source: Caselaw Access Project

author: Tuley, J.:

license: Public Domain

text:
      (Circuit Court of Cook County. In Chancery.)

    James T. Soutter, et al. vs. Ganie Felicite Lucile Marie Rose Belynde Ange D’Auxy, et al.
    (March 7, 1898.)
    1. Citizenship—Whether National or State. The right of citizenship as distinguished from alienage is a national right or condition, and pertains to the confederate sovereignty of the United States, and not to individual states.
    '2. Constitutional Law—Whether National Common Law. The constitution of' the United States presupposed the existence'of the common law, and to a limited extent the principles of the common law prevail in the United States as a system, of national jurisprudence.
    ■3. Citizenship—Child Born of Foreign Parents. The rule that a child born in.a foreign country is a citizen of the country of her parents, is one confined to countries which derive their jurisprudence from the civil law, and is not the rule in this country.
    -4. Constitutional Law—Citizenship—WIeat Constitutes—Child Born of Foreign Parents. The fourteenth amendment to the constitution of the United States provides that “all persons bom and naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Under this provision every person bom within the dominion and allegiance of the United States, whatever the nationality of his parents, is a natural born citizen of the United States.
    5. Same—Children oe Ambassadors, etc., Exceptions to Rule. This rule does not apply to children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors, whose residence by a fiction of public law is regarded as a part of their country. Nor does the rule apply to persons born on a public vessel of a foreign country, while within the waters of the United States. The clause in the 14th amendment “subject to the jurisdiction of the United States” excludes all such persons from the operation of the general rule. Indians sustaining tribal relations are also excluded.
    Bill for partition filed February 23, 1897. Gen. No. 167,422. Heard before Judge Murray F. Tuley. Decree September 14, 1898.
    For statement of facts see opinion.

      Hamlin, Holland & Boyden, solicitors for complainants.

      Frederick F. Nor cross, solicitor for defendant D’Auxy.

      Frederick W. Burlingham, solicitor for defendant Theodore L. Frothingham.
   Tuley, J.:

This is a bill in partition. The two complainants bring this bill for partition making their half-sister, Ganie, party defendant.

The facts appear to be as follows: Lamar Soutter, a common ancestor and an American citizen, died March 16, 1893. Ganie, the defendant, was bom in New York city, is now a minor upwards of ten years of age and has always lived in the state of New York. The father is Arthur le due d’Auxy, a Belgian citizen, who has never been naturalized in the United States.

Complainants, by their bill, contend that Ganie is a nonresident alien, and could not inherit land in Illinois upon the death of Lamar Soutter in 1893. It was admitted that she is “a non-resident,” within the meaning of the Illinois statute.

The question then involved is, whether she is an alien.

The Revised Statutes of Illinois, chapter 6, section 1, provide as follows: that, “a non-resident alien” * * * “shall not be capable of acquiring title to or taking or holding any land or real estate in this state by descent, devise, .purchase, or otherwise.”

It is a singular fact that the question whether a child born in the United States, whose parents are foreigners, residing in the United States (and not being ambassadors or ministers of foreign powers), is an alien or a citizen, has never been decided by the United States supreme court.

Prior to the adoption of the fourteenth amendment, which defines a national citizenship and distinguishes the same from state citizenship, the leading case upon the question of the citizenship of a child born of alien parents, residing in the United States, was that of Bernard Lynch v. John Clarke and Julia Lynch, found in 1st Sanford’s Chancery Reports, page 583, in which it was held that Julia Lynch, born in the city of New York in 1819, of alien parents, during their temporary sojourn in that city, was a citizen of the United States.

The briefs of counsel and the opinion of the court contain all the law on the question involved that was to be found at that time. In that ease the question as to the right of Julia Lynch to inherit turned upon the question of her alienage or citizenship. The learned chancellor there held the right of citizenship as distinguished from alienage is a national right or condition and pertains to the confederate sovereignty of the United States and not to individual states. At the time of that decision, whether there was such a thing as national citizenship except through state citizenship, was a question much debated and of difference of opinion; Calhbun and the followers of the state rights school, contended that there could only be national citizenship through state citizenship. But the learned chancellor in that case held that neither the common law nor the statute law' of the state of New York could determine whether Julia was or was not an alien. He also held that the constitution of the United States, as well as those of the thirteen old states, presupposed the existence of the common law, and that to a limited extent the principle of common law prevailed in the United States, as a system of national jurisprudence, and as there was no constitutional or congressional provision declaring citizenship hy birth, it must be regulated by some rule of common law; that citizenship was purely a matter of national jurisprudence and not of state or municipal law, and adduces the law of the United States to be that children born here are citizens, without any regard to the political condition or allegiance of their parents, excepting, of course, children of ambassadors and ministers, who, in theory, are bom within the allegiance of the sovereign power represented and do not fall within the rule.

The learned chancellor in that case considers at great length the contention that, by international or public law, the child so bom was an alien for the reason that by that law the-child follows the political condition of the parent, and suggests that such a rule might lead to the perpetuation of a race of aliens in our own country. He concludes th.at the rule contended for in that case, that the parents of Julia Lynch being foreigners, she took on the same character of alienage as her father, is one confined to countries which derive their jurisprudence from civil law and is more properly a rule of civil law than one of public law, or the law of nations, and that it was not and never had been the law of this country.

He also comments on the dual allegiance recognized by some writers on international law as attaching to a child born of aliens temporarily sojourning in the place of its birth, by which the child is held to be a native born citizen of the country of its birth, and, also, a subject of the nation to which its father owed allegiance, with a right to such child upon majority to choose of which country it will claim citizenship, and holds that even if such could be held to be the law of the United States, the inheritance being cast upon the child, Julia Lynch, during her minority, the place of her birth must govern and therefore that she could take the property as heir-at-law.

It is, however, contended that Lynch v. Clarke, is based upon the theory that the common law of England as it existed at the time of the revolution became the common law of the United States, anc. that the chancellor was in error in that regard, as there is not and never has been any national common law of the United States.

This question also has never been directly decided by the supreme court of the United States, but is now pending there in a case which went up from this judicial district.

It is, however, not necessary to rely entirely upon Lynch v. Clarke, as in the opinion of this court the 14th amendment to the United States' constitution establishes and declares what shall constitute national citizenship.

"Whatever may have been the rule as to what constituted national citizenship prior to the adoption of the 14th amendment, it was within the power of the United States by amendment of the constitution, or otherwise, to legislate upon that subject, as, in the view of international law, all sovereign states are and must be equal in rights, and, therefore, each competent for itself to determine what shall constitute citizenship.

The effect of the 14th amendment as to the citizenship of a child born in the United States of alien parents, temporarily residing here, has never been directly passed upon by the supreme court of the United States.

The" 14th amendment-declares that “all persons born and naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” * * *

The leading case on the question of citizenship of a person born in the United States since the adoption of the 14th amendment of the constitution, is that of In re Look Tin Sing, on habeas corpus, before the United States court. Justices Field, Sawyer and Sabin, found in the 21st Fed. page 905, opinion by Justice Field, in which he held that “independently of the constitutional provision (that is, the 14th amendment), it has always been the doctrine of this country, except as applied to Africans brought here and sold as slaves, and their descendants, that birth within the dominions and jurisdiction of the United States of itself creates citizenship. ’ ’ He refers to the above opinion of Assistant Vice-Chancellor Sandford in Lynch v. Clarke, and says that the chancellor after an exhaustive examination of the law, said “that he entertained no doubt that every person born within the dominion and allegiance of the United States, whatever the situation of his parents, was a natural born citizen and added that this was the general understanding of the legal profession and the universal impression of the public mind. In illustration of this general understanding, he mentions the fact that when at an election an inquiry was made whether the person offering to vote is a citizen or an alien, if he answers that he is a native of this country, the answer is received as conclusive that he is a citizen; that no one inquires further; no one asks whether his parents were citizens or foreigners. It is enough that he was bom here, whatever was the status of his parents.” And in the case of Look Tin Sing the learned Justice Field construed the 14th amendment and declared that “all persons bom or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside.”

In that case Look Tin Sing was the son of Chinese parents, was bom in California and had been sent to China for the purpose of being educated, and on his return, he was forbidden to land because of what is known as the Chinese Exclusion Act.

Justice Field says, “This language (of the 14th amendment) would seem to be sufficiently broad to cover the case of' the petitioner. He is a person born in the United States. Any doubt on the subject, if there can be any, must arise out of the words, ‘subject to the jurisdiction thereof.’ They alone are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, and with the consequent obligation to obey them when obedience can be rendered; and only those thus subject by their birth, or naturalization, are within the terms of the amendment. The jurisdiction over these latter must, at the time, be both actual and exclusive. The words mentioned except from citizenship, children born in the United States, of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors whose residence, by a fiction of public law, is regarded as part of their own country.” Also that “persons bom on a public vessel of a foreign country, while within the waters of the United States, and consequently within their territorial jurisdiction, are also excepted. They are considered as born in the-country to which the vessel belongs. In the sense of public law they are not born within the jurisdiction of the United States. The language used has also a more extended purpose. It was designed to except from citizenship persons who, though born or naturalized in the United States, have renounced their allegiance to our government, and thus dissolved their political ■connection with the country. The United States recognized the right of every one to expatriate himself and choose another country.” * * * “The English doctrine of perpetual and unchangeable allegiance to the government of one’s birth attending the subject wherever he goes, has never taken root in this country, although there are judicial dicta that a citizen can not renounce his allegiance to the United States without the permission of the government under regulations prescribed by law, and this would seem to have been the opinion of Chancellor Kent, when he published his commentaries. But a different doctrine prevails now.” And proceeding he declares, “The clause as to citizenship was inserted in the amendment not merely as an authoritative declaration of the generally recognized law of the country, so far as the white race is concerned, but also to overrule the doctrine of the Bred Scott case, affirming that persons of the African race brought to this country and sold as slaves, and their descendants, were not citizens of the United States, nor capable of becoming such.” (19 How. 393.) And concluded by holding, “No citizen can be excluded from this country except in punishment for crime. Exclusion for any other cause is unlmown to our laws, and beyond the power of congress. ’ ’ (Among the exceptions may also be mentioned, Indians sustaining tribal relations.)

In what is known as the Slaughter House cases, in the 16th Wall., United States Report, 36, 73, Justice Miller, who delivered the opinion of the supreme court, in construing the clause in the 14th amendment referred to, remarks: “That the phrase ‘subject to the jurisdiction thereof’was intended to exclude from its operation, children of ministers, consuls, and citizens or subjects of foreign states, born within the United States. The question im issue in that case was not as to the status of children born in the United States whose parents were subjects of foreign states and it was not necessary to the decision of the case before the court to decide that question.” In the late American and English Encyclopedia of the Law, 6th volume, new series, this is refered to as a mere dictum of Judge Miller, and “that it must be modified in view of the decision in the case of Look Tin Sing, decided by Mr. Justice Field, and other decision which have followed Judge Field’s ruling, the latest among which appears to be In re Wong Kim Ark, 71 Fed. 382.”

I can not but regard the case of Lynch v. Clarke, and the case of Look Tin Sing, decided by Justice Field, as correctly laying down the law which should govern this ease. I am of opinion that there can be no reasonable doubt but that under the clause quoted of the 14th amendment, that a child born of foreign parents, residing in the United States, not coming within the exceptions as to children of resident ministers and ambassadors, and Indians sustaining tribal relations, must be held by reason of their birth alone within the United States, to be natural bom citizens of the United States.

A decree may be prepared accordingly.

       The doctrine of Lynch v. Clarke, 1 Sandf. Ch. 583, has been followed in United States v. Wong Kim Ark, 169 U. S. 649.—Ed.

       The case referred to is doubtless United States v. Wong Kim Ark, 169 U. S. 649, decided March 28, 1898, although that case did not go up from this judicial district. It was there held that the provision of the fourteenth amendment to the constitution in regard to citizenship must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution. Chief Justice Fuller, with whom- concurred Mr. Justice Harlan, dissented and held (p. 709) that there is no common law of the .United States, nor has there ever been. The queston as to whether there is a body of national common law has since been decided in Western Union Telegraph Co. v. Call Publishing Co., 181 U. S. 92.—Ed.

       The decision in In re Look Tin Sing, 21 Fed. 905, has been cited and approved in the following cases: In re Sun Hung, 24 Fed. 723, 725; Ex parte Chin King, 35 Fed. 355, 356; In re Yung Sing Hee, 36 Fed. 437, 438; In re Wy Shing, 36 Fed. 553, 554; In re Wong Kim Arte, 71 Fed. 382, 385, 386, 389, 391, aff. 169 U. S. 649; In re Rodrigues, 81 Fed. 337, 352.—Ed.

       The decision of Judge Tuley has since been affirmedin principle by the United States supreme court in United States v. Wong Kim Ark, 169 U. S. 649.—Ed.


author: Tuley, J:

text:
      (Circuit Court of Cook County. In Chancery.)

    George W. Korn, et al. vs. Edith Sears, et al. Edith Sears. vs. George W. Korn, et al.
    (August 5, 1897.)
    1. Trusts—Whether Active or Passive. ' A passive trust exists as where land is conveyed to A in trust for B without any power to take actual possession of the land or to exercise acts of ownership over it. Active trusts exist where the trustee is charged with the performance of active and special duties in respect to the management of the trust property.
    2. Same—Where Trustee Has Manasement of' Property—Statute of Uses. Where trustees are empowered by will to conduct and manage an estate for the benefit of testator’s wife and child, this constitutes an active trust, and the statute of uses does not vest the legal title in the cestui que trustent.

    3. Conveyance Act—Application to Equitable Estates. Section 13 of the conveyance act which dispenses with the word “heirs” in the granting of estates, applies to both legal and equitable estates.
    4. Equitable • Estates—What Constitutes. An equitable estate only exists where the cestui que use, or the beneficial owner, has a right to demand an immediate conveyance of the legal title.

      5. Equitable Estate—In Case of Active Trust. Where a trastee has the right to take possession and exercise active ownership over the property, the trust is an active trust, and the estate of the cestui que trust is not an equitable estate, because the beneficiary has no right to compel or demand the immediate transfer of the legal estate.
    fi. Trusts—Nature of Beneficiaries’ Estate. A conveyance to trustees in trust for the “wife and child” of the testator is presumed to be a conveyance in fee simple in the beneficial use of the property for the maintenance and support of such beneficiaries.
    7. Trusts—For Support and Maintenance of Testator’s Family— How Long to Continue. A conveyance to trustees for the maintenance and support of the “wife and child” of the testator will continue only so long as the child remains such. When • such child arrives of age, the trust would cease. The same situation would exist where the child dies before becoming of age.
    fi. Trusts—Beneficiaries—Joint ob Several. Where a trust estate is created for the benefit of a wife and child, it will be considered that it was created for their joint benefit. If therefore the trust ceases as to one beneficiary it would cease as to both.
    9. Same—Nature of Beneficiaries’ Estate. Upon the determination of such an estate the beneficiaries would become tenants in common.
    Bill for construction of will creating a trust. Cross-bill by one of the beneficiaries to declare trust provisions of will null and void. Heard'on demurrer to cross-bill before Judge Murray F. Tuley.
    For statement of facts see opinion.

      Franklin Denison and F. E. Trude, for complainant in original bill.

      Pope & Small, for defendants and cross complainant.
   Tuley, J:

The question arising on the cross-bill and raised by'the demurrer is as to the construction of the will of Edmund B. Sears.

This will is very short and the clause in question is as follows: “Second: After the payment of such funeral expenses and debts, I give, devise and bequeath to George W. Korn, George Sealey and Herbert B. Johnson, all of my personal property, stock and interest in my business in the Henry Sears Company, and also all my real estate, as trustees, for the use of my wife and child. Said trustees I hereby appoint to manage and conduct my estate to their best judgment, continuing or closing out my interest in the Henry Sears Company as to' them seems best, also continuing my interest in the real estate or selling them out as to them seems best.”

Under this will the trustees took possession of the personal and real property and have been carrying on the business of the Henry Sears Company.

The will was made a few weeks before the death of the deceased on the 26th day of May, 1894.

The cross-bill is filed by Edith Sears, the widow, against the trustees and Paul H. Sears, the infant.

The cross complainant contends that the trust created by the will is a dry trust and not an active trust, and being a dry trust, it is immediately executed by virtue of the statute of uses.

The distinction between dry or passive trusts and active trusts is well defined in Pomeroy’s Equity Jurisprudence, section 153: “An express private passive trust exists where land is conveyed to or held by A in trust for B, without any power expressly or impliedly given to A to take the actual possession of the land, or to exercise acts of ownership over it, except by the direction of B. The naked legal title only is vested in A, while the equitable estate of the cestui que trust is, to all intents, the beneficial ownership, virtually equivalent in equity to the corresponding legal estate. Express private active, or, as they are sometimes called, special trusts, are those in which, either from the express directions .of the written instrument declaring the trust, or from the express verbal directions, when the trust is not declared in writing, or from the very nature of the trust itself, the trustees are charged with the performance of active and substantial duties in respect to the management of and dealing with the trust property, for the benefit of the cestuis que trustent.” * * * “In this class, the interest of the trustee is not a mere naked legal title and that of the cestui que trust is not the real ownership of the subject matter.”

It is true that in the clause of the will referred to there is no express requirement that the trustee shall take possession of the real and personal property, but it is clear that the power is impliedly given to the trustees to take possession and exercise acts of ownership over the real and personal property. The language of the will, “I appoint said trustees to manage and control, ’ ’ is, in my opinion, equivalent to a direct charge to the trustees to manage and control; therefore, it became an express active trust and the legal title to the real and personal property passed by the will to the trustees in trust for the wife and child. It is not a case coming within the operation of the statute of uses so as to vest the legal title in the cestuis que trustent.

Another point raised is that an equitable estate in fee passed to Mrs. Sears and her son and their heirs under the provision of the thirteenth section of the conveyance act, which provides: “Every estate in lands which shall be granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised by construction or operation of law.”

This raises the question as to whether the statute dispensing with the word “heirs” in order to transfer an estate in fee simple, applies to equitable estates as well as legal estates. I should feel inclined to hold that it did, but the question arises, is this an equitable estate in Mrs. Sears and her son? The equitable estate exists only where the cestui que use, or the beneficial owner, has a right to demand an immediate conveyance of the legal title. In a passive trust, as where conveyance is made to A in trust for B, without any limitation or specification as to the duties of the trustee, or if the purposes of the trust were specified and had afterward been fulfilled, there would be a complete equitable estate in B, and he would have a right, independent of the statute of uses, to demand a conveyance of the legal title; but where there are active duties to perform and the trustee expressly or impliedly has a right to take possession and exercise active ownership over the property or,to take possession and sell the same, the trust is an active trust and the estate of the cestui que trust is not an .equitable estate, because the cestui que use or beneficiary has no right to compel or demand the immediate transfer of the legal estate.

He has a right to compel the performance of the trust while it lasts, according to its terms and intent, but has no right to a conveyance of the legal title. Therefore, while he has an equitable right or interest in the property, a right to the beneficial use of the property, he has no complete equitable estate in the property.

The question, underlying this will, as it does all others, is to ascertain the intent of the testator. It will be noticed that the wife and child are not named except as “my wife and child.” The testator evidently referred to them as constituting his family and it was clearly his intent that the trustee should control his property, real and personal, for the use and benefit.of his family; he had in view their support and maintenance. No presumption can arise that he intended this trust to continue for all time to come for the benefit of his wife and child and their heirs. If such a construction could be placed upon the will, it would be obnoxious to the rule against perpetuities, for such an equitable interest or estate can no more be made the subject of a perpetual trust than can a legal estate be made the subject of a trust in perpetuity.

There can be no question that he does not limit the beneficial estate given to his wife and child by express words, nor does he employ any language from which a less estate than the fee simple would be implied. There is no limitation for life, there is no direction to the trustees as to what is to be done with the property after the death of his wife and child, nor is there any direction that only the income shall be appropriated to the support or to the use of the wife and child.

If he had intended that they should have less than a fee simple in the beneficial use of this property,'it is fair to presume that he would have so declared his intention.

The word “use” must be construed in its broadest sense, and that is that all the beneficial use of the property during the existence of the trust, and that the property itself was to belong to the wife and child in fee simple, after the purposes and objects of the trusts had been carried out. If he intended, as I have held he did, that the trustee should manage this property and devote it to the support and maintenance of his wife and child, the presumption of law will arise that he intended the trust to continue only so long as the child remained a child; also that one reason for the making of the trust was, that the child, being an infant, was unable to manage his own property. When the child arrives of age, and ceases to be a child in the eye of the law, in my opinion, the trust would cease, for the trust was for the benefit of the wife and child jointly, and not separately. It was for their joint benefit, as his remaining family, and when it ceases as to one it would cease as to both of the beneficiaries. If the child died before coming of age, it would cease; on the child becoming of age it would cease, both as to the widow and the child, and eo instcmti, the child becoming of age, it would become a dry or passive trust, and would vest, by virtue of the statute of uses, the legal title in the mother and the child.

In the case of Dean v. Long, 122 Ill. 447, there was a trust, for a married woman and her children, without other words as to the nature of the trust or the duties of the trustees. In that case the court held that the wife did not take a life estate with remainder over to her children, but that there was a joint estate in her and her children, which would open up and let in subsequently born children.

Upon the trust ceasing, the wife and child both living, under the decisions referred to, would take the estate in joint tenancy, but under our statute of 1874, doing away with joint tenancy, they would become tenants in common of the estate.

The cross-bill seeks relief upon the ground that the trust provisions of the will are absolutely null, void and of no effect. It can not be maintained upon that theory.

The demurrer of the defendant in the cross-bill must be •sustained with leave to the complainant to amend if she so desires, so as to pray for an accounting of their doings as trustees under the will, or for other relief, not inconsistent with this opinion.

NOTE.

In the recent case of Mason v. Mason, 219 Ill. 609, it was held that where the trustee holds the legal title for the benefit of the cestui que trust for life, with power to sell the land and loan, or re-invest the proceeds and pay over the income to the cestui que trust at such times as the trustee may deem best, the trust is an active one, and. is not executed by the statute of uses.


text:
      (Circuit Court of Cook County.)

    Building Trades Council vs. Board of Education of the City of Chicago.
    (March 12, 1898.)
    1. Contracts—Union Labor. A private individual has the undoubted right to insert in his agreements that none but union labor shall be employed in carrying out the contract.
    2. Same—Board of Education. The board of education being public officials cannot insert such a stipulation in its contract from mere sentiment or caprice, unless such action would subserve the public interests.
    3. Same—Public Policy. If the board should decide that-it is to* the public interest to insert in its contracts that none but union labor should be employed, or if the board should provide that none but union workmen should be employed upon the pay-roll of the board, no one can complain.
    4. Arbitration. There is no such legal “controversy” between the-parties upon the above facts as is contemplated by the act under which the submission is made.
    Submission to Judge Murray F. Tuley under act of June 17,. 1887. Gen. No. 182,260.
    Por statement of facts see opinion.

      McMahon & Cheney, for complainant.

      Donald L. Morrill, for defendant.
   Tuley, J.:

The questions submitted are: Whether the board of education of the City of Chicago has “the right to insert in all contracts and specifications connected therewith the provision that none but union labor shall be employed in any part of the work where said work is classified under any ‘existing-union/ ” and

Second, whether said board of education has the right to enforce a rule whereby “none but union workmen shall be employed and placed upon the payroll of the board.”

Waiving for the present the question whether this is “a controversy,” within the meaning of “the act to prevent delay in the administration of justice,” I will give my judgment upon the points involved, as I agreed to do upon the said submission being made.

There would be no question raised if the contracts or payrolls in question were those of a private individual, as to his. right to provide for the employment of union labor only. A private individual has the undoubted right to put any such provision in any contract that he may make, or he may put in a provision that no union labor shall be employed in carrying on the contract. He may insert either provision that he wishes, at a loss to himself, or from mere sentiment, or caprice. The law recognizes the right of an individual to do what hewiE with his own in that regard. There can be no doubt but that under certain circumstances the board of education might insert in its contracts a provision for the employment of none but union labor, or provision that no union labor should be employed, but, being public officials, charged with the duties of a pubHc trust, the members of the board could not act, knowingly, at a loss to the public funds, or from mere sentiment or caprice, or from any motive other than to subserve the public interests and to faithfully discharge the public trust confided to them.

If the board should find that the skilled labor of the country was practically organized into “unions,” whose members refused to work with non-unionists, that unless a clause requiring all work to be done by “union” labor be inserted, there will probably be “strikes” upon the work, causing delay, loss and trouble incident to strikes, and if it should find that by reason of the situation confronting the board, it would be wise and prudent to insert such provision, or, in other words, if the board should, in the discharge of their public trust, be honestly of the opinion, after due investigation, that the public interests, both as to economy in the construction of the work, and the character of the work done would be best subserved by the insertion bf the union labor clause in the contracts, it would clearly have the right and it would be its duty to insert such a provision.

There can in my opinion be no doubt of the legality of the union labor clause, nor as to the rule as to placing none but unionists upon the payroll, if the board should be of the opinion that the public interests would be best promoted thereby. The propriety of so doing, or the justification of so doing, is a question solely for the board to decide. They must decide as to the proper performance of their duties and the proper discharge of the trust imposed upon them.

It is urged, however, that the board of education being a public agency, and the work in question being work which is for the benefit of the public, that it is against public policy that the board of education should discriminate as between “union” and “non-union” labor. Be that as it may, it is not for the board of education to decide, or to be guided by what it believes to be the best public policy. It is for the state legislature to determine questions of public policy. The board of education has no legislative duties to perform in connection with the carrying out of its public works, and in the absence of limitations or restrictions imposed by the state legislature, it must perform its duties and discharge its trust with a view solely to the best interests of the public, having regard to economy in the construction of the work contracted for and the quality of the work to be done.

In my opinion, however, there is no such legal “controversy” between the parties to this submission, the board of education and the building trades council, such as is contemplated by the act under which this submission is made. Certainly no mmdamus would lie against the board of education to make it insert in its contract a “union labor” or a “non-union labor” clause, and there is no agreement between the "board and the Building Trades Council which the latter could file a bill to enforce the specific performance of. In other words, there is no controversy between these parties, within the purview of the act in question.

The submission made to the court will therefore be dismissed for that reason.


author: Chetlain, J.:

text:
      (Criminal Court of Cook County.)
    People of the State of Illinois vs. William Loeffler, et al.
    (July 14, 1905.)
    1. Public Records, When Subjects of Forgery. A public record' or other authenticated matter of a public nature, to be thesubjeet of forgery must be one that affects a pecuniary demand or obligation, or property right; and this must be manifest -on the face of the document itself, or by averment in the indictment of extrinsic facts which show that it is of such a character.
    2. Forgery—Instrument Forged Must be Admissible in Evidence. To be the subject of forgery the instrument must be admissible-in evidence, but the converse of the proposition does not follow that any instrument which is admissible in evidence for any purpose may be the subject of forgery.
    3. Cities and Villages'—Can Grant Franchise on Streets Only by Ordinance. The charter of the city of Chicago (city and village act) is silent as to the mode in which the council may grant a franchise for the use of the streets, but such a franchise cannot be conferred by a mere resolution of the council but must be by ordinance on the passage of which the yeas and nays must be taken, which must receive a majority vote of all the members elect of the council, be submitted to the mayor for his approval, and be transcribed upon the records of the city.
    4. Forgery—Public Records'—Must Affect Property Rights. The alteration of the public record in question could not constitute-forgery since it did not afíect any property right
    5. Defendants were indicted for forgery for altering certain proceedings in the city council of Chicago, the proceedings in-question containing a report by the commissioner of public works, followed by the words: “Placed on file;”" these words were alleged to have been altered to read, “Which was by motion of Aid. Novak (8th ward) duly approved and placed on file.” Held that this did not constitute forgery, and that a verdict of not guilty must be ordered.
    Indictment for forgery heard before Judge Arthur H. Chetlain. After the close of the state’s case a motion was made to find for the defendants.
    Statement of facts.
    The defendants William Loeffler, Edward J. Novak, A. Gr. Wheeler, Edward Ehrhom and James Higgins, were indicted under sec. 105 of the criminal code, for altering certain proceedings of the city council of Chicago. The proceedings in question contained a report by the commissioner of public works, followed by the words: “Placed on file,” and the evidence adduced by the prosecution tended to show, and the court on this motion assumed that it did show, that the defendants or some of them had changed the record by substituting for these words the following: “Which was, on motion of Aid. Novak (8th ward) duly approved and placed on file.” The motion was sustained and a verdict of not guilty was ordered and returned.

      John J. Healy, state’s attorney, Harry Olsen and IE. G. Lindley, assistant state’s attorneys, for the people of the state of Illinois.

      Nathaniel G. Sears, Moritz Rosenthal and Wm. S. Forrest, for defendants.
   Chetlain, J.:

The forgery charge was the insertion after the words ‘which was” and before the words “placed on file” of the words “on motion of Aid. Novak (8th ward), duly approved;” so that it read “which was on motion of Aid. Novak, 8th ward, duly approved and placed on file.” A public record or other authenticated matter of a public nature to be the subject of forgery must be one that affects a pecuniary demand or obligation, or property right; and this must be manifest on the face of the document itself, or by averment in the indictment of extrinsic facts which show that it is of such a character. According to the decided weight of authority in this country, when a document does not, on its face, purport to affect a pecuniary interest or property right, the indictment is bad, unless it sets up facts to show just how such a document does affect a pecuniary interest or property right or facts from which the court may judicially see that it has some such apparent legal effect. It is trae if the document were a bond, bill, promissory note, deed or demand for money, the law would imply the injury to a pecuniary interest or property right.

The document in question here is not one which on its face purports to affect a property demand or obligation, or property right. Considered by itself alone, there is nothing to indicate that it has any such effect or tendency, or that it has the apparent legal capacity to prejudice the rights of the city or the public, or that it purports to create a liability or obligation, or to work injury to any one. It is contended by the state’s attorney that a false making and the intent to defraud are the only two essential elements to constitute forgery; and that it is sufficient if the instrument has the mere show or appearance of fraud, or might by any possibility be used to defraud. Such is not the law in this state.

The specific enumeration of various instruments in the statutory definition of the crime, and the history of their insertion at various times, of which the court takes judicial cognizance, attest the contrary.

It is further contended that any instrument which is admissible in evidence for any purpose may be the subject of forgery. In support of this proposition no authorities were cited. To be the subject of forgery the instrument must be admissible in evidence; but the converse of the proposition does not follow.

I am of the opinion that sufficient extrinsic facts are not averred in the indictment to make it operative. It fails to aver that others relied on the forged record and purchased securities of the Tunnel Company, and that moneys were invested on the strength of the forged document, and that any conduits or tunnels were built after February 5, 1900. The evidence, it is true, so shows; but to this the well-known rule of pleading applies that proof without allegations is as fatal as allegations without proof. The failure to include these averments makes the indictment bad. In this connection it becomes material to inquire whether the council’s approval of the McCann report, if made, was needed or effective for any purpose. The State’s Attorney claims that the action of the council on the McCann report had the effect of a resolution approving the granting of the permits for tunnels, the work done thereunder, and of the company’s plans on file for future tunnel construction, which estopped the city from denying the company’s rights.

By the ordinance of February 20,1899, in evidence, a grant was given to the Illinois Telephone & Telegraph Company to construct, maintain, repair and operate in all of the streets, avénues, alleys and other places in the city of Chicago a line or lines of conduits and wires to be used for the transmission of sound signals and intelligence, by means of electricity or otherwise, which should be laid and access thereto be had from the surface, and not from a tunnel beneath the surface. It appears from the evidence, which, for the purpose of this mbtion, the court must assume to be true, that the Telegraph Company, knowingly intending to defraud the city, in plain violation of the letter and spirit of the ordinance, prepared and filed plans with the commissioner of public works for constructing a tunnel of extensive dimensions thirty feet below the surface in all the streets, avenues, alleys and public places in the business district of the city, and obtained permits for tunnel construction.

January 29, 1900, the Hermann resolution was introduced in the council requesting a report from the commissioner of public works as to the work done under the ordinance, and for his opinion as to whether it was within the fair letter and spirit of the same. The report of the commissioner of public works, accompanied by the tunnel’s plans and copies of the' permits granted, were submitted to the council and action thereon was taken by the council placing the sáme on file. This action appeared in the printed pamphlet of the council proceedings. The indictment charges that after July 20, 1900, the printed pamphlet, showing the action aforesaid, constituted the official record, and was forged by making it appear that the report of the commissioner of public works, on motion of Alderman Novak, was duly approved and placed on file;.it appears from the evidence that the company, relying on the affirmative action of the council, as shown by said printed pamphlet, invested hundreds of -thousands of dollars in tunnel construction and built miles of tunnel; and that thereby the city became estopped to deny the rights of the company to its tunnels and conduits as constructed.

I am at a loss to perceive how the action of the council, had it been taken, merely approving the report of the commissioner of public works, who was an agent of the city, reporting to his principal, can have such an effect or afford the basis for an estoppel in pais, or operate as a consent of the council, or as a ratification of what had been done. The forged report of the council’s action did not in express terms, nor purport, to approve the permits granted, the plans submitted, nor the opinion of the commissioner that the work was within the letter and spirit of the ordinance. The council’s action in approving the report at most would be but the expression of a. wrong opinion, not binding on the city.

Where so important a franchise is involved it does not seem reasonable to hold that a grant may be conferred by the mere approval of such a report. It would be a dangerous doctrine to so assert, one fraught with evil consequences. It must be remembered too that the company was not a party to this transaction. I am of the opinion that whatever the effect of the forged document might be, the company that had knowingly prepared plans, secured permits, and constructed its, tunnel in plain violation of the ordinance, with the evident purpose to obtain a subway monopoly and thereby defraud the city, would be estopped from asserting the doctrine of estoppel, or of consent or of ratification or of claiming that it had acquired rights by the council’s construction of its ordinance. Under these circumstances the city would not be estopped to deny to the wrong-doer the fruits of his wrong-doing. Eight and justice would not require it.

The charter is silent as to the mode in which the council may grant a franchise of this kind. But in view of the subject matter, the large source of revenue that may be exacted by the city for the use of its streets, the various public grants for the uses that already exist in its streets, and the necessity for their proper regulation; in view of the vastness of the interest involved, the liabilities imposed, and the acts and provisions therein, and of the fact that the provision of such an ordinance have a continuing force and effect; I am of the opinion that such a grant is a legislative act of the highest order and that it cannot be conferred by a mere resolution of the council, but must be embodied in the permanent form of an ordinance, on the passage of which the yeas and nays must be taken, which must receive a majority vote of all the members elect of the council, be submitted to the mayor for his approval and transcribed upon the records of the city.

I am aware of the case in the 208th Illinois which counsel urge, with great show of reason, should be conclusive of the question here involved. (Village of London Mills v. White, 208 Ill. 289.)

What was said in' that case must be taken in connection with the facts in the case. The grant there was for the erection of telegraph poles in a small town; and the court, in giving its reasons for its decision, said, that “There was nothing upon which a veto could operate in that instance.” It is asserted that the action of the council adopting the McGann report operated as a resolution conferring upon the company the right to tunnel its conduits. If it had that effect, it clearly modified or enlarged the original grant. Whether it had that effect or not, it was a mere nullity, because the law is well settled that an ordinance can only be amended, altered, modified or enlarged by an act of equal dignity.

For the reasons given I am of the opinion that the forged document in question was null and void, wholly inoperative and could not afford the basis for an estoppel in pais, nor operate as a consent, or as a ratification by the city of the act of the company.

Counsel for the defendant urged that from the allegations of the indictment and the evidence, it appears that as to the defendant William Loeííler no crime is charged, because it appears that he is charged with forging his own record; and that his co-defendants stand in a relation to him, in law, which renders the indictment fatal also as to them. Owing to the necessity for immediate decision and want of time I have been unable to fully consider this question; nor is it necessary.

For the above reasons the court is constrained to direct a verdict of not guilty as to all of the defendants.

Note.—A motion to quash the indictments in the above cases was made in 1905 before Judge Tuthill in the criminal court of Coolc county, and the motion denied, Judge Tuthill rendering a decision that the indictments were good. The case then came up for trial before Judge Chetlain. The decision of Judge Tuthill follows. People v. Wheeler, 1 Ill. C. C. 387.—Ed.


author: Tuthill, J.:

text:
      (Criminal Court of Cook County.)
    People of the State of Illinois vs. Arthur G. Wheeler, et al. People of the State of Illinois vs. Novak, et al.
    (March, 1905.)
    Eorgery—Alteration of Proceedings of City Council. The defendants were indicted under the statute of Illinois for forgery for altering the printed records of the city council of Chicago in reference to its action on a certain report of the commissioner of public works relating to the construction of certain tunnels and conduits of the Illinois Telephone and Telegraph Company. The report was in fact ordered by said city council to be “placed on file” hut the printed record of the city council was changed so as to read “which was on- motion of Aid. Novak (8th ward) duly approved and placed on file.” Held that this constituted a forgery of a record or other authentic matter of a public nature by which a pecuniary demand or obligation or a right in property is or purports to be created, conveyed, transferred, diminished or destroyed with intent to damage and defraud some person, body politic or corporate, constituting the statutory crime of forgery.
    Indictments for forgery and perjury. Motion to quash, the indictments. Heard before Judge Richard S. Tuthill.
    For statement of facts see opinion.

      John J. Mealy, state's attorney, Marry Olsen and M. G. Lindley, assistant state’s attorneys, for the people.

      Levy Mayer, Nathaniel G. Sears and A. S. Trude, for the defendants.
   Tuthill, J.:

The question here involved is one of strict law. Its consideration and determination is based upon the facts set out in the indictment, which are to be taken as true. The court is not permitted to have in mind or to surmise any different statement of facts than that found in the indictment.

The city council of the city of Chicago, February 20, 1899, enacted an ordinance granting a valuable franchise, in and under the public streets of the city of Chicago, to the Illinois-Telephone and Telegraph Company, which, being duly approved by the mayor and accepted by the corporation, became a law of the city, and at the same time a valid contract between the city and said corporation. This ordinance gave to the said corporation authority to construct, etc., in the streets and public places of the city “a line or lines of conduits and wires or other electrical conductors, ” to be used for the transmission of sounds, signals and intelligence, by means of electricity or otherwise. It requires that such conduits should be placed under ground in the main portion of the city.

It gave to the mayor the authority to designate in what streets conduits might be laid and required the company to ‘ ‘ at all times place and keep on file with the commissioner of public works plans showing the location of each conduit laid,-”' and that no conduits should be laid without first obtaining a permit from the commissioner of public works. The ordinance further provided that before opening any street for the purpose of laying, repairing or removing conduits said company should obtain “from the commissioner of public, works a permit therefor in accordance with the conditions and requirements in this ordinance.”

The indictment sets, out the ordinance in full and alleges that there were on file ¿with the commissioner of public works plans showing certain streets, etc., under and in which said company proposes to construct its conduits which the company had, pursuant to the terms of said ordinance, filed with said- commissioner; which said plans, it is alleged, on the 6th day of December, 1899, were “approved by one John Brick-son, city engineer;” that on the 8th day of December, 1899, “pursuant to the terms of said ordinance there was issued to the said company a permit, which permit authorized said company “to construct by tunneling its conduits under the ordinance aforesaid.” This permit is set out in the indictment. It gave the right to tunnel, “proceeding from a shaft already constructed in the rear of 170 Madison street, and from other shafts for which said permits may be issued. ’ ’ It reserves the right to the city engineer to appoint such engineers and inspectors as he may deem necessary for the proper supervision of the work and to protect the city’s interests, but provided that the conduits constructed should be used for no other purpose than the stringing therein of wires, etc., “to be used for the transmission of sound, signals and intelligence in accordance with the ordinance.” It is then stated that the <? said company “assuming to act under the authority conferred in and by said ordinance and said permit and prior to the fifth day of February * * * did construct a conduit tunnel or subway of great length to-wit, of the length of 560 feet, and of great height, to-wit, of the height of seven feet six inches, and of great width, to-wit, six feet wide, and of great depth under the streets, to-wit, to the depth of twenty-five feet below the surface, ’ ’ etc.

The indictment then alleges that on the 29 th day of January, 1900, there was duly adopted a certain resolution on motion of Alderman Hermann, which was as follows:

“Whereas, It is currently reported that the Illinois Telephone and Telegraph Company is constructing a costly conduit system under the streets of the city so large that it would interfere with other or different use of the streets should it hereafter be desired by the city so to use it, and so extensive as to be a violation of the letter and spirit of the ordinance upon which their rights depend, and to be wholly unnecessary for any legitimate necessity of the telephone business, therefore be it

Resolved, That the commissioner of public works be requested to inform this council what permits have been issued to the said company for the doing of work in the streets of this city and under what authority each of said permits has been issued; and

Resolved, further, That said commisioner be requested to report to this council what work is being done by said company in said streets, and whether and how far the work done, in his opinion is within the fair letter and spirit of the ordinance of said company.

It is then further stated that on the fifth day of February, 1900, said commissioner of public works submitted to the council in writing the report called for by the said resolution, which said report is set out in full in the indictment. It gave the information asked as to the character of the work done, as to the permits under which said work had been done and set out in full the permits.

The commissioner of public works informed the council that ‘ ‘ The city electrician assures me that the space is not more than is absolutely necessary to accommodate the business to be transacted by the Illinois Telephone and Telegraph Company under the plan and scope presented by the president of that company and for the accommodation of such ■wires as the city may need for lighting and telegraph purposes, as they are authorized to use them under the said ordinance. The conduit is being constructed at a point twenty-five feet below the surface.” He further states to the council, “The work is progressing with very little inconvenience to the general public and I believe is fully Avithin the fair letter and spirit of the ordinance,” etc.

The indictment states that this report was then and there ordered by the said city council placed on the file, and Avas by said city council of said city of Chicago published as a part of its official proceedings, and then and there became and was an official record of said city council of said city of Chicago of its said proceedings on the fifth day of February, 1900, and then and there became a record of a public nature.

I am of the opinion that it Avas such.

It is thereafter in said indictment alleged Avith all needed particularity that the defendants did “feloniously, fraudulently, unlawfully, knoAvingly, Avilfully and falsely alter the said true and genuine record of a public nature aforesaid o o =::= inserting after the Avords ‘AA’hich AAas’ and before the words ‘placed on file’ the other words, ‘on motion of Aid. Novak (8th Avard) duly approved and,’ ” making the action of the council to read in these Avords: “Avhich was on motion of Aid. Novak (8th Avard) duly approved and placed on file.”

It is maintained by the state that these facts alleged in the indictment constitute the crime of forgery. The learned counsel for the defendants maintain that they do not. As heretofore said, all facts well pleaded and set forth in the indictment must be takem to be true as stated. What then are the facts? I have as briefly as might be above recited them as they are fully and at length set out in the indictment.

It is pertinent here to consider the statute upon which the indictment is based. Eliminating words which have no direct reference to the facts of this case the statute is as follows:

“Every person sho shall falsely make, alter, forge or counterfeit any record or other authentic matter of a public nature * * * by which any pecuniary demand or obligation or any right in any property is or purports to be created, increased, conveyed, transferred, diminished or destroyed =;:= # s with intent to damage or defraud any person, body politic or corporate” shall be deemed guilty of the crime of forgery.

The words “by which any pecuniary demand or obligation or any right in any property is or purports to be created, increased, conveyed, transferred, diminished or destroyed,” it is maintained by ingenious and able counsel for the state, do not apply to the words “any record or other authentic matter of a public nature.” Under the familiar rule of ejusdem generis this contention must fall. The substance and effect of this rule is found stated in many decisions, and is given in Lewis’ Sutherland on Statutory Construction in these words: “It is a principle of statutory construction everywhere recognized and acted upon, not only with respect to penal statutes, but to those affecting only civil rights and duties, that where words particularly designating specific acts or things, are followed by and associated with words of general import comprehensively designating acts or things, the latter are to be regarded as comprehending only matters of the same kind or class as those particularly stated. They are to be deemed to have been used, not in the broad sense which they might bear if standing alone, but as related to the .words of more definite and particular meaning with which they are associated./'’ Further, the punctuation makes the construction argued for by the state, to my mind, wholly inadmissible.

It follows, then, that to sustain this indictment for forgery it must set out a forgery for a record or other authentic matter of a public nature, by which a pecuniary demand or obligation or any right in any prqperty is or purports to be created, conveyed, transferred, diminished or destroyed, with intent to damage and defraud some person, body politic or corporate.

W'e have stated in the indictment:

First. An ordinance of the city of Chicago to construct a conduit for telephone and telegraph wires in the streets of Chicago. The mayor was given authority by this ordinance to designate in what streets these conduits might be laid.

Second. Without any permit signed by the mayor and without any authorization by the city council a tunnel twenty-five feet high and six feet wide was being constructed, and 560 feet of it had been constructed at the time the resolution of the council was passed calling upon the commissioner of public works to make a report, as set out in the Herrmann resolution.

Third. The report was made, which truly and fully set forth all that had been done and was being done, and under what authority.

Fourth. The defendants fraudulently and feloniously altered, forged and counterfeited (if the papers were those upon which an alleged forgery could be based) the order of the city council to file or receive (for the words are practically synonymous) the report of the commissioner of public works, by adding thereto the words above set forth. The council, it is alleged, ordered the filing of the report.

There can be no question as to the power of the council to make such an order, nor can there be doubt as to the right of and legal power of the council to vote to “approve” or ■“reject” the report made pursuant to its previous order in the Hermann resolution.

The ninety-sixth clause of section 1, article 5, of the city charter conferred upon the city council power “to pass all ordinances, rules, and make all regulations proper and necessary to carry into effect the powers granted” in such charter. The preceding ninety-five clauses of said section specify in detail these various powers. In only a few of them is the power conferred required to be exercised through the enactment of a formal ordinance with the enacting words “Be it ordained by the city council.” (See sec. 2, Id.) Section 3 provides for the publication of all ordinances “imposing a fine, penalty, imprisonment or forfeiture, or making any appropriation.” Its closing sentence is, “All other ordinances, orders and resolutions shall take effect from and after their passage unless otherwise provided therein.” It would be impracticable if not impossible by ordinance for the city to exercise many of the multiform powers conferred. The corporation can not accomplish by an order or resolution (the words are used interchangeably) that which under its charter is only permitted to be done by an ordinance. “An ordinance prescribes a permanent rule o£ conduct or government, while a resolution is of a temporary character.” Again, “It may be stated as a general rule that matters upon which a municipal corporation desires to legislate must be put in the form of an ordinance, while all acts that are done in its ministerial capacity and for a temporary purpose may be put in the form of a resolution.” (See McQuillan, Municipal Ordinances, sec. 2, and cases cited.)

“The resolution is designed to meet specific and individual cases.” (1 Thompson, Corporations, sec. 937.)

“The general rule is that when the charter is silent as to the mode of doing an act, the act may be done and evidenced by a resolution.” (Atchison Bd. of Ed. v. DeKay, 148 U. S. 591, 37 Law. Ed. 576, and cases cited.)

It thus appears that the general powers of law applicable to municipal corporations permit and sanction the doing of a vast number of acts, which such organizations must perform, by means of orders and resolutions duly passed by the city council, and that this method of enforcing many of the powers conferred in the charter of Chicago is recognized in the charter itself.

The city council had ample power, then, to dispose of the report sent to it by the commissioner of public works, as it saw fit. This action was not one requiring the passage of an ordinance. The council might have said nothing when the report came in. It might have placed it on file, receiving it merely. It might have approved. Placing it on file would not be an affirmative act, such as would commit the council or the city to anything in the report. Such would not, however, be the case, should the council by vote approve or adopt. the report.

For the first time, as far as this record shows, the council, from the report filed, learned that the corporation had proceeded to lay conduits in the streets without the permits required in the ordinance, from the mayor.

It learned for the first time that an underground tunnel of large proportions was being laid, which the city engineer thought was not unnecessarily large for telephone and telegraph uses. It learned for the first time these facts, and of the method of doing the work as shown by the permits. It had the statement also of an honorable and capable and in all respects trustworthy commissioner of public works, of his approval of all that had been, and was being done under the ordinance, as being within the letter and spirit of the ordinance, as he construed it. It might be admitted that his views would have been the views of the best and wisest men in the city, had they equal knowledge of. the matter; yet he could not bind the city, nor did he attempt to do so. In obedience to the direction of his superior, the city of Chicago, he made his report, and gave his opinion. The city council was then, if it desired, to approve his report. The indictment says that it did not approve, that it only placed the report on file, but that the defendants altered the record showing the action of the council by making it show that on motion of' Alderman Novak, of the eighth ward, that report was approved and placed on file, which alteration, it is alleged, constituted and was a forgery of a record or other authentic matter of a public nature with intent to defraud, etc. It is strongly urged that said purported order or resolution of the council was not one “by which any pecuniary demand or obligation or any right in any property was or purports to be created, increased, conveyed, transferred, diminished or destroyed. ’ ’

Let. us for a moment consider the meaning of these words, all of which under the rules of legal construction must be given force and effect, if possible. I submit that they include everything that can possibly be done by means of a “record or other authentic matter of a public nature” or by means of a “charter,” “letters patent,” “deed,” “lease,” “indenture,” “writing obligatory,” “a will,” or by any other of the subjects of forgery mentioned in the statute. A pecuniary demand or obligation or a right in property may be created, it may be increased, it may be conveyed, it may be transferred, it may be diminished, it may be destroyed, by any of these instruments of which a forgery may be effected. That includes all that can be done by and through these different named instruments, documents, etc. Broader terms, ■could hardly have been used.

Can the courts say, without bringing in extrinsic matters, that the forgery of the word “approved” in this case did hot, could not have an effect to “create” a pecuniary demand •or obligation or any right in any property, that it did not, could not have an effect to “increase” any right in any property, that it did not, could not have an effect to “convey” or “transfer” any right in any property, that it did not, could not have an effect to “diminish” or “destroy” any right in property?

The city holds the streets and public places as property. They belong to the city. Some are held in fee and in others it has the perpetual right of user, which is also property. It might be said that no forgery could create, etc., any pecuniary obligation or give any right in property, for the law will treat it as a void and criminal act. A note forged is in effect no note at all. No pecuniary obligation is created thereby. So the forgery of this record, in very fact, neither could create, diminish or destroy the legal rights of the city, but it could purport to, just as the forgery of any other instrument could purport to create rights. It is held as fundamental law that it is not necessary that the indictment show how the false instrument would, if true, create, increase, diminish or defeat any "pecuniary obligation, or would transfer or affect any property whatever. These are deductions of law not to be varied. Ency. P. & P., p. 558, and cases cited.

“Nor does the rule require that an indictment should contain a specific allegation of the existence of every fact, the existence of -which is assumed in a forged instrument. It is enough if the writing is one which, if genuine, might apparently be of some legal efficacy.” Id. 559.

“The general rule is that if the instrument is void it is no •crime to forge it. Yet, even in such case, where the paper does not appear to have any legal validity or to show that another might be injured by it, but extrinsic facts exist by which the owner of the paper might he able to defraud another, then such facts being averred in the indictment would make the forgery of the instrument a crime.” For, as Judge Cowen said in People v. Shall, 9 Cowen, 778, “An instrument purporting to be void on its face and not shown by the averment to be operative if genuine, is not the subject of forgery.” No one can question this law. It is recognized in all the text books as well as in the decisions of the courts of last resort.

It is said, however, that “apparent legal efficiency is enough. It is not necessary that such suit (based upon the forged paper) should have in it the elements of legal success. It is enough if the forged instrument be apparently sufficient to support a legal claim and it is sufficient if the claim be only indirect. ’ ’ 1 Wharton, Crim. Law, 680.

And again, “An instrument to be the subject of forgery must be such that it can be used as proof, either perfect or imperfect, in a suit with another.” Id. 691, sec. 91.

“If the instrument is one which could be used in evidence it is held to be one which would make it the subject of forgery.

“The record of such (municipal) corporations are evidence generally. Their acts are of public character and the public is bound by them.” See Weith v. City of Wilmington, 68 N. C. 34; citing 2 Phillips, Ev. and Greenleaf, Ev., 2d. ed. 484.

“Nor need there be a person capable of being immediately defrauded by the forgery. It is enough if the injury may be possibly inflicted in the future.” 1 Wharton, Crim. Law, 694.

This principle is supported by many citations illustrating it in Wharton, sec. 695, of the work above cited. In Bowles v. State, 37 Ohio State, 35, it was held that even though the statute under which a forged bond purports to be issued may be declared unconstitutional an indictment for forgery of it would be upheld, and it is enough if there be a probability of fraud.

Chief Justice Fuller in United States v. Lacher, 134 U. S. 624, tersely declares the law to be that “Before a man can be punished his case must be plainly and unmistakably within the statute. But though penal laws are to be construed strictly, yet the intention of the legislature must govern in construction of penal as well as other statutes, and they are not to be construed so strictly as to defeat the obvious intention of the legislature.” He cites in this connection Mr. Justice Story and approves the declaration of Mr. Sedgwick in his work on Statutory and Constitutional Law, 282, in which he says ‘‘ Courts refusing on the one hand to extend the principle to cases which are not clearly embraced in them, and on the other equally refusing by any mere verbal nicety, forced construction or equitable interpretation, to exonerate parties plainly within their scope.” Following this rule of construction I find the offense charged in the forgery indictment to be a statutory crime under the law in this state and to be clearly and adequately set out in the indictment.

The motion to quash the indictment is denied, and the defendants are required to plead to the same.

The same order will be- entered in the indictments for perjury.

       For the decision on the motion to direct a verdict, see People v. Loeffler, 1 Ill. C. C. 381, supra.—Ed.