termination of the original, lease.

Appellant contends that the court erred in its rulings on the instructions but in view of the fact that he admitted that he continued to occupy the premises after appellee told him that if he did so he would have to pay $175 per month, we are of the opinion that the jury, acting as reasonable men, could not have returned any other verdict. The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Me. Presiding Justice Barry

license: Public Domain

text:
    Martha Wilson, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Carriers — what constitutes expulsion of passenger. A passenger who leaves a train at the wrong station at the request and through the mistake of the conductor suffers an ejection for which recovery may be had for the indignity of being expelled, delay and other reasonable damages.
    2. Carriers — expelled passenger to recover more than nominal damages. A passenger wrongfully expelled from a train may recover more than nominal damages, even though he has neither suffered pecuniary loss nor injury to his person by reason of the expulsion.
    3. Carriers — measure of damages for expulsion of passenger. In an action by a passenger for wrongful expulsion from a train, the jury may consider the indignity done to him by the mere fact of expulsion, as well as the annoyance, vexation, delay and risk to which he was subjected, even though the conductor acted in good faith without violence or insult, and although no actual damage was sustained.

      4. Carriers — excessiveness of damages for expulsion of passenger. A judgment of $250, resulting from a remittitur from a verdict of $500, in favor of a passenger who left the train at the wrong station at the request and through the mistake of the conductor, is not excessive for the indignity of being ejected and for the resulting delay of 24 hours in reaching the destination.
    Appeal by defendant from the Circuit Court of Pulaski county; the Hon. A. L. Spiller, Judge, presiding. Heard in this court at the March term, 1927.
    Affirmed.
    Opinion filed May 14, 1927.
    Rehearing denied July 29, 1927.
    P. J. Kolb, for appellant.
    Fred Hood, for appellee.
   Me. Presiding Justice Barry

delivered the opinion of the court.

Appellee purchased a ticket from appellant at Cairo, Illinois, for transportation from that city to Cleveland, Ohio. She boarded the train at Cairo with her two children, 4 and 7 years of age. Soon after leaving Cairo the conductor took up her ticket and inquired as to the áge of the older child. It seems that he did not observe the ticket closely and thought that appellee was going to a little station called Olmstead and he required appellee to pay fare to that station for the older child. Olmstead is about 20 miles north of Cairo and after leaving that station the conductor informed appellee that she was to get off at Grand Chain, the next station north of Olmstead. At the conductor’s request she and her children left the train at Grand Chain. She knew that she would have to change cars before she reached Cleveland, and after the train left Grand Chain she made inquiry as to the train she was to take. It was then learned that the conductor had made a mistake in having her leave the train at that point and that she could not proceed on her journey for a period of 24 hours. Arrangements were made whereby the ticket agent at Cairo issued another ticket to Cleveland and on the following day appellee and her children proceeded on their journey. Upon the trial she recovered a verdict for $500 and the court required a remittitur of $250 and rendered judgment for $250.

Appellant contends that the jury allowed appellee exemplary damages and that the remittitur was not sufficient; that appellee was not entitled to more than nominal damages.

Appellee had a ticket to Cleveland, Ohio, and was told by the conductor to leave the train at Grand Chain. This was an ejection within the meaning of the law, for which recovery might be had for the indignity of being expelled and for delay and other reasonable damages. Davis v. Illinois Cent. R. Co., 233 Ill. App. 539.

Where a passenger is expelled from a train and without fault on his part, he may recover more than nominal damages, even though he has suffered no pecuniary loss, or received actual injury to the person by reason of such expulsion. Even though the conductor acted in good faith, and without violence or insult, and that no actual damage was sustained, still, the jury, in estimating the damages, may consider not only the annoyance, vexation, delay and risk to which the person was subjected, but also the indignity done to him by the mere fact of expulsion. Chicago & A. R. Co. v. Flagg, 43 Ill. 364; Pennsylvania R. Co. v. Connell, 112 Ill. 295; Cohen v. Cleveland, C., C. & St. L. Ry. Co., 197 Ill. App. 88. Some complaint is made as to the court’s rulings on the instructions but we are of the opinion that if any error was committed it is not of such a character as to require a reversal. It seems to us that the mistake of the conductor was inexcusable, and having carried appellee and her children by the station to which he thought they were going it should have occurred to him to look at the ticket and make sure of their destination. Passengers should not he subjected to the indignity and humiliation of being ejected, without fault on their part, and to a delay of 24 hours in reaching their destination and then be told that the law will not permit them to recover more than nominal damages. The judgment is affirmed.

Affirmed.


author: Mr. Justice Boggs

text:
    The First State Bank of Mt. Carmel, Illinois, Appellee, v. Fred Holsen, Jr., Appellant.
    1. Witnesses — competency to testify to conversation with decedent. In an action by a bank against the maker of promissory notes, the maker is incompetent to testify to conversations with the president of the bank prior to the execution of the notes, the president having died after the making of the notes and prior to the beginning of the suit.
    2. Negotiable instruments — validity of agreement not to exact payment. The maker of promissory notes in favor of a bank is not relievéd from payment by a promise or agreement of' the president of the bank with the maker not to collect the notes, where the bank has gone into liquidation after the making of the notes.
    3. Negotiable instruments — consideration of hank director’s note to cover overdraft of president. A promissory note of a bank director which is executed to the bank to wipe out an overdraft of the president, and which enables the president to retain his position as desired by the director, has a consideration.
    4. Negotiable instruments — liability on note given to hank to induce state certificate for stock increase. The maker of promissory notes executed to a bank for a subscription to an increased issue of stock, and given at the instance of the president for the purpose of procuring the certificate of the state auditor for the increase, cannot, upon the liquidation of the bank, successfully defend a suit to collect on the ground that the president had agreed not to require payment,
    Appeal by defendant from the Circuit Court of Wabash county; the Hon. C. H. Miller, Judge, presiding. Heard in this court at the March term, 1927.
    Affirmed.
    Opinion filed May 14, 1927.
    Rehearing denied July 29, 1927.

      P. J. IColb and M. J. White, for appellant.
    W. S. Willhite, Geo. W. Lackey and Gee & Gee, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

This appeal is prosecuted-from a judgment in favor of appellee and against appellant for the sum of $14,824.29, rendered by the circuit court of Wabash county in an action of assumpsit brought by appellee against appellant on seven promissory notes, designated as appellee’s exhibits 1 to 7, inclusive. Appellant admits liability on exhibits 1, 2, 3 and 4, but denies liability on exhibits 5, 6 and 7, except as to $1,000.

Exhibit 5 consists of a note for $3,900, dated January 18,1923, payable on demand. Exhibit 6 is a note for $1,875, "dated March 3, 1920, due one year after date. Exhibit 7 is a note for $2,500, dated December 1, 1919, due one year after date, with a credit of $1,250 on the principal as of September 28, 1920.

The declaration is in the usual form. The defense to said last-mentioned exhibits, as set forth in appellant’s pleas, is failure of consideration. A trial was had before the court without a jury, and a finding and judgment was rendered against appellant as above set forth.

The evidence on behalf of appellant as to the three last-mentioned notes was confined to his own testimony, the testimony of one Nelle V. Seiler, former assistant cashier of said bank, who identified certain bank books, stock books and other exhibits which were offered in evidence on the part of appellant.

The testimony referred to is to the effect that, some three or four days prior to the execution of said $3,900 note, Howard P. French, then president of appellee bank, called appellant on the ’phone and told him that he, French, was short $3,900 with appellee bank; that on the day said note bears date, French again called him up and said, “If you don’t help me out, I will lose my position. I am behind $3,900 with this bank, and I will take up the note in a few days.” Appellant further testified that this conversation took place in the forenoon, and that he signed said note that afternoon; that shortly thereafter he ascertained that the records of said bank disclosed that his account had been charged on May 9,1922, with a check for $3,900.16, and credited on May 17, 1922, by his note to appellee bank for $3,900. He further testified that he never authorized the charging of his account with said item of $3,900.16; that he did not draw a check on said bank for $3,900.16, and that he did not on May 17, 1922, make a note to said bank for said sum of $3,900; that he first learned of said note and of the charging of said item to him from B. B. Stansfield, then cashier of said bank, and further testified that his name was forged to said note of May 17, 1922, by the said Howard P. French.

Appellant’s testimony in regard to exhibits 6 and 7 is to the effect that in the year 1919 the capital stock of appellee bank was being increased from $50,000 to $100,000; that Howard P. French, president of said bank, represented to appellant that he had persons who had agreed to subscribe for all of the stock, but that some of them were not in a position at that time to take over the same; that he agreed with appellant that if appellant would take 40 shares of said stock at $125 per share and give his notes therefor, said notes would be held by the bank and as the stock was sold, the proceeds therefrom would be credited on his notes, and that appellant would not be required to pay for the same.

Appellant further testified that he gave French two notes of $2,500 each on the above-named conditions, and in order that the State auditor would issue the certificate for the increase of said stock. He further testified that thereafter he concluded to purchase five shares of said stock; that he gave his note for- $625 therefor; that one of said $2,500 notes was taken up and a new note for $1,875 was given; that thereafter ten shares of said stock were sold to one Earl Leighty, and credit was given appellant on the other of said $2,500 notes, being exhibit 7, for $1,250; that he thereafter traded eight .shares of said stock at $1,000, on a tractor. . On the trial, appellant admitted liability on exhibit 6 for $1,000, leaving a balance on the principal of said note of $875, for which he denied liability.

The testimony on the part of appellee is to the effect that, in the regular course of business of said bank, appellant executed said $3,900 note on May 17,1922-, to take care of an overdraft of something over $3,800, and that exhibit 5 here sued on was given in renewal thereof. The witness Nelle V. Seiler testified on behalf of appellee that she was present at the American National Bank, where she was then working; that appellant came in and wanted to see the record of the $3,900 note; that Mr. Mitchell (president of the American National Bank) directed her to get said records and that she did so; that she heard appellant make the remark that he thought it- had something to do with the Parkinson land. Mitchell testified that he had a conversation with appellant in the American National Bank with reference to the $3,900 note, and that appellant stated to him that it was connected with the Parkinson deal; “that when he went to settle with Mr. Parkinson, he thought he was going to accept some notes, but he declined to take the notes and had to give a check for $3,900, which overdrew his account. That was some time after we- took the bank over, in the spring of 1924.” The records of the bank disclose that dividends on the stock in question were passed to appellant’s credit, and that he voted certain of said stock at the stockholders’ meetings.

In rebuttal, appellant testified that if dividends had been passed to his credit,■- it was without his knowledge, and that he had not knowingly voted said stock,

The record discloses and it is conceded that appellee. bank went into liquidation and was taken over by the American National Bank of Mt. Carmel, after the making of the notes here sued on.

On the trial, the court permitted appellant, over objection of appellee, to testify to certain conversations had, prior to the execution of exhibits 5, 6 and 7, with said Howard P. French, then president of appellee bank, said French having deceased after the making of said notes and' prior to the beginning of this suit. However, in passing on the propositions of law submitted, the court held that appellant was an incompetent witness as to such conversations. This latter ruling is assigned as error by counsel for appellant.

French being ah officer and agent of appellee bank at the time of the alleged conversations, appellant was not a competent witness as to such conversations, and the court rightly so ruled. Helbig v. Citizens’ Ins. Co., 234 Ill. 251-255; Rothstein v. Siegel, Cooper & Co., 102 Ill. App. 600-601; .Grand Lodge, A. O. U. W. v. Young, 123 Ill. App. 628-630.

But, even if it be held that appellant were a competent witness, appellee bank having gone into liquidation, a promise or agreement on the part of French as president of said bank, not to collect said notes of appellant, would not relieve appellant of his obligation to pay the same. First National Bank of Beecher v. Wolf, 208 Ill. App. 283; Niblack v. Frank, 209 Ill. App. 162; 3 R. C. L. 442; Patton v. Shipman, 244 Ill. App. 662.

It might be further observed that, even on the testimony of appellant, there was a consideration for the giving of said note of $3,900, in that it wiped out the overdraft of Howard P. French, and enabled French, according to the testimony of appellant, to hold his position as president of said bank. From the record, this would appear to have been a matter desired by appellant, Avho is shown to have been a director of said bank at the time.

The evidence in the record is further to the effect that said $3,900 note, exhibit 5, was given to said bank in the regular course of business. Appellant, through the witness Nelle V. Seiler, proved that the records •of said bank were kept in the usual course of business, and, after having made such proof, offered in evidence said note of $3,900, dated May 17, 1922, together with the charge made against his account of $3,900.16, so that, with this evidence in the record without any competent evidence disputing the same, appellant is in a poor situation to contend that he is not liable on the note for $3,900, exhibit 5 here sued on.

If we are correct in our holding that appellant was not a competent witness in his own behalf, the evidence wholly fails to show but that said notes, exhibits 6 and 7, were given to appellee bank in the regular course of business. However, even if it be conceded that appellant was competent to testify in his own behalf, the defense sought to be made to said notes, exhibits 6 and 7, cannot be sustained under the authorities.

The action of appellant in giving said notes, as testified to by him, for the purpose of procuring the certificate of the State, auditor, was not only a fraud against the State, but was also a fraud as against those subscribers who bona fide subscribed for said stock and paid therefor, and it was a fraud on persons dealing with said bank and relying on the bona tides of the subscriptions made to said bank. That being true, appellant cannot successfully defend on a suit to collect thereon.

“Where notes or other securities have been executed to a bank for the purpose of making an appearance of assets, so as to deceive the examiner and enable the bank to continue buiness, although the circumstances may have been such that the bank itself could not have collected the securities, it has been held that the receiver, representing the creditors, could maintain the action, and the makers were estopped, upon the insolvency of the bank, to allege want of consideration.” Golden v. Cervenka, 278 Ill. 409-427; Niblack v. Farley, 286 Ill. 536-540.

While this suit is not brought by the receiver of said bank, yet it is conceded by appellant that said bank has gone into liquidation. Therefore, the creditors of appellee bank would be directly affected by appellant’s failure to pay the notes sued, on, and to allow him to escape liability thereon would amount to a fraud on said creditors.

Counsel for appellant cite and rely on McNulta v. Corn Belt Bank, 164 Ill. 427. In that case the court at page 450 says:

“The effect of the resolution, and of what was done under it, was to release the original subscribers to the capital stock from the obligation to pay their subscriptions. When the $100,000.00 was paid in, the subscriptions appeared to be thereby discharged, but when it was taken out nothing remained in the bank to show payments of the subscriptions. Until sales were made of the stock, the bank had no funds whatever, all pretended payments upon the subscriptions being withdrawn. ‘It has been settled by very numerous decisions, that the directors of a company are incompetent to release an original subscriber to its capital stock, or to make any arrangement with him by which the company, its creditors, or the State, shall lose any of the benefit of his subscription. Every such arrangement is regarded in equity, not merely as ultra vires’ but as unjust to the other stockholders, to the public and to the creditors of the company. (Burke v. Smith, 16 Wall. 390; Melvin v. Lamar Ins. Co., 80 Ill. 446; Bedford Railroad Co. v. Bowser, 48 Pa. St. 29; Osgood v. King, 42 Iowa 478.) ”

It would seem that this case is a direct authority against appellant’s contention.

In Horwich v. Davis, 220 Ill. App. 40, at page 45 the court says:

“The receiver of a defunct bank when attempting to marshall the assets of such bank for the benefit of its creditors is in law an innocent holder of such assets. Neither is it available to plaintiff in error as a defense to the note in the hands of the receiver that the officers of the Ashland-Twelfth State Bank knew of the fraudulent character of the note and of the secret understanding as to its negotiability, because, if true, the purchase of it by that bank would be in fraud of the rights of its creditors made possible by the original fraud of plaintiff in error in giving the note for the purpose recited in the affidavit. To establish such a defense it would be necessary to prove that the note was given for the unlawful and fraudulent purposes already mentioned, and courts will not listen to defenses based on the positively unlawful acts of a defendant.” Citing Goodrich v. Tenney, 144 Ill. 422-430; Wright v. Cudahy, 168 Ill. 86; Pietsch v. Pietsch, 245 Ill. 454-459; Golden v. Cervenka, supra; Niblack v. Farley, supra.

While counsel for appellant went into detail in their criticism of the holdings of the court on the propositions of law ruled on by the court, it will not be necessary for us to discuss the same, further than to say that the holdings of the court are substantially in keeping with the rules of law laid down by this court herein.

We are clearly of the opinion that the court did not err in finding the issues for appellee, and in rendering judgment against appellant on the three notes, exhibits 5, 6 and 7, as well as on the notes on which appellant concedes liability.

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

Judgment' affirmed.


author: Mr. Justice Higbee

text:
    Marion & Eastern Railroad Company, Appellant, v. Illinois Central Railroad Company, Appellee.
    1. Public service — power of commerce commission to award reparation for division of joint rates. The action of the Illinois Commerce Commission in awarding to a railroad company reparation for a claimed unjust division, of joint rates upon past transactions and for a period prior to the filing of a complaint upon which the commission order was entered, is judicial in its nature and is not within the statutory' power of the commission.
    2. Public service— derivation of power of commerce commission. The Illinois Commerce Commission derives it power solely from the statute creating it and has no authority except such as is expressly conferred by the statute.
    3. Pleading — sufficiency of declaration m action by railroad for division of joint rates. A declaration does not state a cause of action in a suit by one railroad company to recover from another a sum due from a division of joint rates as fixed by an order of the Illinois Commerce Commission, which declaration does not allege the existence of the conditions prescribed by the Illinois Commerce Commission Law, section 42, Cahill’s St. eh. Illa, If 57, that the commission had established the through route and joint rates in question and that “after hearing, by supplemental order,” had established the division of such rates to be made between the companies.
    4. Pleading — defective declaration not sustained on other theory. A declaration in a suit by one railroad company to recover reparation from another for a claimed unjust division of joint rates which is expressly based upon an order of the Illinois Commerce Commission which it was without authority to enter, and which declaration does not allege the existence of the conditions authorizing the commission to act under any circumstances, cannot be sustained under the theory that just compensation for services performed was the basis of the declaration, and that the mere finding that within a stated period of time the divisions paid the plaintiff were unjust and unreasonable with the presenting of what was just and reasonable for that period, is enough in itself to support the action for damages.
    Appeal by plaintiff from the- Circuit Court of Williamson county; the Hon. D. T. Hartwell, Judge, presiding. Heard in this court at the March term, 1927.
    Affirmed.
    Opinion filed June 15, 1927.
    Rehearing denied July 29, 1927.

      Alfred Gf. Hagerty, for appellant.
    Elmer A. Smith and Chas. E. Feirich, for appellee; W. S. Horton, of counsel.
   Mr. Justice Higbee

• delivered the opinion of the court.

On April 1, 1926, the Marion & Eastern Railroad Company, appellant, filed a declaration to the May term of the circuit court of Williamson county against the Illinois Central Railroad Company, appellee, alleging that appellee owns and operates a railroad approximately 12.5 miles in length all within Williamson county extending from the town of Paulton on the east to Marion on the west, and is a common carrier for hire in both intrastate and interstate transportation; that its lines connect at Marion with railroads owned and operated by appellee and by the Chicago & Eastern Illinois Railway Company and the Missouri Pacific Railroad Company; that all these railroads have been in continuous operation during the 6-year period ending December 31, 1925, and thereafter continuously to the date of the commencement of this action; that appellee is a common carrier engaged for hire in intra and interstate transportation of persons and property over a line of railroad owned by it between points wholly within the State of Illinois and also between points in State of Illinois and points in other states; that appellee maintains at Marion tracks and other equipment where appellant delivers to it. coal from mines located on appellant’s lines to be ^ transported by appellee in both intrastate and interstate transportation; that appellee and the two other railroad companies above mentioned are likewise engaged in intrastate and interstate transportation of persons and property over the railroads owned by them and that each of. them maintains at said Marion physical track connections with appellant’s railroad where coal shipped from mines located on appellee’s railroad is delivered to them for intrastate and interstate transportation ; that throughout the 6-year period ending December 31, 1925, and thereafter continuously until the commencement of this suit, joint rates were established and maintained for the transportation of coal from mines on appellant’s line to destinations in Illinois and other states on the line of appellee and its transportation system, and also to destinations on the lines of the Chicago & Eastern Illinois Railway Company and the Missouri Pacific Railroad Company, and that at all times within the period stated the joint rates were kept at a definite level in cents per ton by virtue and force of orders entered by the respective State and Federal rate-regulating tribunals and in accordance with State and Federal statutes; that within the stated period of time and particularly from January 1, 1920, to March 31, 1925, a large volume of bituminous coal aggregating more than 3,500,000 tons were shipped from mines on appellant’s line to many different points in the State of Illinois and other states on the line of appellee and its connecting transportation system, and also on the lines of the Chicago & Eastern Illinois Railway Company and the- Missouri Pacific Railroad Company and their respective connecting transportation systems at the aforesaid lawfully established joint rates and that the coal so shipped was transported by appellant over its road to Marion, Illinois, wheré according to the billing destination it was delivered in part to appellee and in part to the other two carriers hereinbefore mentioned, and that for this service of transportation appellee was arbitrarily allowed out of said joint rates by appellant and the other two carriers, the following charges: (a) Prior to July 1,1920, not more than 20 to 21 cents per ton,1 and (b) afterwards until March 31, 1925, not more than 18 to 18.9 cents per ton; that said allowanees as divisions of the aforesaid established joint rates were arbitrarily allowed appellant alike on both intrastate and interstate traffic, and that throughout the stated period of time such allowances were continuously the subject of complaint by appellant to appellee and the other two carriers as being unjust, unreasonable, unremunerative and wholly inadequate, which complaint was filed with the Interstate Commerce Commission in the year 1920; that the Interstate Commerce Commission on March 2, 1925, entered an order prescribing the division which should be made of such of the aforesaid joint rates as were on interstate traffic and which would have been just and reasonable to compensate appellant on the interstate coal shipments transported by it during the period from January 1, 1922, to May 18, 1925, and for such similar interstate transportation as appellant might thereafter perform and directed appellee together with the other two carriers names to readjust the divisional allowances made by them to appellant on the basis prescribed by the order, a copy of the. order being affixed to the declaration marked exhibit “A” and made a part thereof; that the divisions of these joint rates as fixed by the Interstate Commerce Commission were as follows: From January 1,1922, to-June 20, 1922, 24 cents per ton of 2,000 pounds and from July 1, 1922, to May 18, 1925, and thereafter, 22 cents per ton; that in reference to such of the aforesaid transportation service as was performed by appellant on interstate traffic, appellee and the other two carriers complied with this order of the Interstate Commerce Commission by paying to appellant sufficient additional money to compensate it upon the basis prescribed by the order for the period from January 1, 1922, -to March 31, 1925, and that for the period subsequent to March 31, 1925, appellee and the other two carriers allowed appellant the' division prescribed by this order on both- interstate and intrastate shipment, which was in conformity with the practice of paying the same divisions on both classes of traffic, the service of both being the same, throughout the period from January 1, 1920, to March 31, 1925 and furthermore that the other two carriers named herein allowed and paid appellant the increased divisions prescribed by this order for intrastate traffic during the period from January 1, 1922, to March 31, 1925; but that appellee, although repeatedly requested by appellant to do so, refused to readjust the divisions allowed appellant by; such order for intrastate shipments by it delivered to' appellee during the period from January 1, 1922, to March 31, 1925, on the basis of the increased divisions prescribed by the order of the Interstate Commerce Commission, whereupon appellant sought relief by complaint brought against appellee before the Illinois Commerce Commission; that after full investigation and hearing of this complaint the Illinois Commerce Commission, by virtue of the statutory powers thereto enabling it, on the 13th day of January, A. D. 1926, entered its report and order, a copy of said report and order identified as exhibit “B” being affixed to and made a part of the declaration, in which it was held and concluded that the just and reasonable divisional allowance to be applied for the transportation of coal from mines on appellant’s railroad to destinations on the railroad of appellee in Illinois during the period from January 1, 1922, to March 31, 1925, was as follows: From January 1, 1922, to June 30, 1922, inclusive, 24 cents per ton and from Julyl, 1922, to March 31, 1925, inclusive, 22 cents per ton, and directed appellee to pay to appellant within 60 days from the date of the order for services performed by appellant in transporting coal delivered by it to appellee within the period from January 1, 1922,- to March 31, 1925, for destinations-on appellee’s road in Illinois, a sufficient additional amount of money to compensate appellant upon the basis of the higher divisions prescribed by this order; that during the period from January 1, 1922, to March 31, 1925, appellant transported from mines on its railroad to Marion, Illinois, and there delivered to appellee for transportation to points in Illinois 750,000 tons of bituminous coal and for that service was paid by appellee $138,750, whereas, if it had been paid for said services upon the basis of the division fixed by the order of the Illinois Commerce Commission its compensation would have been $165,000 or $26,250 more than was paid by appellee for such services; that after full investigation and hearing by both the Illinois Commerce Commission and the Interstate Commerce Commission the compensation allowed it by appellee and other carriers during the period from January 1, 1922, to March 31, 1925, on both intrastate and interstate coal traffic transported during that period, including the particular traffic described in the preceding paragraph, was less than necessary to pay its operating costs', which resulted in loss and injury to appellant and that with but one exception such loss and injury had been redressed, the said- exception being appellee’s wilful refusal after repeated demands by appellant to compensate it for the transportation services described in the preceding paragraph upon the basis prescribed and ordered by the Illinois Commerce Commission as aforesaid, and that appellee’s wilful refusal to comply with this order is causing appellant to suffer continuing injury through its inability to liquidate operating expenses incurred in conducting the transportation within the aforesaid period of time, and that as a consequence appellant has suffered and claims against appellee damages in the sum of $26,250 plus interest, costs and attorneys’ fees.

The declaration then alleges that appellant has suffered and claims against appellee exemplary damages in the sum of $25,000, within the meaning of section 73, ch. 111a of the Illinois Revised Statutes, Cahill’s St. ch. 111a, If 92, in consequence of appellee’s refusal and neglect to do the thing it had been directed to do by order of the Illinois Commerce Commission, entered January 13, 1926, as aforesaid, and then concludes with a prayer for judgment against appellee in the sum of $51,250 plus interest, costs and attorneys’ fees.

The order of the Illinois Commerce Commission attached to the declaration shows that it was entered January 13, 1926, and that it was based upon a complaint filed April 20, 1925. This order after stating what division of joint rates had been allowed and paid to appellee and the other two carriers up to March 31, 1925, sets forth the substance of the complaint filed and amendments thereto. The order then states the division allowance on interstate traffic prescribed by the Federal Interstate Commerce Commission and finds that the allowances made by appellee to appellant during the period covered were unjust and less than necessary to compensate appellant for its necessary operating costs and a fair return on its investment. The order then finds that there is no dispute as to the divisions of the rates now being made and that appellant was now allowing appellee 22 cents per ton for both intrastate and interstate traffic; that for the period from January 1, 1922, to March 31, 1925, inclusive, the just and reasonable divisional allowance to be applied for the transportation of coal on appellant’s railroad in intrastate shipments is as follows: From January 1, 1922, to June 30, 1922, inclusive, 24 cents per ton and from July 1,1922, to March 31,1925, inclusive, 22 cents per ton. The order then finds that appellee should pay to appellant the difference between the amounts which it had already paid and the amounts it should have paid as fixed by the order and directs that such payment be made within 60 days from the date of the order.

To this declaration appellee filed a general and special demurrer. The court sustained the demurrer and appellant elected to abide its declaration. Judgment was afterwards entered against appellant in bar of the suit and for costs and to review that judgment this appeal has been perfected.

The sole question before this court is whether or not the declaration states a good cause of action.

It must be noted that the order of the Illinois Com-, merce Commission does not fix the just division of these joint rates on intrastate traffic for the future,,, but expressly finds that there is no dispute between the parties as to the division being made at the time the complaint was filed and the order entered. The complaint as alleged in the declaration and shown by the order was filed April 20, 1925. The order directs what division of the joint rates should be made between January 1, 1922, and March 31, 1925, a period wholly before the time the complaint was filed and which expired more than a year before the order was entered. The order then directs appellee within 60 days to pay appellant the difference between the allowances actually made during this time and the allowance which the commission found should be made which in effect and substance, was a money judgment against appellee.

It is clearly established that, there is a very real and substantial distinction between an order of a commission, such as the Illinois Commerce Commission, prescribing rates for the future and one that purports to award reparation for past transactions. The fixing of the rates for the future is in the nature of a legislative action while the awarding of reparation for past transactions is judicial in its character. “To determine whether one person is entitled to recover money from another by way of damages cannot be anything but a judicial question, and as such must be determined by the courts.” State ex rel. Missouri Pac. R. Co. v. Public Service Commission, 303 Mo. 212, 259 S. W. 445 Such is also the holding of the Supreme Court of the United States in Baer Bros. Mercantile Co. v. Denver & R. G. R. Co., 233 U. S. 479, where the court said: “But awarding reparation for the past and fixing rates for the future involve the determination of matters essentially different. One is in its nature private and the other public. One is made by the commission in its quasi judicial capacity to measure past injuries sustained by a private shipper; the other, in its quasi legislative capacity to prevent future injury to the public.” This language was quoted with approval by the Supreme Court in Louisville & N. R. Co. v. Sloss-Sheffield Steel & Iron Co., 269 U. S. 217. In Commonwealth v. Benn, 284 Pa. 421, 131 Atl. 253, the Supreme Court of Pennsylvania held that the fixing of reparation for past transactions was a judicial function. In our opinion, under these authorities, the action of the Illinois Commerce Commission in awarding to appellant reparation for a claimed unjust division of joint rates upon past transactions and for a period prior to the filing of the complaint upon which the order was entered, was judicial in its nature and was not within the statutory power of the commission.

Section 42 of the Illinois Commerce Commission Law, Cahill’s St ch. Illa, 57, provides as follows: “Whenever the Commission after a hearing had upon its own motion or upon complaint, shall find that the rates or other charges, or classifications in force over two or more common carriers, between any" two points in this State, are unjust, unreasonable, or excessive, or that no satisfactory through route or joint rate or other charge, or classification exists between such points, and that the public convenience and necessity demand the .establishment of a through route and joint rate or other charge,. * * * the Commission may order such common carriers to establish such through route and may establish and fix a joint rate or other charge, or classification which will be just and reasonable, to be followed, charged, enforced, demanded and collected in the future, and the terms and conditions under which such through route shall be operated. The Commission may order that freight moving between such points shall be carried by the different common, carriers, parties to such through route and joint rate, without being transferred from the originating cars. In case the common carriers do not agree upon the division between them of the joint rates or other charges established by the Commission over such through routes, the Commission shall, after hearing, by supplemental order, establish such division.” The spirit of this statute seems to be that the commission shall fix the rates to be charged for shipments over the roads of two or more common carriers, between any two points in this State, as a protection to the shipper. After this rate is fixed, if the carriers do not agree upon the division, between them of the joint rates established by the commission over such through routes the commission “shall after hearing, by supplemental order, establish such division.” The Commerce Commission derives its power solely from the statute and has no authority except such as is expressly conferred upon it by the statute. (Public Utilities Commission v. Illinois Cent. R. Co., 274 Ill. 36.) The declaration in this case expressly declares upon an order of the Illinois Commerce Commission. It was therefore necessary that the declaration should state expressly facts showing that the commission had the authority to enter the order sued upon. The declaration failed to allege that the commission had established the through routes and joint rates in question and that “after hearing by supplemental order” had established the division of such rates to be made between appellant and appellee. In fact the order itself shows that there was no disagreement between the carriers involved, over the division of joint rates at the time the complaint was filed. Neither does the declaration show that the joint rates involved had ever been fixed and established by the Illinois Commerce Commission.

The declaration should have expressly alleged the existence of these conditions and facts and circumstances which the statute creating the commission provides must exist before the commission can function, since the commission derives its sole and only powers from the statute creating it.

In our opinion the declaration does not state a cause of action because it. declares upon an order of the Illinois Commerce Commission, judicial in its nature and awarding damages for a past transaction, which was not within the power of the commission to do and for the further reason that the declaration does not allege the existence of the conditions prescribed by the statute, above referred to.

It is further contended by appellant that just compensation for services performed was the basis of the declaration; that “the mere finding that, within a stated period of time the divisions paid appellant were unjust and unreasonable and the presenting of what was just and reasonable for that period is enough by itself to support and sustain the action for damages here brought.” That question is not before us. The declaration consists of one count hereinbefore set forth and expressly declares upon the order of the Illinois Commerce Commission, providing for reparation Avhich in our opinion the commission was Avithout authority to enter, and further the declaration fails to allege the existence of the conditions authorizing the commission to act under any circumstances, and the order itself expressly shoAvs that such conditions did not exist. The demurrer therefore was properly sustained and as appellant elected to stand by its declaration and prayed for final judgment, there Avas nothing left for the trial court to do but to enter such a judgment against appellant, which was accordingly done. Under our view of the questions arising for our consideration in this case, the judgment of the circuit court should be and it accordingly is affirmed.

Affirmed.


author: Mb. Presiding Justice Jett

text:
    The People of the State of Illinois, Defendant in Error, v. Mary Herman, alias Mamie Gale, Plaintiff in Error.
    Gen. No. 7,660.
    1. Criminal procedure — substitution of sentence to labor for imprisonment. In cases in which imprisonment in the county jail constitutes all, or a part of the penalty, the court may substitute a sentence to labor for imprisonment in the jail.
    2. Criminal procedure — imprisonment for nonpayment of fine. The part of a judgment in a criminal prosecution that the defendant be confined in the county jail until the imposed fine and costs are satisfied at the rate $1.50 a day, improperly confused the provisions of Cahill’s St. ch. 38, 383, with those of paragraph 384 and should have followed paragraph 384 by directing how the fine should be worked out at the money rate per day.
    Error by plaintiff to the Circuit Court of Rock Island county; the Hon. Nels A. Larson, Judge, presiding. Heard in this court at the' October term, 1926.
    Reversed and remanded with directions.
    Opinion filed August 4, 1927.
    Ray I. Klingbiel and Ben A. Stewart, for plaintiff in error.
    Oscar Carlstrom, Attorney General, and Benjamin Sr. Bell, State’s Attorney, for defendant in error; Bdw. L. Eagle, of counsel. -
   Mb. Presiding Justice Jett

delivered the opinion of the court.

This record discloses that Mary Herman, alias Mamie Gale, plaintiff in error, was indicted for murder at the September term, 1924, of the Bock Island county circuit court. She was tried on said charge of murder and the jury on January 20, 1925, found her guilty of an assault with a deadly weapon. On February 10, 1925, judgment and sentence of the court was passed on the defendant. The judgment is as follows:

“It is the judgment and sentence of the Court that the said defendant be imprisoned in the county jail of Bock Island County for a period of one year and that she pay a fine of one thousand dollars ($1,000.00), together with the costs of this prosecution, and at the conclusion of the period of confinement in the county jail for one year, and if said fine and costs be not paid, it is ordered by the Court that the said defendant be confined in the county jail until the said fine and costs are satisfied at the rate of one dollar and a half per day, or until otherwise discharged pursuant to law.”

The plaintiff in error was committed to the county jail of Bock Island county where she served the sentence of a year as directed in the judgment and was detained and imprisoned in the county jail on account of the nonpayment of the fine of $1,000 and the costs of suit.

On March 3,1926, plaintiff in error filed an amended petition to be discharged as a pauper in which she alleged that she had been confined in the county jail for a year and more in pursuance of the judgment aforesaid; that she was a pauper, having no property or estate, real or personal, wherewith to pay the fine of $1,000 and the costs of said suit or any part of said fine or costs, and that all legal means for the collection of said fine and costs had been exhausted, and prayed ‘to be discharged as a pauper from imprisonment and confinement in the county jail because of the nonpayment of the fine and costs according to the statutes in such cases made and provided.

On the 22nd of March, 1926, a hearing was had upon said amended petition to be discharged. The trial court at the conclusion of said hearing overruled the prayer of said petition and refused to discharge the plaintiff in error. The plaintiff in error sued out a writ of error from this court which upon her application and the giving of bond required by this court was made a supersedeas and from which time the plaintiff in error has been at liberty on bond. To reverse said judgment and sentence and rulings of the trial court plaintiff in error assigns for error the following :

(1) That the said' judgment and sentence of the court is improper, illegal, unwarranted and unauthorized and is contrary to the laws and statutes of the State of Illinois.

(2) That the court erred in denying and overruling the petition of defendant to be released and discharged from further imprisonment as a pauper.

(3) That the court erred in failing and refusing to discharge the plaintiff in error as a pauper from further imprisonment.

In view of the confusion that seems to exist concerning punishment for misdemeanors, it may be well to review the various statutes relating thereto.

In cases in which imprisonment in the county jail constitutes all, or a part, of the penalty, the court may substitute for imprisonment in the county jail a sentence to labor. The authority to substitute a sentence to labor for imprisonment in the county jail in larceny cases is found in that part of section 389, chapter 38, Smith-Hurd Statutes, 1925, Cahill’s St. ch. 38, U 382, which prescribes the penalty for petit larceny. The authority to substitute a sentence to labor for imprisonment in the county jail, where a person is convicted of “any misdemeanor under the criminal code,” is found in section 390, chapter 38, Smith-Hurd Statutes, Cahill’s St. eh. 38, ft 383, in this language: “The court in which such conviction is had, may in its discretion, instead of committing to jail, sentence such person to labor.”

In substituting such sentence under section 390, the court may order and direct such labor to be performed: (a) In the workhouse of any city, town or county, where the conviction is had; (b) on the streets and alleys of any city, town or on the public roads of the county; the sentence may also be (c) to such labor as the county board may provide for. In this case the labor may be ordered to be performed under the direction of the sheriff.

By section 758, chapter 38, Cahill’s St. ch. 38, 783, which should be read in connection with section 390, the authority to sentence to labor is in the following language:

“Any person convicted, in a court * * * of any crime or misdemeanor, the punishment of which is confinement in the county jail, may be sentenced * * * to labor for the benefit of the county * * * in the workhouse, house of correction or other place provided for that purpose by the county or city authorities.”

Under this section, the authority to sentence to labor, instead of to imprisonment in the county jail, is not limited to misdemeanors, under the criminal code, but extends to any misdemeanor the punishment of which is confinement in the county jail.

The court, it seems, may sentence “to labor” as a substitute for “imprisonment in the county jail,” but not in addition to such imprisonment. People v. Barney, 217 Ill. App. 322.

When a sentence to labor is imposed, the court will place the convict in the keeping of some person as authorized by section 392, chapter 38, Cahill’s St. ch. 38, ft 385, and the person in whose keeping he is placed may provide for his safe-keeping, and to that end may use balls and chains, and, if deemed necessary to prevent his escape, may1‘confine him in the county jail at night and at any other time such prisoner cannot be kept at work.” People v. Barney, supra.

When the fine was imposed the court had authority to order, as part of the judgment, that the defendant be committed to jail, there to remain until the fine and costs were fully paid, or until she was discharged according to law. (Section 762, chapter 38, Cahill’s St. ch. 38, 1f 787.) If that had been the judgment and order of the court, the defendant could have paid the fine and costs and been discharged from imprisonment. The fine- and costs might have been collected on execution as authorized by section 764, chapter 38, and when so collected the defendant would have been entitled to her discharge from imprisonment, or defendant might have made application for discharge under section 766, chapter 38, Cahill’s St. ch. 38, fí 790, and upon proper showing been discharged as a pauper.

The court, when this fine was imposed, judging from the order it entered, intended that the defendant should pay it either in money or labor.

In making the order for payment in labor, in default of payment in money, the court has confused the provisions of section 390, Cahill’s St. ch. 38, IT. 383, with those of section- 391, Cahill’s St. ch. 38, ft 384. This order should have followed section 391. It should have directed that defendant work out such fine and all costs: (a) In the workhouse of the city, town or county, or (b) in the streets and alleys of the city or town, or (c). on the public roads in the county under the proper person in charge of such workhouse, streets, alleys or public roads, at the rate of $1.50 per day. Then the “prope.r person,” in whose keeping the order placed her, could provide for her safe-keeping by the use of balls and chains and, if he deemed it necessary to prevent her escape, he could confine her in jail during the night, and at- any other time she could not be kept at work, as provided in section 392, chapter 38.

Where a proper order is entered under section 391, requiring payment of a fine in labot at $1.50' per day, the defendant cannot secure a discharge under section 766 by showing he has “no estate wherewith to pay such fine and costs or costs only. ’ ’ He must nevertheless pay in labor, as provided in the order, at least unless he can show he is unable to perform labor. People v. Jaraslowski, 254 Ill. 299.

From the foregoing, it will be seen that section 390 authorizes the court to substitute “a sentence to labor” for “imprisonment in the county jail,” while section 391 authorizes the court to order the payment of a fine in labor at $1.50 per day. It will also be seen that the labor, in either case, shall J>e performed under the person in whose keeping the prisoner is placed, as authorized by either section 390 or 391 and may provide for safe-keeping of the convict in the manner and by the means specified in section 392. The judgment in this case does not follow the statute.

Other questions have been raised but in vieiv of the conclusion we have reached we do not deem it necessary to discuss them in this opinion. The judgment as entered was contrary to the statute and the cause will be reversed and remanded to the circuit court of Rock Island county with directions to enter a judgment and sentence in accordance with the statute and the views herein expressed.

Reversed and remanded with directions.


author: Mr. Presiding Justice Jett

text:
    The People of the State of Illinois, Defendant in Error, v. Amelia Cary, Plaintiff in Error.
    Gen. No. 7,672.
    1. Appeal and error — abandonment or waiver of assignments of error. Assignments of error which are not insisted upon in the arguments will be deemed to have been abandoned or waived.
    2. Crimes and punishment — judicial interference with legislative punishment. The fixing of the punishment for the violation of a penal statute is a legislative function with which the courts will not interfere unless the penalty fixed is dearly in excess of constitutional limitations.
    3. Constitutional law — penalties proportioned to nature of offense. The penalties proscribed by Div. B of section 34, ch. 43, Cahill’s Statutes, in relation to offenses for which a special penalty is not prescribed, do not render the statute obnoxious to the constitutional provision requiring penalties to be proportioned to the nature of the offense.
    4. Criminal procedure — substitution of sentence to labor for imprisonment. In eases in which imprisonment in the county jail constitutes all, or a part of the penalty, the court may substitute a sentence to labor for imprisonment in the jail.
    5. Criminal procedure — imprisonment, for nonpayment of fine. The part of a judgment in a criminal prosecution committing the defendant to the county jail to work out the imposed fine and costs at the rate of $1.50 a day, improperly confused the provisions of Cahill’s St. eh. 38, 1i 383, with those of paragraph 384 and should have followed paragraph 384 by directing how the fine should be worked out at the money rate per day.
    6. Criminal procedure — insufficient showing of newly-discovered evidence for new trial. A new trial will not be granted on the ground of newly-discovered evidence in a criminal proceeding, where the defendant makes no affidavit denying knowledge of such evidence before trial, and her evidence indicates that she knew of it long before the trial and that she might, by the exercise of proper diligence, have availed herself of it at the trial.
    7. Criminal procedure — saving questions for review by motion for new trial. Any question of error in the cross-examination of witnesses in a criminal prosecution which is not raised in a written motion for a new trial must be considered as waived.
    8. Criminal procedure — saving questions for review in taking liquor to jury room in liquor prosecution. In a prosecution for illegal possession of intoxicating liquor, any error in permitting the jury to take exhibited bottles containing liquor to the jury room cannot be considered on review, where no objections were made, no exceptions preserved, and the written motion for new trial is silent on the question of their admission in evidence as well as on any action of the court in permitting them to be taken to the jury room.
    9. Intoxicating liquor — instruction defining liquor not supported by evidence. An instruction in a prosecution for illegal possession of intoxicating liquor that homemade whisky, commonly called hootch, is intoxicating liquor is improperly given where there is no evidence of homemade liquor or of hootch.
    10. Intoxicating liquor — improper instructions on possession as prima facie evidence. Where the defendant introduces evidence against guilt in a prosecution for illegal possession of intoxicating liquor, it is error to instruct the jury that possession of liquor, by any person not legally permitted to possess the same, shall be prima facie evidence that «ueh liquor is kept for the purpose of being sold or otherwise disposed tf in violation of law.
    11. Intoxicating liquor — incomplete instruction on illegal possession. It is improper to instruct the jury in a prosecution for illegal possession of intoxicating liquor that if they believe defendant possessed intoxicating liquor in violation of the prohibition law they should find her guilty, without advising them as to what constitutes possession in violation of the law.
    12. Criminal procedure — instructions too elaborate on reasonable doubt. It is erroneous to give instructions elaborating the term “reasonable doubt.”
    Error by defendant to the County Court of Rook Island county; the Hon. George D. Long, Judge, presiding. Heard in this court at the December term, 1925.
    Reversed and remanded.
    Opinion filed August 4, 1927.
    Clarence J. Schroeder and Stewart & Klingbiel, for plaintiff in error; Ben A. Stewart, of counsel.
    Oscar E. Carlstrom, Attorney General, Edward C. Fitch, Assistant Attorney General, and Benjamin S. Bell, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

Plaintiff in error, hereinafter referred to as defendant, was tried in the county court of Rock Island county on an information containing two counts, the first charging the unlawful possession of intoxicating liquor and the second charging the unlawful sale of intoxicating liquor.

There was no proof of a sale, but there was of possession, and the jury found defendant guilty under the first count.

Motions for a new trial and in arrest of judgment were overruled and judgment rendered on the verdict. This writ of error was sued out by the defendant.

As punishment, the court imposed a fine of $1,000 and costs, and ordered “That the said defendant, Amelia Cary, stand committed to the county jail of Rock Island County, Illinois, and there work out said fine and costs at the rate of $1.50 per day under the direction of the sheriff, as the county board may provide for, or until the fine and costs are fully paid in this manner, or until said defendant is otherwise discharged as provided by law.”

On the record there are eleven assignments of error, In the argument only five of them are insisted upon. The others will be deemed to have been abandoned or waived.

The first assignment discussed is that the judgment and sentence are illegal, unwarranted, and in violation of section 11, article 2 of the Constitution, Cahill’s St. Const. Art. II, § 11, p. 12.

The penalty for the unlawful possession of intoxicating liquor, so far as applicable to this case, is fixed by Div. B of section 34, chapter 43, Smith-Hurd Statutes, Cahill’s St. ch. 43, 1f 34, in this language:

“(B) Any person violating * * * any of the provisions of this Act, for which offense a special penalty is not prescribed, shall be fined for a first offense not less than $100.00 nor more than $1,000.00, or be imprisoned not less than sixty days, nor more than six months.”

To fix the punishment for the violation of a penal statute is a legislative function, with which the courts will not interfere unless the penalty fixed is clearly in excess of constitutional limitations. People v. Lloyd, 304 Ill. 23; People v. Berglin, 309 Ill. 488; People v. Elliott, 272 Ill. 592.

That the penalties prescribed by the legislature in this identical section of the statute do not render it obnoxious to the constitutional provision requiring penalties to be proportioned to the nature of the offense, has been expressly held by the Supreme Court in a recent case. People v. Kawoleski, 310 Ill. 498.

It follows that the court had a statutory authority to impose a fine of $1,000, and that the legislature, in vesting the court with that authority, did not exceed its constitutional powers. In fact, it appears from the argument that counsel for defendant do not challenge the power of the court to impose a fine of $1,000 and the costs. The thing they are really objecting to is the order entered by the court providing for the method of collecting such fine and costs.

In view of the confusion that seems to exist concerning punishment for misdemeanors, it may be well to review the various statutes relating thereto. In order to do so intelligently, let us first determine what is a misdemeanor.

Sections 585 and 586, chapter 38, Smith-Hurd, give us statutory definitions. Section 585, Cahill’s St. eh. 38, j[614: “A felony is an offense punishable with death or by imprisonment in the penitentiary.” Section 586, Cahill’s St. ch. 38, If 615: “Every other offense is a misdemeanor. ”

Section 586 goes further and specifies a class of misdemeanors, and fixes penalties for them as follows: “Where the performance of any act is prohibited by any statute, and no penalty for the violation of such statute is imposed, the doing of such act is a misdemeanor, and may be punished by fine not exceeding $100, or imprisonment in the county jail, not exceeding six months, or both, in the discretion of the court.”

In cases in which imprisonment in the county jail constitutes all, or a part, of the penalty, the court may substitute for imprisonment in the county jail a sentence to labor. The authority to substitute a sentence to labor for imprisonment in the county jail in larceny cases is found in that part of section 389, chapter 38, Cahill’s St. ch. 38, H 382, which prescribes the penalty for petit larceny. The authority to substitute a sentence to labor for imprisonment in the county jail, where a person is convicted of “any misdemeanor under the criminal code,” is found in section 390, chapter 38, Cahill’s St. ch. 38, 383, in this language: “The court in which such conviction is had, may in its discretion, instead of committing to jail, sentence such persons to labor.”

In substituting such sentence under section 390, the court may order and direct such labor to be performed :

(a) In the workhouse of any city, town or county where the conviction is had;

(b) On the streets and alleys of any city, town or the public roads of the county; the sentence may also be

(c) To such labor as the county board may provide for. In this cáse the labor may be ordered to be performed under the direction of the sheriff.

By section 758, chapter 38, Cahill’s St. ch. 38, 783, which should be read in connection with section 390, the authority to sentence to labor is in the following language:

“Any person convicted, in a court * * * of any crime or misdemeanor, the punishment of which is confinement in the county jail, may be sentenced * * * to labor for the benefit of the county, * # * in the workhouse, house of correction or other place provided for that purpose by the county or city authorities. ’ ’

Under this section, the authority to sentence to labor, instead of to imprisonment in the county jail, is not limited to misdemeanors, under the criminal code, but extends to any misdemeanor the punishment of which is confinement in the county jail.

The court, it seems, may sentence “to labor” as a substitute for “imprisonment in the county jail,” but not in addition to such imprisonment. People v. Barney, 217 Ill. App. 322.

When a sentence to labor is imposed, the court will place the convict in the keeping of some person as authorized by section 392, chapter 38, Cahill’s St. ch. 38, ft 385, and the person in whose keeping he is placed may provide for his safe-keeping, and to that end may use balls and. chains, and, if deemed necessary to prevent his escape, may “confine him in the county jail during the night, and at any other time such prisoner cannot be kept at work.” People v. Barney, supra.

While the provisions of these statutes do not apply to the instant case because there was no imprisonment in the county jail adjudged as all or any part of the punishment, they have been reviewed for the purpose of leading to a clearer understanding of the effect of statutes providing for the collection of fines imposed as punishment for misdemeanors, and particularly the effect of section 391, chapter 38, Cahill’s St. ch. 38, f 384.

When this fine was imposed the court had authority to order, as part of the judgment, that the defendant be committed to jail, there to remain until the fine and costs were fully paid, or until she was discharged according to law. (Section 762, chapter 38, Cahill’s St. ch. 38, If 787.) If that had been the judgment and order of the court, the defendant could have paid.the fine and costs and been discharged from imprisonment. The fine and costs might have been collected on execution as authorized by section 764, chapter 38, Cahill’s St. ch. 38, If 788, and when so collected the defendant would have been entitled to her discharge from imprisonment, or defendant might have made application for discharge under section 766, chapter 38, Cahill’s St. ch. 38, ff 790, and upon proper showing, been discharged as a pauper.

The coijrt, when this fine was imposed, judging from the order it entered, intended that the defendant should pay it either in money or labor.

In making the order for payment in labor, in default of payment in money, the court has confused the provisions of section 390 with those of section 391; This order should have followed section 391. It should have directed that defendant work out such fine and all costs: (a) In the workhouse of the city, town or county, or (b) in the streets and alleys of the city or town, or (c) on the public roads in the county, under the proper person in charge of such workhouse, streets, alleys or public roads, at the rate of $1.50 per day. Then the “proper person,” in whose keeping the order placed her, could provide for her safe-keeping by the use of balls and chains and, ,if he deemed it necessary to prevent her escape, he could confine her in jail during the night, and at any other time she could not be kept at work, as provided in section 392, chapter 38.

Where a proper order is entered under section 391, requiring payment of a fine in labor at $1.50 per day, the defendant cannot secure a discharge under section 766 by showing he has “no estate wherewith to pay such fine and costs or costs only. ’ ’ He must nevertheless pay in labor, as provided in the order, at least unless he can show he is unable to perform labor. People v. Jaraslowski, 254 Ill. 299.

From the foregoing, it will be seen that section 390 authorizes the court to substitute “a sentence of labor” for “imprisonment in the county jail,” while section 391 authorizes the court to order the payment of a fine in labor at $1.50 per day. It will also be seen that the labor, in either ease, shall be performed under the person in whose keeping the prisoner is placed, as authorized by either section 390 or 391 and may provide for safe-keeping of the convict in the manner and by the means specified in section 392.

The judgment in this case does not follow the statute. If that were all, we might remand the case with directions to correct the judgment. There are, however, other assignments of error requiring attention.

If is contended that a new trial should have been granted, and two reasons are assigned in support of such contention: (1) Because of newly-discovered evidence; (2) because the verdict is contrary to the evidence.

There is not a sufficient showing that the new evidence was not known to the defendant before the trial. She makes no affidavit denying such knowledge, and her evidence indicates that she knew of it long before the trial, and that she might, by the exercise of proper diligence, have availed herself of it at the trial.

The jury are the judges of the facts, and we cannot, after a careful examination of this record, say the verdict is contrary to the evidence.

It is next contended that the conduct of the State’s attorney, in his cross-examination of the defendant and of the witness Fowler, constituted prejudicial error. Only one question in the cross-examination of each of them is claimed to be improper. Each question was objected to on the ground that it was irrelevant and immaterial. In each case the objection was sustained, and thereafter the subject was pursued no further by the State’s attorney. Moreover, the question was not raised by the defendant in her written motion for a new trial, and must be considered as waived. People v. Cione, 293 Ill. 321, and cases cited.

The next contention is that the court erred in the admission of evidence offered by the prosecution; specifically, that it was improper to admit exhibit 2, a bottle with liquor in it, and exhibit 1, a jug containing liquor, and that it was improper to permit the jury to take the exhibits to the jury room.

.The exhibits were properly admitted, and it does not appear from anything contained in the abstract that the court permitted the jury to take the exhibits with them when they went to consider their verdict. If they were so taken no objections were made, no exceptions preserved, and the written motion for new trial is silent. on the question of their admission, as well as on any action of the court in permitting the jury to take them to the jury room.

The holding in People v. Cione, supra, applies.

The last assignment of error relates to the giving of instructions offered by the People.

Instruction No. 3: “You are instructed that homemade whiskey, commonly called hootch, is intoxicating liquor. ’

We find no evidence in the record on which to base this instruction; no evidence of homemade liquor, nor of hootch. It simply states an abstract proposition, which has no application to the evidence in the record, and should not have been given.

Instruction 8 tells the jury that possession of liquor, by any person not legally permitted to possess liquor, shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished or otherwise disposed of in violation of. the law.

This instruction is bad under the holding in People v. Tate, 316 Ill. at page 59, where the Supreme Court said: “When a defendant goes to trial and introduces evidence disputing the facts charged in the indictment, it is a question then whether the evidence establishes a case against him of guilt beyond a reasonable doubt, and where there is such a contest in the evidence there should be no instruction whatever given as to what constitutes a prima facie case.”

The vice in instruction 15 lies in the fact that it tells the jury that if they believe • defendant “possessed intoxicating liquor in violation of the prohibition law” they should find her guilty, without advising them as to what constitutes “possession of intoxicating liquor in violation of the prohibition law.”

Instructions 1, 2, 4, 5, 6 and 7 are all attempts to explain and elaborate the term “reasonable doubt.” The Supreme Court has, in many cases, condemned this practice, and in the case of People v. Rogers, 324 Ill. at pages 235-236, manifests some impatience with the continuation of such practice in the following language: “Court and counsel will do well to heed

the advice of this court in many cases in which instructions concerning 'reasonable doubt’ have been considered. It is a term which needs no definition, and it is erroneous to give instructions resulting in an elaboration of it. ’ ’

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Barry

text:
    Henry Barnett, Jr., Plaintiff in Error, v. Lacy Hubbard, Defendant in Error.

    1. Deeds — admissibility of parol evidence to show part of consideration. Parol evidence is admissible to show that the grantee in a deed agreed to pay taxes which were a lien on the property conveyed at the time of conveyance, as part of the consideration therefor.
    2. New trial — not granted to permit recovery of nominal damages. A new trial will not be granted to permit recovery of merely nominal damages for a technical breach of the covenants of a deed against incumbrances.

      Error by plaintiff to the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1921.
    Affirmed.
    Opinion filed November 10, 1921.
    Summers & Summers, for plaintiff in error.
    D. F. Bumsey, for defendant in error.

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

   Mr. Justice Barry

delivered the opinion of the court. ■ •

Defendant in error conveyed certain premises to plaintiff in error by a statutory warranty deed in which nothing was said about, the taxes for the year 1919 which were then a lien. Plaintiff in error sued to recover the amount of the taxes, $25.79, and the verdict and judgment were against him.

His sole contention is that the court erred in admitting parol evidence to the effect that at the time of the sale and conveyance it was verbally agreed between the parties that plaintiff in error should pay the taxes in question as a part of the consideration: In our opinion the court committed no error in that regard. Brosseau v. Lowy, 209 Ill. 405; Henderson v. Tobey, 105 Ill. App. 154.

Even though there was a technical breach of the covenant against incumbrances the law is well settled that courts will not grant.a new trial merely to permit a party to recover nominal damages. Comstock v. Brosseau,, 65 Ill. 39; People v. Petrie, 191 Ill. 497-515; White v. Holden, 206 Ill. App. 567; Leddy v. Board of Education, 160 Ill. App. 187; Morris v. Vulgamott, 158 Ill. App. 434; Thren v. Ames, 149 Ill. App. 147.

As the record is free from reversible error the judgment is affirmed.

Affirmed.


author: Per Curiam.

text:
    Hugh A. Mason et al., Plaintiffs in Error, v. M. F. Browner et al., Defendants in Error.

    1. Drainage — statutes as controlling organisation and abandonment. Drainage districts are solely creatures of the statutes, which must be followed in their organization and abandonment.
    2. Drainage — nature of writ of error to review proceeding. A writ of error in the statutory proceeding for abandonment of a drainage district is not a writ of right.
    3. Appeal and error — proper court to review statutory proceeding. In a proceeding governed purely by statute which allows an appeal only to a certain court, the cause must be taken to that court, and the appeal or writ of error will not lie to or from another court.
    4. Drainage — jurisdiction of Appellate Court to review proceeding. The Appellate Court has no jurisdiction of a case for the abandonment of a drainage district in which plaintiffs ask a writ of error to review the decision of the county court thereon.
    5. Drainage — transfer of cause by Appellate Court. The Appellate Court will transfer to the Supreme Court a cause in which a writ of error is asked to review the county court’s decision in a drainage district abandonment proceeding.
    Error by plaintiffs to the County Court of Pulaski county; the Hon. M. P. Gilbert, Judge, presiding. Heard in this court at the October term, 1921.
    Cause transferred to Supreme Court.
    Opinion filed January 30, 1922.
    Dan Hogan, Jr., for plaintiffs in error.
    Gilbert & Gilbert, for defendants in error.

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

   Per Curiam.

Plaintiffs in error filed their petition for abandonment of Mounds Drainage District in the county court of Pulaski county under section .44 of the Levee Act, Cahill’s St. eh. 42, ff 44. Motions to strike the same from the files were entered by the commissioners of the district and also by certain alleged creditors of the district. The motions were allowed and the petitioners prayed an appeal to this court which was not perfected. They have sued out a writ of error to review an action of the county court.

Drainage districts are solely creatures of the statute, and the statute must be. followed both in their organization and abandonment. Bissell v. Edwards River Drain. Dist., 259 Ill. 594. In a statutory proceeding a writ of error is not a writ of right. Hart v. West Chicago Park Com’rs, 186 Ill. 464.

The statute of 1909 [Cahill’s St. ch. 37, [[ 151] provided plaintiffs in error with a remedy by appeal to the Supreme Court. Kline v. Barnes, 250 Ill. 404. Where the statute, in a purely statutory proceeding, allows an appeal to a certain court, the cause must be taken to that court, and an appeal or writ of error will not lie to or from some other court. Quincy Railroad Bridge Co. v. City of Quincy, 77 Ill. 107; Kingsbury v. Sperry, 119 Ill. 279; Kline v. Barnes, supra.

We are of the opinion that this court has no jurisdiction of the cause. In Wetaug Drain. Dist. v. Illinois Cent. R. Co., 297 Ill. 350, the court held that a proceeding to organize a drainage district is purely statutory, and a writ of error does not lie to review a final order of the county court dismissing a drainage proceeding because it has lost jurisdiction for want of a continuance to a day certain for the report of the commissioners where there is no statute authorizing the writ.

On the other hand, where the point was not raised, the court entertained a writ of error to review a judgment of the county court denying a petition filed under section 44 of the Levee Act to abandon and abolish a district, Boston v. Kickapoo Drain. Dist. 244 Ill. 577, and also to review a judgment of the county court-abolishing a district under said section 44. Deneen v. Deneen, 293 Ill. 454.

In view of those directions we deem it our duty, under section 102 of the Practice Act, OahilPs St. ch. 110, If 102, to transfer this cause in order that the Supreme Court may determine whether it will entertain the writ. It is ordered that the clerk of this court shall transmit the transcript and all files herein with a copy of this order to the clerk of the Supreme Court without delay. .

Cause transferred to Supreme Court.


text:
    Rolla M. Treece, Appellee, v. Southern Gem Coal Corporation et al., Defendants. West Frankfort Coal Company, Appellant.

    1. Limitations of actions — when begin to run for damage from subsidence of mined land. A cause of action for damage, to property from the subsidence of the ground due to not leaving sufficient support in the process of mining thereunder, arises at the time of the subsidence and not at the removal of the subjacent support, and the statute of limitations begins to run from the former date.
    2. Appeal and error — when erroneous instructions for appellant not ground for reversal. A judgment will be affirmed although instructions for the appellant lay down an erroneous rule of law, where the appellee does not assign cross-errors and does not seek reversal of the judgment.
    Appeal by defendants from the Circuit Court of Franklin county; the Hon. Julius C. Kern, Judge, presiding. Heard in this court at the March term, 1923.
    Affirmed.
    Opinion filed October 29, 1923.
    Williams, Lewis & Coffey and Hart & Hart, for appellant.
    W. F. Spiller, E. M. Spiller and J. E. Carr, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

On July 1,1908, George A. Brown, being the owner of 40 acres of land in Franklin county, let and demised to Thomas Horn and Jesse Diamond the coal underlying said premises, the lease providing for the recovery of “all coal that could be economically mined” on a royalty basis. This lease was assigned to the West Frankfort Coal Company, appellant herein. Under this lease appellant mined and removed all the coal from under the land here involved.

After the coal underlying the premises had been removed Brown sold and conveyed the surface of the land to Bolla M. Treeee and Everett B. Brown. These parties subdivided the premises into lots and blocks and appellee, Bolla M. Treeee, became the owner of certain lots. After acquiring these. lots appellee erected thereon certain dwelling houses and on one a single story frame store building. After the buildings were erected two subsidences of the surface of the land occurred, resulting in damage to the buildings and also to the surface of the land. This suit was brought by appellee against appellant to recover the damages resulting from the subsidences, charging that they resulted from the failure of appellant to leave sufficient support for the surface of the soil.

Appellant filed its plea of not guilty and the cause was tried before a jury on that plea and the stipulation of the parties that any evidence should be admitted which would be admissible under a proper special plea. The jury found for appellee and assessed his damages at $2,500. After motions for a new trial and in arrest of judgment had been overruled, judgment was rendered on the verdict. There is no dispute as to the facts in this case.

The court instructed the jury in behalf of appellant to the effect that if the coal underlying the premises had been mined and removed prior to the time appellee became the owner of the surface and the subsidences occurred by reason of such prior mining and removal of coal, appellee could not recover. Notwithstanding this instruction and notwithstanding the fact it was admitted the coal had been mined and removed before appellee became the owner of the surface, the trial court overruled appellant’s motion for a new trial. There appears in the record, however, over the signature of the trial judge, a statement to the effect that even though the verdict was contrary to the instructions of the court, yet the motion for a new trial was overruled in order that the legal propositions here involved, which appear not to have been settled by the decisions of this State, might be passed upon by a court of review.

Appellant rests its case in this court upon three propositions, the last two of which are practically but one, namely, (1) the cause of action arose at the time of the removal of the subjacent support; (2) the action for injury to real estate by interfering with support is a personal action and (3) the action being personal does not pass with a grant of the land but belongs to the owner of the land at the time the cause of action arises. It appears to us that a disposition of the question as to when the cause of action in this case arose will dispose of all of appellant’s propositions so far as this particular case is concerned. Appellee was the owner of the surface at the time the subsidence occurred and if the cause of action then arose there would be no question but that the right of action was in him. The only authorities cited by appellant substantiating its contention that the cause of action arose at the time the surface support, that is the coal, was removed, regardless of when the subsidences occurred, are decisions of the Supreme Court of Pennsylvania. In Noonan v. Pardee, 200 Pa. 474, it was held that “When the coal was removed without leaving sufficient pillars, or without supplying sufficient artificial props, was the time when the subjacent owner failed in an absolute duty he owed to his neighbor above. And from that dates the cause of action. * * * If the failure to furnish sufficient support to the surface was from mining, either by defendant or his predecessors, more than six years before suit, the action is barred by the statute of limitations.” In Tischler v. Pennsylvania Coal Co., 218 Pa. 82, the court approved the following instruction. “The court instructed the jury that the cause of action arose, not when the cave or subsidence took place, but when the support of the surface was so weakened that it might fall, and told them that the cause must have occurred within- six. years of bringing the suit.” In Woods v. Pittsburg Coal Co., 230 Pa. 197, the court again approved the doctrine laid down in Noonan v. Pardee, supra, that such cause of action accrues at the time that insufficient supports are left regardless of when the subsidence occurs. If the doctrine laid down by the courts of Pennsylvania were followed in this case then the questions would arise as to whether the cause of action arose within the statutory period for bringing suit and whether or not, if within such period, such right passed to appellee in this case with his grant of the surface of the soil. Appellant, however, has not cited nor have we been able to discover any authorities other than those above mentioned supporting its contention that the cause of action arose when the coal was mined and removed.

.On the other hand we find the rule of the English courts and the courts of Alabama and Kansas, and we believe New Jersey, to hold the contrary. Probably the leading case on this question in the English courts is that of Backhouse v. Bonomi, 9 H. L. Cas. 503. In that case, where a lot and the house on it were caused to settle by the excavation of the underlying strata it was expressly held that the cause of action arose when the subsidence occurred and not at the time the support was removed, and in passing upon that question Lord Chancellor Westhury used the following language: “I think it is abundantly clear upon both principle and upon authority that when the enjoyment of a house is interfered with by the actual occurrence of the mischief the cause of action then arises, and that the action may then be maintained.” To the same effect is the English case of Darley Main Colliery Co. v. Mitchell, L. R. 11 App. cases 127.

In a case involving the question as to whether the statute of limitations begins to run in a case of this nature at the time the subsidence of the surface occurs or at the time the subjacent supports are removed the Supreme Court of Alabama in West Pratt Coal Co. v. Dorman, 161 Ala 389, 49 So. 849, 23 L. R. A. (N. S.) 805, quoted with approval from the English case of Backhouse v. Bonomi, supra, and held that such cause of action accrued and the statute of limitations began to run when the subsidence of the upper soil occurred and not when the subjacent support was removed. A case note to the above in the report named contains the following statement which we consider well founded: “So far as the cases are concerned which deal with applicability of the statute of limitations to actions for injury to the surface caused by .mining operations or other excavations, the great weight of authority is to the effect that a cause of action does not arise until some actual mischief has been done, from which time the statute of limitations begins to run, regardless of when the mining or other excavating was done.” In Audo v. Western Coal & Mining Co., 99 Kan. 454, it was held that a cause of action for damages caused by the subsidence of the land into excavations made by a mining company did not accrue until the land subsided. The facts involved in that case were very similar to those in the instant case. A coal company mined-the coal from part of the land owned by it and then conveyed the surface, reserving the underlying coal. The purchaser knew that the coal had been mined from that part of the land, but had no personal knowledge in what maimer the mining had been done. A portion of the surface over that part of the land from which the coal had been mined previous to the making of the deed subsided after the land had been conveyed. On these facts it was held that such cause of action did not accrue until the subsidence of the land took place, and therefore the statute of limitations did not begin to run until that time. This rule was adopted in effect in the case of Walsh v. Kansas Fuel Co., 91 Kan. 310. We are also of the opinion that the case of Church of the Holy Communion v. Paterson Extension R. Co., 66 N. J. L. 218, 49 Atl. 1030, 55 L. R. A. 81, supports this doctrine. In that case the court of appeals of New Jersey held that the right of action for removal of lateral support arose when the damage occurred, and not when the lateral support was removed. If appellant’s contention that the cause of action arose when the subjacent support was removed and before any actual damage had been sustained by the surface, a jury would therefore be called upon to decide the speculative question as to whether any damage was likely to occur and as said Mr. Justice Willes in Backhouse v. Bonomi, supra, “it might well be that in many cases that the jury would, upon the evidence of mineral surveyors and engineers, find that no damage was likely to occur, when the most serious injury afterwards might in fact occur, and in others find and give large sums of money for apprehended damage which in point of fact never might arise. This is certainly not a state of law to be desired.”

We conclude that appellee’s contention that the cause of action did not arise until the subsidence occurred is supported by the greater weight of authorities and is based upon more logical reasons and sounder principles of justice than the doctrine that it arose when the coal was mined and removed. As the subsidence of the surface of the ground occurred after appellee became the owner of the same the right of action accrued directly to him and it is therefore unnecessary for us to pass upon the question whether the action is personal and will or will not pass with the grant of the land. The court erred in the rule of law laid down in the instructions to the jury on behalf of appellant, above referred to, but appellee has assigned no cross-errors and does not seek a reversal of the case. The judgment of the trial court was in accordance with the law and the facts and will therefore be affirmed.

Affirmed.