author: McAllister, J.:—

text:
      (Recorder's Court of Chicago.)

    The People ex rel. Dennis Graufield vs. George W. Perkins, Superintendent of the Reform School.
    (1868.)
    1. Municipal Corporations — Jurisdiction of City Court over Reform School Located Outside of City Limits. Although the Reform School of Chicago is beyond the city limits, the recorder’s court has jurisdiction as it is a city court and whatever locality the corporation holds in its character of land proprietor and governs by its common council, is within the territorial jurisdiction of that court.
    2. Statutes, Construction of — Pari Materia. It is a familiar rule of construction that when certain things are specified in a statute and followed by general words as in this case “other writ or process,” nothing will he included under the general words except what belongs to the same class as specified.
    3. Same — Habeas Corpus — Nature of Writ. The writ of habeas corpus is an original writ and not an auxiliary one, differing in this respect from the writs of ne exeat and injunction. Like the writ of certiorari it is one of right and will never be deemed taken away by implication.
    4. Reform School Act of 1863 — Jurisdiction of Judge — What Necessary. Under the Reform School act, the judge does not act as a court but as an officer with special and limited jurisdiction, in which, case there is no presumption in favor of jurisdiction but compliance with every provision of the statute is essential to jurisdiction.
    5. Same — Want of Service — Effect. If the summons provided for by the Reform School act be not served upon the party indicated in the statute, the want of such service defeats the jurisdiction of the officer and renders the commitment void.
    li 6. Constitutional Law- — State as Parens Patriae — Its Power. The power of the state as parens patriae in a proper case, extends only to the placing of others over the child with the same-limited authority as a parent would ordinarily have.
    7. Same — Involuntary Servitude — Bill of Rights — Reform School Act. A reform school act, which purports to authorize others • to seize a child and confine him in prison for many years and compel him to labor for their benefit without a regular trial or an accusation of crime against him, deprives the child of his liberty without “due process of law,” and amounts to involuntary servitude not as a punishment for crime.

      Walter & James V. A. Butler, for the relator.

      Hasbrouck Davis, for the reform school.
   McAllister, J.:—

The writ of habeas corpus was allowed in this case for the purpose of inquiring into an alleged illegal imprisonment of one Dennis G-raufield, a boy a little over fourteen years of age, and who has been confined since the 20th of July, 1866, in the reform school of the city of Chicago. The writ was served on the superintendent at the reform school, and he admitted due service. He appeared, however, by the city attorney, who moved to quash the writ on two grounds, viz:

1. The reform school being beyond the city limits, the court has no jurisdiction.

2. The statute, defining the powers of the court, requires ten days’ notice of the application of the writ.

He also moved that the ease be transferred to the superior court of Chicago.

Neither of the grounds stated for the motion to quash is tenable.

First, then, as to jurisdiction: The recorder’s court is a city court; and whatever locality the corporation holds, in its character of land proprietor, and governs by its common council, is within the territorial jurisdiction of this court. The institution in question is called “The Reform School of the City of Chicago.” The site upon which it stands was, pursuant to authority, given by the legislature, selected and purchased, and is held by the city for that purpose; and the institution, by the same authority, was committed to the full control of the city. This locality is as much a part of the city as any portion of Lake street is; and a crime committed there, if otherwise cognizable by this court, would be as ■clearly within its jurisdiction as if committed in the armory.

Secondly. As to the ten days’ notice: If the position of the city attorney is correct, then, when a person in jail is ready to give bail in eases pending in this court, and desires a writ of habeas corpus for that purpose, he must give the sheriff ten days’ notice, lie' in jail until the time expires, and then the sheriff may, by filing a request, as is done in this case, have the application transferred to another court. The act creating this court clearly gives it power to issue the writ of habeas corpu-s, the same as the circuit court may. The subsequent act relied on declares that “Neither the said recorder’s court, nor the judge thereof, shall grant any writ of ne exeat, injunction, or other writ or process, which said court or judge shall have power to issue in civil eases, excepting original writs of summons, capias, attachment, etc., unless the person against whom such writ is granted shall have ten days’ notice,” etc.

It is a familiar rule of construction that, when certain things are specified in a statute, and followed by general words, as in this case, “other writ or process,” nothing will be included under the general words except what belongs to the same class as those specified. The writs that are here specified are such as are auxiliary to the original process and proceedings. The writ of habeas corpus is not auxiliary to any other writ; but is the original summons. The writ of habeas corpus, like the common-law certiorari, is one of right and will never be deemed taken away by implication. The motion to quash the writ, and transfer the ease to the superior court must be overruled.

We must, then, meet the questions involved on the merits -of the case, viz: Was the boy Dennis Graufield illegally committed to the reform school, and is he there illegally detained? The evidence in the case shows that at the time of his capture he had and still has both father and mother living in this city. His father was and is in good circum•stances, worth, as he states, between $10,000 and $15,000; had a good and respectable home, at which the boy lived, -and had as good parental care as a majority of children in the city. He was not accused, indicted, or convicted of any «crime, but was brought before Judge Jameson of the superior court, acting as commissioner under the reform school act, and, by his order, committed to the reform school, and that commitment is the only legal cause for his caption and -detention relied upon. The city attorney strenuously insists that this commitment is final and conclusive upon the whole world. If this be true, there exists among us a power -of the most dangerous and alarming character. This boy’s parents were well settled and known citizens of the city. 'They were able and willing to take care of him, yet he was seized, and, without their knowledge, taken to the reform school, as it is called, wherein the superintendent claims the right to detain him until he is twenty-one years of age. So, in the same way, by the exercise of this power and its easy abuse, the little boy, of the tenderest of parents, may be seized whenever he has reached the age of six years and a day, and be sent to the same supposed reform school, and there detained in spite of the tears and waihngs of his parents until he is twenty-one. There is no appeal from the decision of the judge, and no writ of error will lie. Even the governor cannot release by pardon, because there is no offense to pardon. The only possible avenue of relief would be through the discretionary action of the board of guardians, which may be composed of men jealous of power or fond of it. Are the free-born subjects of this state, really, by the law of the land, to be placed in a position where, being themselves wholly innocent of crime, and their children likewise innocent, they are to be forced to beg on their knees, before some board, for the privilege of enjoying the custody and society of their own children? These are grave questions, and from the cases that have come before this court may well be asked at every fireside. I propose now to analyze this claim of power, and see whether it have legally any foundation or not.

The father who, by law, is entitled to the custody and earnings of his child during his minority, comes and claims that custody. The respondent says no. By a legal proceeding you have been divested of that right, and it has been vested in me, and shows the commitment of a judge of the superior court to establish his position. If the statute under which this proceeding was had has any validity, it is one not according to the course of the common law or any regular proceedings in the courts. It is a special proceeding. The judge does not act as a court; but as an officer with special and limited jurisdiction, in which case there is no presumption in favor of jurisdiction, but compliance with every provision of the statute essential to jurisdiction must be shown. The eighth section of the original act requires the commissioner to issue a summons or notice to the father of the boy, if living and resident in the city, to appear before him at such time and place as he shall in such summons or notice appoint; and to show cause, if any there be, why the said boy shall not be committed to the reform school. And upon appearance before him of the party named in said summons or order, or if, after due service had of the summons or order, there shall be no such appearance, the said commissioner shall, upon expiration of the time named in said summons or order for said appearance, proceed to examine said boy, etc. Municipal laws, pp. 132, 133. By the fourth section of the act of 1867, in reference to the reform school, the powers and duties of the commissioner are conferred upon the judges of the superior and circuit courts.

Before the judge has jurisdiction to proceed and examine the boy, the summons or notice mentioned must be served upon the father, if a resident of the city, and, in the absence thereof, the judge has no more power or authority to commit than the mayor would have.

The records of the superior court in this case were produced, and no summons or notice appears; none is recited, nor is it claimed that an)”- of the papers are lost. There is upon this point something rather singular. It is not probable that a judge of the high character of Judge Jameson would proceed to commit without he supposed he had complied with the statute in this particular. And, it is quite probable from all that does appear, that he was imposed upon by somebody. The parents swear most explicitly that they, neither of them, had any notice. The respondent says in his return: “I further return that said judge of the superior court of Chicago did issue the summons required by the provisions of said acts, and caused the same to be served prior to the examination of said boy.”

Served upon whom? If it is known upon whom served, why not say upon whom ? It certainly was not the father of the boy. This return and the absence of the pretended summons, together with the fact that the father was not served, gives rise to the suspicion that somebody falsely personated the father, and thus imposed upon the judge. At all events, the want of service defeats the jurisdiction of the officer and renders the commitment void. Burdick v. Blook, 1 Hill (N. Y.) 130, and cases there cited.

But could this commitment be upheld, even if every provision of the statute had been complied with? The nature and character of this so-called reform school have been fully investigated in this court upon the testimony of the assistant superintendent himself, and other evidence. It is called by the pleasant name of school; but is in reality a prison. It is just as essentially a prison as the state prison at Joliet. The inmates are subject to a coercive system of labor, for the benefit of the institution or superintendent; and it is as rigidly enforced as at the state penitentiary. As a prison for juvenile offenders, who have been indicted and convicted, it is far preferable to the jail or bridewell. But I deny the authority of any man, or set of men to seize boys who are innocent of crime, and hold them in prison subject to involuntary servitude. The worst burglar in the state can be ■sent to the state penitentiary for only fourteen years; and yet by this system, a child who has attained the age of six years and one day may he seized and imprisoned like the burglar, subject to the same system of hard labor for fifteen years, although as innocent as when his eyes first saw the light of heaven.

If such a power exist whence is it derived? The learned ■counsel for the respondent says: From the state as parens patries.

Before and at the time of American independence, the sovereigns of England claimed and exercised many prerogatives as parent of the country. Through his court of chancery he appointed guardians for infants and committees for the custody of idiots and lunatics. “The king as parens patries has the general superintendence of all charities; which he exercises by the keeper of his conscience, the chancellor.'"’ 3 Bl. Com. 428. In Wheeler v. Smith, 9 How. (U. S.) 55, 78, the supreme court of the United States, McLean, Justice says: “When this country achieved its independence, the prerogatives of the crown devolved upon the people of the states. And this power still remains with them, except so far as they have delegated a portion of it to the federal government. The sovereign will is made known to us by legislative enactment, and to this we must look in our judicial action instead of the prerogatives of the crown. The state as a sovereign is the parens patries.”

The sovereign will is made known to us by legislative enactments. But it is also expressed by the constitution, which contains many limitations by which the legislative power is ■controlled. Never since the days of the Magna Charta was it lawful for the sovereign of England, as parens patries, to keep infants innocent of crime, imprisoned during their minority. And in this state the power extends only to the placing of others, under circumstances, in the place of parent with the same limited authority. A parent may use moderate chastisement; have custody and control of his children ; hut he cannot keep them in continuous imprisonment.' “When necessary to the discharge of parental duty he may resort to corporal discipline. He may impose such temporary confinement as may be necessary to secure obedience to his reasonable commands, so that it is not prejudicial to the life, limb, or health of the child.” Hurd on Habeas Corpus, 43. Again, on page 45, the same author says:1 ‘ Temporary confinement is allowed as a means of enforcing obedience to reasonable commands. But this power must also be ■exercised with moderation.” Such temporary confinement would not probably be deemed imprisonment within the inhibition of the constitution. Section 8 of article 13 of the •constitution of this state declares: “That no freeman shall be imprisoned or disseized of his freehold liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property but by the judgment of his peers, or the law of the land.”

“It may be received,” says Kent, “as a proposition universally understood and acknowledged throughout this ■country, that no person can be taken or imprisoned; or dis-seized of his freehold or estate; or exiled or condemned; or deprived of life, liberty or property, unless by the law of the land, or the judgment of his peers. The words ‘law of the land,’ as used originally in Magna Charta, in reference to this subject, are understood to mean due process of law, that is, by indictment or presentment of good and lawful men; and this, says Lord Coke, is the true sense and exposition of those words. The better and larger definition of due process of law is, that it means law in its regular course of administration, through courts of justice.” 2 Kent’s Com. 13; Story’s Com. on Constitution, vol. 3, 661; Taylor v. Porter, 4 Hill (N. Y.) 140, 146. “The law of the land, in the bill of rights,” sáys Chief Justice Ruffin in an elaborate opinion delivered in Hoke v. Henderson, 4 Dev. (N. C.) 15, “does not mean merely an act of the legislature, for that ■construction would abrogate all restriction upon legislative .authority. The clause means that statutes which would deprive a citizen of the rights of persons or property without a regular trial according to the course and usage of the common law, would not be the law of the land in the sense of the constitution.”

That the statute in question, which purports to authorize others to seize a boy and confine him in prison for so many years, and compel him to labor for their benefit, without even an accusation of crime against him, is just such a statute as the principles of the bill of rights make void, there can be no doubt. 1 ‘ There shall be neither slavery nor involuntary servitude in this state except as a punishment for crime, whereof the party shall have been duly convicted,” says the constitution, yet there is a system of involuntary servitude rigidly enforced in this institution upon those who have committed no crime, or been subject to any accusation, enforced, too, by all the powers incident to close imprisonment. Nothing but the audacity of corporate power could complacently insist upon carrying out such a statute against innocent boys. “It requires,” says the great luminary of American law, “more than ordinary hardiness and audacity of character to trample down principles which our ancestors cultivated with reverence; which we imbibed in our early education which recommend themselves to the judgment of the world by their truth and simplicity; and which are constantly placed before the eyes of the people, accompanied with the imposing force and solemnity of a constitutional sanction. Bills of right are part of the muniments of freemen showing their title to protection, and they become of increased value when placed under the protection of an independent judiciary, instituted as the appropriate guardian of private rights.” 2 Kent’s Com. 8.

It is considered by the court that Dennis Graufield is unlawfully imprisoned in the reform school of the city of Chicago, and accordingly ordered that he be forthwith discharged therefrom.

NOTE.

In People ex rel. O’Connell v. Turner, Superintendent, 55 Ill. 280, the supreme court held the same law unconstitutional on reasoning similar to that of Judge McAllister in the principal case.

In re Petition of Ferrier, 103 Ill. 367, it was held that the act of 1879, establishing industrial schools for girls who lacked proper parental care, were dependent upon the community for support or were surrounded by vicious influences, was constitutional. The court puts its decision on the ground that the institution created by the statute is in fact a school and not a prison and that the state under the act is only assuming its character of parens patriae in cases where the parents of the girl are incapable guardians of the child’s welfare.

The industrial school act of 1879, was again held to be constitutional and no infringement of the right of personal liberty in County of McClain v. Humphreys, 104 Ill. 378.

In People ex rel. Schwarts v. McLain, the supreme court of Illinois had before it the question of the constitutionality of the Juvenile Court Act of 1899, and an opinion was rendered therein on December 20, 1905. A petition for a rehearing was subsequently filed but while under consideration, the case itself was dismissed and the opinion of December 20, 1905, withdrawn. The opinion although not binding as a precedent is nevertheless of considerable interest, and for that reason it is here reprinted in connection with the above decision. The court in its opinon holds:

1. That a commitment of a boy to a state institution on the sole ground that he has been guilty of a misdemeanor in proceedings to which the parents are not parties, deprives the parents of the right to pursue happiness and of their rights in the boy’s services, without due process of law.

2. Mere violation of law cannot constitute delinquency where there is no such unfitness on the part of the parents to care for the boy as gives the state the right to substitute its care for that of the parents.

3. That the provision for a trial by a jury of six is not unconstitutional since the proceeding is not criminal in its nature, the commitment being to an actual school wherein the state truly assumes the character of parens patriae and not to a prison wherein the boy is really held and punished as for crime. — Ed.

People ex rel. Schwartz v. McLain.

Original petition for habeas corpus by the people, on the relation of Joseph Schwartz, against Nelson W. McLain. Writ granted.

Louis Brandes, for relator. Peck, Miller & Starr and Pence & Carpenter (Merritt Starr and George A. Carpenter, of counsel), for respondent.

Boggs, J. This is a petition for a writ of habeas corpus, filed originally in this court. The petition avers that Samuel Schwartz, a son of the petitioner, of the age of 14 years, is unlawfully restrained of his liberty by the respondent, Nelson W. McLain, in his official capacity of superintendent of the St. Charles Home for Boys. It appears from the pleadings on which the cause has been submitted for decision that the relator, Joseph Schwartz, is a resident, and on the 20th day of June, 1905, was a resident of the city of Chicago; that he was the head of a family consisting of himself, his wife, Rachel, and their son, Samuel; that he (the relator) provided his wife and said Samuel, his son, with a comfortable, quiet and orderly home, and maintained and supplied them with food and clothing, and supplied said Samuel with books and stationery, etc., and caused him to attend the public schools, and that relator in all respects performed and discharged his duties as parent toward said Samuel, and that he (the relator) is a reputable and law-abiding citizen, and that the parents of said Samuel have not been guilty of any act inconsistent with the correct and moral control and custody of their son; that on that day a complaint or petition was filed in the circuit court of Cook county, on the chancery side thereof, charging said Samuel with two violations of the provisions of section 55 of the Criminal Code of the state, in that he made “repeated indecent assaults upon Jennie Coliff and other repeated and indecent assaults upon one Fanny Cohen, all within the past two months and in the city of Chicago, county of Cook, and state of Illinois; that the said Jennie Coliff and said Fanny Cohen were then and there at the time of said assaults, and each of them was, a female child under the age of 14 years; that the said Jennie Coliff then and there resided at 72 Wilson street, in said city of Chicago, county of Cook, and state of Illinois; that said Fanny Cohen then and there resided at 88 Wilson street, in said city of Chicago, Cook county, 111.; that said assaults were, and each of them was, publicly committed in the rear of 92 Wilson street, in said city of Chicago, Cook county, 111., and said assaults were, and each of them was, an act of disorderly conduct and a notorious act of public indecency tending to debauch the public morals; ” that subsequently, in pursuance of proceedings in the said circuit court under said petition, a decree was entered finding said Samuel guilty of the acts of disorderly conduct and of public indecency tending to debauch the public morals, charged against him and in violation of said section 55 of the Criminal Code, and declaring said Samuel to be a ward of said court, and ordering that he be committed to the St. Charles Home for Boys, there to remain until he should arrive at the age of 21 years, unless sooner discharged according to law; and that the respondent restrains said Samuel in said home for boys in virtue of this order of the court.

It appears from the transcript of the proceedings that the order that the boy Samuel should be taken from the custody of the relator, his father, was not on the ground that the relator had in any way failed to provide or care for the said Samuel, or had neglected to exercise proper restraint over him, or that his habits or conduct were injurious to the moral or physical interests of the boy, but solely on the ground the boy had, by disoderly conduct and the acts of- public indecency before mentioned, violated section 55 of the Criminal Code. The relator and his wife, Rachel, the mother of the boy, were cited to bring Samuel, the son, before the court to answer the charges of disorderly conduct and acts of public indecency, but were not made parties to the proceeding, nor were there before said court any charges of the omission of parental duty and care preferred against them, nor did the order entered by the court proceed on the theory the relator or his wife, Rachel, had, by any parental delinquencies, lost the right to keep their son in their family and rear their boy and enjoy his society and receive the benefits of his labor and services. The decree that the boy shall be the ward of the court and should be taken from his home and the custody and care of his parents was based solely on the ground that the boy had committed the misdemeanors aforesaid in violation of the provisions of said section 55 of the Criminal Code, the violation whereof said section 55 provides shall be punished by the infliction of a fine in any sum not exceeding $200 for each offense.

The proceeding in the circuit court, which resulted in the decree committing the said Samuel Schwartz to the St. Charles Home for Boys, was in pursuance of one of the provisions of the act of the General Assembly entitled “An act to regulate the treatment and. control of dependent, neglected and delinquent children,” in force July 1, 1899. 4 Starr & C. Ann. St. Supp. 1902 p. 375. In order to accomplish the purposes indicated in the title, the act provides that a petition in writing, verified by affidavit, may be filed in the circuit or county court, setting forth facts showing that a child in the county is either neglected and dependent or delinquent, and praying for proceedings to be had and taken under said petition for the disposition of such child as shall be found to be neglected and dependent or delinquent. Section 1 of the act defines a delinquent child as follows: “The words ‘delinquent child’ shall include any child under the age of sixteen (16) years who violates any law of this state or any city or village ordinance; or who is incorrigible; or who knowingly associates with thieves, vicious or immoral persons; or who is growing up in idleness or crime; or who knowingly frequents a house of ill-fame; or who knowingly patronizes any policy shop or place where any gaming device is or shall be operated.” Section 9 of the act purports to authorize the court to commit any child so found to be delinquent, if a boy, to a training school for boys, or to “any institution within the county, incorporated under the laws in this state that may care for delinquent children, * * * or to any state institution which may he established tor the care of delinquent hoys.” It was in virtue of this provision of the said act that the said Samuel Schwartz was ordered by the circuit court of Cook county, to be taken from the custody of the relator, his father, and committed to the care of the respondent, as the superintendent of the St. Charles Home for Boys, on the ground that the boy had violated, in the manner hereinbefore related, the provisions of said section 55 of the Criminal Code, and had thereby become deemed to be a delinquent boy, within the meaning of said statute.

If this enactment is effective and capable of being enforced as against the relator, father of the boy, it must be upon the theory that it is within the power of the state to seize any child under the age of 16 years who has committed a misdemeanor punishable under the Criminal Code of the state by fine, or who has violated an ordinance of any city or village of the state, and take him from his ■home and from the custody of his father and the care of his mother and commit him to a state institution which may be established for the care of delinquent boys, and there keep and train and raise him, though the father may have always provided a comfortable, quiet, orderly, and moral home for him, and have supplied him with school facilities, had not neglected his moral training, and had been and was still ready to render to him all of the duties of a parent. We do not think it is within the power of the General Assembly to thus infringe upon parental rights. At the common law and at the time of the adoption of the Constitution of 1870, the father possessed the legal right to the care, custody, and control of his minor children, and was entitled'to the services and earnings of such children. These parental rights cast upon the father, as a corresponding obligation, the duty to maintain, support, and educate the children, and to treat them with kindness and affection. Section 1 of the Bill of Rights (Const. 1870, art. 2, § 1) guaranties protection to the inherent and inalienable rights of men, among these rights being “the pursuit of happiness; ” and section 2 of the same article of the Constitution protects the parent against the destruction of his property rights in the services of his child without due process of law.

The right of the parent to the care and custody of the child has its foundation in the love and affection which nature has implanted in the heart of the father for his offspring. It is one of the strongest and deepest emotions of the human mind and heart, exists as a prompting of nature for the protection and safety of the child, and conduces largely to the happiness, of the parent. It is difficult to define “pursuit of happiness” but it is clear it comprises the right to enjoy the “domestic relations and the privilege of the family and the home.” Black on Constitutional Law, § 204. To guaranty to a parent the right to the pursuit of happiness forbids that he should be deprived of the right to the custody, the association, and the society of his child, or of his right to teach and train the mind of the "child and fit it for the walks of life, unless considerations affecting the public welfare require such rights shall be abridged or surrendered for the general good of the state. The parent may, by reason of his failure to appreciate and perform that which is requisite to the moral, intellectual, and physical welfare and development of the child, forfeit his right to the custody and care of his child. The public welfare is concerned in the culture, education, and moral training of children, and the state may supplant the parent as custodian and protector of the child, if the delinquencies or unfitness •of the parent require that the child shall be deemed the ward of the court, acting for the public. The child may be found to be so possessed of and controlled by wicked degeneracy, or so incorrigibly evil, and the parent so indifferent to the moral and intellectual growth of the child, or so otherwise unfit to he intrusted with the power to train and cultivate the mind and conscience of the child, that it may become lawful to commit the child to the public care and custody. In such an event the right of the parent may he deemed secondary to that of the general public as organized for the safety and welfare of mankind. But no such public considerations are here shown to exist. The boy, Samuel, has been shown to be guilty of offenses which in an older and more matured person would be but a misdemeanor, punishable only by a fine of not exceeding $200 for each offense. He is not a dependent, neglected child. His father has not, by any act or omission on his *part, forfeited his right to care for and enjoy the society of and train his son for the ■duties and responsibilities of manhood. That extraordinary exigency which may justify the state in supplanting the father as the natural custodian and protector of his son does not here exist.

The property right of the father in and to the services and labor •of his son during his minority would also, under the circumstances of this case and under the proceedings here under consideration, to which the father was not a party, be unlawfully infringed by the assumption on the part of the state of the control and custody of the son on the mere ground that the son had committed the misdemeanor in question. The statute here relied upon to justify the detention ■of said Samuel as a delinquent child, under the circumstances of the case, infringed the constitutional rights of the father, and cannot be enforced. What is here said has no reference to the statute regulating the disposition to be made of “dependent or neglected” children. Moreover, it is to be understood we do not hold the statute .regulating the disposition to be made of delinquent children to be unconstitutional in toto and as to every parent or as to all children,, but that under the circumstances of this particular case constitutional rights of the father have been infringed, and therefore the detention of Samuel Schwartz in the St. Charles Home for Boys, cannot be justified or upheld.

There is no force in the contention so strenuously advanced by-counsel for the relator that the proceedings under this statute are criminal proceedings, and that a boy who is the subject of judicial investigation under this statute is entitled to a trial by a jury of 12 men. The proceeding is statutory, and its object is, not the enforcement of the criminal law, but the protection of children. Infants are, in general, in a sense wards of courts of chancery, and the practice and procedure in causes under this statute, affecting,, as they do, the care and custody of minors, and being for the protection of infants, should be that of courts of equity, so far as consistent with the provisions of the statute. The commitment to the home for boys, in cases in which the statute is applicable and is. properly enforced, is not imprisonment as punishment for the violation of the criminal laws of the state or the ordinances of cities and villages, but is merely the assumption of the state, in its capacity of parens patria, of parental authority for the education and reformation of the child, and the home for boys is not to be regarded as. a prison, but is, in fact, a home and a school established by law for the benefit and good of those who are found, under the provisions of the statute, to stand in need of parental care and means of reformation and intellectual-and moral training. Such is the general view of statutes and institutions of this character. Petition of Ferrier, 103 Ill. 367, 43 Am. Rep. 10; Milwaukee Industrial School v. Milwaukee County, 40 Wis. 328, 22 Am. Rep. 702; House of Refuge v. Ryan, 37 Ohio St. 197; Prescott v. State, 19 Ohio St. 184, 2 Am. Rep. 388; Scott v. Flowers, 60 Neb. 675, 84 N. W. 81; In re Mason, 3 Wash. St. 609, 28 Pac. 1025. The provisions of section 2 of the act prescribing' the procedure as to trial by jury is constitutional and valid. Petition of Ferrier, supra.

The judgment of this court will be that the detention of said Samuel by the respondent, in his official capacity as superintendent of the St. Charles Home for Boys, is without sufficient warrant of law; that the relator is entitled to the custody of said Samuel, his son.. Judgment will therefore be entered awarding the custody of said. Samuel Schwartz to the said relator according to the prayer of his. petition.

Writ granted.


source: Caselaw Access Project

author: Foster, J.—

license: Public Domain

text:
      (Municipal Court of Chicago.)

    J. C. Beifeld vs. Chicago & Northwestern Railway Company.
    (October, 1908.)
    1. Cabriebs — Excess Baggage — Delay in Delivery — Negligence— Validity of Exemption Clause. Where excess baggage is delayed in transit through the negligence of the carrier the latter is not freed of liability by reason of a stipulation in its contract of carriage to the effect that it is to be released from all liability from loss, injury or detention of the property whether due to the negligence of the carrier or not, such a stipulation being contrary to public policy.
    2. Same — Objection that Articles not Baggage — Waiver. A carrier, accepting as baggage articles or merchandise not properly having that character with knowledge that they are offered for transportation as baggage, waives any objection on that ground and his liability therefor is the same as that with reference to .baggage in general.
    8. Same — Damages—Loss of Profits. The ordinary profits of a ’ traveling salesman calling on regular trade are not so speculative as not to be recoverable as damages for detention by a carrier of his sample trunks precluding him from making sales.
    4. Same — Notice of Contents. The evidence in this case is sufficient to charge the carrier with notice of the contents of plaintiff’s trunks and his use for them so to make it liable for damages resultant upon their detention.
    Action on the case. Heard before Judge Foster. The facts are stated in the opinion.

      Coburn & Case, attorneys for plaintiff.

      William S. Kies, attorney for defendant.
   Foster, J.—

In this case the plaintiff, a traveling salesman, checked his baggage for Milwaukee on Sunday, October 6, 1907, over the defendant’s road, but one of his trunks, which was then in Chicago and in the defendant’s possession, was not forwarded until Thursday, October 10, when pursuant to instructions it was sent to Appleton, but did not arrive there until after the plaintiff had left, and he first saw it on hisi return through Appleton on Friday, October 11. He did not, however, stop to get the trunk, and it was forwarded to him and finally received by him Saturday night. The trunks had upon them his business card as follows: “J. C. Beifeld, 225 Dearborn St., Chicago. Representing Eastern Manufacturers of Cloaks and Suits,” and in checking them for Milwaukee the following conversation with the agent of the defendant was held: “I asked the baggageman to check .these two sample trunks to Milwaukee so that they would get there this evening, and he took the checks from me. He asked me how much excess I had; I said 300 pounds, and I paid him the excess out of the same book and told him, ‘ These are sample trunks and must arrive in Milwaukee this evening. ’ He said, ‘ They certainly will. ’ ”

In checking his baggage the plaintiff offered excess baggage coupons from the regular book of the company which had been signed by the plaintiff without, as he testifies, any knowledge of the stipulation therein contained limiting the liability of the company as set forth below.

It appeared that the plaintiff was an experienced travelling man and had been using excess baggage coupon books for years, but whether the other books that he had used contained this limitation does not appear. The clause referred to reads as follows:

“In consideration of the reduced rate at which this ticket is sold to me and of the receipt hereunder of any property other than legal baggage which may be at any time so received, I hereby forever release the railroad companies upon whose lines this baggage ticket is available from all liability for loss, injury or detention of any such property other than legal baggage, whether the loss, injury or detention be caused with or without negligence of any of said companies or its employes.”

It is contended by counsel for the defendant that the above exemption from liability is binding, and it is urged that as the railroad company was not, as a common carrier, bound to accept sample trunks as baggage, it could impose such terms as it saw fit, even to the point of exempting itself from negligence of its own employes.

It would seem that the question to be decided here is whether this case falls within the doctrine of Blank v. I. C. R. R. Co., 182 Ill. 332, and C., B. I. & P. R. R. Co. v. Hamler, 215 Ill. 525, on the one hand, or within the doctrine of I. C. R. R. Co. v. Beebe, 174 Ill. 13, and I. C. R. R. Co. v. Anderson, 184 Ill. 294, on the other hand. The first two cases hold that contracts exempting railroad companies from liability for injury to employes of express companies and the Pullman Palace Car Company riding on special cars and attending to their employers’ special business, are binding, while the last two cases hold that contracts exempting railroad companies from liability to the owner or agent accompanying stock or goods shipped over the railroad, are invalid as being against public policy.

In Blank v. I. C. R. R. Co., 182 Ill. 332, on page 339, the supreme ocurt said:

“An attempt is made to liken this case to the case where a person is carried with his stock or goods and where he is regarded as a passenger. There are many such cases where the carrier is bound to receive and carry goods or stock, and where, by general usage or by the rules of the company, the owner or his agent may go or is required to go in charge of the property. In such cases the owner is entitled to demand the carriage of his property as a part of the duty of the railroad company toward the public as a common carrier, under the conditions fixed by law. The railroad company is bound to receive and carry for anybody who shall appear, and by the rules or usage of the company the charge for carrying the stock includes the carrying of the person in charge. Such a person is a passenger. But the difference in the relation between such a case and this is apparent.”

We think the most significant portion of this paragraph is the statement that “such a person is a passenger.” There can be no question that in the case at bar the plaintiff was a passenger, and we believe that when the railroad company once accepted the sample trunks of the plaintiff as baggage its liability for such sample trunks became the same as that for any ordinary baggage. It seems to us clear that such a case 5 as the one above falls within the rules applicable to the carriage of stock and their accompanying owner rather than within the rules applicable to cases of express agents and Pullman porters, who are not, as is expressly stated in the eases above referred to, passengers. That the defendant company was charged with notice of the contents of these trunks is, we think, clear on the evidence, which will be discussed more at length in considering the question of damages. It is doubtless true that the company could have refused in the first instance to take the plaintiff’s trunk as baggage, but the carriage thereof was merely incidental to the contract existing between defendant and plaintiff and creating the relation of carrier and passenger. It is like the stock cases, where the owner is carried' along as incidental to the shipment of his stock. In both cases there is a contract relation existing between the carrier and the passenger, thus distinguishing these cases from the cases where an express agent or a Pullman porter has no contract with the carrier but only with their several employers. When the company chose to accept these sample trunks and their contents as baggage, it assumed all duties with regard thereto of a common carrier.

In L. S. & M. S. Ry. Co. v. Hochstin, 67 Ill. App. 514, Mr. Justice Waterman at p. 517 said:

‘ ‘ The carrier having, after being informed as to the character of the articles, received them as baggage, is liable for their loss, although they consisted of merchandise.”

See also Hamburg American Packet Co. v. Gattman, 127 Ill. 598, at 610.

In 6 Cyc. 668, it is said:

“If the carrier accepts as baggage articles or merchandise not properly having that character; with knowledge that they are offered for transportation as baggage, he thereby waives any objection on that ground, and his liability therefor is the ■same as that with reference to baggage in general.”

It is contended on behalf of the defendant that even if the above contract is invalid and the defendant liable as a common carrier that only nominal damages can be awarded, first, because it is said that the damages attempted to be proven, to-wit: loss of profit, are in their very nature too speculative and uncertain, and next, because it is claimed that the defendant was not chargeable with notice of the purpose for which the plaintiff desired his sample trunks in Milwaukee. The facts bearing on the question of the damages as disclosed by the evidence are as follows: The plaintiff had two sample trunks, one -of which was forwarded promptly and received by him in Milwaukee in due time. This contained samples of children’s clothing. The other trunk, which was delayed, contained his samples of ladies’ clothing. He testified that his season for selling children’s clothing was early in the year, and that during October and November he usually sold only a small amount of children's clothing, but that on ladies’ clothing his sales during the years 1904, 1905 and 1906 had been $40,000 per year, on which he received eight per cent commission. That he sold to pretty nearly the same people (p. 26) ; that his sales varied (pp. 37 and 38) according to the styles and seasons, and that he could not tell just what he was going to sell. That during the days he was without his sample trunks he failed to sell any of the ladies’ clothing, and that he afterwards revisited the same places and sold perhaps a quarter of his ordinary sales. During these days he made some small sales of children’s clothing, in the amount of about $1,300. That his expenses for the months of October and November were about $600.

We will first discuss whether from the very nature of the case the damages attempted to be proven by the plaintiff were too speculative under the authorities, and then we will discuss the question as to whether or not the defendant had sufficient notice of the character of the damages to make it liable therefor.

In the following cases evidence of actual profits in the past ■ was held admissible as affording a basis for calculating probable profits of which the plaintiffs were deprived by acts of the defendants: In Chapman v. Kirby, 49 Ill. 211, the profits ■of a planing mill business for past six months were admitted in evidence. In Fitzsimmons v. Munch, 79 App. 538, in the same way the profits of a flour mill for the past ten years were admitted. In C. & E. R. R. Co. v. Meech, 163 Ill. 305, a painting contractor, who employed others to assist him, was allowed to testify as to how much he had earned as a painter without regard to any special contracts for some years prior to the accident. In I. C. R. R. Co. v. Byrne, 205 Ill. 9, the profits of a theatrical performance in Bloomington at previous performances were admitted. This ease and the next case, it might be * noted in passing, were actions on contract, and our courts seem to apply the same rule of damage in such an action that they do in an action of tort. In Landis v. Wolf, 206 Ill. 392. which was a suit on an injunction bond, the profits of a farm were held to afford a proper basis of damages.

In Chicago Union Traction Company v. Brethauer, 223 Ill. 521, the court held that it was competent for the plaintiff, who was a jewelry jobber, to testify thqt his profits had been $500 per year, it appearing that he had no clerks or assistants and probably no capital invested. The court says at p. 531: “Appellant in discussing this assignment of error, construes what the witness says as ‘profits’ in his business, and argues from this assumption that future profits of a commercial business are too uncertain and speculative to form the basis of a verdict in a personal injury case. ’ ’

The court held to the contrary.

On the other hand, in Chicago City Railway Company v. Flynn, 131 App. 502, it was held that evidence as to how much the plaintiff would have made in his coal business was too speculative and uncertain to be recognized as an element of damages, the court stating that there might have been some special deals made by the plaintiff in these previous years, and compared his business to that of a stock broker.

A careful consideration of these cases would indicate that our supreme court would not regard plaintiff’s probable profits as too speculative an element of damages.

It is stated to be true that plaintiff’s sales varied somewhat according to the styles and seasons, but surely his business as disclosed by the evidence was more certain than the probable returns from any .theatrical performance, and equally certain with the profits of any planing or flour mill. It is impossible to distinguish the case at bar from the jewelry jobber in the Brethauer case. Not one word was said in the evidence on any specially advantageous sales made by plaintiff during the previous years he testified concerning, and the burden lay on the defendant, under the doctrine of Chapman v. Kirby, followed by the above cases, to show any depression in business or other cause that might have made plaintiff’s profits less during the months in question than they had been in previous years. A coal broker or stock broker, such as is mentioned in the Flynn case in 131 App. would doubtless have much greater variation in his sales from year to year than would plaintiff in selling substantially the same line of goods to the same customers. It is clear that if plaintiff can not recover on the basis of loss of profits, he can get no compensation whatever for what must have been a serious loss. The rule applied in some cases that a recovery could be had for the rental value of the property detained could not be applied here, for a drummer’s samples have no rental value to others, nor could the plaintiff have supplied their place with others. We do not think there is anything so peculiarly speculative or uncertain in plaintiff’s business as to exclude proof similar to that admitted in other cases.

We next come to the consideration of the question as to whether the defendant had sufficient notice to the purpose for which the plaintiff desired his samples in Milwaukee to make it liable for loss of profits as claimed, and this is a point not free from difficulty. In this connection it should be observed that the very terms of clause 7 in the baggage coupon book referred to property “other than legal baggage.” Plaintiff’s card which appeared on the trunk described him as “Representing Eastern Manufacturers of Cloaks and Suits. ’ ’ In his conversation with the baggageman he expressly stated that they were “sample” trunks and must be in Milwaukee that night. These facts are, we think, sufficient to charge the defendant with notice of the character of the contents of the trunk. In Hamburg-American Co. v. Gattman, 127 Ill. 598, the court held that under all the circumstances the carrier was chargeable with notice that an immigrant’s boxes contained other than legal baggage. We think the same rule would apply here. But it is said that even so, it does not appear that the defendant had notice of the purpose for which they were desired in Milwaukee.

As we understand the law, when a party seeks to recover loss of probable profits from some special contract, he must show that the defendant had actual notice of the particular contract, but when he simply seeks to recover on the basis of his past average earnings, without regard to any special contract which might have promised exceptional profits, we do not understand that special notice to the defendant is necessary.

Substantially the same line is drawn here that is drawn in the matter of pleading. As we held in C. & E. R. R. Co. v. Meech, 163 Ill. 305, a general allegation of loss of profits is sufficient to allow proof of the plaintiff’s particular employment and ordinary earnings, but when a claim is for a profit from a special contract, this fact must be set out in the declaration. In many eases the phrase “special damages” will be found to refer to damages arising from a special contract as distinguished from usual, average profits.

The Brethauer case in 223 Ill. 521 is to the same effect as the Meech case.

In the case at bar no question is raised as to the pleading, as no objection has at any time been made by the defendant to the admission of any evidence on the question of damages because of -an alleged variance or any ‘alleged failure on the plaintiff’s part to set out in the bill of particulars his probable loss of profits as an element of damage.

In 1. C. R. R. Co. v. Byrne, 205 Ill. 9, the court states at p. 22 and there was evidence — its exact character does not appear — tending to show that the agent was informed that the theatrical show was to be given a certain night at Blooming-ton, and the question as to whether the defendant had notice of such engagement was left to the jury. We take it this notice could be shown from dealings of the parties and by any facts in evidence.

In Foster v. C., C., C. & St. L. Ry., 56 Fed. Rep. 434, cited by defendant at p. 9 of its brief, it appears that the theatrical troupe claimed damages because its properties were delayed so as to miss two advertised performances of which the carrier knew. Because these performances were missed and salaries suspended the troupe broke up, and the plaintiff lost profits from other performances, for which he also attempted to recover. The court held:

“The loss from failure to arrive in season to give performances which the parties knew the troupe was going to Louisville to give, would come fairly within the contemplation of the parties. The loss from failure .to pay the performers would not. ’ ’

The opinion indicates the true test, — can the probable profits ' claimed be said to be fairly within the contemplation of the parties ?

In the ease at bar the defendant had notice that the plaintiff resided in Chicago by the terms of the contract in the coupon book and by his card. It had notice as above pointed out that the defendant was carrying trunks containing samples to Milwaukee and was specially told by the plaintiff that these sample trunks must be there at a certain time, to which defendant’s agent agreed. It is fair to say that the defendant’s agent was reasonably charged with notice that the plaintiff was going to Milwaukee in the ordinary course of business as a drummer and for the purpose of selling goods.

It is urged that even though the defendant could be held responsible for loss of profits in Milwaukee, it could by no possibility be held for profits in the other towns where the plaintiff went. We do not, however, think that this is a distinction of importance. The defendant was, we think, chargeable with notice that plaintiff was going on a trip, and whether he stayed in Milwaukee or not made no difference to the defendant. We think that the plaintiff is entitled to recover for loss of profits in other towns as well as in Milwaukee up to Thursday night, • when plaintiff’s trunk reached Appleton pursuant to plaintiff’s instructions in his letter of October 9. We think he should have been on hand there to receive his trunk, and that he cannot recover for any subsequent loss of profits.

Defendant’s counsel cite many eases in support of its contention on this branch of the case. Many of these cases are distinguishable as being cases where damages were claimed for alleged loss of profits from some special contract of which the defendant had no notice.' Defendant’s counsel did not cite the Friedman case, 146 Ill. 583, where a commercial traveler sought to prove loss of profits from a special contract of employment, but the court held that such proof was not admissible under a general allegation of loss of profits in the declaration. It is to be noted that three judges dissented, including Judge Magruder, who wrote the opinion of the court in the later case of I. C. R. R. Co. v. Byrne. Subsequent cases, such as the Meech case and the Brethauer case, have distinguished the Friedman case as being a special contract case. Some of the other cases cited by defendant’s counsel are distinguishable as involving proof of possible future profits without any basis of past profits to base the estimate upon. This is true of the Priestly case in 26 Ill. and the Hale case in 83 Ill. Seaboard Air Line Ry. v. Harris, 49 S. E. Rep. 703, seems to be in point, but we do not think would be followed in this state. We calculate plaintiff’s damages as follows: Usual sales during October and November, $40,000; commission at 8 per cent, $3,200; usual expenses, $600; usual net profits for two months, $2,600. Four days are about one-thirteenth of working days in two months’ period. Usual profit for four days, $200. Plaintiff testified that he sold about one-fourth of his usual trade in these towns. That represented a profit of $50. That is a credit that the defendant would be entitled to, leaving the net loss at $150, and accordingly I shall find for the plaintiff in that amount,


author: Baker, J.—

text:
      (Criminal Court of Cook County.)

    People of the State of Illinois vs. E. A. Davis, et al.
    (February 11, 1898.)
    1. Conspiracy — What Constitutes. To constitute! a violation or section 46 of the Criminal Code against conspiracy there must be an intent to “wrongfully and wickedly” injure the business, etc., of another. A fraudulent or malicious intent to injure is not enough. There must also be a purpose to carry into execution such intent. . .
    2. Indictment — Sufficiency of in Conspiracy. An indictment for conspiracy in the words of the statute is sufficient. But if the facts constituting the conspiracy are alleged, they must show a fraudulent and malicious intent “wrongfully and wickedly” to injure, etc.
    3. Conspiracy — “Wrongfully and Wickedly” — Meaning of. The words “wrongfully and wickedly” in the conspiracy statute are to be understood as meaning the use of means in themselves “wrongful and wicked,” independently of combination.

      4. Same. The entering into of an agreement to use “wrongful and wicked” means to injure another does not show an intent to “wrongfully and wickedly” injure within the meaning of the conspiracy statute. There must be a wrongful and wicked intent to injure irrespective of the agreement.
    6. Criminal Conspiracy — Mlust be Civil Injury. Where the defendants, members of a labor union, cause an employer to discharge a non-union employee, by threats to cause other employees to quit the service of such employer, this does not constitute a criminal conspiracy unless such action was an invasion of the civil rights of the non-union employee.
    6. Same. In such a case, in the absence of force, falsehood or any other act of itself unlawful, the non-union employee has no cause of action against the members of the union. Allen v. Flood, (1898) App. Cas. 1, followed.
    7. Actions — Motives. The existence of a bad motive will not convert an act which is not of itself illegal into a civil wrong.
    Motion to quash indictment for conspiracy. Heard before Judge Prank Baker.

      F. L. Barnett, assistant state’s attorney for the people. Davidson & Trumbull, of counsel.

      John F. and Henry C. Geeting, for defendants.
   Baker, J.—

This is a motion to quash an indictment against four defendants, which is found under and intended to charge a violation of the following provisions of section 46 of the criminal code: “If any two or more persons conspire or agree together with the fraudulent or malicious intent wrongfully and wickedly to injure the person, character, business or. employment or property of another * * * they shall be deemed guilty of a conspiracy, and every such offender, whether as individuals, or as officers of any society or organization, and ever)-' person convicted of conspiracy at common law shall be imprisoned in the penitentiary not exceeding five years, or fined not exceeding five thousand dollars, or both. ’ ’

The first count of the indictment charges that the defendants were members of a certain union, viz., the Hoisting Engineers ’ Association; that Charles and Dennis were in the employ of the Thomas Elevator Company; that the defendants did, unlawfully, etc., conspire and agree together with the fraudulent and malicious intent to wrongfully and wickedly injure the business of Charles and Dennis by unlawfully, etc., demanding of said elevator company the discharge of Charles and Dennis for the reason to be represented to said elevator company by the defendants; that Charles and Dennis were not members of said association, and then to “call off” certain engineers in the employ of said elevator company who were members of said association, if said demand was not complied with “for the.purpose then and there of stopping the work of said Thomas Elevator Company, and thus throw said Charles and -Dennis out of their employment.” It then avers the execution of said agreement, the demand, refusal, “calling off” . of the union engineers by defendants, and avers that thereby the work of said elevator company was stopped, and by reason thereof said Charles and Dennis discharged from their employment.

The second.and third counts are identical with the first, save that the intent alleged in the second is to injure the “employment,” in the third the “business and employment” of Charles and Dennis. It is not alleged that any contract of employment for any period existed either between the elevator company and the union engineers, or between the company and Charles and Dennis.

To constitute an offense under the provisions of section 46 above quoted, there must be the agreement, with the fraudulent or malicious intent “wrongfully and wickedly” to injure the business or employment, etc., of another. The agreement with the fraudulent or malicious intent to injure is not enough. The agreement must include the purpose to carry into exeeu-, tion the fraudulent and malicious intent to injure “wrongfully and wickedly,” that is, by the use of wrongful and wicked means. It may be that an indictment in the words of the statute charging that the defendants did conspire and agree together with the fraudulent and malicious intent wrongfully and wickedly to injure Charles and Dennis in their employment would be sufficient, but in this indictment there is a precise statement of the means agreed upon by the defendants to be used to carry into effect their alleged malicious intent to injure Charles and Dennis in their employment; and hence, if the means so alleged to have been agreed upon are in law wrongful and wicked, the indictment well and sufficiently, charges a conspiracy under the statute. And, on the other hand, if the means so set out in the indictment are not wrongful and wicked, the indictment cannot be held to well or sufficient charge a conspiracy under the statute, for, if the. ' means which the indictment alleged were agreed upon to be used are not wrongful and "wicked, in no just sense can the indictment be held to charge a conspiracy and agreement by the defendants with the fraudulent and malicious intent, “wrongfully and wickedly” to injure Charles and Dennis. The words “wrongfully and wickedly” in the statute are to be understood as meaning the use of means in themselves “wrongful and wicked” independently of combination. We cannot say that the means are wrongful and wicked, because of the agreement to use such means to carry out a malicious intent to injure. The thing prohibited is an agreement with the malicious intent wrongfully and wickedly to injure. Whether such intent exists depends upon the means agreed upon to be used to carry out the malicious intent to injure. To say that the means agreed upon are wrongful and wicked because of the agreement to use such means to carry out the malicious intent to injure, amounts to saying that the means received a character of wrongfulness and wickedness from the.agreement to use such means in a manner which depends for its own wrongfulness and wickedness upon the means so agreed upon.

The means set out in the indictment as the means agreed upon by the defendants to be used to carry out their malicious - intent to injure Charles and Dennis in their employment are, in substance, that the defendants agreed together to demand the discharge of Charles and Dennis by the elevator company for the reason to be stated to said company, that Charles and Dennis were not members of the Hoisting Engineers’ Association, of which the defendants were members, and certain engineers in the employ of said company were also members; and to notify said company that in case of refusal to discharge Charles and Dennis, the defendants would “call off” from the employment of the elevator company the members of said association “for the purpose of then and there stopping the work of said elevator company and thus throw said Charles and Dennis out of their employment. ” There are eases which hold that a combination and agreement to use such means as this indictment avers the defendants agreed together to use, is an indictable conspiracy. At one time the associations, which in our day are known as trade unions, or labor organizations, would have been regarded as against public policy, as conspiracies in restraint of trade. I shall attempt no review of the authorities, no history of legislation either here or in England. It is sufficient to say that there has been a most marked change in public policy towards such organizations. There and here such organizations are now recognized by law. The acts in question are not criminal independently of combination, but acts may be wrongful and wicked, though not criminal. Acts may be wrongful in morals, or wrongful in law. It is only with the question whether the acts in question are wrongful in law that we are concerned.

I shall not attempt to define or limit the words “wrongfully or wickedly” as used in the statute. It is sufficient to say that in cases like this where there ,is no suggestion of fraud, immorality, injury to the public, or violation of contract, there must at least be a civil wrong, an invasion of the civil right of another, carrying with it the liability to repair the natural and direct consequences, where injury results to the person whose rights are infringed or invaded.

If the acts which the indictment alleges the defendants agreed to do, to compass the discharge of Charles and Dennis - with the malicious intent to injure them, constitute an actionable civil wrong, they must be regarded as wrongful and wicked, in law, and if they do not amount to a civil wrong and are not criminal, they cannot be regarded as wrongful and wicked in law. Upon the question whether such acts, if done maliciously, constitute a civil wrong, we have no authorities in Illinois, and I shall refer to but a single case, the case of Allen v. Flood, decided by the House of Lords December 14, 1897, 42 Solicitor’ Journal, 149. In that case the act complained of by plaintiffs was the act of Allen, the local delegate of a union, in demanding the discharge of plaintiffs.by their employer, an iron company, and causing their discharge by giving notice to the iron company that unless the company discharged the plaintiffs, he would call out from its employ all the members of the union of which he was a delegate. And it was alleged and the jury found that Allen acted maliciously with intent to injure the plaintiffs. The plaintiffs had judgment, and that judgment was affirmed in the Court of Appeals, but reversed by the House of Lords. In the course of his opinion Lord Watson said: “The existence of a bad motive in the case of an act, which is not of itself illegal, will not convert that act into a civil wrong. A wrongful act, done knowingly, with a view to its injurious consequences may, in the sense of law, be malicious, but such malice derives its essential character from the circumstances that the act done constitutes a violation of law. ’ ’ Lord Herschel, in the course of his judgment, said: “If they (the members of a union) resort to unlawful acts, they may be indicted or sued. If they do not resort to unlawful acts, they are entitled to further their interests in the manner which seems to them best and most likely to be efficient. * * * I do not doubt that every one has a right to pursue his trade or employment without ‘molestation’ or ‘ obstruction, ’ if those terms are used to imply some act of itself wrongful. This is only a branch of a much wider proposition, namely, that every one has a right to do any lawful act -he pleases without molestation or obstruction. If it be intended to assert that an act not otherwise wrongful, always becomes so-if it interferes with another’s trade or employment, and needs, to be excused or justified, I say that such a proposition, in my opinion, has no solid foundation in reason to rest upon. A man’s right not to work or not to pursue a particular trade or calling, or to determine when or where or with whom he will work, is, in law, a right of precisely the same nature and entitled to just the same protection as a man’s right to trade or work. They are but examples of that wider right, of which I have already spoken. The wider right embraces also the right of free speech. A man has a right to say what he pleases, to-induce, to advise, to exhort, to command, provided he does not slander or deceive, or commit any other of the wrongs known to. the law of which speech may be the medium. Unless he is; thus shown to have abused his right, why is he to be called upon to excuse or justify himself because his words may interfere with someone else in his calling?” The legal principle settled by the case is, that the existence of a bad motive will not convert an act which is not of itself illegal into a civil wrong.

The test laid down, to determine what acts of members of. trades unions of the nature here under consideration are innocent and what wrongful, is that, if the members of a union resort to unlawful acts, they may be indicted or sued. If they do not resort to unlawful acts, they are entitled to further their interests in the manner which seems to them best and most likely to be effectual, and both are to my mind correct and salutary rules. The latter is, after all, but a restatement in different words of the rule laid down by Chief Justice Shaw;, in 1842, in the case of Commonwealth v. Hunt, 4 Metcalf (Mass.) 134, when he said, “the legality of such an association (a trades union) will therefore depend upon the means to be used for its accomplishment. If it is to be carried into effect by fair or honorable and lawful means, it is to say thq least, innocent; if by falsehood or force, it may be stamped as an illegal conspiracy.”

There is no suggestion, ew the indictment, that the _ agreement into which it is aUegeu the defendants entered, contemplated the use of force, falsehood or any other act of itself unlawful, and in my opinion it follows that the acts which the indictment alleges the defendants agreed to do, the means they agreed to use cannot be held in law wrongful or wicked.

The views here expressed find confirmation in the following provision of our criminal code, section 158: “If any two or more persons shall combine for the purpose of depriving the owner or possessor of property of its lawful use and management, or of preventing, by threats, suggestions of danger or any unlawful means, any person from being employed by, or obtaining employment from any such owner or possessor of property on such terms as the parties concerned may agree upon, such persons so offending shall be fined not exceeding $500.00, or confined in the county jail not exceeding six months,” for under well settled rules of construction it is but reasonable to infer that the legislature, in adopting section 158 .as a section of the act of which section 46 was another section, intended to embody in section 158 all matter in relation to interference by combination and agreement between employee and employer, between capital and industry, which it was thought proper to make the subject of a special criminal law.

The ease involves questions of great interest, and has been fully and most ably argued. It is to be regretted that the judgment about to be pronounced cannot be reviewed by our supreme court. That judgment is that the motion to quash the indictment must be sustained.

Note. — See in addition to Allen v. Flood, supra, the later cases of Quinn v. Leathern, (1901) App. Cas. 495; South Wales Miners’ Federation v. Glamorgan Coal Co., Ltd., (1905) App. Cas. 239. See, also, in general, London Guarantee & Accident Co. v. Horn, 206 Ill. 493; Thomas v. Cincinnati, etc., Ry. Co., 62 Fed. 803; Moore v. Bricklayers’ Union, 23 Week. Cin. L. B. 48, 10 Ohio Dec. Rep. 665; Temperton v. Russell, 1 Q. B. 715; Carew v. Rutherford, 106 Mass. 1; Toledo, etc., Ry. Co. v. Penn. Co., 54 Fed. 730; Steamship Co. v. McKenna, 30 Fed. 48. — Ed.

       App. Cas. (1898) 1. — Ed.


author: Scott, J.:—

text:
      (Supreme Court of Illinois.),

    E. E. Clark vs. William E. Robinson.
    (January Term, 1878.),
    Bbiefs. Extension of time to file.

      O. B. Ficklin, A. J. Fryer, and H. S. Clark, for appellant.

      Charles Bennett, for appellee.
   Scott, J.:—

An application for an extension of time on the part of the appellee to file his brief. Time will be extended six days, in addition to that allowed by rule. The cause, however, will be taken as though the time had not been extended.

See also 88 Ill. 498. — Ed.


author: Walker, J.:—

text:
      (Supreme Court of Illinois.)

    Harrison Moss vs. The Village of Oakland.
    (January Term, 1878.)
    Appeal. Motion to dismiss for want of a sufficient bond. Leave to amend allowed.
   Walker, J.:—

There is a motion entered to dismiss the appeal for want of a sufficient bond, and there is a cross motion for leave to amend and file a sufficient bond. Leave will be given to file a sufficient bond within five days.


text:
    William R. Fairbanks, for the use of the First Nat’l Bank of Lacon v. The State of Illinois.

      Opinion filed September 10, 1889.

    1. Statute of Limitations—act of 181¡7 not repealed by act creating Commission of Claims1. The act of 1877 creating the Commission of Claims does not repeal Section 4 of the act of 1847 which provides that “Hereafter all unliquidated claims against the State shall be proved up and filed as above within two years from the time such claims may have arisen.”
    2. Same—act of 1847 not annulled by legislative appropriation for barred claims. The provisions of the statute of limitations cannot be annulled by the legislature making appropriations for claims barred by it.
    3. Same—act of 1847 in force. The statute of limitations of 1847 is in full force and effect.
    4. Damages—caused by construction of dam; can be only one satisfaction. Where a dam is constructed by lawful authority of the State there can be but one satisfaction for the injury sustained by landowners and that will be for permanent injury to the land caused by obstruction of the river.
    5. Same—erection of dam by State; action does not survive, A right of action for injury to land caused by the erection of a dam by the State does' not survive.
    6. Actions—damage by construction of dam—when it accrues. Cause of action for damages caused by dam constructed by authority of the State accrues at the time the dam is completed and closed and the water runs over the dam.
   The claimant in this case filed his claim against the State with the Auditor of Public Accounts on the 11th day of May, 1880.

The petition filed with said claim states in substance that the claimant is the owner of the southeast quarter of section ten, township twenty-nine, north of range 3 west of the third P. M., Marshall county, Illinois, and was the owner of said land prior to October 20, 1877. That all of said lands are situated in what is known as “The Bottoms” and low lands bordering upon the Illinois river and had always been subject to an inundation from floods and high water in the Illinois river; that during the months from May to October inclusive, of each year, said river is usually at or near “low water mark” and the lands above left dry, producing grass for pasture and hay, crops of corn, &c.

That in the month of October, A. D. 1877, a dam was constructed across said river near Copperas Creek under and by virtue of the authority of the State of Illinois; that said dam permanently holds the water six and one-half feet higher than the low water mark at said Copperas Creek, prior to the erection of said dam, making low water mark in said river opposite the lands above described considerably higher than . before the dam was built; that the summer freshets, which before were harmless, now raise the waters by reason of the dam in the river so as to render his land wet, unproductive and more liable to over-flow, whereby claimant had sustained damages of twelve hundred dollars.

To this petition the Attorney General on behalf of the State has plead the statute of limitations.

The proof taken in support of the petition tends to show that claimant had sustained some damage and would be entitled to an award in his favor if his claim is not barred by the statute of limitations. This is the serious question in this case.

The statute of limitations relied upon was passed by the Legislature in March, 1847, and, after providing for all unliquidated claims against the State then existing, Section 3 provides as follows: “All unliquidated diaims arising from the internal improvement system shall be proved up the same as before mentioned before the Auditor of Public Accounts, and filed the same as above; and any person having unliquidated claims, shall prove the same before the Auditor and file the claim and proof in like manner.”

Section 4 provides, that “any person having unliquidated claims against the State who does not prove up the same, and file them as above, shall not Be entitled to have them considered after that date; and hereafter all unliquidated claims against the State shall be proved up and filed as above within two years from the time such claims may have arisen; and any claim not presented and proved up as above and filed shall be forever barred from payment by the State.”

It is insisted by claimant’s counsel that this statute has been repealed by Act of 1877 creating a Commission of Claims and for filing claims with the Auditor.

It is not insisted that there is any act of the Legislature expressly repealing this statute of limitation, but that it is repealed, if at all, by implication.

It will be observed that the act creating a Commission of Claims provides a forum for hearing and disposing of claims against the State and as to the manner of presentation and proving such claims; but there is nothing in the act itself that is in conflict with the statute of limitations of 1847 above quoted and for that reason could not repeal this statute by implication.

It is again insisted that the Legislature have passed upon similar claims and made appropriation for their payment; all this may be true but a statute law cannot be annulled in any such manner.

There has not been any statute referred to, nor have we been able, after careful search, to find any that would seem to repeal this statute, limiting the time in which claims must be filed against the State. Our conclusion is that the statute of limitations of 1847 is in full force and effect.

Assuming that this statute is in full force does the proof bring the case within its provisions? This has seemed to us the most serious question presented and we have had considerable hesitation in coming to the conclusion we have in regard to it.

The dam built at Copperas Creek was constructed by the authority of the State in a navigable river where the State had a lawful right to make the improvement; so that this case cannot be governed by that class of cases where the original act in building a dam, or placing an obstruction in a running stream, was wrongful. The injury for which damages are claimed, is for the permanent injury to claimant’s land caused by the construction of the dam, thereby raising the water in the river opposite claimant’s land. It is insisted in argument that the cause of action did not arise until the first crops were destroyed and that was, according to the proof, in 1878, and therefore the claim would not be barred; that it is in the nature of a continuing injury to claimant’s land.

We think the rule well established, that where the obstruction, as in this case, was lawful, it could not be treated as a nuisance for that Avould imply the right to have it abated. Evidently there could be but one satisfaction for the injury sustained and that would be for the permanent injury to the land caused by the obstruction of the river.

In the case of the Chicago & Eastern Illinois R. R. Co. v. Loeb, 118 Ill., page 203, where suit was brought against the railroad company to recover damages sustained from the operation of the railroad by throwing cinders and ashes upon the plaintiff’s premises, the railroad did not cross, but ran in front of plaintiff’s property. The facts showed that the plaintiff had purchased the property after the railroad was constructed. - At the trial the defendant submitted this proposition of law to the court: “The plaintiff in this case having purchased the property described in the declaration, after the railroad was built and in operation, he cannot recover in this action for the matters stated in the declaration, for the reason that the entire cause of action for which he is now suing was in his grantor, and it makes no difference whether his grantor sued for the same or not.” The court refused the proposition and an appeal was taken to the Supreme Court. It was argued in that case that the construction of the railroad was lawful, and produced no damage but that the operation of the railroad was the sole cause of the injury, and that in such case where the structure in itself does not cause damage, but its use, then the damage arising from its use is the cause of action. In deciding the case the court says: “We think it to be within the true intent and meaning of this provision (referring to the provision of the constitution under eminent domain) as to damage that there should be but one proceeding for recovery of damage, in which there should be recoverey for the entire damage, past, present and future; that it should be similarly regarded, in this respect, as the provision in regard to taking of property where there is but one proceeding and an assessment of compensation and damage once for an.” “The just compensation to be made for damage to land, was, in our opinion, intended as an indemnity, not for successive, constantly accruing damages, recoverable as they may afterward be suffered, but for all damage the land owner may suffer from all the future consequences of the careful and prudent operation of a railroad, it being the immediate damage done to the land owners’ estate by changing its permanent condition and impairing its present value.”

The court then decided, as the former owner could have sued and recovered for the depreciation in value of the property caused by the railroad the right of action was in him for a recovery of all damages that were or might be caused in the operation of the railroad and that there was no cause for action in his grantee.

In the cases of the Ottawa Gas Co. v. Graham, 28 Ill., 73; The Illinois Central Ry. Co. v. Grabill, 50 Ill., 241; Cooper v. Randall, 59 Ill., 317; Decatur Gas Co. v. Howell, 92 Ill., 19; Chicago & Alton R. R. Co. v. Maher, 91 Ill., 312, it was held that in an action brought for deterioration in value of real estate from a nuisance of a permanent character all damages for past and future injury to the property may be recovered and that a recovery is a bar to all future actions.

Mills on Eminent Domain, Sec. 216, says: “The appraisement embraces all past, present and future damages which the improvement may thereafter reasonably produce.”

In the case of Fowle v. The N. H. & N. R. R. Co., 112 Mass., 334, where the action was for damages caused by the building of a railroad in such a manner that at. times the current of a stream would be thrown upon plaintiff’s land the court say: “And if injury results from a cause which is either permanent in its character or which is treated as permanent by the parties, it is proper that entire damages should be assessed with reference to past and probable future injury.”

To apply the principle of these cases to the case under consideration; when this permanent obstruction was placed in the river so as to dam or raise the level of the water opposite claimant’s land, if an injury, it was a permanent injury and damage to the value of his land for future use. His right to claim damage at once accrued. In the language- of the statute, the cause of action had arisen and had he in three days afterward conveyed the land, under the authority of the case in the 118th Illinois above quoted, his grantee would not have had the right to bring a claim for damages; for the reason that the grantor would have sustained the damage by the permanent injury to his land as soon as the permanent obstruction was placed in the river and before the execution of his deed.

If it is true that as soon as the dam was built the future use of the land was permanently injured and the present value diminished so that a claim could at once be presented and claimant entitled to an award for both present and future damages, then the position taken by claimant’s counsel, that although the dam was completed in the fall of 1877 because the crops were not destroyed until the summer of 1878, therefore the cause of the action did not accrue until that time, would not seem to be well taken. The destruction of the crop in 1878 was the direct result of the permanent injury inflicted to the land by the building of the dam in the fall of 1877 and furnished the only proof of the extent of the injury or damage sustained. That is, whenever the flow of the water was obstructed and the level of the water raised then the damage to the land was sustained and the cause of the action had arisen.

If by reason of the level of the water in the river being raised damage results to lands adjoining, it relates back to the time when the obstruction was placed there or whatever it may have been that caused the raising of the level of the water.

This is .sustained by the case of Thornton v. Turner, 11 Minnesota, 336.

The evidence shows that the level of the water in the river was permanently raised about three feet adjoining the land of claimant caused by the construction of the dam at Copperas Creek.

The time when this occurred is ascertained definitely by the report of Daniel C. Jenne, Chief Engineer who superintended the construction of this dam, published in Vol. 1 of Reports to the General Assembly of Illinois for 1879. He says that the dam was closed at 3 o’clock P. M. of the 21st day of October, 1877, and the water ran over the dam at 10 o’clock P. M. of the 22d, so that the level of the water must have been at the latter date, raised permanently. This in our opinion would relate back to the time when the dam was closed and fixes the date when the cause of action accrued.

The act providing for a forum to try this class of cases was passed and in force in July, 1877, before that date. Claimant was bound to file his claim within the two years or it would become barred by the statute.

Our conclusion is that this claim not having been filed until May of 1880—more than two years after the cause of action arose, it is barred by the statute of limitations and should be, for that reason, rejected.


text:
    Chauncy Baker v. The State of Illinois.

      Opinion filed September 10, 1889.

      Waters—particular facts not showing damage by construction of darn. Court reviews evidence and holds that construction of dam in the Illinois river by the State of Illinois has not affected claimant’s lands and claim is rejected.
   In this case the petitioner filed his complaint with the Auditor of the State of Illinois on the 20th day of October, A. D. 1879. The petition sets forth that the claimant is the legal owner of the east half of the southeast quarter of section three, township eight, north of range three west; that in October A. D. 1877, a dam was constructed across the Illinois river at or near Copperas Creek by virtue of the authority of the State of Illinois; that the construction of said dam has caused claimant’s lands to become water soaked and soft to such an extent that they no longer bear animals with safety and have become unproductive, liable to frequent destructive overflows and thereby rendered almost worthless. That claimant’s damages to said lands are $650.00.

The Attorney General denies that claimant has been damaged and insists that claimant’s petition was not filed with the Auditor of the State of Illinois within two years and is therefore barred by the statute of limitations.

The conclusion arrived at by the Commission in this case renders it unnecessary to discuss the question as to whether the State is liable in this class of cases or not.

The dam at Copperas Creek was closed on the 21st day of October, A. D. 1877, and the petition in this case was filed with the Auidtor of State on the 20th day of October, A. D. 1879, within two years from the completion of the dam. The witnesses produced on the part of the claimant all agree that between sixty and sixty-five acres of the claimant’s lands were subject to overflow during summer freshets before the construction of the dam; that some fifteen acres of said tract have always been above high water mark. That crops were grown on said lands and harvested both before and since the construction of said dam. That since the construction of said dam no greater number of acres of this land are subject to overflow than prior to the construction of said dam.

The Commission under authority vested in them by the Legislature appointed one Robert Wilson, a surveyor, to go upon such lands and report such notes and profiles to said Commission as the Commission may direct; see Starr & Curtis Statutes, volume 1, page 741. After being first sworn as such surveyor said Wilson did go upon said lands and under the direction of the Commission did report his findings together with notes and profiles.

In his special report in this case Mr. Wilson says: “The lowest on the line ran was 12.5 plus L. W. in river opposite. A slough on the west of the line. The highest on the line is a quagmire full as bad as the lowest—springy.” This line ran was centrally through the claimant’s land and over its entire length. In Mr.. Wilson’s supplemental report—after having made a careful examination of the condition of the lands along the river from the dam at Henry to Copperas Creek dam and the effect of these dams on the river and the river on the lands states: “That in fact as to stage of water above six feet plus low water the dam at Copperas Creek has little or no effect on the rise of the water in the river, and that its effect is only noticeable when the stage of water is less than six feet above original low water.” These lands by actual measurements are at their lowest points found to be more than twelve feet plus low water mark. At a time when Copperas Creek dam ceases to have an effect on the water in the river the water is then six feet or more below claimant’s land. Six feet above that point when the dam is found to have no effect quagmires and spring soil are found. These lands are between two and three miles from the river and so far above that point where the dam has any effect on the river that we are unable to see that the building of the Copperas Creek dam has affected claimant’s land, and have therefore rejected this claim.


text:
    J. S. & C. E. Hammett v. The State of Illinois.

      Opinion filed September 10, 1889.

    1. Waters—damages caused by erection of dam by State. Erection of dam by State resulting in overflow of river and consequent injury to claimant’s lands will entitle claimant to an award for the actual damage received.
    2. Practice—claim not barred by statute of limitations. Above claim being filed within two years after the closing of the dam in question is not barred by statute of limitations.
   The petition filed in this case alleges, that the claimants are the legal owners of the following described real estate to-wit: The east fractional half of the northeast quarter of section three (3) township eleven (11) north, range nine (9) east of the 4th P. M., containing thirty-two (32) acres all damaged, $7.00 per acre, and the southeast quarter of section thirty-four (34) township twelve (12) north, range nine (9) east of the 4th P. M. containing 146 70-100 acres of which fifty (50) acres are damaged $7.00 per acre.

The petition charged that the damages were caused by the construction of the dam by the State of Illinois across the Illinois river at or near Copperas Creek, that said dam was constructed in the month of October A. D. 1877, that said dam left the water at said dam six and one-half feet at the point where said dam was constructed and in the river opposite said lands from two (2) to three (3) feet higher than it would be, but for said dam, that thereby said lands have become water soaked and soft to such an extent that they no longer bear animals with safety, and have become unproductive and liable to frequent destructive overflows and are worthless and will remain so forever; that claimant is damaged thereby to the amount of $584.00.

The Attorney General in his answer denies claimants’ legal right to recover upon the facts stated, and that claimants failed to file their claim within two (2) years and that their claim is therefore barred by the statute of limitations. The Commission is empowered among other things to hear and determine all claims against the State for the taking or damaging of private property by the State for public purposes, in the construction or for the use of any State institution, river, canal or other public improvement which have not already been barred by any statute or law of limitation. (Laws of 1889, page 90). The claim in this case is for damaging the private property of the claimants in the construction of the Copperas Creek dam by backing the water upon the lands described in the petition and rendering said lands unproductive and liable to frequent destructive overflows; that said lands have thereby become -water soaked and entirely worthless, which condition is the result of the construction and maintaining said dam at Copperas Creek. The Copperas Creek dam was completed and was closed on the 21st day of October, A. D. 1877, and claimants’ petition was filed with the Auditor on the 20th day of October, A. D. 1879, within two (2) years from the closing of said dam; the claim is therefore not barred by the statute of limitations.

The claimants’ as the only heirs of James Hammett, who was the patentee of said lands, appear to be the legal owners of said lands. The evidence in this case is conflicting as to the amount of damages sustained but that these lands have to some extent been damaged we have no doubt. The witnesses produced on the part of the claimants state that 80 acres of said lands have been damaged, that between twenty-three (28) and thirty (30) acres had for about thirty (30) years prior to the construction of the dam been successfully cultivated and that some ten (10) acres had annually produced from twelve (12) to fifteen (15) tons of hay. The balance of the eighty claimed to be damaged is and has always been timbered land, and the witnesses do not attempt to explain in what way this timbered land is damaged.

Claimants’ witnesses estimate the damage at from $7.00 to $10.00 per acre to the entire tract.

Robert Wilson, the surveyor appointed by the Claims Commission under a law then in force, to go on said lands and make a survey and report such notes and profiles to said Commission as the Commission may direct, (see Starr and Curtis’ statute, volume 1, page 741) after being first sworn as such surveyor did go upon said lands and after mailing his survey, etc., in his special report as to claimants lands, says, speaking of the tract in section three (3) “this tract embraces a strip of land along the river bank, some of it once cultivated; it is about nine (9) feet elevation; I don’t think it seriously damaged.” As to the tract in section thirty-four (34) he says “the lands in this tract are all more than nine (9) feet plus L. W. do not consider them seriously damaged.” As a result of his observations Mr. Wilson states that the lowest lands cultivated at any time along the river were found to be nine (9) feet above low water mark at the river opposite the lands. Thirty (30) years before the construction of the dam and up to the time said dam is closed these lands are regularly farmed with good results. The dam was constructed in 1877; in 1878 no crops were raised; in 1879 an inferior crop was produced and when Mr. Wilson comes to examine these tracts in 1882 he finds that the lands as he says were or had been once cultivated.

From the evidence in this case we are'of the opinion that claimants’ lands for farming purposes have been damaged; that said damage was caused by the construction of Copperas Creek dam and that so far as their usefulness for cultivation is concerned the damage is permanent. These lands may be and doubtless are valuable for pasturage during at least part of the year. We have fixed the damage sustained by this claimant at three hundred and fifty dollars ($350.00.)