text:
    The Austin-Western Road Machinery Company, Appellant, v. R. E. Wetzel, Appellee.
    Gen. No. 8,538.

      Opinion filed November 4, 1931.
    Rehearing denied and opinion modified January 7, 1932.
    Helmer, Moulton, Whitman & Holton and Arthur Yockey, for appellant; Herbert ft. Tews, of counsel.

      Provine & Williams and Ralph W. Adams, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This suit is brought to recover the amount claimed to be due to appellant upon five certain promissory notes, executed by appellee as highway commissioner of the town of Prairieton, in Christian county, in the months of June and July, 1926, each note drawing interest at the rate of six per cent per annum, and all of said notes falling due in the months of March and April, 1927, to the full amount of $1,097.62. Appellant also, under the common counts, claimed to recover the value of goods sold and delivered by appellant to appellee, consisting of culvert pipe, purchased in 1924 and 1925 in the same amount. Appellee filed the general issue and there was a stipulation that appellee could make any defenses the same as though they were formally pleaded.

Culvert pipe was shipped by appellant to appellee as such highway commissioner in the seasons of 1924 and 1925 of the value of $899.90, and the same was used upon the highways of Prairieton township. It is shown by the proofs that Prairieton township made certain tax levies each year for road and bridge work, but under a system which had been in vogue for a considerable length of time. Notes or so-called “warrants” were issued for the material and work (except labor), drawing interest, and as the tax moneys came in the treasurer paid the notes which had run the longest period and satisfied the current contractors with promises to pay. Appellant had renewed three of his notes at two different times and the other two once. This suit was not commenced until August 10, 1929. A jury was waived. There was a hearing before the court and there was a finding and judgment for appellee and appellant has appealed.

Appellant attempted to show by the oral testimony of one Osborn, who was the commissioner of highways in 1924 and 1925, that certain moneys were received as taxes by the town for road and bridge purposes during the years 1924 and 1925. This testimony was objected to but the witness being permitted to answer could remember very little about it and while he did state that some moneys were received, he also said that all such moneys were paid out immediately upon the oldest orders or “warrants” outstanding, and that it left little or no moneys in the treasury.

Appellee introduced some sheets from the treasurer’s account, showing income and outgo, but no attempt was made to identify or explain any item. The most that can be gathered from these sheets is that there was always a large deficit or overdraft. For example, March 24, 1924, the overdraft was $3,647.83; August 27, 1923, overdraft $3,153.37; September 1, 1924, overdraft $3,533.06; March 27, 1924, overdraft $3,533.06; April 8, 1925, overdraft $3,529.01, and September 1, 1925, overdraft $680.13. We have set down the figures just as they appear. Sometimes the treasurer moved forward. At other times it is apparent he retreated to earlier dates. At all times the account shows a deficit. No other showing being made, it must be presumed that all payments which he made were for bona fide bills incurred during the current year. It is impossible to state any account or determine any balance, either of receipts or expenditures, at any time during the years 1924 and 1925 of the commissioner’s account.

But appellant’s chief contention in this case is, that to render the contract legal and establish the indebtedness against the town it is not necessary to establish that the town either had funds on hand or a tax levy which could be anticipated, but it is merely necessary to show that the town or municipal authority had not created an indebtedness in excess of its constitutional limitation of five per cent in the aggregate, on the value of the taxable property therein. (Sec. 12 of art. 9, Constitution.) Appellant takes this position upon the holding in Euziere v. Highway Commissioner of Town of Rockville, 260 Ill. App. 29; County of Coles v. Goehring, 209 Ill. 142; and Town of Kankakee v. McGrew, 178 Ill. 74.

In the Goehring case, which involved the necessity of building a courthouse in Coles county, the court placed the rule upon the public duty and imperative statutory command to boards of supervisors “to build, as often as may be necessary, courthouses and jails,” as a part of the governmental necessities of the State, and in the Town of Kankakee v. McGrew, supra, the injunction was “to support the poor,” as a public governmental function. Other cases could be added to this list, citing the Goehring case. McGovern v. City of Chicago, 281 Ill. 264, and Gray v. Board of School Inspectors, 231 Ill. 63, are each cases merely of defectively carrying out a granted power. Pauly v. County of Madison, 288 Ill. 255, is based upon the imperative duty imposed upon counties to provide courthouses. St. Hedwig’s Industrial School for Girls v. Cook County, 289 Ill. 432, is based upon the public duty to care for dependent girls at industrial schools; and DeKam v. City of Streator, 232 Ill. App. 135, was claimed to be based upon the public policy of protecting the health of the inhabitants by furnishing city sewers, but the case was reversed by the Supreme Court, 316 Ill. 123. In all of these cases the theory of the courts has been that the municipal authorities were exercising an arm of the governmental authority of the State and that its action was public and for a public benefit as distinguished from local, special or private benefit. The subject is further discussed in Board of Sup’rs v. People ex rel. Commissioners of Highways, 110 Ill. 511, which was a review of a judgment in the circuit court of Will county awarding a peremptory writ of mandamus, commanding the board of supervisors of said county to cause to be levied and. collected upon the taxable property of the county a tax sufficient to realize therefrom the sum of $9,088.50, to aid the commissioners of highways of the town of Wilmington to build an iron bridge across Kankakee river, etc. The court say:

“While it is true commissioners of highways, in counties under township organization, are corporate bodies, whose powers and jurisdiction are limited territorially to the respective townships to which they belong, yet they are a part of the machinery of the county and State governments, and as such, under certain contingencies, are required to act in concert with the county authorities proper, in the building and Maintaining of bridges within their respective jurisdictions.” In Heffner v. Cass and Morgan Counties, 193 Ill. 439, 451, the court said: “ ‘But, as we have already seen, there is also a public benefit, and it is only by virtue- of the drainage being a matter of public importance that the involuntary land owner can be taxed for the improvement. The conclusion must be, that a drainage district formed under the statute in force July 1,1879, is not a private corporation, but is a public corporation. ’ ”

In People v. Bowman, 247 Ill. 276, 286, the theory of involuntary taxation is further elucidated: “The sanitary district and the drainage districts are all municipal corporations and creatures of the legislature. By their incorporation they acquire no contract rights. They are merely parts of the machinery employed in carrying on the affairs of the State. They exist only for public purposes, and possess no powers except such as are given them for public or political purposes.” In Board of Trustees v. Commissioners of Lincoln Park, 282 Ill. 348, 355, the court said: “Is the service of police officers local and corporate or public and governmental? If the latter, the legislature (nay require the levy of taxes without the consent of the local authorities. In Town of Fox v. Town of Kendall, supra, it was held the legislature could compel a municipality to levy taxes for the support of paupers. In Board of Supervisors v. People, 110 Ill. 511, it was held the legislature could compel a tax levy for the construction of a bridge across a river as a part of a highway. ’ ’

In Chicago, M. & St. P. Ry. Co. v. Lake County, 287 Ill. 337, 343, which involved the separation of a railroad crossing from grade and abolishing the grade crossing and apportioning the cost between the railroad, county and township, the court said: “The cost apportioned to appellees by the State, acting through its authorized agency, was not for a local ‘corporate' purpose,’ but the improvement for which a part of the cost was apportioned to appellees is for the protection of the general public. That is a matter in which the State is interested in its governmental capacity, and while the State may not deprive a municipality of its discretion in incurring expense for improvements of a local corporate character, such municipality cannot stand in the way of the State’s exercise of its powers for the preservation of life and the promotion of the public welfare. When the State acts in cases where the exercise of its powers are necessary, as where the safety of the general public demands the action, it becomes the duty of the local authorities to provide the means for complying with the order and requirement ‘ as in the case of any other legal obligation, and the performance of that duty is not prohibited by either section 9 or 10 of article 9 of the Constitution.’ North Fork Drainage District v. Rector Drainage District, supra.”

The whole subject of involuntary taxation is appended in a very copious note to State of Nebraska ex rel. Metropolitan Utilities Dist. v. City of Omaha, 112 Neb. 694, 200 N. W. 871, found in 46 A. L. R 602, with many Illinois cases found on page 710 and following. The whole question is whether the construction and repair of the ordinary roads and bridges of a township (as distinguished from the State aid and State roads) is a public, governmental function, or whether they are controlled by the township in its local, private and corporate capacity. Until the decision in Euziere v. Highway Commissioner of Town of Rockville, supra, by a long line of uninterrupted decisions these roads have been constructed and repaired by the townships in their local and private capacity. No statute of the State has imperatively directed how these roads should be constructed" and repaired. No provision of the constitution has even directed that roads shall be laid out. The diversity of soil and climate and the variation in the extent of travel has rendered it impossible to enforce any uniform method or plan to improve all of the ordinary roads in this State. As to these roads, it has always been held that involuntary taxes should not be forced upon the taxpayer, except in rare emergencies and for great public benefit. It has further been held that no indebtedness could be contracted by the commissioners except to the extent of the funds on hand or to the levies made. (Commissioners of Highways v. Newell, 80 Ill. 587, 592; County of Hardin v. McFarlan, 82 Ill. 138, 141; Law v. People ex rel. Huck, 87 Ill. 385, 409; Litz v. Village of West Hammond, 230 Ill. 310, 314; People v. Central Illinois Public Service Co., 328 Ill. 440, 442; People v. Glenn, 207 Ill. 50, 54; Chicago & Eastern I. R. Co. v. People, 200 Ill. 237, 243; Coguard v. Village of Oquawka, 192 Ill. 355, 365; Chicago & Alton R. Co. v. People, 190 Ill. 20, 22; Hopkins v. People, 174 Ill. 416, 417; Com missioners of Highways v. Jackson, 165 Ill. 17, 23; People v. Ross, 275 Ill. 70, 72; People v. Payne, 296 Ill. 483, 484, and Town of Lemont v. Singer & Talcott Stone Co., 98 Ill. 94, 101.)

In Commissioners of Highways v. Newell, supra, it was held: “From the provisions of the 116th section, and the other provisions of the law, it is manifest that the commissioners may, after they have levied the road and bridge tax, proceed to its expenditure for the purposes for which it was levied, in anticipation of its collection. But we fail to find any provision of the statute from which it may be inferred that it was designed to empower them to incur any indebtedness beyond the amount already levied. With quasi corporations of this character the rule obtains that their power to impose taxes or incur indebtedness will be strictly - construed. . . . ‘The reasonable presumption is held to be that the State has granted,' in clear and unmistakable terms, all it has intended to grant at all; and whatever authority the municipal officers assume to exercise, they must be able to show their warrant for, in the words of the grant. There is no inherent power in municipalities to levy taxes; they can tax only as the State, in its wisdom, has thought proper to permit, and if the State has erred in the direction of strictness, the legislature, alone, can correct the evil. ’ ” The court in this case also points out City of Galena v. Corwith, 48 Ill. 423, and explains the power under a special charter, and in Coquard v. Village of Oquawka, supra, the court said: “In County of Hardin v. McFarlan, 82 Ill. 138, this court, speaking by the same judge who delivered the opinion in City of Galena v. Corwith (the late Justice Breese), said: ‘It was held in Commissioners of Highways v. Newell, 80 Ill. 587, that more was said in that case (City of Galena v. Corwith) than the subject justified, and that it needed modification, confining it to cases where the charter of incorporation expressly grants a power, for a corporation cannot exercise any powers save those granted or necessarily implied, in order to carry into effect a granted power.’ ” Comity of Hardin v. McFarlan, supra, and Law v. People ex rel. Huck, supra, follow in the exact line with the Newell case. In Litz v. Village of West Hammond, supra, the court held: “Under the provisions of section 91, chapter 24, Hurd’s Revised Statutes of 1905, the corporate expenditures for appropriations of the village in any one year cannot lawfully exceed the amount provided for in the annual appropriation bill of that year, and no contract can be legally made or expense incurred by the village unless the object of the contract or expenditure shall have been included in the general appropriation bill and an appropriation therefor made (City of Chicago v. Nichols, 177 Ill. 97), except in an emergency,-the existence, of which is denied by the bill now under consideration.” In a late case, decided in 1928, People v. Central Illinois Public Service Co., supra, the court fully affirmed the Newell case and said: “The rule accepted by all authorities is that the language of an act granting the authority to tax shall be strictly construed. The reasonable presumption is that the State has granted in clear and unmistakable terms all it intends to grant, and the municipal authorities who assume to exercise the power to tax must be able to show their warrant for the exercise in the words of the act granting the power.”

The other cases cited, People v. Glenn, supra; Chicago & Eastern I. R. Co. v. People, supra; Coquard v. Village of Oquawka, supra; Chicago & Alton R. Co. v. People, supra; Hopkins v. People, supra, and Commissioners of Highways v. Jackson, supra, all stand squarely on the Newell case and affirm its principle.

In Town of Lemont v. Singer & Talcott Stone Co., supra, the court said:

“We have repeatedly said that the taxing power is more liable to abuse than any other. But at the same time we feel justified in saying, the abuse is more generally by the taxpayers themselves than by officers entrusted with the exercise of the power. This became so apparent that our present Constitution has imposed a limitation on the power of municipal bodies to incur indebtedness beyond a certain amount, to prevent ruinous taxation to meet the principal and interest. These abuses are generally self-imposed, by waste, extravagance or negligence of the people themselves, and when such is the fact, the courts are properly powerless to afford relief against their own acts, when legally performed.”

All of the cases deviating from the rule of Commissioners of Highways v. Newell, supra, have been cases where an imperative statute commanded a public duty or the public health or a public interest asserted a governmental power. The distinction between the line of cases, not always plain and obvious, yet is sufficient to define the rule. However much abuse there may be charged to the present system, yet the rule laid down in Euziere v. Highway Commissioner of Town of Rockville, supra, should not be established to add to the chaos and waste until the entire system of handling the funds is changed by a legislative act, if there is to be a change. We cannot agree with the contention that the commissioner of highways in this case has any power to permit or suffer by contract or otherwise, an addition to the indebtedness of the town. The cases generally hold that the funds and levies of each year are to be used for the expenses and work of the current year. Yet appellant cannot take any advantage of the mismanagement of the accounts for the years 1924 and 1925, because appellant has been a party to it, waived his claims and accepted the promissory notes of the commissioner of highways for his accounts. If this suit were against the commissioner in his personal capacity, appellant would be in a different situation. What are called “warrants” in this record mention no fund, but are mere simple promises to pay, upon a fixed date, a definite sum, with a rate of interest attached. They are the promissory notes of the commissioner and issued without any compliance with the statute, are void as against the quasi corporation, the commissioner of highways.

Finding no error in the record, the judgment of the circuit court of Christian county is affirmed.

Affirmed.

Upon petition for rehearing and the citation of the case of Euziere v. Highway Commissioners of Town of Rockville, 346 Ill. 131, it is sufficient to add, that the Eusiere case merely defines a rule of pleading, and does not in any manner, change the law of this State as to highway commissioners and has no bearing upon this case.

Petition denied.


source: Caselaw Access Project

author: Mr. Presiding Justice Niehaus

license: Public Domain

text:
    Carl Runyan, Appellee, v. George Bland, Appellant.
    Gen. No. 8,469.

      Opinion filed December 16, 1931.
    Boyer & Leonard, for appellant; F. B. Leonard, of counsel.
    Dobbins & Dobbins, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

This case was brought in the circuit court of Champaign county by the appellee Carl Bunyan, who was riding as a guest in the automobile of the appellant, George Bland, on Dec. 8, 1929, to recover damages for personal injuries resulting to him while riding in appellant’s automobile as such guest, and was thereby involved in an accident, which occurred about one mile southeast of Covington, Indiana. The action is brought under the so called “Guest Statute” of the State of Indiana, which provides, “that no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of such owner or operator, or caused by his reckless disregard of the rights of others.”

The appellee filed a declaration in the cause, ■ in which he averred his right of recovery to be based upon the fact that the injury suffered by him in the accident was in consequence of appellant’s driving the automobile in question on the highway mentioned, “with reckless disregard of his rights and the rights of others. ’ ’

The case was submitted to the jury on the fourth and fifth additional counts of the declaration as amended, both of which in addition to averments of negligence contain the averment above set forth. There was a trial of the case and a verdict and judgment for $3,625 against the appellant, from which this appeal is prosecuted.

Concerning the facts involved in the litigation, the appellant makes the following statement in his brief:

The evidence showed that on Sunday afternoon, December 8, 1929, the plaintiff, Eunyan, and the defendant, Bland, drove from Champaign, Illinois, to Danville, Illinois, in George Bland’s one-seated roadster which was equipped with side curtains and isinglass. They went to a show Sunday afternoon and got out around 5:00 or 5:30 o ’clock and then made a “date” in Danville with two young ladies for 8:00 o’clock that night. Having nothing to do from 5:30 to 8:00 o’clock the defendant asked the plaintiff to suggest somewhere to go and the plaintiff suggested going to Yeedersburg to see a man to whom the plaintiff was slightly indebted. They went to Yeedersburg but couldn’t find the man at first, but later saw him and then started back to Danville (as stated by plaintiff) at “twenty-four minutes after seven.” The Indiana paved highway as they came west from Yeedersburg returning to Danville, Illinois, passes through Covington, Indiana. The accident happened between Yeedersburg and Covington. From Yeedersburg to within a mile or so of Covington the road runs practically straight east and west and then south of Covington there is a sharp “double curve” leading north into Covington as one goes west.

The defendant was driving his car, first at 45 miles an hour when he left Yeedersburg, then around 55 or 60 miles an hour when the plaintiff said to him, “Say, fellow, if we want to make those dates there is no use killing ourselves beforehand.” The plaintiff’s version of what happened is as follows:

“He just sort of laughed or something and kept on going and the next time I looked at the speedometer it was registering 68 and just as I looked up I saw the headlights flare on a sign and I said to George to cut this thing off, there is a curve up ahead, and there wasn’t any response and I looked over at him and he had his arm down by the side curtain of the door trying to see what time it was. . . . After I made that statement, when George raised up, the front wheels, the one left front wheel, had started off the road and he jumped on the brake. He pushed down on it and the car skidded. As it skidded we went over an embankment and hit something,” etc.

According to the defendant’s version he was driving between 60 and 65 miles an hour and Carl Runyan asked him what time it was. The defendant had on a wrist watch and held it down close to the dash light so he could see and glanced off the road about a half second looking at the watch, when the plaintiff, Runyan, said, “You had better slow up, there is a curve ahead.” He immediately looked up, saw the curve and cut off the motor by pushing in the clutch and applying the brakes gently. “The car kind of swerved a little and the left wheels went off in the soft gravel to the left of the road” and by that time he came to the second curve of the double curve and could not get back on the road and went over in the ditch.

There was no one else in the car except the two young men. The plaintiff was 22 years old and the defendant was 25 years old. The defendant was employed at the University of Hlinois in the transportation department as an electrician.

It is argued by the appellant for the reversal of the judgment, that the charges of the fourth and fifth additional counts of the declaration amount only to charges of negligence and do not charge wantonness or wilful conduct, as defined by the decisions in the courts of review of Indiana and Illinois; and that it has been held by the court of review in several States in construing statutes similar to the Indiana guest statute, that the conduct of a defendant entitling a guest to recover must amount to wilful and wanton conduct; and that negligence, however gross, will not support a recovery. It is sufficient to say, concerning this contention, that both of the counts under which the case was submitted to the jury charged the appellant with having driven the automobile in question with “reckless disregard of the rights of the appellee and others,” which is distinctly made a ground for recovery under the Indiana statute. The plea of the general issue to this charge in the declaration raised an issue of fact which the jury found by their verdict in favor of the appellee.

The appellant argues in his brief upon the point raised, that conduct amounting to a “reckless disregard of the rights of others” in driving a motor car has been construed by the courts of Illinois and other States to amount to wilful and wanton conduct as a matter of law; and that inasmuch as the counts in the declaration mentioned charge the conduct to be merely negligence, a recovery cannot be sustained. Whether the charge made in the declaration against the appellant amounts in law to a charge of wanton or wilful conduct, is not now a pertinent question, because the question of the guilt of the appellant of conduct amounting- to a “ reckless disregard of the rights of others,” as charged was submitted to the jury as a question of fact; and passed upon by the jury as a question of fact; and the jury found that the appellant was guilty of such conduct in driving of the automobile in question; and under the Indiana statute this gives the guest riding in the car cause of action, and legal right to recover. And the evidence in the record discloses that the jury were warranted in finding that the appellant drove his car in reckless disregard of the rights of the plaintiff and others. It is true that both parties on the trial of the cause appear to have taken the position that the conduct of the appellant, which resulted in the injury to the appellee, was a question of negligence; and that the cause was tried upon the theory that conduct involving “a reckless disregard of the rights of others” in driving a car, was negligence; but concerning this contention, it must be pointed out, that “it is a well settled rule, that a person cannot try a case on one theory in the trial court and on another theory in the court of review. ” Lewy v. Standard Plunger Elevator Co., 296 Ill. 295; Butler v. Miller, 208 Ill. 231; Davis v. Illinois Collieries Co., 232 Ill. 284; Winnard v. Clinton, 233 Ill. 320.

Error is also assigned on the refusal of the court to exclude the evidence concerning hernia, which the appellee suffered, because, it is insisted, no causal connection of this injury is shown by the evidence with the accident. The appellee testified concerning the hernia, that at the time the cast was taken off at the hospital where he had been confined after the accident, he had a pain in the abdomen; that he felt a stinging pain; felt as though there was a pressure against it, or something pulling at it; that the pain was on the right side of the abdomen where the thigh bends; and that there was a bulge at that place, the size of an egg. That the bulge had not been there before the accident; and that the condition of his health previous to the accident had been perfect. This evidence tended to show a causal connection between the hernia and the accident. We conclude, therefore, that the court did not err in its refusal to exclude this evidence.

It is also assigned as error that the court refused to withdraw the jury and continue the case when plaintiff’s witness Weldon testified to a statement by the appellant concerning insurance for damages to his car. The witness Weldon was called to testify for the appellee with reference to statements made by the appellant concerning the speed at which he was driving the car at the time of the accident; and to other matters concerning his conduct at that time. In the course of his testimony relating to a conversation that he had with the appellant, he said: “I said, ‘did it damage your car much?’ He said, ‘yes, considerably, but my insurance on the car — ’ ” Mr. Herrick : ‘ ‘ Objected to as very prejudicial and improper. ’ ’ By the court: “Objection sustained, and it will be stricken.” It does not appear, nor is it claimed, that the statement concerning insurance on the car was responsive to any inquiry made of the witness by the appellee’s counsel; nor that it was made with the consent or connivance of the appellee, or his counsel; but it appears to have been purely voluntary on the part of the witness, who made it as a part of the conversation he had with the appellant concerning the accident. It was promptly stricken by the court as improper and incompetent. We do not think that it could have had any prejudicial effect on the jury under these circumstances in determining the question of whether the appellant was guilty of the reckless driving charge especially in view of the conclusive evidence in that feature of the case. Moreover, it does not necessarily follow that because he had insurance covering injuries to the car, the appellant also had insurance to cover injuries to persons riding in his car. We are of opinion that the court did not err in overruling appellant’s motion to withdraw the jury and continue the case.

It is also contended that the amount of damages assessed by the jury is excessive. But in view of the extent of the plaintiff’s injuries and his pain and suffering which the evidence discloses, the amount found by the jury cannot be regarded as excessive.

The record does not disclose any reversible error, and the judgment is therefore affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois ex rel. A. J. Poage, Appellant, v. M. F. Walsh, Appellee.
    Gen. No. 8,513.
    Opinion filed December 16, 1931.
    Bat E. Lahe, for appellant.
    Oscar E. Carlstrom, Attorney General, and Merrill F. Wehmhoff, Assistant Attorney General, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case a petition for mandamus was filed in the circuit court of Sangamon county in the case of the People on the relation of A. J. Poage, against the appellee, M. F. Walsh, Director of the Department of Eegistration and Education, averring that the relator is a graduate of the Chicago College of Osteopathy, a school duly recognized and authorized by the Department of Eegistration and Education of the State to confer the degree of doctor of osteopathy and the right to practice obstetrics; and that the students of which college are eligible under and by virtue of the laws of the State of Illinois and the rules of the Department of Eegistration and Education to take an examination for a license to practice the treatment of human ailments without the use of drugs by the science or method known and designated as osteopathy, and the right to practice obstetrics. And the petition also alleges in this connection that the relator has been illegally deprived of the right to be examined and obtain a license for the practice of osteopathy and obstetrics in the State; and therefore prays for a writ of mandamus to be directed to M. F. Walsh, Director of the Department of Eegistration and Education, “commanding him to do and save all such acts and to refrain from doing all such acts as this court in its judgment upon the filing of this petition commands and commanding in behalf of the People of the State of Illinois, most wrongfully aggrieved in the premises”; and' especially “commanding the said M. F. Walsh, Director of the Department of Eegistration and Education to appoint a board of Doctors of Osteopathy to examine the relator and others similarly situated as to their qualifications and education to practice the system of treating human ailments without the use of drugs, known and designated as osteopathy.” A demurrer was filed to the petition and sustained by the court; and the petition was thereupon dismisséd. Thereupon the cause was appealed to the Supreme Court on the ground that there was a constitutional question involved in the controversy. It was found however by the Supreme Court that a constitutional question was not involved, and therefore the cause was transferred to this court. People ex rel. Poage v. Walsh, 343 Ill. 136.

The allegations in the petition for mandamus upon which the relator bases his right to the writ of mandamus are as follows:

That the board of examiners, as constituted and appointed by the Department of Registration and Education under and by virtue of the authority vested therein by the statutes of the State of Illinois consists of Malcolm L. Harris, John R. Neal, Arthur H. Geiger, W. H. Gilmore and Gilbert Fitzpatrick, each and all of whom are medical practitioners licensed to practice under the laws of the State of Illinois the science of medicine and the use of operative surgery and the administration of drugs; that neither or any of said examiners are learned or schooled in the science of osteopathy; that neither or any of them are familiar with the technique taught to osteopaths; that neither or any of them are qualified by learning or experience to examine your petitioner or any other individual seeking a license to practice the science of osteopathy; . . . that under and by virtue of Ca-hill’s St. ch. 91, H 9; section 9, chapter 91, Smith-Hurd Revised Statutes of Illinois, your petitioner and others who seek to practice osteopathy and obstetrics are exempt from any examination concerning materia medica, therapeutics and surgery; that the present examiners are particularly schooled in the exempted subjects and are unlearned in the science and technique taught to your petitioner and others in like situation.

The petition further avers, that under and by virtue of Cahill’s St. ch. 24a, TT 61(1); paragraph 6, section 60a, chapter 127, Smith-Hurd Revised Statutes, the Director of Registration and Education must appoint a board to prepare questions and grade papers on practice peculiar to the school of osteopathy; that the occasion requires the appointment of said additional examiners. . . .

The petition also avers that the committee so designated and appointed by the Director of Registration and Education to examine those seeking to practice the treatment of human ailments without the use of drugs and without operative surgery is prejudiced against applicants seeking to secure a license for the practice of osteopathy and obstetrics; that, at, to wit: the June examination, 1927, said committee arbitrarily marked and graded the answers of those students seeking a license to practice osteopathy and obstetrics so as to make it impossible for the students to pass said examination, thereby denying them their licenses; that at the examination conducted in 1929, the committee secretly changed its place of holding the examination to prevent those seeking examination for osteopathy and obstetrics to take the examinations; that when students seeking to take said examination located said committee, the committee then gave to said students ten questions each on obstetrics and gynecology and at the same time and during the same examination gave to those applicants seeking a license to practice medicine in all its branches, five questions on each of said subjects.

Wherefore your petitioner charges that the board of examiners is prejudiced and unfair to your petitioner and all applicants seeking a license for the practice of osteopathy and obstetrics.

The petition also avers that on, to wit, the 19th day of March, A. D. 1930, he served or directed to be served upon the Director of Registration and Education a demand in writing for the appointment of a hoard of osteopaths to examine those applicants for licenses who were graduates of authorized recognized schools of osteopathy which demand has not been complied with by said Director of the Department of Registration and Education.

The powers and duties of the Department of Registration and Education concerning the matters in controversy, are defined in Cahill’s St. ch. 24a, fí 59, subd. 6; paragraph 6, section 58, chapter 127 of the ‘ ‘ State Government Act,” namely: “To exercise the rights, powers and duties vested by law in the State Board of Health relating to the practice of medicine or any of the branches thereof, or midwifery.” And Cahill’s St. ch. 24a, If 61(1); section 60a of chapter 127 provides that none of the functions and duties enumerated in section 60 of the Government Act shall he exercised by the Department of Registration and Education except upon the action and report in writing of a committee which shall be composed of persons designated from time to time by the Director of Registration and Education to take such action and to make such report, for the respective professions, trades and occupations; and “For the medical practitioners and midwives, five persons, all of whom shall be reputable physicians licensed to practice medicine and surgery in this State, no one of whom shall he an officer, trustee, instructor or stockholder (or otherwise interested, directly or indirectly) in any medical college (or medical institution), which confers upon its graduates the degree of doctor of medicine. For the purpose of preparing questions and rating papers on practice peculiar to any school, graduates of which may be candidates for registration or license, the director may designate additional examiners whenever occasion may require.”

Concerning the relator’s right to an examination for a license to practice osteopathy, Cahill’s St. ch. 91, U 9 (section 9 of chapter 91, Smith-Hurd’s Revised Statutes) provides as follows: “Examinations of applicants who seek to practice any system or method of treating human ailments without the use of drugs or medicines and without operative surgery shall be the same as required of applicants who seek to practice medicine in all of its branches, excepting therefrom materia medica, therapeutics, surgery, obstetrics, and theory and practice, and shall be such in the judgment of the department as will determine the qualifications of the applicant to practice the particular system or method of treating human ailments without the use of drugs or medicines and without operative surgery which he specifically designated in his application as the one which he would undertake to practice. ’ ’

In order to entitle the relator to a writ of mandamus, it should cleahlv appear from the facts stated in the petition for mandamus that the appellee as Director of the Department of Registration and Education refuses to perform his duty provided by statute in reference to the appointment of a committee of reputable physicians licensed to practice medicine and surgery in this State. No facts are alleged in the petition which show a refusal on the part of the appellee to do so; and it is also evident that under the provisions of the statute in that regard, the Director of Registration and Education could not appoint “a board of doctors of osteopathy” to examine the relator, for the purpose of testing his qualifications for a license to practice.

Concerning the relator’s right to the writ, to secure an examination by a committee appointed for that purpose which he claims was denied him, it is based on the averment in the petition herein referred to, that on the 19th day of March, 1930, he served or directed to be served upon the Director of Registration and Education ¡-a demand in writing for the appointment of a board of osteopaths to examine those applicants for licenses who are graduates of authorized recognized schools of osteopathy which demand has not been complied with by said Director of the Department of Registration and Education. There is no averment that he applied to the committee which has been appointed and was then functioning for that purpose in the manner provided by the statute; and it is apparent from the provisions of the statute that the relator’s demand for the appointment of a “board of osteopaths” to examine him could not have been legally complied with by the Director of the Department of Registration and Education.

No legal basis is shown by the averments of the petition for the issuance of the writ prayed for. The demurrer was therefore properly sustained, and the judgment dismissing the petition is affirmed.

Judgment affirmed.