author: Windes, J.:

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

    Elmer E. Beach, et al. vs. Chicago Telephone Company.
    (October 17, 1906.)
    "1. Rates fob Telephone Service-—Power oe Court to Fix. The court has no power to- fix reasonable rates and charges for services performed by a public utility company.
    2. Telephone Companies—Right of Subscriber to Attach Own Equipment. A provision in a contract between a telephone company and its subscriber that the subscriber shall not attach to the telephone company’s wires any equipment or apparatus, not furnished by such company, is a valid regulation, and the subscriber is not justified in installing his own equipment.
    3. Same. This is true even though such attachments do not interfere with the company’s service, as a multiplication of such attachments might seriously interfere with the efficiency of the service.
    4. Same—Unreasonable Charges for Installation of Extensions. Nor is it material that the telephone company makes unreasonable charges for the installation of such attachments.
    '5. Same—Injunction. The subscribers are entitled to an injunction restraining the telephone company from interfering with their telephone service, conditioned, however, upon such subscribers removing the foreign attachments from their telephone.
    Bill for injunction. Gen. No. 246,129. Heard before Judge Thomas G. Windes.
    Statement of facts.
    The bill was filed by complainants to restrain the défendants from interfering with the complainants’ telephone service. The bill alleged that the complainants were engaged in the general practice of the law and for that purpose occupied -certain offices in the city of Chicago; that the defendant was organized to conduct a telephone business and operated in the city of Chicago under a certain ordinance from the city prescribing the rates for "telephone service; that said defendant has a monopoly of the telephone business in said city; that said defendant required its subscribers to enter into a contract providing for the installation of the telephone service, under which contract the subscriber agreed to pay the sum of $175.00 a year; that said contract contained a number of conditions, among them a condition as follows:
    “The lessee agrees not to make, permit or use any electrical or mechanical connections, contrivances or apparatus with the lines, instruments and equipment furnished by the lessor, without the consent of the lessor. ’ ’
    The said defendant also furnished to its subscribers what is known as an extension or branch telephone, by which the subscriber could talle over the telephone wire through said extension without going to the main telephone; that said complainants made application to the defendant for the installation of such extension, but it refused to do so unless complainants would pay certain charges for the same; that said charges were unreasonable and extortionate; that complainants then made application to an independent electrical company for the installation of said extension apparatus, and said •electrical company installed the same and made connection with said defendant’s wires; that the instruments and equipment furnished by said electrical company were in every respect as desirable and as efficient and practicable as those furnished by the defendant, and are made of as good material and constructed in a thoroughly workmanlike manner; that by thé use of said extensions, the use of said defendant’s wires is not in any way increased as but one person can use the telephone at the same time; that after the installation of said extensions, said defendant’s agents entered complainants’ offices, and cut the wires which connected said switch board .and extension of complainants, with the defendant’s wires, and thereupon threatened to entirely discontinue complainants’ service if said wires were again connected; that thereupon said complainants applied to defendant for permission to attach its extension system to said defendant’s system, and offered to pay a reasonable price for such permission, but said defendant refused to permit said connection under any condition whatever; that the attaching of said system to defendant’s system does not in any way affect the service of the defendant, except to render it more efficient, and does not impose any additional burden on said company or its service, and does not in any way cause it additional expense, labor or time, nor does it require the use of any more or different circuit or service but is a saving of time to said complainants and said defendant; that the use of said system does not interfere with defendant’s service, or that of any of its patrons; that complainants are willing that said defendant should keep said system in repair and have the oversight and care of same, and complainants offer to pay a reasonable charge therefor. The bill prays for an injunction to restrain the defendant from refusing to furnish service to complainants, and from interfering with the said equipment and telephone service, and also that the conditions of the contract with respect to the installation, etc., be declared illegal and void. A preliminary injunction was issued in accordance with the prayer of the bill. A demurrer to the bill was filed and withdrawn, and an answer filed.
    The answer alleges in substance that the use of extension telephones greatly increases the difficulties of successful telephone operation; that a telephone exchange system is a most delicate structure requiring the utmost mechanical and electrical skill to keep it balanced, and the different parts in proper adjustment and relation to each other, and the greater the number of terminals and connecting wires, thé greater the likelihood of interference and interruption of service; that it is necessary for successful telephone operation that all parts of the system should be under one control, and the instruments according to a common standard, and that the company responsible for the successful operation should have the choice of instruments; that any arrangement giving subscribers the right to connect other apparatus to the defendant’s equipment would result in disaster; that the installation of any extension increases the use of the telephone by affording additional convenience to the subscriber and increases the cost of operation to the defendant. Evidence was heard in open court to support the bill and answer, and the decision of the court was rendered on final hearing.

      Beach & Beach, Smoot & Eyer and Julian G. Ryer, solicitors for complainants.

      Soil, Wheeler & Sidley, solicitors for defendant.
   Windes, J.:

As I understand counsel on both sides, they concede the law to be that this court can not in this case fix what it deems a reasonable rate,-—am I right ?

Me. Mocee : Yes.

Mb. Holt: So far as we are concerned, certainly.

The Coubt: Is that the way you look at it, Mr. Beach?

Mb. Beach: Yes.

The Court: I was in doubt all along in the case as to whether the court had any power with-regard to the fixing of rates and inasmuch as counsel on both sides' agree, I will not take the time to investigate the law on the question, inasmuch as I have so many different cases pressing upon me for hearing just now. Neither will I attempt to review the numerous authorities and arguments of counsel in the case. It is. a very interesting case and I would be glad to do it, but there-is a limit to my powers as well as the defendant’s powers.

All through the trial of the case, it was a very uncertain question in my mind as to whether this contract which prevents the complainants in this case from making any foreign-attachments to the defendant’s wires was a valid contract and whether or not the rule of the company in; that regard was; a reasonable one, but after listening to all the arguments in the case, I think, considering the character of the service that the defendant company has to render, the extent of that service and especially the concession of complainants’ counsel in this case—and I think it was a reasonable concession in view of all the evidence in the case—that inferior instruments and improper- installments would have a detrimental effect upon the service that the defendant is performing for the public here, the conclusion is justified that the contract is not an invalid contract, that the regulation of the company in that regard is not an unreasonable one, because to protect its service and make that service practical to its 117,000 subscribers here in Chicago, I think requires that the company not only have the right to inspect and repair all its apparatus but that it should have the complete control of the apparatus and should have the right, under reasonable regulations, to say whether or not there shall be any foreign attachments to its telephone system in the city. Of course, what would be a reasonable regulation in’ the ease of attachment of foreign instruments does not arise in the case and the court could only determine that, I should think, upon a specific case made. And although I think the weight of the evidence is, in this case,' that the complainants’ foreign attaehments0do not seriously interfere with the defendant’s service, it means a great deal more to the defendant to allow these complainants to attach instruments than is involved in this specific ease. If the complainants are allowed to attach foreign instruments, then every other subscriber in the city would have .the same right and I can see that that would be likely to produce at least very serious disturbance and perhaps very seriously affect the service of the remaining subscribers, even if a few thousand only did what the complainants did in this case. I will not go into the details of my reasoning in that regard; suffice it to say that I think the testimony of most of the witnesses—including several of complainants’ witnesses—is such that the results which I have suggested are likely to follow. The arguments of counsel as to the details of the possibilities of the effect upon the service, I think are reasonable arguments.

I have no doubt, from the evidence which has been produced here, that the charge which the defendant is shown to have demanded of the complainants for extension instruments is a very unreasonable charge. I base this upon the schedule of prices charged in other cities and upon the charges made by the defendant itself here in the city. But, inasmuch as counsel have conceded that this court has no right to determine what is a reasonable charge, there is no use of going any further in that regard.

If I am right in the position that the complainants under the contract and under the regulations of the company had no right to make the foreign attachments here, then this bill can not be maintained upon the theory that they have the right to have the status which was in existence at the time of the filing of this bill maintained and the injunction which was issued in that regard in the first instance made perpetual, or at least continued until some time and under certain conditions which it is claimed that the court might specify, because by reason of those foreign attachments the court has no right to give any relief. I think, however, that because the defendant has demanded of these complainants an unreasonable price for the extension instruments,—while because of that the complainants had no right by virtue of their contract and under the regulations of the company to make foreign attachments—they are not deprived of all right to protection in a court of equity. They have a contract here which allows them telephone service “unlimited,” I believe is the expression used in the contract, I have not looked at it—and since the defendant has done what seems to the court an unreasonable thing, I think that the complainants ought to be protected in their telephone service by the main instrument, notwithstanding these foreign attachments, if they will now comply with their contract and disconnect the foreign attachments. They would then be entitled to an injunction against the defendant from interfering with their telephonic service over the one instrument and I think that is the extent to which the court can go in this case. Because of that situation, I do not think it is necessary for the court to go into any discussion or decision as to whether or not there is a remedy at law here by way of mandamus to compel the defendant to do its duty and therefore that the complainant can have no relief at all. So, I think that a decree should be entered in this case allowing the complainants an injunction protecting them in the use of their main instrument according to their contract on the condition that they disconnect the foreign attachments. That will be the decree of the court.

NOTE.

In Gardner v. Providence Telephone Co., 23 R. I. 262, 49 Atl. 1004, 55 L. R. A. 113, it was held that a telephone company, though having a monopoly of the business in a particular city, may deprive a customer of service upon his refusal to discontinue the use, in connection with its wires on his premises, of extension instruments not furnished by. it, where it is able and willing to furnish such instruments as efficient and convenient as the state of the art affords, upon reasonable terms. It was also held that if the company refuses to furnish extensions except at exorbitant rates, the subscriber has the right to install his own equipment.


source: Caselaw Access Project

author: Tuley, J.:

license: Public Domain

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

    Richard J. Kehoe vs. Kehoe, et al.
    (May, 1883.)
    1. Trusts—Masses for the Soul—Statute of Frauds. The decedent deeded certain personal property, upon oral directions that the fund should be devoted to the procurement of masses for the soul of the decedent and his mother. Held, that the trust was not void because not wholly in writing, as the statute-of frauds does not embrace trusts as to personal property, but only as to realty.
    2. Masses for the Soul—Superstitious Uses. At common law gifts or devises for procuring masses are void, as being for superstitious uses.
    3. Same—English Statutes. 'The English statutes concerning the-disposition of property for superstitious uses are inapplicable to our conditions and inconsistent with our institutions, and never became a part of our law. The origin of the Illinois statutes as to the adoption of the common law traced.
    4. Same—Religious Belief. The right of a person to devote his property to what he conceives is a religious purpose, such as. the procurement of masses for the Soul, is just as necessary to the religious liberty guaranteed by the constitution, as the right to believe and worship according to the dictates of one’s own conscience.
    5. Same. A bequest for the procurement of masses for the donor’s soul is a valid bequest.
    Bill to obtain instructions of court as to complainant’s duty as trustee. Heard before Judge Murray F. Tuley.
    For statement of facts see opinion.
    B. W. Clifford, for complainant.

      A. Tripp, for respondent.
   Tuley, J.:

Richard J. Kehoe files his bill to obtain the instruction of the court as to his duty as trustee in reference to certain funds now remaining in his -possession.

John W. Kehoe, a few weeks prior to his decease, made a deed to complainant of certain personal property, upon oral directions or trusts, which were in substance, that the funds should be devoted to the purpose of procuring masses to be said for the soul of the said John W., and for the soul of his mother, now also deceased.

The complainant is ready to carry out the wishes of the donor but the defendants—who would take as legal representatives of the deceased, if no such disposition thereof had been made—contend that the trust is void because it is not wholly in writing; and if it is not void for that reason, that it is void because the funds were given for a superstitious purpose or use.

The statute of frauds is relied upon to sustain the first objection, but as that statute does not embrace trusts as to personal property, but only, as to realty, the point is not well taken.

As to the second point, the defendants contend that as our state has adopted the common law and statutes of England prior to fourth year of James I, excepting certain specified statutes concerning usury and. frivolous suits (see Revised Stat. Chap. 28) that the decisions of the English courts based upon the statute, 1 Edward VI, holding that gifts or devises for 'procuring masses, etc., are void, as being for superstitious uses, will be followed by the courts of this country.

Eedfield in his learned treatise on the law of wills, after stating the doctrine, as above, of the English courts says, “we understand this to be the general view of the law in the American states.” 2 Redfield on Wills, see. 3, ch. 5, etc.; Story’s Eq. sec. 1168. Other text writers taire the opposite view, and hold that the American courts should not follow the English courts in thei^ decisions as to what are superstitious uses. Perry, Trusts, sec. 715; Hill, Trustees, note p. 455; Williams, Executors, p. 1055.

No American decisions of courts of last resort have been cited by any of the text writers, and the researches of counsel in this case, as well as my own, have failed to find any.

How did this doctrine of superstitious uses originate, and upon what is it founded ?

Two. English statutes were passed about the period of the reformation, concerning the disposition of propérty for uses then considered superstitious. The first was that of 23 Henry VIII, A. D. 1532, which was about four years after the clergy had acknowledged Henry VIII to be the supreme head on earth of the church, which provided that all uses thereafter declared of land (except leaseholds of 20 years) to the intent to have perpetual, or the continual service of a priest, or other like uses, to be void; and the 1st Edward VI, chap. 14, A. D. 1547, declared the king entitled to all real and certain specified personal property theretofore disposed of for the perpetual finding of a priest or maintenance of any anniversary or obit, or other like thing, or any light or lamp at any church or chapel.

These statutes were passed at a very troubled period of English. history in religious matters. Henry VIII had just severed the connection between the English church and the pope at Eome, and had united to the lringly power, that of the head of the church.

' While these two statutes were aimed at the practices of the Catholic church, yet the Catholic who denied the supremacy of the king as the head of the church, and the non-conformist were alike persecuted, not only by religious edicts, but by all the power that parliament could exercise.in favor of the newly established church.

It will be noticed that there was no statute making dispositions of personal property to such uses void; that while the 23d of Henry VIII, was prospective, it only applied to assurances of land to churches and chapels, and that of 1st Edward VI, was limited to dispositions of property real and personal theretofore made.

Nevertheless, the English chancellors, many of the earlier of whom were ecclesiastics, and the English judges being always adherents of the established church, and undoubtedly imbued with that religious feeling which had induced such legislation, easily found in the absence of any express statute, what they termed “a public policy” or “a policy of the law,” which enabled them to declare absolutely void all dispositions of property, whether real or personal, given or devised for the uses specified in the two statutes—or for uses which they deemed to come within the spirit of the statutes—such as “legacies to priests to pray for the soul of the donor.” “Por the bringing up of poor children in the Roman Catholic faith,” etc. Attorney General v. Powers, 1 B. & B. 145; West v. Shuttleworth, 2 M. & K. 684; In re Blundell’s Trust, 31 L. J. Eq. 52; Cary v. Abbott, 7 Vesey, 490; Rex v. Lady Portington, 1 Salk., 162, in 4 Wm. & Mary; De Themmines v. De Boneval, 5 Russell, 289.

When judges undertake to decide cases not upon the law, but upon what they consider “public policy,” or the “policy of the law, ’ ’ they stand upon very slippery ground. This is strikingly exemplified by the strange inconsistency of the English decisions as to what are superstitious uses, one vice-chancellor, upon the ground of public policy holding a devise for the purpose of aiding in the publication and circulation of “Baxter’s Call to the Unconverted,” to be void because for a superstitious use; while Lord Romilly held upon the like ground of public policy, that a trust for propagating the sacred writings of Joanna Southcote valid, and not for a superstitious use, notwithstanding these writings averred that Joanna Southcote was with child by the Holy Ghost. Attorney General v. Baxter, 1 Ver. 248; Thornton v. Howe, 31 Beav. 14.

The Irish chancery courts, uninfluenced by any consideration of a “public policy” to oppose Catholicism, have not followed the English courts, but have held, in two cases, devises of personal property to procure masses to be said for the soul of the donor to be valid. Read v. Hodgens, 7 Irish Eq. 17; Com’rs v. Walsh, 7 Irish Eq. 34 and note.

The history of this statute of ours adopting the common law and statutes of England, and of the country at the time of its adoption, should also be considered in determining whether or not the statutes 23d Henry VIII and 1st Edward VI, ever became a part of our law; and if they did, whether or not the decisions of the English courts as to superstitious uses should be followed in this country.

In May, 1774, the people of Virginia assembled in a convention to sever the political relations that bound them to the mother country. The celebrated bill of rights and constitution of the commonwealth of Virginia was then adopted. The convention adopted several ordinances deemed necessary to the changed relations, and among others, one adopting the common law and statutes of England prior to 4th year James I. The reason why that date was fixed upon was, I presume, because in that year 1607, the first permanent settlement of Virginia was made, at Jamestown; the theory being that the colonists brought with them the common law and statutes as it then existed.

“Prom the first the colonists of America claimed the benefit of the common law. * * ® The acts of parliament passed after the settlement of a colony, were not in force therein unless made so by express words or by adoption.” Cooley, Const. Lim. 23 and note.

Although the established church of England was by law that of Virginia from its earliest colonial days, the same convention that adopted the ordinance, also adopted a provision in the bill of rights which declared “that all men are equally ■entitled to the free exercise of religion according to the dictates of conscience, and that it is the mutual duty of all to practice Christian forbearance, love and charity toward each other.”

It is apparent that the sentiment of the convention was in favor óf absolute freedom in religion.

The history of the colonies’ and of the then passing events, teach us that it was the sentiment and policy of the country. The war for independence was raging and Catholic Maryland and Episcopal Virginia were then fighting side by side the great battle for both civil and religious liberty.

This statute, Revised Statutes, ch. 28, was first adopted in 1807, by the territory of Indiana, which then embraced the now states of Illinois and Wisconsin. The northwestern territory, once a part of Virginia, was largely settled by that people and that fact probably is the reason why the Virginia statute was adopted. Illinois was then an almost uninhabited wilderness, and the 23 Henry VIII and 1 Edward VI, could have no applicability. The present statute was adopted in Illinois in 1819.

It may, “upon authority,” be contended that because of inapplicability and inconsistency with our institutions the statutes referred to never became a part of our law. 1 Jarman on Wills, 386; Carter v. Balfour, 19 Ala. 814.

But even admitting that they did become by adoption a part of our law, yet it must be conceded, considering the history of this statute, adopting the statutes of England, and of contemporaneous events in Virginia and Illinois at the time of its passage, that neither Virginia or Illinois intended to adopt the doctrine of the English courts as to superstitious uses as a part of their laws.

The question being freed from the force of “precedents” must be decided upon principle.

In the United States, where no discrimination is made in law between the professions of any particular religious creed; where there is an absolutely free toleration of all religious opinions and modes of worship, can any such thing as a superstitious use be said to exist?

Who is to decide whether or not a use, as connected with the religious belief of the donor is, or is not superstitious ? Must it be decided according to the sectarian views of the chancellor ?

Nor is the question here, whether or not the doctrine of a purgatory is well or ill founded; or whether or not masses for the souls of the departed are efficacious.

Who can penetrate the life beyond and say that there is no-purgatory? This property was appropriated -by the donor to a use in accordance with his religious belief. That there is a purgatory, and that masses for the souls therein are efficacious, is a part of the belief of those professing the Catholic religion. ,

In the formulary of faith of Pius IV, which is still that of the unchangeable church, and which persons becoming members of the church are expected to give their adhesion to, I find the following:

“I. prof ess likewise that in the mass there is offered to God a true, proper and propitiatory sacrifice for the living and the dead. * * * I firmly hold that there is a purgatory and that the souls therein detained are helped by the suffrages of the faithful.”

This being the donor’s belief, why should not his desires-be carried out? It has become a maxim of the law that a man may do what, he will with his own. The only limitations; are that he does not violate the law in so doing, nor devote his property to an immoral purpose. A person may gratify any whim or caprice, religious or irreligious, that he may desire. With the wisdom of his act the law has no concern.

The legislature has not declared such a disposition of this; property illegal.

Neither the legislature nor the court has the power to declare that any religious use is a superstitious use.

With us there is a legal equality of all sects, all are equally orthodox. To discriminate and say what shall be considered a pious use, and what a superstitious use would be to infringe-upon, the constitutional guarantee of perfect freedom and equality of all religions.

The right of a person to devote his property to any purpose which he believes to be a religious purpose, is just as necessary to the religious liberty guaranteed by the constitution, as is the right to believe and worship according to the dictates of one’s own conscience.

The wish of the donor must be followed, and the funds appropriated to the procuring of masses to be said in accordance with his instructions.

Note.—As to bequest for the procurement of masses for the soul, see note in 25 L. R. A. 360, and also 5 Wis. Leg. News, 416.—Ed.

       Laws of Illinois, 1819, p. 1.


author: Per Curiam:

text:
      (Circuit Court of Cook County.)

    People vs. Richards & Kelly Manufacturing Company. And fifty-six other similar cases.
    (December 12, 1900.)
    1. Statutes—Repeal by Implication. In 1891 the legislature passed an act in reference to trusts and combines. In 1893 this act was amended by adding two new sections. On the same day the legislature passed an entire new act upon the same subject. Held, that the act of 1893 did not repeal the act of 1891, as such was not the intention of the legislature.
    2. Constitutional Law—Class Legislation. In 1897 the legislature amended section one of the act of 1891 by adding a proviso, that in the mining, manufacture or production of articles of merchandise the cost of which is mainly made up of wages, it shall not be unlawful to enter into joint arrangements of any sort, the principal object or effect of which is to maintain oi increase wages:

      Held (1) That section one as amended was in effect an amendment of the General Incorporation Law, and operated as an amendment of some but not all of the charters of the corporations incorporated under that law and therefore was prohibited by section 2, article 2, of the constitution of 1870.
    (2) That section one as amended was unequal and partial legislation forbidden at common law and in violation of the constitution of the state, and of the 14th amendment to the Federal constitution, which prohibits a state from denying to any person the equal protection of the laws. One judge dissenting upon the proposition that the entire section was void on account of the unconstitutional proviso.
    :3. Corporations'—Reserved Power to Regulate. Nor can the act be justified by the provisions of section 9 of the General Incorporation Law, which reserves to the general assembly the power to regulate all corporations formed under the act. The legislature has the right to classify all corporations, but such classification must not arbitrarily discriminate between corporations in substantially the same situation.
    4. Statutory Construction. In construing statutes the intention of the legislature is to be deduced from every part of the statute.
    •5. Constitutional Law—Exemption of Building and Loan Associations. The exemption of building and loan associations from the operation of a law requiring corporations to make an annual report that they are not a party to a trust or combine is not an arbitrary classification and does not invalidate the law.
    -6. Evidence—'Self-incrimination—Immunity. Where the officers: of a corporation are compelled to file an affidavit that the corporation is not a member of any trust or combine, and it is provided that no corporation or individual shall be subject to any criminal prosecution by reason of anything truthfully disclosed by such affidavit, the immunity clause is sufficiently broad to protect the corporation and its officers, and such law is not obnoxious to the provisions of section 10, article 2, of the Illinois constitution, which provides that no person shall be compelled in any criminal case to give evidence against himself.
    ‘7. Same—Criminal Case. The term “criminal case” is broad enough to include any prosecutions for penalties or forfeitures.
    '8. Constitutional Law—Effect of Unconstitutional Section. The fact that one or more sections of a law are unconstitutional does not affect the entire law where the remaining sections make a complete law in themselves.
    Actions of debt. Gen. No. 200,636 et seq. Heard on demurrer before Judges Arba N. Waterman, Murray F. Tuley .and Edward F. Dunne sitting en banc.

    Statement of case by court.

      This is an action of debt brought under what is known as the anti-trust statute to recover the penalty of $50 per day for the failure of one of the defendant’s officers to make answer to the letter of inquiry of the secretary of state as to whether the corporation had become a member of any trust, combination, etc.
    In 1891 an act was passed by the general assembly, entitled' “an act to provide for the punishment of persons, copartnerships or corporations forming pools, trusts and combines, and! mode of procedure and rules of evidence in such cases.”
    Section 1 of that act, in substance, provided that if any corporation, partnership, individual or other association of persons should create or enter into and be a member of or a party to any pool, trust, agreement, combination, etc., “with any other corporation, partnership, individual or any other person or association of persons, to regulate or fix the price of any article of merchandise or commodity, or shall enter into, become a member of or a party to any pool, agreement, contract, combination or confederation to fix or limit the amount or quantity of any article, commodity or merchandise to be-manufactured, mined, produced or sold in this state, such corporation, partnership or individual or other association of persons shall be deemed and adjudged guilty of a conspiracy to-defraud, and be subject to indictment and punishment as provided in this act.” Other sections of the act imposed certain fines and penalties for violation of the act, running from $500 to $10,000, and authorized the recovery of the fine by an action of debt in the name of the people of the state of Illinois.
    In 1893, on the 20th of June, a law was approved amending the act of 1891 by adding to it two sections, one known as section la, and the other as section 75.
    Section la provided, in substance, that “it shall be the duty of the secretary of state, on or about the first day of September of each year, to address to the president, secretary or treasurer of each incorporated company doing business in this state, etc., a letter of inquiry as to whether the said corporation has all or any part of its business, or interest, in or with-any trust, combination'or association of persons or stockholders, as named in the preceding provisions of this act, and to require an answer under oath of the president, secretary or treasurer, or any director of said company,” a form of affidavit, to be enclosed with the letter of inquiry as set out in the section. And, further provides that “on refusal to make oath in answer to said inquiry, or on failure to do so within thirty days from the mailing thereof, ’ ’ it shall be the duty of the secretary of state to certify the fact to the attorney general, whose duty it shall be to direct the state’s attorney of the county wherein such corporation is located, and it shall be the duty of the state’s attorney at the earliest practicable moment, in the name of the people, to proceed against such corporation, “for the recovery of a penalty of $50 for each day after such refusal to make oath or failure to make said ■oath within the thirty days from the mailing of said notice.” Or, that the attorney general may “by any proper proceedings in a court of law or chancery, proceed upon such failure or refusal to forfeit such charter of such incorporated company * =s =::= and to revoke the rights of any foreign corporation located herein to do business in this state.”
    Section 76, in substance, provided that the secretary of state at any time, if satisfactory evidence came to him that “any company or association of persons * * has entered 'into a,ny trust, combination or association in violation of the preceding section of this act, to demand that it shall make the affidavit as above set forth in this act.” (Section 7a.)

    Then follows a saving clause as follows: “Provided, that no corporation, firm, association or individual shall be subject in any criminal prosecution by reason of anything truthfully disclosed by the affidavit required by this act, or truthfully disclosed in any testimony elicited in the execuution thereof.” And contains the further proviso, “Provided that corporations organized under the building, loan and homestead association laws of this state are excluded from the provisions of this act.”.
    In 1897 another amendatory act was passed providing that section 1 of the act of 1891 should be amended to read as follows:
    “Section 1. Be it enacted by the people of the state of Illinois represented in the general assembly: That section one of an act entitled, ‘ an act to provide for the punishment of persons, partnerships, or corporations forming pools, trusts and combines, and mode of procedure and rules of evidence in such cases,’ approved June 11, 1891, in force July 1, 1891, be amended to read as follows: If any corporation organized under the laws of this or any other state or country for transacting or conducting any kind of business in this state, or any partnership or individual or other association or persons whosoever, shall create, enter into, become a member of or a party to any pool, trust, agreement, combination, confederation or understanding with any other corporation, partnership, individual or any other person, or association of persons, to regulate or fix the price of any article of merchandise or commodity, or shall enter into, become a- member of or party to any pool, agreement, contract, combination or confederation to fix or limit the amount or quantity of any article, commodity or merchandise to be manufactured, mined, produced or sold in this state, such corporation, partnership or individual or other association of persons shall be deemed and adjudged guilty of a conspiracy to defraud and be subject to indictment and punishment as provided in this act;” and concluding with the following proviso (the addition of which proviso was the only change made in the section):
    “Provided, however, that in the mining, manufacture or production of articles of merchandise, the cost of which is mainly made up of wages, it shall not be unlawful for persons, "firms or corporations doing business in this state to enter into joint arrangement of any sort, the principal object or effect of which is to maintain or increase wages.”
    On the same day that amendment to the act of 1891 was passed, to-wit: the 20th of June, 1893, the legislature passed an act entitled, “an act to define trusts and conspiracies against trade,” declaring contracts in violation of the provisions of this act, and making certain acts in violation thereof misdemeanors and prescribing the punishment therefor, etc.

      Charles S. Deneen, state’s attorney for the People.

      Levy Mayer, for defendants.
    The court after malting the foregoing statement rendered the following opinion:
   Per Curiam:

The demurrer to the declaration in this case raises the-question of the constitutionality of the trust act of 1891, as amended by the acts of 1893 and of 1897, respectively, and whether the trust act of 1893 does not repeal the trust act of 1891.

It is contended that an act passed in 1893 defining “trusts and conspiracies against trade,” etc., which it is alleged is a revision of the entire subject matter of trusts and conspiracies against trade, operates as a repeal of the act of 1891.

That the legislature did not intend such an effect is manifested by the fact that at the same session, on the same day, the act of 1891 was amended by adding two sections, to-wit r section 7a and section Tb, and that the legislature again in 1897 amended the act of 1891, treating in both amendments the act of 1891 as being in full force and effect.

It will be observed as a singular fact that while the act of 1893 defines trusts and conspiracies, etc., it does not in express terms prohibit the entering into or forming of such trusts and conspiracies. Sections 2, 3, 4 and 5 of this act prescribe certain penalties for violations of the act. As nothing is either commanded or prohibited therein, there can be no violation thereof. Except as an act defining a trust, it is an unique specimen of legislative abortion.

We see no difficulty in construing the act of 1891, as amended, and the act of 1893, defining trusts and conspiracies, so that they can both stand, and are of opinion that there is not any fatal repugnance between the two.

Section 1 of the act of 1891, as amended in 1897, is unconstitutional and void for the following reasons:

First. Because, in its legal effect, it is an amendment of the general incorporation law authorizing the formation of corporations (chap. 32 of the Rev. Stat., entitled “an act concerning corporations”), and operates as an amendment to the charters of some, but not all, of the corporations incorporated under said general law, and, therefore, is a special law, prohibited by sec. 2, art. 2, of the constitution of 1870, which prohibits the creation, change, or amendment, by special law, of the charter of any corporation, excepting those for charitable, educational, penal or reformatory purposes.

By the same section (1), it is provided that “the general assembly shall provide by general laws for the organization of all corporations hereafter created.”

In the general law passed in pursuance of that requirement of the constitution, there was in section 9 of the act a reservation as follows:

“The general assembly shall have at all times power to prescribe such regulations and provisions as it may deem advisable, which regulations and provisions shall be binding upon any and all corporations formed under this act.”

Our supreme court has held that this general power must be exercised by general law, and cannot be exercised by a special law. Braceville Coal Co. v. People, 147 Ill. 66.

It is, however, urged on behalf of the plaintiff that the general assembly has the power to classify corporations for the exercise of the reserved power; to prescribe “such regulations and provisions as it may deem advisable,” and also: for the exercise of the police power of the state, and that section 1 of the act of 1891, as amended, is a proper classification: of corporations for either of such purposes.

The power of the general assembly to classify corporations must be admitted, but is the classification contained in section 1 a proper or legal classification for either of such purposes ?

The amendatory act of 1897 re-enacts, word for word, seetion 1 of the act of 1891, and adds thereto the following proviso :

“Provided, however, that in mining, manufacture or production of articles of merchandise, the cost of which is mainly-made up of wages, it shall not be unlawful for persons, firms or corporations doing business in this state to enter into joint arrangements of my sort, the principal object or effect of which is to maintain or increase wages.”

While the general assembly has the power to classify corporations for the exercise of the reserved power contained in section 9 of the corporation act, or for the exercise of the police power of the state, and to determine what is a proper classification for such purposes, yet its determination is subject to review by the courts. Frorer v. People, 141 Ill. 171.

The power of the general assembly to classify corporations for either of the purposes aforesaid is subject to the limitation that such classification must not arbitrarily discriminate between corporations in substantially the same situation, and such determination must rest upon reasonable grounds. Arbitrary selection cannot be justified by calling it classification. Gulf C. & S. F. R. R. v. Ellis, 165 U. S. 150.

Section 1 of the trust act, as amended by the act of 1897, makes the attempt to separate certain mining and manufacturing corporations from all other corporations and to withdraw them from the operation of an act to which the latter are subject.

It is clearly an arbitrary discrimination between corporations, substantially of like character, objects and purposes, and no reason can be perceived why mercantile or transportation of other corporations organized for pecuniary profit should be prohibited from entering into any pool, trust or combination in restraint of trade, or to regulate prices of commodities, while mining and manufacturing corporations producing merchandise, the cost of which is mainly made up of wages, should be permitted to enter into joint arrangements of any sort, the effect of which should be to increase or maintain wages. Such a combination by either class would be equally injurious to the public.

Section 1, as amended, discriminates, not only between" mining and manufacturing corporations, and all others, but also discriminates .between mining and manufacturing corporations engaged in the same business. It divides them into two classes, those the cost of whose output or merchandise is mainly made up of wages; and those the cost of whose output is not mainly made up of wages.

The cost of the output of one manufacturing corporation may be made up of fifty-one per cent, wages, while that of another may contain only forty-nine per cent, df wages. This law permits the former (fifty-one per cent.) to enter into any sort of combination and denies the right of the latter (forty-nine per cent.) to do so. The fluctuations in the price of the raw material might change them from time to time from one class to the other, and thus their rights be determined by the fluctuations of the market for the raw material used by them, respectively.

The classification is one of degree, of the cost of raw material and labor, respectively, and is not based upon any reason or principle.

Second. Section 1, as amended, is unconstitutional for the further reason, that it is unequal and partial legislation which was forbidden at common law and cannot be sustained upon any principle of right or justice.

Says Judge Cooley, “and, if the legislature should undertake to provide that persons following some specific trade or employment should not have capacity to make contracts, or to receive conveyances, or to build such houses as others are allowed to erect, or in any other way to make such use of their property as was permissible to others, it can scarcely be doubted that the act would transcend the due bounds of legislative power even though no express constitutional provision could be pointed out with which it would come in conflict. To forbid to an individual or a class the right to the acquisition or enjoyment of property, in such manner as should be permitted to the community at large, would be to deprive them of liberty, in particulars of primary importance to their 'pursuit of happiness,’ etc.” Cooley, Constitutional Limitations, 561. The same writer, in the same section, speaks of “Equality of rights, privileges, and capacities” as a “fundamental maxim of government.”

Legislation of this character making arbitrary classifications and discriminations between persons or classes has been repeatedly held to be in violation of sec. 2, art. 1, of the state constitution.

“No person shall be deprived of life, liberty or property without due process 'of law. ’ ’ The words " due process of law” in this connection are held to be synonymous with “the law of the land.”

And this means general public law binding upon all the members of the community under all circumstances and not partial or private laws affecting the rights of private individuals, or classes of individuals. Millett v. People, 117 Ill. 294. See also Frorer v. People, 141 Ill. 171.

In the latter case the court says of the law under consideration in that case, “the same act ‘in substance and in principle, if done by the one’ is lawful, but if done by the other is not only unlawful, but is a misdemeanor punishable by fine,” and holds the law unconstitutional; also holds that “under the guise of the police power a person cannot be- deprived of a constitutional right,” and that “it is impossible that under that power what is lawful if done by A, if done by B, can be a misdemeanor, the circumstances and conditions being the same.” Among the decisions in this state, holding legislation of this character unconstitutional, may be cited the following: Braceville Coal Co. v. People, 147 Ill. 66; Ritchie v. People, 155 Ill. 98, and the decisions upon the Barbers’ Act; Eden v. People, 161 Ill. 296.

Such a law violates the 14th amendment to the Federal constitution, which prohibits a state from denying “to any person equal protection of the laws.” Gulf C. & S. F. R. R., 165 U. S. 150; In re Converse, 137 U. S. 624; Low v. Rees Printing Co., 41 Neb. 127, 59 N. W. 362; human v. Hitchens, 90 Md. 14, 44 Atl. 1051.

Two of the judges are of the opinion that section one must be held to have been amended by the Act of 1897, and that as amended, it must be held unconstitutional and void for the reasons before stated.

The principle of construction requires the sound interpretation and meaning of the statute, taking into consideration the enacting clause, the saving clause and provisos together with the title of the act. The intention js to be deduced from the whole and every part of the statute taken and compared together. People v. Gaulter, 149 Ill. 39; Dupee v. Swigert, 127 Ill. 494; Mason v. Finch, 2 Scam. 223; Davis v. Hayden, 3 Scam. 35; People v. I. & M., 3 Scam. 153; Belleville v. Gregory, 15 Ill. 20; Zarresseller v. People, 17 Ill. 101; Way v. Way, 64 Ill. 406.

The other of the three judges holds as follows:

That the question as to whether section 1 of the act of 1891 is still in force is not necessary to a decision of the demurrer to the declaration in this case.

Also, that—as shown elsewhere in this opinion—all the virus of unconstitutionality of this trust act is to be found in the “proviso” contained in the amendment of 1897, and that section 1 may be preserved by holding the entire amendatory act of 1897 unconstitutional and void, or that the “proviso” may be rejected, because repugnant to the purview of the act or section, and cannot stand without rendering the act (or section) inconsistent and destructive of itself. The result would be the same in either case—that part of the law which is not obnoxious to the constitution stands,'—while that part which infringes it is repealed. An amendatory act, which is unconstitutional and therefore void, should not be held to affect an original act which is constitutional. A void thing is no thing and can have no effect whatever.

The judges concur in the opinion that the exemption of the loan and homestead association contained in the proviso to sec. 75 in the amendatory act of 1893, does not affect the validity of the act of 1891 as amended by the amendment of 1893.

That proviso must be held limited in its effect and operation to the provisions of the amendatory act, see. 7a and sec. 75. De Graff v. Went, 164 Ill. 485.

This construction will exempt loan and homestead associations only from the duty to make reports as required in such amendatory act. Loan and homestead associations are a class to themselves, different in many particulars from all other corporations. The general assembly has legislated for that class and has taken such supervision over them as rendered it in its opinion unnecessary that such associations should be brought under the operation of the act of 1891 as amended in 1893. The exemption or classification is not arbitrary and was within the power of the legislature. See the Commission Merchant case, 183 Ill. 226 (Lasher v. People).

It is contended by the defendants that the amendment made in 1893, see. 7a, violates sec. 10 of art. 2, of the constitution, “No person shall be compelled iff any criminal case to'give evidence against himself.”

Thisis substantially the same as the fifth amendment to the Federal constitution, “Nor shall any person be compelled in any criminal case to be a witness against himself.”

There can be no doubt under the authorities as to the correctness of this position, itnless the clause of the act granting immunity is broad enough to prevent any prosecution for penalties or forfeiture in any proceeding at law or equity founded upon or growing out of disclosures made by the affidavit required by said sec. 7a to be made in response to the letter of the secretary of state. The immunity clause under the statute is in the following language: “No corporation, firm, association or individual shall be subject to any criminal prosecution by reason of anything truthfully disclosed by the affidavit required by this act, or truthfully disclosed in any testimony elicited in the execution thereof.”

In our opinion this clause is broad enough to protect the corporation and officer or officers making the affidavit, not only against any criminal prosecution, strictly speaking, but also against any prosecution to collect any fine, or against any action of debt to recover any penalty, or against any proceeding at law or in equity to enforce a forfeiture of the charter of the corporation, which may be brought by reason of anything truthfully disclosed in the affidavit required in the act, or disclosed in any testimony elicited in the execution thereof.

Whether the action or proceedings be in form criminal "or civil, 'it is immaterial if it be brought to punish the corporation or the official; if the end sought is punishment the action or proceeding is ex delicto in its nature, and it may be classed as a criminal proceeding, whatever its form. Boyd v. United States, 116 U. S. 616, Coffey v. United States, 116 U. S. 436; Counselman v. Hitchcock, 142 U. S. 547; Brown v. Walker, 161 U. S. 591.

Our attention has been called to the case of State of Missouri v. Simmons Hardware Co., 109 Mo. 118, 18 S. W. 1125, where a trust act was construed containing sections—it is alleged—of which the present section (7a) is a copy, in which ease the court held the act unconstitutional, but we are unable to find that the Missouri statute contained any immunity clause whatever and is therefore not in point.

It is, however, contended by counsel for'the defense that under this construction, if a corporation (or one of its officials) makes a report under the statute, showing it to be a party to a combination in restraint of trade, or to be in a trust, instanter the crime is disclosed, the corporation or official is absolved from all liability to punishment, criminal, penal or forfeiture. This may be true and it may further be true that the legislative department supposed the benefit to accrue from publicity of the crime would be sufficient. It is for the general assembly to decide upon the wisdom or policy of such legislation and not for the courts.

But assuming that section 1 of the act of 1891, as amended by the amendment of 1897, is unconstitutional, and therefore void; it does not follow that the whole act falls to the ground.

The proviso which, in the opinion of the court, makes section 1 unconstitutional, is declared by the legislature to be an amendment to section 1 and must be construed as applying only to section 1. “A proviso must be construed to qualify what is affirmed in the body of the act, section or paragraph which precedes it.” Boone v. Juliet, 1 Scam. 258.

Eliminating section 1 from the act as unconstitutional and section 4, which fixes penalties for violation of section 1, there still remain sections 2, 3, 5, 6, 7, 7a, 7b and section 8.

These sections, with the caption or title of the act, make a complete law in themselves, and do not seem to be open to the objections which we have noticed in connection witlnsection one.

Section 2 provides that it shall not be lawful for any corporation to issue or to own trust certificates, or for any corporation, agent, officer or employes, or the directors or stockholders of any corporation, to enter into any combination, contract or agreement with any person or persons, or with any stockholder or director thereof, the purpose and effect of which combination, contract or agreement shall be to place the management or control of such combination or combinations, or the manufactured products thereof, in the hands of any trustee or trustees, with the intent to limit or fix the price or lessen the production and sale of any article of commerce, use or consumption, or to prevent, restrict or diminish the manufacture or output of any such article.

Section 3 provides penalties for any violation of the act.

Section 5 makes any contract or agreement in violation of any of the provisions of the act absolutely void.

Section 6 declares that any purchaser of any article of commodity from any corporation transacting business contrary to the preceding section, shall not be liable for the price thereof.

Section 7 provides a method for the recovery of the fines imposed.

Section 7a provides for reports to be made to the secretary of state, and provides penalties for the refusal of a corporation to make such report.

No constitutional objections have been urged by counsel for the defense to any of these sections, save and except the objection made against section la; that it compels a corporation, in violation of the constitution of the United States and the state of Illinois to give evidence against itself.

This objection, as we have before pointed out, is removed by the immunity clause contained in the section. If complete immunity is afforded the corporation and its officers we can see no reason why, under the power reserved by the state in section 9 of the corporation act, the legislature cannot prescribe, in the exercise of the police power, a regulation requiring corporations to make the reports called for by section la of this act. Because one section of the statute is unconstitutional it does not follow that other sections of the same act, which are within the powers given by the constitution, should not be enforced. Nelson v. People, 33 Ill. 390; Donnersberger v. Prendergast, 128 Ill. 229.

The general assembly may impose the duty upon any officer of a corporation to make report of its affairs and doings to the same extent it could impose such duty upon the corporation, and may make the corporation liable for the failure of such official to perform such duty.

For the purposes of this demurrer, it is sufficient to hold that section la (of the amendment of 1893), which imposes the duty upon certain officials to make answer to the letter of inquiry of the secretary of state, remains in force, and that the action of debt will lie to enforce the penalty prescribed for a failure to perform such duty.

We have given the question raised in this case mature consideration, as we regard it as of the gravest nature, involving, as it does, .the question of the dominion of.the state over corporations which it has created.

The demurrer of defendants must be overruled; rule on defendants to plead in ten days.

       Note.—The act of 1893 was declared unconstitutional hy the United States supreme court in Connolly v. Union Sewer Pipe Co., 184 U. S. 540.—Ed.

       In so far as the court holds that the entire section as amended is void the decision is clearly erroneous. An unconstitutional amendment can have no effect on the original law.—Ed.

       The amendment of 1897 was afterwards declared unconstitutional in Butler Street Foundry and Iron Co. v. People, 201 Ill. 236.—Ed.

       The same conclusion was reached in Butler Street Foundry and Iron Co. v. People, 201 Ill. 236.—Ed.


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

    Minnie C. Jensen vs. Paul C. Jensen.
    (April 25, 1899.)
    1. Attorneys—Conduct of. The practice of attorneys soliciting cases on contingent fees condemned.
    2. Divorce—Setting Asms Decree of—Procuring Absence op Defendant. Where a party obtains a decree or judgment in the absence of the opposite party, who has been led to believe that his case was: not to be heard at the particular time, the court will set such judgment or decree aside where the case was heard in such party’s absence.
    3. Decree of Divorce—Setting Aside Where Defendant Guilty of Adultery. Where a decree of divorce has been awarded, the court will not set the same aside on the petition of the defendant, where such defendant has been guilty of adultery, as, if a new trial were ordered, the decree would be the same.
    4. Same—When Set Aside—Must Show Ground of Defense. A court will not set aside a decree of divorce on the petition of the defendant unless a reasonable ground of defense is shown.
    5. Same—Adultery of Defendant. Where a defendant who is seeking to set aside a decree of divorce is charged with adultery, the court should give such defendant an opportunity to be heard where there is a reasonable doubt about the matter.
    6. Alimony—How Affected by Adultery. Where a defendant seeking to set aside a divorce decree is charged with adultery and the illicit relation is apparently continued, the court will not allow alimony.
    Bill of review to set aside decree of divorce. Gen. No. 185,836. Heard before Judge Murray F. Tuley.
    For statement of facts see opinion.

      F. A. Willoughby, F. 8. Murphy and John W. Bants, for complainant.

      John A. Murphy, Jr. and Meek, Meek, Cochran & Munsell, for defendant.
   Tuley, J.:

I was in hopes that I was through with this case. As Justice O’Malley used to observe, “it is the worst ease that ever came up them stairs” without any exception.

Suit was commenced in this court by Dr. Paul C. Jensen to secure a divorce from his wife, Minnie, on the ground of adultery. After occupying the attention of the court a number of days with application for temporary alimony, the case was got to an issue and was put upon the regular trial docket. It was reached in due course of business. When reached, the-defendant was not present nor was her solicitor. The evidence was ex parte and a decree rendered. The defendant, some time afterwards, commenced a proceeding for a bill of review of this decree; publication notice, I believe, waSs obtained upon the doctor, and Judge Smith entered a decree by default setting aside the divorce decree. Answer was filed under the provisions of the statute allowing an answer to be filed where there is no personal service and the issues as made up are now brought before me for hearing. ■

This case is a very singular one in many respects. I will not attempt to analyze the evidence, it is not necessary; sufficient to say, that the evidence shows that the husband here is a very weak man; in fact these contracts that were read in evidence, by one of which it appears that three days after his marriage a man by the name of St. John, whom the husband regarded as a former lover of his wife, and so testified in substance, appears at their home, the home of the husband and wife in this city, and a contract the like of which never was seen in a court of justice was drawn up and entered into by which St. John and the husband agreed to support this woman by her maiden name, to contribute $10 a week towards her support, each pledging himself to keep away from the woman, and if either one failed to make good her support, I believe the substance of the contract is, failing to pay his $10, why, the other was to have free lance in regard to this woman. A husband who could enter into such a contract and also into the contract afterwards apparently made between him and his wife, by which he agreed to surrender about all that he was worth upon her obtaining a collusive divorce from him, shows that he is a very weak man with not enough manhood in him to obtain the respect of any woman. The wife is either a very designing woman, an adventuress, making mankind generally her victims, or else she is the opposite thereof, an honest woman, seeking to make her living, the victim of poverty and adverse circumstances; a prey to designing men, who are always ready to profit by and despoil such women of their means and of their character. Now, which she is I do not know. To believe the evidence adduced •on the part of the husband, she is an adventuress and nothing else; if you believe the evidence adduced by her, she is at least entitled to have that question tried, and if her evidence is true, she is more the victim of poverty and adverse surroundings and unprincipled men than an adventuress.

.The ease has been a development to me, a development of professional life. I recollect once to have seen a play called “High Life Below Stairs.” I think that so far as the legal profession is concerned, this case is a ease of professional life below stairs. It leads to arrests and counter-arrests on the part of the solicitors, charges of fraud, unprofessional conduct on both sides are alleged, and it develops a state of professional life that hitherto, I am happy to say, I have been almost unacquainted with.

Now, this bill is founded upon two allegations; first, that there was fraud used in obtaining the original decree of divorce, and that fraud, in substance, is alleged to consist in this, that her solicitor had in his employ, or in his office, a clerk, or a person, whom he trusted with the duty of keeping the watch of cases and notifying him as eases were reached and particularly with reference to this case, as it appears that the clerk was interested in the fees, he, according to his own testimony, having been one of those men that run around and hunt up divorce cases and accident cases for attorneys and share in the profits, that the attorney may get out of the case; certainly a practice, if not disreputable, not to be commended to professional gentlemen.

That this party in his office had colluded with the attorney for the husband in this divorce case and had purposely kept her solicitor in ignorance of the time of trial. The evidence does not show collusion, so far as Mr. Murphy is concerned, but it does show bad faith on the part of this clerk; it shows treachery on his part, and it shows conclusively to my mind, that hy reason of his conduct, as shown by the evidence, the solicitor for this woman- was not present in this, court, nor was she present.

According to the testimony of her solicitor he never knew of this decree until after the term had expired at which the decree was entered, the decree being entered on the 8th of May and the term ending on . the 23rd; that it was then too late to-apply to this court for a rehearing, the term having expired.

The evidence satisfies me that this clerk knew of it; according to his own statement he knew of it within one or two days after the decree was entered. He did not inform, I believe, his employer, the solicitor of the defendant, .of the entry of the decree until after the 23rd of May.

The obtaining of a default or of a decree or judgment by the non-appearance of the opposite party is one of the strongest cases of fraud found in the books as a ground for setting aside a judgment, if by contrivance, colluding or scheming, the opposite party is led to believe that his case is not to-be heard when it is heard in his absence, and it affords good grounds for setting aside the advantage which the party obtains by the use of such scheming or fraud.

But, if this party were guilty of adultery, there would belittle use in the court setting aside a decree and ordering a new trial in a case where it must result in the same decree.

Now, in order to obtain her relief against a decree thus obtained, she must show that a reasonable ground of defense— not that she is absolutely innocent, but that she has a reasonable ground for defense, a probable cause, and the court, in a proceeding of this kind, ought not to adjudicate whether she-is guilty or not, but that she had such a case as entitled her to be heard and which might possibly result in a contrary decree or judgment to that which was obtained.

The evidence produced on the part of the husband which was ex parte, was sufficient to justify the entering of the original decree, but the main circumstances relied upon in that and which influenced the court in ordering that decree, was-the circumstance testified to have taken place sometime in November, about the 9th, of the husband going to the flat occupied by his wife with two men and finding this party, St. John, in bed at the hour of eleven or twelve o’clock at night in the wife’s bedroom, which was positively sworn to. Mrs. Jensen and St. John, upon their oaths, have denied that any such thing ever occurred. These witnesses are not even here to reaffirm their own testimony in that regard,' and give an opportunity to let the calcium light of cross examination in upon their evidence. They are not produced here in court. I think that that question as to whether that event ever took place and which really formed the ground for the original judgment or decree, ought to be left to a jury and I think I will take the responsibility, as this case will be reopened, of having a jury inquire into that fact. I have always found that a jury that is drawn from the body of the people at large, some from high life and some from low life, from all strata of society, are really more competent to judge of questions of credibility and especially of questions of fact of the nature which have been developed in this case, than even a judge on the bench, no matter how much experience he may have had. I think she is entitled to a hearing before a jury of her countrymen.

Of course, it is a serious thing to convict a woman of adultery unheard, and where there is a reasonable doubt of the matter, I think the court ought to give her an opportunity to be heard, and particularly where there is very strong evidence going to show that by the treachery of an employe of her attorney this default was occasioned at the original hearing.

I have been troubled a good deal upon the question of alimony in this case. Mrs. Jensen is not only charged with adultery with St. John, of which she knew when this original bill was filed, but she has continually since that time, even up to the present day, given grave ground of suspicions by her conduct that that charge of adultery is true. She swears it is not true; he swears it is not true. The jury will determine, but I will allow no alimony to a woman whose husband is seeking a divorce from her on the ground of adultery, who continues, apparently, the illicit relation, or relations giving rise to grave suspicions that that charge of adultery is true.

There will he no alimony in this case from this on. Let the decree be prepared in accordance with the views expressed.