author: Mr. Justice Scott

text:
    Peachie Swigar v. The People of the State of Illinois.

      Filed at Springfield March 26, 1884.

    1. Criminal law—sufficiency of evidence to sustain conviction for manslaughter. In this case the defendant was tried upon an indictment for the alleged murder of his wife, the trial resulting in a verdict for manslaughter. Upon a review of the evidence it was considered sufficient to warrant the conviction.
    2. Practice—time to object to improper evidence. If no objection is made to the admission of testimony on the trial of one for crime, which is alleged to be improper, it can not be urged as error by the defendant on writ of error. The objection can not be considered in this court when made here for the first time.
    3. Instructions—singling out parts of the facts proved. Instructions asked in a criminal case are properly refused if they direct the attention of the jury to a partial view of the evidence, and direct an acquittal if they believe the facts stated to be true. Much less is there error in refusing such instructions if all that is proper in them is given in others.
    4. Error will not always reverse—inaccuracy in instruction. A judgment of conviction in a criminal prosecution will not be reversed for a slight inaccuracy in the wording of an instruction for the People, which could have done the accused no possible harm.
    Writ of Error to the Circuit Court of Edgar county; the Hon. J. W. Wilkin, Judge, presiding.

      Mr. Robert L. McKinlay, and Mr. Henry S. Tanner, for the plaintiff in error.
    Mr. James McCartney, Attorney General, Mr. J. W. Sheperd, State’s Attorney, and Messrs. Sellar & Dole, for the People.
   Mr. Justice Scott

delivered the opinion of the Court:

At the March term, 1883, of the Edgar county circuit court, Peachie Swigar was indicted for the murder of Hannah Swigar. The cause was continued to the September term of court next thereafter, when the cause was tried, and the jury found defendant guilty of manslaughter, and fixed the term of punishment at twenty years in the penitentiary. Motions for a new trial and in arrest of judgment were severally overruled, and the court pronounced judgment on the verdict. To reverse that judgment, defendant brings the case to this court on error.

The evidence contained in the record has been subjected to a most careful study, and every point made by counsel for a reversal of the judgment has been fully considered, and no error is discovered in the entire record that is at all prejudicial to the defence sought to be made. Counsel seem to lay great stress on the fact the “evidence was entirely circumstantial. ” That is true so far as the testimony is concerned to connect defendant with the crime, but there is some direct evidence as to the cause of death. It is proven, past all reasonable doubt, the death of Hannah Swigar was caused by actual violence, inflicted by some one. There is evidence of violence by which the jaw of deceased was dislocated. All the medical witnesses that examined the body with a view to ascertain the" cause of death, agree the wound on the jaw, which was a severe one, was “ante mortem,” and that it must have been inflicted with some degree of violence. It might have been done, in their opinion, with the fist of a man, or with any blunt instrument. Other marks of violence were found on the face of the deceased, all of which, with one exception, were evidently made before death. The expert witnesses all agree death was caused by asphyxia or strangulation, but whether death ensued before or after she was placed in the little stream where the body was' found, they are not agreed, but that is not a matter of much consequence. One of the surgeons that testified on behalf of defendant, gave it as his opinion deceased “came to her death by violence, ” and of that fact there can not be the slightest doubt, when the evidence is all considered. The theory death was the result of accident, from a fainting fit, or otherwise, has absolutely no support in the testimony. The surgeons that conducted the post mortem examination, all say her brain, heart and lungs were in a healthy condition. There is no evidence that she had ever been subject to any sudden illness. She was a young woman, not much, if any, past seventeen years, and so far as the record discloses, had always been healthy. She had just left her mother’s house, with no apparent sickness, and it is wholly improbable she was overtaken with any sudden illness in so brief a time as elapsed before her death. The position of the body when found in the water renders it improbable that death was the result of accident or sudden sickness. When the body was found, she was lying on her face, with her hands under her body, her person straightened out, and her clothing all in order. It must have required care to have placed the body in that position. It is extremely improbable the body, with the clothing so carefully arranged, came to that position by mere accident. There were tracks of some person near where the body was found, and the conclusion is irresistible' her death was caused by violence, and that the body was placed in the water by some one either before or after death ensued.

The inculpatory evidence tending to connect defendant with the commission of the crime alleged against him, is entirely circumstantial. But it must be conceded the facts and circumstances proven were sufficient to make the question of the guilt or innocence of defendant one to he left to the determination of the jury. Every fact in the record points to defendant as the guilty party. That some one killed his wife admits of no doubt, and there is not the slightest fact or circumstance proven that tends, in the remotest degree, to implicate any one other than defendant. It will not be necessary to enter upon any critical analysis of the evidence. It has been carefully considered, and it is seen it is sufficient to warrant the conviction. To some extent it shows opportunity and motive. His own testimony at the inquest, in the presence of the body, is to the effect he was at or near the place where the body was found at about the time she would reach there after leaving her mother’s house to go to her own house. Explanations given of his conduct as he passed the place where the body was afterwards found, are very unsatisfactory. Indeed, his whole conduct after his wife was discovered to be missing was mysterious in the extreme, and was highly calculated to excite suspicion. As respects motive, it seems he found fault with his wife on account of a letter he imagined she had received from a friend that had been recently visiting at her father’s house, and would not show to him. The evidence shows she had received no such letter. In conversation with a young brother of deceased, on the day of her death, defendant inquired of him whether his wife had gone to a funeral that was being held in the immediate neighborhood, with certain persons whom he named, and said, if she had done so “she would never go to another one.” In the midst of the search, when the neighbors had gathered to assist,—an hour, it would seem, of extreme solicitude and anxiety to all engaged,—the only explanation he ventured to give for her disappearance was her infidelity to him. He assumed to discover tracks, that no one else could see, that indicated, as he said, her elopement with a paramour. It ought to be said there existed, neither in the testimony nor in fact, any ground for the imputation of wrongful conduct to the deceased. But the jury may have humanely believed that defendant, while entertaining the belief his wife had gone to the funeral with persons objectionable to him for some reason, had met her on her way home, and in an altercation struck her with his fist, or with the piece of bark that was found by her, that produced the severe wound on the jaw, and then strangled her, causing death,—otherwise their verdict would certainly have been for a graver offence than manslaughter.

It is insisted improper evidence was permitted to go to the jury, that was prejudicial to defendant. It is sufficient to say, no objection was taken at the trial to the admission of the evidence it is now said was improper, and the objection can not be considered for the first time in this court.

The point is made the trial court erred in refusing to give defendant’s seventh and eighth of the series of refused instructions. Both instructions are faulty, because they direct the attention of the jury to a partial view of the evidence, and direct an acquittal if they believe the facts, as stated, to be true. But aside from this view, all that is contained in either instruction that was proper to be given was contained in other instructions that were given for defendant. The jury were very fully instructed on every phase of the defence he was seeking to make, and there is no ground for complaint on that score. There may be some slight grounds for the criticism made on the tenth of the series of instructions given for the People, but the inaccuracy complained of, if it exists, is so very slight it could do no possible harm to the cause of defendant. At most, that which is made the ground of complaint is the phraseology in which the principle of the instruction is stated, and that is too slight an error upon which to base a reversal of the judgment.

No error appearing in the record at all prejudicial to defendant, the judgment must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    John Gilmore v. Ephraim Gilmore et al.

      Filed at Springfield March 26, 1884.

      1. Rents and profits—rights of heir as against the widow, on partition— acquiescence of the widow in a special arrangement—estoppel. While a widow, whose husband died in 1855, might have been entitled to the exclusive use of the whole of the home farm until her dower was assigned, yet when she did not insist on such right, but has ever since 1870 acquiesced in an arrangement then made by her adult sons, giving her the use of the house and garden of the home place for life, without cost, and by which she was to and has since received $500 per annum, (a fair equivalent for her dower, had it then been assigned,) it was held, that on a bill for partition, the elder sons, who continued in the use and possession of the farm, were es-topped from setting up any such claim on her part to exclude an infant heir from being allowed his just share of the rents and profits in the home farm. Even the widow herself would be equally so estopped.
    2. Contribution—as between tenants in common—for purchase money paid—circumstances in discharge of the liability. A father died in 1855, the owner in fee of a farm of three hundred acres, and holding under a contract of purchase another tract of three hundred and twenty acres, owing on the same about $3200, which was afterwards paid by the eldest son, who took charge of both tracts, and by his labor, and that of his other elder brothers, and the profits derived from the use of the lands, paid the purchase money, and took a conveyance of the latter tract to the widow and heirs of his deceased father. On bill for partition, the eldest son claimed that he ought to be reimbursed by the other heirs for their proportionate share of the purchase money so paid by him after his father’s death. It appeared that by a settlement he had made with the adult heirs in 1870, he had treated the money so paid as the product of the joint labor of the family and the profits of the two farms: Held, that the claim was properly disallowed.
    3. Reference to the master—when not necessary. In decreeing a partition of lands, and an account of the rents and profits against the heirs who had the use of the same, in a case involving no complicated question of facts or contrariety of evidence, the court found the respective interests of the parties, and as against an infant heir the eldest son should be allowed a certain proportion of all taxes, and for all permanent improvements made by him after a certain date, excluding the value of timber and materials taken from the place, and that the infant heir should be allowed his proportion of the rents and profits of the estate from the same date, fixed at $1000 per annum, after deducting the widow’s dower interest, etc. It also appeared that the adult heirs had practically settled the question of the annual rental of the premises. It was objected that the reference to the master to state the account should have left him to find the rental value, as well as to strike the balance of the account: Held, that under the circumstances there was no error in not referring the whole matter to the master.

      4. Cross-bill—whether necessary. On bill for the partition of lands there is no error in requiring an account of the rents and profits to be taken in favor of an infant defendant without a cross-bill being filed by him. Being a minor defendant, he is entitled to the protection of the court without a cross-bill.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. Thomas F. Tipton, for the appellant:
    The widow was entitled to the entire home farm until dower was assigned. Strawn v. Strawn, 50 Ill. 256; Trash v. Baxter, 48 id. 406.
    John Gilmore, the appellant, claims that the $3500 paid by him for the Downs farm, and interest, should be paid him by Ephraim and Mary Gilmore, and Albert Shaver,—in other words, that the shares of these parties should each bear their proportionate share of the payment on the Downs land, and for improvements. Illinois Land and Loan Co. v. Bonner, 75 Ill. 317.
    Commonly, where one co-tenant removes a burden upon the land, all should contribute proportionately to the expense, and where'taxes are rightfully paid by only one of the co-tenants, unless reason to the contrary is shown. 47 Ill. 120; Coster v. Stookey, 89 id. 280.
    Such party should also, on like payment of insurance, be allowed for the same. See Mahoney v. Mahoney, 65 Ill. 406, for statement of the rule; Roberts v. Beckwith, 79 id. 246.
    As to right of Mary Gilmore to dower, if any, for the Downs land, see 70 Ill. 591.
    The cause should have been referred to the master to state the. account, but instead thereof, the court, as in the case of
      Quayle v. Guild, 83 Ill. 555, proceeded to and did state the account. This was clearly error. Moss v. McCall, 75 Ill. 196.
    Mr. Robert E. Porter, for the appellees:
    Appellant having failed to set up his claim as lessee of his mother in his cross-bill, is not entitled to affirmative relief in decree. McConnell v. Smith, 23 Ill. 611; Mason v. McGirr, 28 id. 322; Follansbee v. Scottish American Mortgage Co. 7 Bradw. 486; Purdee v. Henslee, 97 Ill. 389; White v. White, 103 id. 438.
    It is only long and tedious or disputed accounts that should be referred to the master. The court having heard all the evidence found, and it is amply shown by the record that the rental value was $1500 per annum, the only thing remaining was to find what was due for improvements, taxes, and the like, and that was properly referred to the master. Patten v. Patten, 75 Ill. 446.
    There was no error in decreeing' what sum of the rents should be paid to Albert Shaver. He is a minor, and courts of equity are bound to guard the interests of minors, without a prayer therefor. Hartman v. Hartman, 59 Ill. 103; White v. Glover, id. 459; King v. King, 15 id. 487; Bonner v. Peterson, 44 id. 253; Smith v. Sackett, 5 Gilm. 534.
    Under the Dower act of 1845, (secs. 17, 18 and 19,) it was the duty of the dowress to demand an assignment of dower, and she was entitled to no damages until demanded, (Strawn v. Strawn, 50 Ill. 256; Bonner v. Peterson, 44 Ill. 253,) and neither the minor nor his guardian could assign it. Bonner v. Peterson, 44 Ill. 253.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This appeal brings before us for review a judgment of the Appellate Court for the Third District, affirming a decree of the circuit court of McLean county, in a partition proceeding between the heirs at law of Nathaniel Gilmore, who died intestate on the 22d of November, 1855, leaving him surviving Mary Gilmore, (his widow,) and the following children, namely, John, Craig, Eliza J., Albert, William, Ephraim, Mary Ann, and Johnson, being his only heirs at law. Mary Ann and Johnson both died when quite young, without issue,—the former in 1857, and the latter in 1861. Eliza J. intermarried with Alexander Shaver, in 1865, and died in 1867, leaving as fruit of the marriage Albert Shaver, an infant son and only heir.

Nathaniel Gilmore, at the time of his death, was the owner in fee of a farm in Empire township, consisting of three hundred acres, and known as the “Empire farm.” He also held, under a contract of purchase, another farm in Downs township, consisting of three hundred and twenty acres, known as the “Downs farm, ” on which but little, if any part, of the principal of the purchase money had been paid. The balance then due on account of the purchase of this farm amounted to about $3200, which was subsequently paid by the older children out of the profits of the two farms, and upon such payment it was conveyed to the widow and heirs. The Empire farm constituted the residence and homestead of Gilmore at the time of his death, and the widow and children continued to occupy it as such after his decease. The bill in this case was filed by Ephraim Gilmore, against the widow, John Gilmore and Albert Shaver, for the partition of these farms and assignment of dower, the other heirs having transferred their interests therein to John, as hereinafter stated. John Gilmore, claiming to have certain equities as against complainant and Albert, on account of payment of taxes and expenses incurred in making permanent improvements on the farms, filed a cross-bill. This claim was in part allowed by the decree, but not to the extent claimed, and the complainant in the cross-bill brings this appeal.

There is no controversy about the controlling facts in this case. There is some contrariety, it is true, as to the minor details, but that is all. The evidence shows that upon the death of Gilmore the family continued to live together on the homestead, as they had before, all working together for the common interest, and deriving their support from their labor and rents and profits of the two farms. Between 1855 and 1865 the indebtedness on account of the Downs farm was all paid off, and extensive and valuable improvements were made on both farms, all of which expenditures and improvements were made out of the common fund. Up to this period, or thereabouts, all the accumulations from their joint labor and the proceeds of the farms seem to have been expended in the manner just stated, though the evidence on this point is not very clear. In 1865, Eliza Jane, having married Shaver, left the farm and ceased to be a member of the family, and consequently ceased to contribute anything to the common fund. Ephraim, the complainant, at this time could not have been more than self-sustaining, he being then only about fourteen years of age. John, as the oldest of the boys, had general control of affairs from the death of his father up to 1870, when there was a general settlement between himself, William, Albert, and Graig. In the meantime, after having paid the purchase money on the Downs land, and opened up and improved the two farms, as above stated, the surplus of the accumulations of the farms was used by the four oldest boys in extending their general business and farming operations, and finally vested by them in the purchase of sixteen hundred acres of valuable land in Ford county, which they divided between themselves.

At the general settlement between them in 1870, just referred to, an account was taken of the property then on hand) and each of the four oldest boys was allowed $20 a month for his time and labor from the day he became of age to the date of settlement, but nothing for his services before that time. The Ford county'lands were divided between Albert, Craig and William, in consideration of which the latter conveyecl their interests in the Downs and Empire farms to John. As a part of this settlement it was understood that the widow was to have the house and garden of the home place for life, without cost, and was to receive, in lieu of her dower in the two farms, $500 per annum, to be paid by John, in consideration of which he was to have three-ninths of the two places during the widow’s life, and the remaining six-ninths were to be held and enjoyed by John, Ephraim, and Albert Shaver, according to their respective interests in the fee,—and this settlement was agreed to, and has since been carried out, by the widow. This adjustment was made upon the basis that Ephraim and Shaver, respectively, had one-sixth interest in the two farms. In 1880 there was a settlement between Ephraim and his four older brothers, with respect to services, and for the use of his interest during his minority, in the two farms, in which he was allowed and paid by them $1000. The evidence clearly shows the rental value of the two farms was fully $1500 per annum, and it was, in effect, rated at that in the settlement of 1870, by fixing the widow’s compensation in lieu of dower at $500 per annum. Between 1870 and 1880 Ephraim cultivated his part of the land in question, which, as already appears, was estimated during the widow’s life at one-ninth of the whole, or one-sixth of what remained after allowing for her dower. So much of the farms as he cultivated in excess of this he paid rent for to John. In all these arrangements no notice seems to have been taken of the fact that the.widow was owner in fee of a small part of this property as heir of the two children who died in infancy, after the decease of their father, and the widow appears to have fully concurred in all that was done. It also appears, from the testimony, that the mother of Albert Shaver, in 1865, received, on account of her interest in the farms, altogether $650.

The court found the interests of the parties in the two farms to be as follows: John parts, Ephraim and Albert Shaver, respectively, parts, widow parts and dower in the residue, and thereupon appointed commissioners to assign dower and make partition accordingly. The court also found “that, as against Albert Shaver, John Gilmore should be allowed ^ of all taxes, and for all permanent improvements on said farms made after March 30, I860, excluding value of timber and materials taken from the place, and that Albert Shaver should be allowed his proportion of the rents and profits of the estate from March 30, I860, hereby fixed at $1000 per annum, after deducting the widow’s dower interest; that Albert Shaver should be charged with $650, paid his mother, in 1865, by John Gilmore; that Ephraim Gilmore should be charged with permanent improvements made after 1870,- less timber taken from the farm to make the same.” The cause was thereupon referred to a special master, to state an account in conformity with the findings and decree of the court, as above set forth.

Numerous reasons have been assigned why the judgment in this case should be reversed, but we find no merit in any of them. It is claimed, in the first place, that inasmuch as the widow’s dower had never been set off to her, she was entitled to the possession and use of the whole of the home place so long as it remained unassigned, from which the conclusion is reached that Shaver is not entitled to any allowance for rents and profits on account of his interest in the home place. That such is the statute is conceded, and had the widow, in 1870, insisted on this right, instead of acquiescing in the arrangement then made for her by her children, as she did, by which she was to receive, and has annually since then received, what would have been a fair equivalent for her dower had it been then assigned, and if she were here now still insisting on that right, instead of her son, who was a party to that arrangement, the point would doubtless be well taken. But no such a case is presented here. Under the facts before us even the widow would be estopped from making such a defence, and that John can not be heard to make it is too palpable to receive serious consideration. The widow, prior to 1870, practically turned over the two farms to the older sons,—not that they might enrich themselves at the expense or to the impoverishment of her minor son and grand-son, but doubtless for the common interest of all. There is not the slightest ground for the claim that she ever intended her dower rights should be used as a source of profit by some of her children to the exclusion of the others. Indeed, no such claim is made. Bétween 1864 and 1870, the older boys, having full control of these farms, did an extensive and prosperous business, in which they accumulated large sums of money, and profitably invested the same in valuable lands, which they divided between themselves to the exclusion of the minor children, as we have already seen. As to Ephraim, they settled his claim at the moderate sum of $1000, and by the present decree all they are required to do by way of compensating Albert Shaver, is, after charging him with his due proportion of taxes, insurance, and expenses for permanent improvements, to allow him a reasonable rental for the use of his interest in the farms during the time they were making so profitable a use of them. This, we think, he was clearly entitled to.

It is also claimed that John should be reimbursed by the other heirs for their proportionate share of the purchase money paid on the Downs farm after Gilmore’s death. As already shown, this money did not belong to John any more than it did to the other members of the family who assisted in earning it. It was the product of the joint labor of the family and the profits of the two farms, and that all parties so considered it, is shown by the fact the deed for the farm was taken in the name of the widow and heirs. Moreover, by the adjustment in 1870 it was so treated. If John had had any just claim on that score, then would have been a very opportune time to have raised the question. It is too late now.

It is objected the case should have been referred to the master to state the account. This was done. Perhaps the real ground of counsel’s complaint is, that the rental value of the farms was not left open to be fixed by the master. This was not necessary, under the facts in this case. There was no complication of facts or contrariety of evidence requiring this question to be passed on by the master. As already shown, the parties themselves had practically settled this question, and upon the evidence the court was fully justified in adopting their settlement of it.

The point is made that Shaver, to entitle him to the relief granted, should have filed a cross-bill. This was not necessary. (Stark v. Brown, 101 Ill. 395.) Being a minor defendant, he was entitled to the protection of the court without a cross-bill. We regard the decree, so far as the appellant is concerned, fully as favorable as he had any right to expect or the law would permit.

. The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Joseph G. English, Conservator, v. Ann N. Porter.

      Filed at Springfield March 26, 1884.

    1. Contract—mental capacity. Although the mind of a person may be to some extent impaired by age or disease, still, if he be capable of transacting his ordinary business,—if he understands the nature of the business in which he is engaged, and the effect of what he is doing, and can exercise his will with reference thereto,—his acts will be valid and binding.
    2. Evidence—burden of proof—to avoid a deed on the ground of insanity or undue influence. On bill by a conservator to set aside a conveyance of real estate made by his ward, on the ground of insanity of the grantor and undue influence of the grantee over him, the burden is upon the cornplainant to prove one or both of these allegations of his bill by a preponderance of evidence.
    3. Same—sufficiency—to show improper relations between a man and a woman. The fact that a man is not the husband of a woman with whom he is on intimate terms and transacts business, but by some were supposed to be man and wife, is not sufficient evidence of illicit or adulterous intercourse between them, or of improper relations.
    4. Same—the greater number of witnesses does not necessarily control. Mere numbers of witnesses alone, testifying to a state of facts, or as to the mental capacity of another to make a rational contract, will not control, where the less number are more intelligent, more reliable, or in any material respect superior as witnesses to the others.
    5. Conveyance—-in payment of a debt—relations between the parties, as affecting the validity of the transaction. A conveyance of land in payment of the notes of the grantor, for money owing to the grantee, will be sustained, and in such case it is immaterial in what relation the parties may have stood toward each other. It is only where a conveyance is purely voluntary, or at least for an inadequate consideration, that inquiry .into that relationship can become material.
    Appeal from the Circuit Court of Vermilion county; the Hon. J. W. Wilkin, Judge, presiding.
    Mr. J. C. Black, and Mr. E. R. E. Kimbrough, for the appellant :
    In determining the question of capacity of R. L. Porter to convey his property on the 7th and 15th days of April, 1881, the court will look beyond the few facts of the actual signing, and consider all competent evidence as to the life and mental habits and condition of the alleged insane person. Hopps v. People, 37 Ill. 385; Haviland v. Hayes, 37 N. Y. 25; Bitner v. Bitner, 65 Pa. 347; Robinson v. Adams, 62 Maine, 369.
    If insanity be once established, its continuation is presumed. Menkins v. Lightner, 18 Ill. 282; Rust v. Megee, 36 Ind. 69; Cadwell v. King, 4 Cow. 207; Haviland v. Hayes, 37 N. Y. 25.
    The court will, on the question of insanity, consider not only proof of former insanity, but also proof of subsequent insanity. If Porter was insane before and after signing the deeds, the defendant must show, by a preponderance of evidence, that he was sane at the time of executing the deeds. Dumond v. Kiff, 7 Lans. 465; Emery v. Hoyt, 46 Ill. 258; Haviland v. Hayes, 37 N. Y. 25.
    The influence of a woman who sustains illicit relations to a man, of the character and duration shown in this case, is an undue influence. Kessenger v. Kessenger, 37 Ind. 341 ; 1 Redfield on Wills, 520; Mountain v. Bennett, 1 Cox, 355 ; Dean v. Negley, 41 Pa. St. 312.
    When the sexual relations of a man and woman are for a time openly adulterous, no presumption will be indulged of marriage from long cohabitation. To interrupt the adulterous relation and make it pure, there must be proof of marriage. Port v. Port, 70 Ill. 473; McDeed v. McDeed, 67 id. 546.
    Mr. F. Bookwalter, and Messrs. Mann, Calhoun & Frazier, for the appellee:
    As to the degree of mental weakness or of mental capacity to avoid or sustain a contract, see Pickerell v. Morss, 97 Ill. 220; Brown et al. v. Riggin et al. 94 id. 560; Carpenter v. Calvert, 83 id. 62; Rutherford v. Morris, 77 id. 397; Meeker et al. v. Meeker, 75 id. 266; Lilly v. Waggoner, 27 id. 395; Titcomb v. Vantyle, 84 id. 371; Willemin v. Dunn et al. 93 id. 511; Wiley v. Ewalt, 66 id. 26; Lindsey v. Lindsey, 50 id. 79; McCarty v. Kearnan, 86 id. 291; Trish v. Newell, 62 id. 196; Miller v. Craig, 36 id. 109.
    On a bill filed by a conservator to set aside a conveyance, the burden is on him to establish his bill. Pickerell v. Morss, 97 Ill. 220.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a bill in equity, by Joseph 0. English, as conservator of Robert L. Porter, to set aside certain conveyances of real estate to Ann N. Porter, on the grounds of the insanity of the grantor and the undue influence of the grantee over him. The circuit court decreed that the bill be dismissed, and the question to be determined on this appeal is, whether that decree is sustained by the evidence.

The burden was upon the complainant to prove one or both of these allegations of his bill by a preponderance of evidence. (Lilly v. Waggoner, 27 Ill. 395; Willemin v. Dunn et al. 93 id. 511.) We are not satisfied that this has been done. Appellant proved that the conveyances were executed on the 7th and 15th of April, 1881; that on the 12th of May, 1881, Porter was duly adjudged insane, and appellant was appointed his conservator, in a proper proceeding for that purpose in the county court of Vermilion county; and several witnesses testified, on his behalf, that in their opinion Porter was, by reason of his insanity, incapable of transacting business at the date of the execution of the conveyances. More numerous witnesses, however, on the other hand, and apparently equally entitled to credit, testified, that in their opinion he was at that time capable of transacting business.

We think the fair conclusion, from the evidence, is, Porter’s mind was affected by a form of dementia, slightly, for several months (perhaps longer) before the execution of the conveyances. This gradually increased, and some time after the appointment of the conservator it became such that he was incapable of self-control and the transaction of business. It may be, too, that the rate of mental impairment was accelerated towards the last; but Porter had a considerable amount of business, somewhat varied in character, of which he had the charge and direction until some time after the appoint-, ment of the conservator, and this he managed and directed with care and diligence, and at the dates of the execution of the deeds his mind was sufficiently strong and self-poised to enable him to comprehend all the details of what he was doing, and the effect of his acts, and to exercise his own volition with reference thereto. Drs. Lemon, Barton and More-house fix the period of their first observation of a marked decline in the mental powers of Porter, in the month of October, 1880, during the illness of one Peter Walsh, a foster-son of Porter, to whom he was warmly attached. Walsh died on the 9th of November following, and thereafter, in their opinion, Porter declined in mental power pretty rapidly. They noticed it, chiefly, as manifested by his grief for the death of Walsh, in incoherence in speech, and in apparent difficulty in continuity of thought upon any given subject. They give no instance of inability to rationally manage and dispose of property, and they show that he had the charge of his business,—which, as already observed, was pretty extensive, and which included a medical practice,—until after the appointment of the conservator. It is true, towards the last. the practice of medicine is not shown to have been extensive, but it is shown to have been carried on until the appointment of the conservator, and one apparently very intelligent witness, Dr. Woodbury, testifies that he regarded him capable of properly handling so dangerous a drug as morphine, even after the appointment of the conservator. Porter was the owner of a farm of eight hundred acres, and of other real estate, and some personal property, all of which, it is shown, he managed intelligently and carefully, even after the appointment of the conservator.

There were four witnesses present when the deeds were executed,—Norvell, (the scrivener,) Forbes, Alies and Terry. They were all intimately acquainted with Porter, and had long known him, and they unite in the opinion that he was then competent to transact business. Norvell says, about a week before the deeds were made Porter came to his office alone, and told witness he wanted him to prepare some deeds from him (Porter) to Mrs. Porter, as he had used some of her money; that Porter had spoken about this several times before; that at the time of making the deeds Porter again came alone to him, and indicated on the plat what lands he wished to convey to appellee; that his capacity for transacting business was good, and' he appeared to the witness as rational as he ever had since he had first known him, in 1867. He further says that Porter assented to the indorsement of the price of the lands as a credit upon the notes which appellee held against him.

Judge E. S. Terry says, that he had known Porter for twenty-five years, and that he was present when the deeds were made; that at that time Porter took him aside and told him that he had been receiving from his wife divers sums of money, and that he was then conveying to her real estate, and showed the witness the lands on the plat. Judge Terry further says that he had discovered some impairment of Dr. Porter’s mental powers previous to that time, but that such impairment was not, in his opinion, of such a character as to render him incompetent to do a valid act, either as to the disposition of his property, or otherwise. He says that Porter asked him if he did not think he was doing right in making the conveyances, and that he exhibited the map and explained to witness intelligently what he was conveying, and the purpose of the conveyance.

The conservator, Mr. English, testified that he purchased land of Porter two or three months before the appointment of himself as conservator; that he then discovered nothing wrong, and that Porter conducted himself in the transaction, in the way of looking after his own interests, just as any man would. He then uses this language: “We went down and looked at the land, and talked the matter over. He fixed his price, and I took it, and paid him the same price I had paid others in the same neighborhood. ” And he thus describes the condition of Porter’s affairs, and his conduct after he was appointed conservator: “I found his affairs in good condition after my appointment. He rendered me a great deal of assistance, (i e., in getting the run of his business, and the situation, location and condition of his property.) He went out to the farm with me, and looked all over, minutely, everything ; gave me to understand the run of his business at his farm, even down to the smallest piece of machinery. * * * He knew the boundaries and extent of his land perfectly, •x- wen^ ou^ -(¡o the farm every week or ten days, after my appointment, and looked after things there. I trusted him to do it. I didn’t see there was anything wrong, for a time, with him. ” He further says: “It must have been five or six months before he began to show particular trouble. ”

In addition to the four witnesses present when the deeds were made, twelve others, excluding the defendant, testify to an acquaintance with Porter for varying periods, and to some degree of business association, and all express the opinion that he was competent to transact business when the conveyances were executed, whereas on the other side but nine witnesses, including the son, the daughter-in-law and the daughter of Porter, testify to his incompetency. Mere numbers, alone, it is true, are not to control where the less number are more intelligent, more reliable, or in any material respect superior, as witnesses, to the others; but we are unable to say this of the witnesses in behalf of appellant. While, they are presumed to be respectable, and nothing is proved rebutting that presumption, precisely the same is to be said of the witnesses on the other side, and appellant’s witnesses have no material advantage in intelligence in respect to the subject matter of their evidence. If the only question were, does the evidence show that Porter’s mind was affected by dementia at the date of the deeds, the answer should, doubtless, be in the affirmative. But that is not the question here. Although the mind of an individual may be, to some extent, impaired by age or disease, still, if he be capable of transacting his ordinary business,—if he understand the nature of the business in which he is engaged, and the effect of what he is doing, and can exercise his will with reference thereto,—his acts will be valid. Meeker v. Meeker, 75 Ill. 266; Trish v. Newell, 62 id. 196; Pickerell v. Morss, 97 id. 220; Lindsey v. Lindsey, 50 id. 79.

There is no direct proof of undue influence by appellee over Porter, and the only indirect proof to that effect is the testimony of the son, daughter-in-law and daughter, that appellee admitted that she had persuaded Porter to make her a deed, or deeds, and that he had previously paid her all that he owed her, from the proceeds of a sale of cattle. This is denied by appellee in her evidence, and she produced in evidence, on the hearing, uncanceled notes of Porter to her, bearing different dates, long before his sanity is questioned, and amounting, in the aggregate, to some $9000, exclusive of interest. She proves that she had been, for some years, a medical practitioner, having a large practice, and Nor veil, Terry, Forbes and Woodbury each testify that Porter admitted to them that he was indebted to appellee for money of her’s which he had used, and the first three of these witnesses testify that Porter said, in effect, the conveyances to appellee were in payment on this indebtedness,—and, as we have before seen, the evidence shows that' at that time he was competent to transact such business. It can hardly be said, then, it is proved, by a preponderance of evidence, these conveyances were merely voluntary. If they were—as Norvell, Forbes and Terry testify that Porter said they were—in payment of these notes, it is immaterial what relations appellee and Porter may have sustained towards each other. It is only in the event the conveyances were purely voluntary, or at least for an inadequate consideration, that inquiry into that relationship could become material.

We may remark, however, that if the inquiry as to the relations between appellee and Porter was pertinent, this record does not afford sufficient evidence that they were illicit. Dr. Porterfield says he is a son of Porter, whose real name is Porterfield, and he thereafter uses this language: “Father said, that on coming to Danville with Mrs. Porter he had dropped the ‘field’ from his name.” The witness does not say their relations on coming to Danville, or after they came there, were illicit. He says he has known “Ann N. Miller, ” alias Ann N. Porter, over ten years, and that he has no knowledge of relationship with Ann N. Porter. In another place he speaks of, a visit by his father to his mother, in 1859, and in answer to the question, “What members of your father’s family are living?” he mentions no wife. Mrs. Armstrong testifies that she is a daughter of Porter, but is not in any manner related to appellee, that she knows of, and in giving the names of her father’s family she mentions no wife. Now, surely, in all this there is no proof of illicit intercourse. They both, however, call her, in repeating her name, in other portions of their depositions, “Mrs. Porter, ” and Judge Terry and Dr. Woodbury call her the wife of Porter. But if it be true that they are mistaken, there is no proof of adulterous intercourse. The bill makes no such charge,—it does not characterize their relations. It can not, in any view, be accepted as sufficient proof of illicit relations that two people of opposite sex do business together, or are, mistakenly, called husband and wife. The mistake in thus styling them, might, it is true, result from illicit relations, but it might, also, result from other causes, and the proof, therefore, should show what in fact their relations were.

The decree below must be affirmed.

Decree affirmed.


author: Mr. Justice Craig

text:
    Benjamin R. McCleary v. Henry Menke.

      Filed at Springfield March 26, 1884.

      . 1. Jurisdiction—of county court in citation to guardian, and passing upon his accoumt. Where a person has been appointed guardian of three minor children under a single order of the county court, and he has neglected to discharge his duties and failed to render any account, and two of the wards have died without issue, and a curator has been appointed by the proper court in another State, of the surviving ward, such other State being at the time his residence, such curator will have the right to cause a citation to issue against the guardian, and the county court will be invested with jurisdiction to require an investigation of the entire account, and find the whole sum for which he is chargeable, and such finding and judgment being affirmed, by consent, on appeal to the circuit court, is conclusive in any action afterward brought on the guardian’s bond.
    2. Administration—when not necessary, to collect money due decedent. Where two wards died in 1869, while mere infants, leaving no issue, and being incapable in law of contracting any debts, and leaving their mother and a brother their- only heirs at law, and the mother died April 4, 1873, so that the brother succeeded to any estate they had, it was held, that the brother, or his curator, was authorized by law to collect from their guardian any moneys of his wards in his hands, and that it was not necessary to have an administrator of the estates appointed to collect and receive such money due them.
    3. Foreign guardian—right to take steps to collect money due his ward. A foreign curator or guardian of an infant may cause a citation to issue against a guardian appointed in this State, and require him to make a settlement of his guardianship, and thereby ascertain the money in his hands belonging to the ward, without first obtaining an order of court allowing such foreign curator to sue for or collect the same, that proceeding not being strictly an action to collect the money. It is sufficient if he obtains such order before he seeks to collect the money.
    4. Practice—holding on propositions of law on trial by the court. There is no error in refusing certain propositions as law where they do not contain clear and distinct propositions of law, especially one which is a mere argument.
    Appeal from the Appellate Court for the Third District;— heard in that court on writ of error to the Circuit Court of Cass county; the Hon. Cyrus Epler, Judge, presiding.

      Messrs. Brown, Kirby & Russell, for the appellant:
    The personal estate of a person dying intestate, whilst it descends to and is to be distributed amongst his heirs, after the payment of debts, must pass through due administration, under the direction of the proper court. Leamon et al. v. McCubbin, 82 Ill. 263; Nuebrecht v. Santmeyer, 50 id. 64; Hickox v. Frank, 102 id. 660.
    The foreign curator of Eugene Hicks could not institute any proceeding to recover the assets from Howe without obtaining leave from the county court. Rev. Stat. 1874, chap. 64, sec. 44.
    The county court has no power to authorize a guardian to compromise or compound, in his discretion, demands in favor of his ward.
    A judgment by consent is not an adjudication which will bar a subsequent recovery.

      Res judicata is the decision of the court upon a contested matter between parties. When a judgment is rendered by consent, or is the result of a compromise, it can not be admitted as res judicata. Wadhams et al. v. Gay, 73 Ill. 417; 2 Smith’s Leading Cases, 769; Smalley v. Eddy, 19 Ill. 207.
    Where the administrator of an estate is also guardian, after the time has elapsed for settlement as administrator, as was the case here, “it will be presumed the money has passed to his hands as guardian, and his sureties on his guardian’s bond will be held liable for the same. ” Bell et al. v. The People, 94 Ill. 230; Weir v. The People, 78 id. 192; City of Chicago v. Gage, 95 id. 595.
    An order of a probate court directing a guardian to pay over to his successor a certain sum of money in his hands belonging to the ward, is conclusive upon the guardian, unless the order can be impeached for fraud or collusion. Ammons v. The People, 11 Ill. 6; Fogarty v. Ream, 102 id. 366; City of Chicago v. Gage, 95 id. 595; Morley v. Town of Meta

      mora, 78 id. 394; Crawley v. The People, 95 id. 249; Roper v. Sangamon Lodge, 91 id. 518.
    Messrs. Pollard & Phillips, for the appellee:
    If the county court had jurisdiction, then its acts are res judicata. Nothing can be collaterally alleged against them. Young v. Lorain, 11 Ill. 624; Sprague v. Kane, 86 id. 580; Crignon v. Astor, 2 How. 309.
    Jennie and Effie having died during their minority, and at a time when they were incapable of contracting debts, their interest in the money vested immediately in their heirs, and it was not necessary to take out letters of administration on their estates. Riley v. Langrey, 22 Ill. 97; Cass v. Casey, 25 id. 564; Lynch v. Rotan, 39 id. 14.
    The letters of administration in this case were void, for three reasons:
    First—They were issued to the public administrator when it appeared that their brother was in the State, as he applied for them. In Unknown Heirs of Langworthy v. Baker, 23 Ill. 484, it was held, that before the county court can obtain jurisdiction to commit an estate to a public administrator, it should affirmatively appear of record that there was no relative or creditor within the State to whom administration might be committed.
    Second—The letters having been issued more than twelve years after the death of Jennie and Effie Hicks, their issue was barred by limitation, in the absence of evidence of any circumstances preventing an earlier application for them. McCoy v. Morrow, 18 Ill. 519; Fitzgerald v. Clancy, 49 id. 465.
    Third—Jennie and Effie Hicks having died in their infancy, at a time when they could not have contracted debts, their property immediately vested in their heirs, so that there was nothing to administer upon. Cass v. Casey, 25 Ill. 564; Riley v. Langrey, 22 id. 97; Lynch v. Rotan, 39 id. 14.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought by the administrator of the estate of Jennie and Effie Hicks, upon a guardian’s bond, to collect a certain sum of money claimed to have been received by Edwin Howe, as guardian of Jennie and Effie Hicks, and never paid over or accounted for. The breach alleged in the declaration in substance is, that Howe, on the 12th day of August, 1867, received, as guardian for each of said wards, the sum of $829.22, which he appropriated to his own use. Henry Menke was surety on the bond of Howe, and he alone was served with process. To the declaration he pleaded nil debet, and a stipulation was signed, that under the plea filed he might introduce any evidence that would be competent under any special pleas. On a trial of the cause in the circuit court, without a jury, the court found the issues in favor of the defendant, and this judgment was affirmed in the Appellate Court, and the plaintiff, to reverse the judgment of the Appellate Court, has prosecuted this appeal.

A brief statement of facts is necessary to a proper understanding of the questions involved. William M. Hicks died in Cass county on the 14th day of April, 1865, intestate, leaving a widow, Margaret Hicks, and three minor children, Eugene, Jennie and Effie. Edwin Howe, a brother of the widow, was, on June 20, 1865, appointed administrator of the estate. On the 23d of August following, the county court of Cass county appointed Howe guardian of the minors, and he gave bond, with Henry Menke, appellee, as surety. On the 12th of August, 1867, Howe, as administrator, made a settlement of the estate of William M. Hicks, in the county court of Cass county, showing a balance in his hands of $3731.52. The county court, on the same day, ordered this sum to be distributed, as follows:' To the widow, one-third, $1243.48; to Eugene G. Hicks, $829.22§; to Jennie Hicks, $829.22§; to Effie Hicks, $829.22§. The court ordered the several sums due the minors to be paid to their guardian, and that vouchers be produced for the same. No vouchers were, however, produced, nor were any further steps then taken in reference to the settlement of the estate.

In 1869 the two minors, Effie and Jennie Hicks, died, leaving their mother, Margaret Hicks, and their brother, Eugene, their only heirs. At the December term, 1872, of the probate court of St. Louis, Mo., Marcus A. Wolff was appointed curator of the estate of Eugene G-. Hicks. After this appointment, and on January 8, 1873, Wolff appeared in the county court of Cass county, and presented a petition for a citation against Howe, guardian of the heirs of William M. Hicks. A citation was issued and served, and on May 23, 1873, Howe appeared and made a report to the following effect: That at the time he made his account current as administrator of the estate of William M. Hicks, deceased, filed in this honorable court August 12, 1867, he stated in such account current that he held in his hands the sum of $3731.52 as such administrator, which sum the said court ordered him to distribute. He further states that the said sum of $3731.52, in said account mentioned, consisted not altogether of money, but that $3000 of it consisted in an indebtedness of one David H. Hill to the estate of said William M. Hicks, for the purchase money by the said Hill from this respondent, as administrator, of certain steamboat stock belonging to the estate of said William M. Hicks, deceased, sold to him by order of this court. The balance of said sum of $3731.52, to-wit, $731.52, was paid to said widow of William M. Hicks, as part of her distributive share of said estate, by virtue of said order of this court; that nothing was realized on the indebtedness of Hill, although all reasonable efforts were made to collect; that Hill was insolvent.

Upon examination of this report, and upon hearing such evidence as was produced, the court found that when the report of August 12, 1867, was made by Howe, he only had on hand in money $731.52; that the balance of $3000 by him reported was worthless paper; that of the money then on hand, ($731.52,) one-third belonged to the widow, and the balance ($487.86) was the true amount which passed into the hands of Howe, guardian of the three wards, Eugene, Jennie and Effie Hicks, and upon this amount he was chargeable with interest, at the rate of six per cent, from August 12, 1867, making the total amount with which he should be charged as guardian, on the 23d day of May, 1873, $656.74. From this order of the county court, Wolff, the curator, took an appeal to the circuit court, where, by agreement of the parties, the order of the county court was affirmed, and Wolff accepted the $684.65 in full of all claim of Eugene G. Hicks against Howe, either in his capacity as administrator or guardian, and as heir of Margaret E. Hicks, or Effie or Jennie Hicks.

The first question presented by the facts, concerning which there is no substantial dispute, is, whether the court erred in the admission of evidence, and under this head it is contended that all the evidence offered by the defendant relating to the suit by Wolff, curator, against Howe, was irrelevant and immaterial. Wolff was duly and legally appointed curator of Eugene G. Hicks, by the proper court in the State of Missouri, and his right to compel Howe, as administrator or guardian, to pay over any money belonging to the minor, Eugene G. Hicks, is not questioned; but it is said that the legal representatives of Jennie and Effie Flicks were not parties to the proceeding brought by the curator to compel Howe to account, and hence they are not concluded or bound by the order of the county court, wherein the court found that Howe had in his hands, as guardian, only the sum of $656.74. It is true that the citation issued against Howe, as guardian, to compel him to pay over the money he had in his hands, was issued at the instance of Wolff, curator of Eugene Hicks, but the service of the citation, and appearance of the guardian in court, gave the court jurisdiction over the person of the guardian, and the statute conferred jurisdiction over the subject matter, and if the court adjudicated upon the liability of the guardian as to the three minors, the judgment must be conclusive, although the proceeding was not instituted by the legal representatives of Jennie and Effie. Where a person has been appointed guardian of three minor children, under a single order of the court, and such guardian has neglected and failed to discharge his duty as required by the statute, what difference can it make, as to the validity of the judgment of the court in dealing with the guardian, whether he is cited at the instance of one or all three of the minors ? Here the citation was issued at the instance of the curator, but when the guardian appeared the court entered upon an investigation of the entire amount in the hands of the guardian, and, in our opinion, the judgment of the county court is conclusive upon the question.

But there is another view that may be taken of the question, which is a conclusive answer to the position of appellant. Effie and Jennie Hicks died in 1869, while they were both minors, leaving their mother, Margaret, and their brother, Eugene Hicks, as their only heirs, and whatever interest they had in the money in the hands of their guardian vested immediately in their next of kin, as they died at an age when they were incapable in law of contracting debts. (Lynch v. Rotan, 39 Ill. 15.) From the stipulation of facts made for the purpose of a trial, it appears that the widow, Margaret Hicks, died intestate May 4, 1873, and that Eugene is the sole heir of Margaret, Effie and Jennie Hicks. At the time, therefore, that the court determined the amount in the hands of the guardian due to the three minors, or their representatives, which was May 23, 1873, Eugene Hicks, upon whose behalf the citation issued, was the only person who had any interest whatever in the money in the hands of Howe. If we are correct in this, all the persons in interest were before the court, and its judgment must be regarded as final and conclusive.

It is next urged that the court erred in refusing to hold certain propositions of law asked by the plaintiff. The court approved the first three propositions of law asked by the plaintiff, but the fourth, fifth and sixth were refused. The fourth and fifth were refused by the court on the ground that they were not distinct propositions of law. We have examined the propositions, and fully concur with the circuit court. The fourth, instead of containing a clear and distinct proposition of law applicable to the case, is a mere argument, and the fifth is liable to the same objection, although perhaps not as objectionable as the other one. The sixth proposition was properly refused, if for no other reason, because it was not applicable to the facts of the case. If a party desires to have propositions of law given, they should contain a clear and concise statement of the law, based upon the evidence, and be applicable to the facts in the case as disclosed by the evidence.

It is also said that Wolff proceeded in the county court of Cass county, without first obtaining an order allowing him, as a foreign guardian, to sue. It is true that a citation was issued against Howe, requiring him, as guardian, to appear and account, before an order had been entered authorizing Wolff to sue for or collect the money due his ward,—but this was a matter of no consequence. The citation was not strictly a suit brought by Wolff to collect money,—it was merely a proceeding to require the guardian to account, to determine the amount of money in his hands, and long before Wolff collected any money he procured an order to be entered as required by the statute.

After a careful consideration of the whole record, we are satisfied that the judgment of the circuit court is correct. The judgment of the Appellate Court will therefore be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    George E. Hawthorn et al. v. The People of the State of Illinois.

      Filed at Ottawa November 20, 1883.

    1. Butter and cheese factories—constitutionality of the act of 1883. The act of June 18, 1883, requiring the operators of butter and cheese factories on the cooperative plan to give bonds, etc., is not in contravention of section 6, article 2, of the Bill of Bights, which declares that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall be inviolate.” Such act is but a proper exercise of the police power of the State for the protection of persons intrusting their property to the manufacturer, from fraud and wrong.
    2. Constitutional law—legislative power—generally. The State, through the General Assembly, has supreme legislative power, except so far as it is limited by its constitution, or such as has been delegated to the general government, or its exercise has been limited by the Federal constitution.
    3. Same—police power of the State. The police power of the State, when exercised by the legislature in the passage of laws for the protection of life, liberty and property, or laws for the general welfare, has no limitations or restrictions, except such as are found in the constitution.
    4. Same—laws regulating and in restraint of trade. The fact that a law regulates trade or any business, or in some degree operates as a restraint on the same, does not render it obnoxious to any constitutional provision. The legislature, for the safety, .security and welfare of society, may control the acts of the governed even as to the time and manner of performing labor, and in the manner in which persons shall use their property, to prevent injury to others.
    5. Same—presumption in favor of validity of laws. Where a law is found upon the statute books, the presumption is that it conforms to the constitution, and that it is a valid enactment, and the courts will not hold it unconstitutional in case of doubt. To authorize the court to hold a law unconstitutional, its repugnance to the organic law must clearly appear.
    6. Same—conferring judicial power upon ministerial officers—as, authorising clerics to approve bonds. A statute conferring power on the circuit clerk or recorder of deeds to determine the sufficiency of bonds required to be given, is not unconstitutional, as conferring judicial powers on such officers. Such power has been recognized as ministerial.
    7. Same—special legislation—as applying to a class of persons. A statute is not obnoxious to the constitutional objection that it is not a general law because it applies to a class of persons. It is a general law if it applies to all persons in the State similarly engaged. A law is general, not because it embraces all of the governed, but that it may, when they occupy the same position of those who are embraced in its terms.
    8. Same—whether subject of act is expressed in its title. The act of June 18, 1883, entitled “An act to require of butter and cheese factories on the cooperative plan to give bonds, and to prescribe penalties for the violation thereof, ” is not obnoxious to the objection that the subject is not embraced in the title.
    Appeal from the County Court of Kane county; the Hon. Edward E. Lovell, Judge, presiding.
    Mr. Charles Wheaton, and Mr. R. N. Botsford, for the appellants.
    Mr. James McCartney, Attorney General, Mr. Hiram H. Cody, and Mr. T. E. Ryan, for the People.
   Mr. Justice Walker

delivered the opinion of the Court:

The prosecuting attorney of Kane county, at the June term, on the 12th day of July, 1883, filed in the county court of that county an information against appellants, for failing to file the bond required by the act of the 18th of June, 1883. (See Sess. Laws, p. 54.) It is not disputed that appellants were operating a butter and cheese factory in that county. It appears they received the milk of the farmers of the neighborhood, manufactured from it butter and cheese, for which they retained four cents a pound for butter, and two cents a pound for cheese, after selling it, and the balance was to be divided among those who furnished the milk, as we suppose, to each in proportion to the amount furnished and manufactured. Appellants sold in market all the butter and cheese they manufactured, and divided the proceeds as stated. It is admitted they did not give the required bond, and that appellants continued to operate their factory in the same manner after as before the time elapsed for the statute to become operative. On the trial in the court below, defendants asked the court to hold as a legal proposition that the law was passed in violation of the State constitution, but the court refused to so hold, and found the defendants guilty, and after overruling a motion for a new trial and in arrest of judgment, rendered a judgment for a fine of $200, and defendants appeal to this court, and urge a reversal.

The questions argued by counsel are: First, whether or not the General Assembly did transcend its constitutional power in enacting the law; and second, if it did not, whether, under the constitution, the title of the act is sufficient to sustain the law. These are the legal propositions arising on the record, and presented for decision.

There can be no doubt that the State legislature possesses supreme power, except so far as it is limited by the constitution or foundation of government, or such power has been delegated to the general government, or its exercise has been limited by the Federal constitution. A government, as such, can not exist without the governing or sovereign power adequate to the protection of the people from wrong and oppression. This supreme or sovereign power to enact laws has been confided to the representatives of the people, composing the General Assembly, and had there been no restrictions or limitations on the exercise of the legislative power, the people, through their representatives, would have been uncontrolled in the exercise of the legislative function. But for such limitations the legislature would have been supreme in the exercise of legislative power, as much so as the ruler in any kind of government. The sovereign or governing power of all governments is the same in character, hut in liberal governments the exercise of a portion of the governing power is restrained to secure rights and privileges to the governed. These restrictions and limitations on the different branches in our system of government are alone found in our constitutions of government. The first section of article 4 of our constitution provides, that “the legislative power shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives, both to be elected by the people. ” Had there been no restriction by other portions of that instrument, and no previous delegation of the legislative power to the general government, or any limitation of the power by the constitution, this delegation of the legislative power to our General Assembly would have been plenary, and without restraint, except its own will and sense of duty. But to restrain such power, and to secure the citizen in the enjoyment of such rights as are conceded to him, or he has been left in possession of by government, these limitations and restrictions are imposed by fundamental law.

It is said by Lord Coke : “The power and jurisdiction of Parliament is so transcendent and absolute that it can not be confined, either for persons or causes, within any bounds; and of this high court it may be said: ‘Si antiquitatem spectes, est veiustissima; si dignitatem est honoratissima; si jwrisdictionem est capacissima.’ It hath sovereign and uncontrolled authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving and expounding of laws concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime, or criminal, this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. * * * It can change and create afresh even the constitution of the kingdom, and of Parliaments themselves. * * * It can, in short, do everything that is not naturally impossible ; and therefore some have not scrupled to call its power (by a figure rather too bold) the omnipotence of Parliament. True it is, that what Parliament doth, no authority upon earth can undo. ” 4 Inst. 36; Cooley’s Const. Lim. (1st ed.) 85.

Under our institutions this sovereignty or transcendent power of government resides in or with the people, and may be exercised in the manner they have provided by the constitution. The people can make and unmake constitutions. They can, within constitutional restrictions imposed by the Federal constitution, delegate the powers of government to whom and as they please. They can withhold ór intrust it, with such limitations as they choose. They, in our State governments, have delegated the power to different departments, and have virtually withheld the exercise of the legislative power to themselves, inasmuch as, through their representatives, elected at short intervals, they carry into effect their will, formulated into laws, to be enforced by the other departments. Government would be but a rope of sand, that did not possess sovereignty, with its attributes and incidents,—and that indispensable sovereignty must rest in a body large or small, to have any efficiency whatever. The founders of our system of government, in their wisdom, entrusted that transcendent sovereign power to the people, to be exercised by them through their representatives, under the limitations or restrictions of our constitutions of government. Judge Cooley says, (Const. Lim. 85,) that in considering the legislative powers of our States it is natural that we should recur to those possessed by the British Parliament, upon which, in part, our legislatures have been modeled, and from which we derive our legislative usages and customs, or parliamentary common law, and the precedents upon which legislative power is based. He also says, it is natural that we should incline to measure such power in this country by the power of a like department in Great' Britain; but we should not be misled, because we must bear in mind that in Parliament rests the sovereignty of the country, and it may therefore exercise all governing power, while complete sovereignty is not vested in ours because they are hedged about with limitations, imposed in express terms or by implication.

Where a law, therefore, is found on the statute books, the presumption is that it conforms to the constitution. This presumption arises from the fact that each member of both houses who pass the law, and the chief executive who has approved it, are under the same obligation to support the constitution as are the courts. Having performed all acts necessary to the adoption of the law, we must presume they acted in view of the constitution and all of its limitations. For these reasons the courts never interfere to declare a law unconstitutional in case of doubt. To authorize such action by the court, it must be clear the law violates some provision of the organic law. When, therefore, a law is challenged as unconstitutional, we must be able to turn to the provision of the instrument which prohibits the legislature from its enactment, and the repugnancy must clearly appear. These doctrines and constitutional principles are distinctly announced by this court in the cases of Field v. The People, 2 Scam. 79, The People v. Salomon, 51 Ill. 49, The People v. Marshall, 1 Gilm. 672, Lane v. Dorman, 3 Scam. 238, Bruce v. Schuyler, 4 Gilm. 221, Mason v. Wait, 4 Scam. 127, and The People v. Reynolds, 5 Gilm. 1, and coincide with the decisions of almost, if not all, courts.

Then, in this ease, what provision of our constitution has been violated ? No provision has been pointed out, except section 6, article 2, of our Bill of Bights. It provides that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall be inviolate.” This law in no sense invades any of those rights. It does not require the seizure of any person or his property, nor does it require the invasion of any one’s house, nor does it require a search of his papers, reasonable or unreasonable. We are therefore unable to see that this law in anywise violates that provision. It is true the act does require the manufacturer, at the end of each month, “to make, acknowledge, subscribe and swear to a report, in writing, showing the amount of products manufactured, the amount sold, the prices received therefor, and the dividends earned and declared for the third month preceding the month in which .the report is made, ” and to file a copy of the same with the clerk of the town or precinct in which the factory is located. This, in terms, falls far short of a conflict, in terms, with that constitutional provision, nor does it conflict in spirit. Here the manufacturer receives the property of a portion of the community to manufacture, sell, and return to them the amount received, over and above his charges for manufacturing the material into the article prepared for the market. This provision is clearly intended to protect the persons intrusting their property to the manufacturer, from wrong and fraud. This is not an unusual exercise of power. It has always been required that executors and administrators intrusted with the property of estates shall file in a public office a full and complete account of their actions with reference to the property thus intrusted to their management and control. This law only requires the manufacturer to render an account of his management of other people’s property. He holds himself out as a factor for the management and sale of other people’s property, and in that respect is like a public warehouseman.

It is also objected that the legislature had no power to require the manufacturer to give the bond required to enable the manufacturer to commence or continue business, in this mode, in an innocent and lawful business. The business of selling liquor by saloon-keepers is lawful, unless prohibited by law, and all persons might carry on the traffic; but the law has imposed as a condition that all persons shall execute a bond that they will not violate the law, before engaging in that traffic, and such a bond is intended as a security for damages he may inflict on persons injured by violating the law. The bond in this case is intended to secure those who intrust their property to the keeping of the manufacturer, against fraud or misappropriation by him of their property, just as the executor or administrator is required to give bond to secure those entitled to the funds of the estate, or the saloon-keeper to give security that he will not violate the law, and thus inflict injury on his customers.

It is urged that this is an unheard of species of legislation,—that the past has furnished no precedent for the law. If this should be conceded to be true, that would not of itself render the law unconstitutional. Government was organized, and is supported, to afford protection to the governed against wrong and oppression, and in its organization ample power was conferred on the legislative branch to afford such protection. That branch of the government holds, so to speak, a vast reservoir of legislative power never yet exercised, because the exigencies have not arisen requiring it to be exerted; but with our wonderful increase of population, advancing civilization, and increase and complication of business, that reserved power will certainly be called into action. The constitution has not limited the exercise of legislative power to such enactments as have hitherto been passed. To so hold would be to embarrass good government, and would prove highly injurious, if not destructive.

But it is insisted that it restrains and embarrasses business. If that were conceded to be true, what provision of the constitution forbids the legislature from exercising the power ? We are aware of none. Most, if not all, of the States in the Union have required that persons in almost every species of business should procure and pay for a license to enable them to pursue the calling. Nor, so far as we are aware, has the constitutionality of such laws ever been questioned. They were undeniably a regulation, if not a restraint, on trade, and yet the power was clearly legislative, and properly exercised. It may be said that was a revenue measure. Admit it, and where is the distinction between the exercise of legislative power to raise revenue, and to protect the people from wrong, oppression and fraud ? That body is fully empowered and charged with the duty of performing both acts. Nor are the courts invested with a particle of power to review or control the acts of that body, so long as it keeps within the limits of its constitutional powers. With the wisdom of its acts the courts have no concern, so long as it does not transcend its powers. Where an act of the legislature is challenged in the courts as unconstitutional, all the court can rightfully do is to determine whether that body had the power to pass the enactment, and if found to be within the scope of its power, they can not interfere. To do so would violate the third article of the constitution, which divides the powers of government, and prohibits each branch from exercising the powers of either of the others. It has been held .that the legislature has the constitutional power to control the acts of the governed, even as to the time and the manner of performing labor, by requiring all persons to refrain from labor or business on Sunday, and the manner in which individuals shall use their property, to prevent injury to others; and such power, so far as we are informed, has seldom been challenged, and always sustained.

A number of cases arising under city ordinances have been referred to by counsel as conclusive that this law is unconstitutional. In none of the cases referred to had the General Assembly, in express terms, granted to the municipality the powers that were exercised. Such was the ease in City of Clinton v. Phillips, 58 Ill. 102. There the city authorized the sale of the liquor, but made it penal to fail to make a statement, at designated times, of sales, their purposes, the time, and the persons to whom sold. The case of Toledo, Wabash and Western R. R. Co. v. City of Jacksonville, 77 Ill. 39, was a city ordinance requiring the useless act of the railroad company keeping a flagman at a crossing where there was no danger to persons. They are unlike this case. In none of the eases referred to was- the law intended to protect the public from wrong and fraud, but the charters of those cities only conferred the power to adopt reasonable ordinances, and it was held they were not such, and were held inoperative for that reason. Nor had the legislature required that such ordinances should be adopted. The corporate bodies, in those cases, were only empowered to pass reasonable ordinances, and they were, in those cases, held to be unreasonable, and therefore void.

It is said that this is not a police regulation. That may be true, if the term were confined merely to the protection of the health and morals of the people. The term has a much more comprehensive meaning. It has been defined to be: “The regulation and government of a country or city, so far as it regards its inhabitants. ” Also, “The laws, ordinances and other measures which require the citizens to exercise their rights in a particular form. ” It is true there are other and more limited meanings of the word, and when it is said that there are other limits to its exercise than the constitution, it has reference to the more restricted meaning of the term. When exercised by the legislature, in its more comprehensive sense, in the passage of laws for the protection of life, liberty and property, or laws for the general welfare, the only limitations to restrain its action must be found in the constitution. This, in the larger sense, is an exercise of the police power by the General Assembly, and falls fully within legislative power, and sustains the enactment under consideration.

It is urged that the law is not general, but applies to the private patrons of those factories, to secure them against the acts of their commission merchant or .milk broker, and is class legislation. We fail to perceive that this is not a general law. It embraces all persons in the State similarly engaged. If all laws were held unconstitutional because they did not embrace all persons, few would stand the test. The law defining the crime of horse stealing is intended for the protection of the owners of such animals, and they form a class; but a large portion of persons in the State do not own such animals,—and shall it be said that law is void because it is class legislation ? It has never occurred to any one to urge such an objection against the law. The same may be said of most, if not all, other laws, however general their character. A law is general, not because it embraces all of the governed, but that it may, from its terms, when many are embraced in its provisions, and all others may be when they occupy the position of those who are embraced.

It is urged that the law is unconstitutional because it confers the power on the clerk or the recorder of deeds to determine whether the bond required to be filed is good and sufficient, and to approve the security. It is claimed that this is an attempt to confer judicial power on ministerial officers. Such power has been conferred upon, and exercised by, such officers, since the organization of" the State government, in cases of attachment, replevin, and most official bonds, yet no one seems to have ever supposed the laws conferring such power, and its exercise by such officers, were unconstitutional. The power has ever been recognized as ministerial.

It is objected that the act does not, in its title, conform to the requirements of the constitution. The title is: “An act to require of butter and cheese factories on the cooperative plan to give bonds, and to prescribe penalties for the violation thereof. ” The enacting clause prohibits the carrying on, or operating or conducting, the business of manufacturing butter or cheese on the “cooperative or dividend plan, until such person or persons, company or corporation, shall have filed with the circuit clerk, or recorder of deeds, * *" * a good and sufficient bond, ” etc. It is claimed that the cooperative plan is different from the dividend plan. The portion of the constitution supposed to be violated is a clause of the 13th section of article 4, and is this: “No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title. ” It is claimed that the title does not express the subject of the body of the act. The term “cooperative” is defined to be, “promoting the same end; helping; acting together to accomplish the same end. ” This being the meaning of the word, it seems to describe the business transacted by appellants and those who furnished the milk to be manufactured. They all promoted the same end, and hence cooperated,—the farmers by furnishing the milk, and appellants by manufacturing and selling the product. Whatever the factory be locally called, it is manifestly operated on the cooperative plan. This establishment being within the meaning of the term “cooperative” plan of manufacturing butter and cheese, it is found in both the title to and in the body of the act, and the constitutional requirement is fulfilled.

It is, however, urged, that the body of the act embraces two distinct kinds of factories, conducted on essentially different plans, and one of them is not named in the title. We think a fair construction is, that the terms in the body of the act, “cooperative or dividend plan, ” are used as convertible terms. But if they are not, and they imply two plans, then both are embraced in the body of the act, and as the cooperative plan is named in both the title and the enacting clause, the cooperative plan is embraced in both, and we have seen that appellants were conducting their business on the cooperative plan.

Finding no error in the record, the judgment of the court below is affirmed.

Judgment affirmed.