author: Mr. Justice Bailey

text:
    Marie A. Youngs v. Phineas B. Youngs.

      Filed at Ottawa

      November 26, 1889.

    1. Devoboe — ‘habitual drunkenness,” as a ground, of divorce—in what drunkenness may consist—of the morphine habit—the statute construed. The word “drunkenness,” as used in the statute as a ground of divorce, means that state or condition which inevitably follows from the taking into the body of excessive quantities of alcoholic or other intoxicating liquors. It is used in the statute in its ordinary and popular sense, and does not mean that similar state or condition produced by the use of morphine by hypodermic injection into the arms or legs. It can not be held to include that intoxication produced by the hypodermic administration of morphine.
    2. To make the excessive indulgence in the morphine habit a ground for divorce will require further legislative action, as it is not made such by the present statute. It is beyond the power of courts to extend the statutory grounds of divorce to cases not within the legislative intent.
    3. Same—cruelty—in what it may consist. If the acts of violence relied upon as cruelty in a suit by a wife for divorce, are provoked by her attempting to take from her husband morphine he was using, and while he was in a state of total or partial delirium, and his acts were mainly of resistance to such attempt, she can not set up the treatment received by her, under such circumstances, as extreme and repeated cruelty, within the meaning of the statute. ,
    4. Same—condonation of acts of cruelty. Where a wife continues to live and cohabit with her husband several months after the last act of personal violence by him, and nothing is shown to do away with her condonation, this will be a bar to a bill for divorce upon the ground of cruelty, filed by her afterward.
    5. Same—sufficiency of bill—as to the charge of cruelty. A bill for divorce charging cruelty only in general terms, without stating any specific acts, is subject to demurrer.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Lobin C. Collins, Judge, presiding.

      Mr. C. F. Loesch, and Mr. George Driggs, for the appellant :
    Is the excessive use, for over two years, of any narcotic substance which intoxicates its victim, sufficient ground for a divorce under the statute permitting divorce for habitual drunkenness for the space of two years ? Bishop on Marriage and Divorce, (6th ed.) 813; Barber v. Barber, 14 L. B. 375.
    Those acts which affect the life, health, or even the comfort, of the party aggrieved, and give a reasonable apprehension of bodily hurt, are called cruelty. 1 Bouvier, 414.
    As to what constitutes extreme and repeated cruelty, see Sharp v. Sharp, 116 Ill. 511; Coursey v. Coursey, 60 id. 186.
    The patient forbearance of a wife should not be mistaken for condonation. Mack v. Hardy, (La.) 2 So. 181.
    As to condonation, see 1 Bouvier, 315; Sharp v. Sharp, 116 Ill. 517; Jacobs v. Tobelman, 36 La. Ann. 842; Beeby v. Beeby, 1 Hagg. 789.
    Mr. A. J. Hopkins, Mr. N. J. Aldrich, and Mr. F. H. Thatcher, for the appellee:
    The immoderate use of opium, though it may operate the same as that of alcoholic liquors, is not intemperance, within the meaning of a statute of this kind, and it is the same with chloroform. 1 Bishop on Marriage and Divorce, (6th ed.) sec. 813; Barber v. Barber, 14 L. R. 375; Bishop on Stat. Crimes, 972.
    Divorce can only be granted for causes specified in the statute—anything short of that requirement will not be sufficient. The General Assembly seems to have restricted, rather than encouraged, the grounds for divorce. Henderson v. Henderson, 88 Ill. 248.
    As to what is the extreme and repeated cruelty required by the statute, see Henderson v. Henderson, 88 Ill. 250; Vignos v. Vignos, 15 id. 186; Shorediche v. Shorediche, 115 id. 102; 2 Kent’s Com. *126.
   Mr. Justice Bailey

delivered the opinion of the Court;

This was a bill in chancery, brought hy Marie A. Youngs against Phineas B. Youngs, her husband, in the Circuit Court of Cook county, praying for a divorce. The parties were mar-' ried at G-alva, Illinois, February 12, 1879, and shortly thereafter took up their residence at Aurora, Kane county, Illinois, where they resided until about the first of March, 1887. One child, a daughter, was born as the fruit of their marriage, who, at the date last mentioned, was about five years of age. On or shortly after March 1,1887, the complainant left her husband and went to the city of Chicago where her father and sister were living. On the 4th day of March, 1887, she filed' a bill against her husband for a divorce in the Circuit Court of Cook county, setting up as her only ground of complaint, that her husband, for more than two years then last past, had been guilty of habitual drunkenness. On the 11th of April, 1887, the parties executed an instrument in writing, whereby it was agreed that they should live separate and apart for the period of one year from that date, and that during that period the defendant should pay the complainant at the rate of $35 per month for the support and maintenance of.herself and child, and that the defendant should have the privilege of seeing said child by himself or in the presence of the complainant as he might prefer, one day each month, during the continuance of said contract; that the complainant should immediately dismiss her bill for a divorce and refrain from commencing any other proceedings of like character during the same period; that the defendant, during that time, would wholly refrain from the use of morphine or liquor in any form, except for medical purposes' and under the direction of a skillful and reputable physician.

For the period of one year mentioned in said instrument the parties lived separate and apart, the defendant living in Aurora and the complainant remaining in Chicago, the defendant during that time making to the complainant the monthly payments agreed upon. At the end of the year the defendant ceased to make further payments, and the complainant, on the 12th day of April, 1888, the day following the termination of the year, filed in the same court a new hill for a divorce.

By said bill, the complainant alleged, as she had in her former bill, that the defendant, for the period of more than two years prior to the time she left him as aforesaid, was guilty of habitual drunkenness, and also alleged generally that the defendant had been guilty of extreme and repeated cruelty towards the complainant, that is, that he had, on divers days and times since said marriage, beaten and abused her, and neglected to furnish her and her child proper and necessary food and clothing, and was harsh, unkind and tyrannical in his treatment of the complainant, but no specific acts of cruelty were set out or charged in said bill. The defendant demurred to that portion of the bill charging cruelty, and answered the residue, denying said charge of drunkenness. On the 25th day of June, 1888, the complainant filed her petition for alimony pendente lite and for an allowance for her solicitor’s fees, which petition was denied, and thereupon, on the 9th day of July, 1888, she amended her bill by inserting therein a number of specific charges of cruelty. The defendant answered denying said charges, and the cause afterwards coming on to be heard by the court on pleadings and proofs, a jury being waived, the issues were found for the defendant and a decree was entered upon said finding dismissing the hill for want of equity. Said decree was affirmed by the Appellate Court, and by appeal from the judgment of that court, the complainant has brought the record here and assigned errors.

The evidence fails to show that the defendant has ever been in the habit of drinking intoxicating liquors, at least to excess. But it is claimed, and the evidence on behalf of the complainant tends to show, that, for several years prior to the time the complainant left him, the defendant had been in the habit of using morphine administered by hypodermic injections in the arm and leg. It appears that the effects of morphine thus administered are very similar, and in many respects apparently identical, with those produced by the excessive use of intoxicating liquors. This branch of the complainant’s case therefore must rest upon the proof of the defendant’s indulgence in the morphine habit, and must necessarily fail, unless it can be held that the intoxication and-stupor produced by the excessive use of morphine is “drunkenness” within the meaning of the first section of the statute in relation to- “Divorce.”

It can not be doubted, we think, that the word “drunkenness” is used in said statute in its ordinary and popular sense. The primary signification of the word, as given by Webster, is : “The state of being drunken, or overpowered by alcoholic liquor; intoxication; inebriety.” In Bouvier’s Law Dictionary it is defined as, “The condition of a man whose mind is affected by the immediate use of intoxicating drinks.” A similar definition is given by Bapalje and Lawrence in their Law Dictionary, viz.: “Disorder of the mind occasioned by the recent use of intoxicating liquor.” The Supreme Judicial Court of Massachusetts, in defining the meaning of the word as used in the statutes of that State, say: “There can be no doubt that drunkenness, as it is commonly understood in the community, is the result of the excessive drinking of intoxicating liquors. Such is also the signification given to it by lexicographers. It is ebriety, inebriation, intoxication; all words nearly synonymous, and all expressive of that state or condition which inevitably follows from taking into the body by swallowing, or drinking, excessive quantities of such liquors.” It was held in that case that evidence of habitual intoxication from the use of chloroform would not sustain a complaint under the Massachusetts statute, charging a person with being a common drunkard. Commonwealth v. Whitney, 11 Cush. 477.

That the word is used in our statute in the sense above indicated, and that it can not be held to include intoxication produced by the hypodermic administration of morphine, seems to be the inevitable conclusion. A further confirmation of this view, if such were necessary, may be derived from the fact that habitual drunkenness for two years was made a ground for divorce by our statute as early as the year 1827, which was many years before the mode of administering morphine by hypodermic injection was known, as we suppose, to even the Medical Faculty. As originally used therefore these words could not have been intended to include intoxication produced by the administration of morphine in this mode, and as the same words have been continued in precisely the same connection in every subsequent revision of our statutes, the conclusion is irresistible that the words are to be understood now in the same sense in which they were originally employed. It is beyond the power of the courts to extend the application of said words to a subject not within the legislative intent. To make an excessive indulgence in the morphine habit a ground for divorce will require further legislative action, as it is clearly not made such by the statute as it now stands.

The complainant’s charges of extreme and repeated cruelty remain to be considered. The evidence tending to support those charges is to be found in the testimony of the complainant, corroborated in part by the testimony of her sister and of a domestic in the family. In the defendant’s testimony said acts of cruelty are specifically denied. If it be admitted that the preponderance of the evidence is with the complainant, it remains to be seen whether, upon her own showing, she has suffered at the hands of the defendant such extreme and repeated cruelty, within the meaning of the statute, as should entitle her to a divorce.

The testimony of the complainant and her witnesses shows the commission by the defendant of several acts of personal violence to the complainant which, if unexplained, would, as must probably be conceded, make out a case of cruelty sufficient to entitle the complainant to a decree. But it affirmatively appears that all of said acts of violence were committed while the defendant was under the influence of morphine, and that they were generally brought on by the complainant’s attempts to interpose and prevent the defendant’s administering to himself that drug. However praiseworthy may have been her efforts to take the morphine out of her husband’s possession, or to prevent his using it, she must be deemed to have known and contemplated the natural and probable results of her action, and to have thus voluntarily encountered the violence which ensued. We would not be understood as holding that the intoxication or delirium produced by the voluntary use of morphine can be set up as a justification of tortious acts committed by one under the influence of that drug, any more than can intoxication produced by the use of alcoholic liquors. But if the violence complained of was provoked by the complainant’s attempts to take the-morphine from her husband while he was in a state of total or partial delirium, and if, as the evidence seems to show, his acts consisted mainly of resistance on his part to such attempts, the complainant can not set up the treatment received by her under such circumstances as extreme and repeated cruelty within the meaning of the statute.

The evidence tends to show, and is, as we think, sufficient to establish, condonation. The last act of personal violence to the complainant proved took place some time in December, 1886, but the evidence shows that the complainant continued to live and cohabit with the defendant until she left him about the first- of the following March. No subsequent conduct on the part of the defendant is shown which can be held to be sufficient to do away with such condonation, and we think the chancellor was correct in holding it to be a bar to the complainant’s right to relief.

As tending to support her charge of cruelty, the complainant gave some evidence to the effect that while she lived and cohabited with the defendant, she was compelled by him to submit to excessive sexual intercourse. We have duly considered the evidence on that point, and have only to say that, in our opinion, it fails to show such state of facts as would, amount in law to cruelty.

The conclusion reached by the chancellor that the complainant is not entitled to relief on the ground of cruelty is very considerably fortified by considerations drawn from the mode in which her complaint in that behalf has been brought forward. She left her husband and went to Chicago about March 1, 1887, and on the 4th day of that month she filed her bill against him for a divorce. At that time the cruelty which she claims to have suffered must have been fresh in her recollection, and it was but reasonable to expect that, if she was entitled to a divorce on that ground, she would allege it in her bill. The only ground alleged, however, was habitual drunkenness, no mention whatever of any acts of cruelty being made. In the articles of agreement entered into a few days later, by which they arranged to live separate and apart for a year, it was recited that certain differences had arisen between them, but the only matter of difference in any way hinted at in the instrument related to the use by the defendant of morphine and liquor. At the expiration of the year the complainant filed a new bill for divorce, alleging habitual drunkenness as before, but charging cruelty only in general terms, and not in such form as to be available as a ground for relief. It was not until the sufficiency of that portion of her bill had been challenged by demurrer, and after the weakness of her bill had been developed on her motion for an allowance of alimony pendente lite, that her bill was so amended as to charge cruelty in such form as to constitute a ground for a divorce. These circumstances furnish ground for a legitimate inference that the charge of cruelty is a mere afterthought, and that it was brought forward only after it had become apparent that the bill could not otherwise be maintained.

We are of the opinion that the decree is in accordance with the evidence, and that no error was committed by the Appellate Court in affirming it. The judgment of the Appellate Court will be affirmed.

Judgment affirmed»


source: Caselaw Access Project

license: Public Domain

text:
    Carrie Culver v. The City of Streator.

      Filed at Ottawa

      November 26, 1889.

    1. Police power—of municipal corporation—defined. The police power of a municipal corporation may be defined, in general terms, as. comprehending the making and enforcement of all such laws, ordinances and regulations as pertain to the comfort, safety, health, convenience, good order and welfare of the public; and all persons officially charged with the execution and enforcement of such police ordinances and regulations are, quoad hoc, police officers.
    2. Respondeat superior—os applied to municipal corporations—os-respects the acts or negligence of their officers. Police officers appointed or employed by a city are not its agents or servants so as to render the city responsible for their unlawful or negligent acts in the discharge of their duties, or in executing or enforcing police ordinances and regulations.
    3. An incorporated city is not responsible to a person who receives a personal injury from one of its officers or agents in enforcing an ordinance prohibiting the running at large of unlicensed and unmuzzled dogs, as, where, in attempting to kill a dog, through negligence and carelessness the officer shoots and wounds such person.
    4. Whether a person is a servant or employe of a municipal corporation in such sense as calls for the application of the rule respondeat superior, depends mainly upon whether he was employed to perform acts which the corporation could do in its private or corporate character, or acts which the corporation was empowered to do in its public capacity as a governing agency, and in discharge of duties imposed for the public or general welfare. Acts performed in the exercise of the police power belong to the latter class, and the rule does not apply»

      Writ of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of La Salle county; the Hon. Charles Blanchard, Judge, presiding.
    This was an action on the case, brought by Carrie Culver against the city of Streator, to recover damages for a personal injury. A demurrer having been sustained to the plaintiff’s original declaration, an amended declaration was filed, consisting of four counts. The fourth count in which the plaintiff’s cause of action seems to be set out with the greatest fullness is as follows:
    “And also, for that, whereas, heretofore, to-wit, on the 10th day of May, A. D. 1887, in the said city of Streator, defendant had a certain ordinance then in force, which said ordinance had, previous to said time, been duly and regularly adopted and made a part of the ordinances of said city by its mayor and common council, in and by which ordinance the running at large of dogs in said city, not muzzled, was forbidden ; and it was further provided, that all such dogs so running at large contrary to said ordinance should be destroyed. And the plaintiff avers that the said defendant, by its servants, while enforcing said ordinance, as it lawfully might, and while killing and destroying dogs running at large contrary to the provisions of said ordinance, and while the plaintiff was exercising all due care and caution, so negligently and carelessly performed their said acts and duty, that by reason of the said carelessness and negligence of the said servants of the said defendant, the said plaintiff was shot, struck, wounded, bruised and injured by said servants, and by reason thereof she became sick, sore, lame, disordered and permanently injured and disabled, and from thence hitherto has been, and still is, disordered and disabled, whereby she has and does still continue to suffer great pain, and was and is injured in her body and health, and also, by means of the premises, was obliged to and did lay out a large sum of money, to-wit, the sum of $1000, in and about endeavoring to be healed of the said wounds, bruises, sickness, lameness, disorders and disabilities, besides her other damages in this cause most wrongfully .sustained, wherefore the plaintiff says that she has been injured and has sustained damages to the amount of $25,000, and therefore she brings her suit,” etc.
    The third count avers that, “on the 10th day of May, A. D. 1887, the defendant, the said city of Streator, while in the discharge of its duty in destroying dogs running at large contrary to the ordinances of said city, through its servants, so negligently and carelessly performed its said duties that the plaintiff, while conducting herself with all due care and caution, was, by the ssád servants of the said defendant, while in the performance of their duty as aforesaid, shot, struck, wounded, bruised and injured,” etc.
    The first and second counts, which are substantially identical, aver that, “on the 10th day of May, A. D. 1887, the said defendant, as it lawfully might, hired and employed certain servants to shoot and kill all dogs at large in said city which were not duly licensed by the said city; that it became the duty of the said servants and agents so employed, as aforesaid, in the business of the said city, as aforesaid, to use due care and caution in the performance of the said duty, yet the said servants and agents did not regard their said duty, or use due care and caution while in the employ of the said city, as aforesaid, in that behalf, but on the contrary thereof, and while the plaintiff was in the exercise of all due care and caution, they, the said servants and agents, so carelessly and negligently performed the said duty, that the plaintiff was thereby, then and there, by the said servants and agents aforesaid, shot, wounded, bruised and injured,” etc.
    A general demurrer to the amended declaration and each and every count thereof was sustained by the court, and the plaintiff electing to abide by said declaration, ■ final judgment was rendered against her for costs. Said judgment was thereupon taken by writ of error to the Appellate Court where it was affirmed, and by writ of error from this court to the Appellate Court, the record is now brought here for review.
    Mr. Joel T. Buckley, and Messrs. McDougall & Chapman, for the plaintiff in error:
    The city, in enforcing the ordinance, was not performing a public duty, but one which relates entirely to corporate powers, and the maxim respondeat superior applies. Dillon on Mun. Corp. (2d ed.) sec. 772.
    There is no statute authorizing a city to destroy dogs running at large, as was done in this case, but the authority is conferred on the city as one of its corporate powers to enact and enforce such an ordinance. The officer committing this injury was not an independent officer as to that act, but was the servant of the corporation while in the legitimate exercise of his duty under the ordinance. Prather v. Lexington, 13 B. Mon. 559, (56 Am. Dec. 585.)
    A city is liable for the negligence of its agent in the performance of a public duty, if they are specially employed for that particular work, and are not acting as public officers. Mul-eairns v. City of Janesville, 67 Wis. 24.
    It is within the corporate power of a municipal corporation to abate a nuisance, and the law is well settled that a municipal corporation is liable for special damages inflicted upon private property, or the person, by reason of negligence or want of skill of persons employed by it to perform such duties and labors as are properly within its corporate power. Wallace v. Muscatine, 4 Greene, 373; Ross v. Madison, 1 Ind. 281 ; Coles v. Davenport, 9 Iowa, 227; Templin v. Iowa City, 14 id. 59; Mayor v. Bailey, 2 Denio, 433; Lloyd v. Mayor, 5 N. Y. 369; Memphis v. Lasser, 9 Humph. 757.

      Mr. Walter Reeves, and Mr. William H. Boys, for the defendant in error:
    A municipal corporation is not liable for the negligent manner in which its officers may execute a public ordinance which amounts to a public regulation. Dillon on Mun. Corp. (3d ed.) secs. 974-979; Butterick v. Lowell, 1 Allen, 172; Hafford v. New Bedford., 16 Gray, 279; Colwell v. City of Boone, 51 Iowa, 678; Ogg v. Lansing, 35 id. 495; Prather v. Lexington, 13 B. Mon. 559; Elliott v. Philadelphia, 75 Pa. St. 347; Wilcox v. Chicago, 107 Ill. 334.
    Cities are not liable for the negligent acts of the members of their police force. McElroy v. Albany, 65 Ga. 337; Elliott v. Philadelphia, 7 Phil. 128; Pollock v. Louisville, 13 Bush, 226; Henndn v. Lynchburg, 33 Gratt. 37; Fisher v. Boston, 104 Mass. 87; Field v. Des Moines, 39 Iowa, 575; Heller v. Mayor, 53 Mo. 159 ; Howard v. San Francisco, 51 Cal. 52.
   Mr. Justice Bailey

delivered the opinion of the Court:

We are of the opinion that the several counts of the amended declaration, though differing somewhat in the character of their averments, all call for the application of the same principles. The fourth count, which is fullest in its allegations, shows that the injury complained of was caused by the negligent act of a party employed by the city of Streator to enforce a municipal ordinance forbidding the running at large, of dogs in said city without being muzzled, and providing that all dogs running at large contrary to said ordinance should be destroyed. This was clearly an ordinance passed by the city in the exercise of its police powers, and the injury was caused by the party employed to enforce such police regulations.

The third count alleges that the injury was caused by the negligent and careless acts of the servants of the city while destroying dogs running at large contrary to a city ordinance; and the first and second counts allege, in substance, that the injury was caused by the negligent and careless acts of servants hired and employed by the city to shoot and kill dogs at large in the city, and which had not been by it duly licensed. The matter of regulating and restraining the running at large of dogs by a municipal corporation manifestly pertains to the police power. That power may be defined, in general terms,, as comprehending the making and enforcement of all suchi laws, ordinances and regulations as pertain to the comfort,, safety, health, convenience, good order and welfare of the public, and all persons officially charged with the execution and enforcement of such police ordinances and regulations are, quoad hoc, police officers.

The pleader, in drafting the declaration, seems to have endeavored to obviate the conclusions to be drawn from the character of the duties which the officer in question was performing at the lime the plaintiff was injured, by designating; and describing him as a servant or employe of the city, and alleging that he was hired and employed by the city to perform said duties. Merely denominating him a servant or employe does not make him such in a sense calling for an application of the maxim, respondeat superior. Whether he was a servant or employe in that sense depends mainly upon whether he was employed to perform acts which the corporation could do in its. private or corporate character, or acts which the corporation was empowered to do in its public capacity as a governing-agency, and in discharge of duties imposed for the public or general welfare. Acts performed in the exercise of the police-power plainly belong to the latter class.

Police officers appointed by the city are not its agents or servants so as to render it responsible for their unlawful or negligent acts in the discharge of their duties. Accordingly it has been held that a city is not liable for an assault and battery committed by its police officers, though done in an attempt to enforce an ordinance of the city: Buitrick v. City of Lowell, 1 Allen, 172; nor for illegal and oppressive acts of officers committed in the administration of an ordinance: Board of Trustees v. Schroeder, 58 Ill. 353; nor for an arrest made by them which is illegal for want of a warrant: Pollack’s Administrators v. City of Louisville, 13 Bush, 221; Cook v. City of Macon, 54 Ga. 468; Harris v. City of Atlanta, 62 id. 290; nor'for their unlawful acts of violence, whereby, in the exercise of their duty in suppressing an unlawful assemblage, an injury is done to the property of an individual: Stewart v. New Orleans, 9 La. Ann. 461; Dargan v. City of Mobile, 31 Ala. 469.

Upon the same principle, it has been held that a city having power to establish a fire department, to appoint and remove its officers, and to make regulations in respect to their government and the management of fires, is not liable for the negligence of the firemen appointed and paid by it, who, when engaged in the line of their duty, upon an alarm of fire, run ft over the plaintiff, on their way to the fire: Hafford v. New Bedford, 16 Gray, 297; Wilcox v. City of Chicago, 107 Ill. 334; nor for injury to the plaintiff caused by the bursting of a hose of one of the engines of the city, through the negligence of a member of the fire department: Fisher v. City of Boston, 104 Mass. 87; nor for negligence whereby sparks from the fire-engine of the city caused the plaintiff’s property to be burned: Hays v. City of Oshkosh, 33 Wis. 314. In like manner it is held that where a city, under authority of law, establishes a hospital, it is not liable to persons injured by the misconduct of its agents and employes therein: City of Richmond v. Long’s Administrators, 17 Gratt. 375. See also 2 Dillon on Municipal Corporations, secs. 973-975, and authorities cited in notes.

The ground upon which the foregoing cases, and many others of like nature, are admitted as exceptions to the general rule of corporate liability, is, that in those matters the city acts only as the agent of the State, in the discharge of duties imposed by law for the promotion,and preservation of the public and general welfare, as contradistinguished from mere corporate acts, having relation to the management of its corporate or private concerns, and from which it derives some special or immediate advantage or emolument in its corporate or private character.

The police regulations of a city are not made or enforced in the interest of the city in its corporate capacity, but in the interest of the public. A city, therefore, is not liable for the acts of its officers in attempting to enforce such regulations. Caldwell v. Boone, 51 Iowa, 687; Prather v. Lexington, 13 B. Mon. 559; Elliott v. Philadelphia, 75 Pa. St. 347; Board of Trustees v. Schroeder, supra.

The injuries complained of in the declaration having been caused by the negligence of an officer or employe of the city while attempting to enforce a police regulation, the maxim respondeat superior does not apply, and the demurrer to the declaration therefore was properly sustained. The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Jacob Glos et al. v. Sarah A. Randolph.

      Filed at Ottawa

      November 26, 1889.

    Practice in the Supreme Court—transcript of record—authentication. The statute (Eev. Stat. chap. 110, sec. 73,) requiring an authenticated copy of the records of decrees, judgments and orders appealed from to be filed in the office of the clerk of the Supreme Court on or before the second day of the succeeding term of that court, is not complied with by filing within the proper time what purports to be a transcript, but which contains no certificate of the clerk of the trial court that it is a transcript of the record in the case appealed from.
    Appeal from the Circuit Court of Du Page county; the Hon. C. W. Upton, Judge, presiding.

      Mr. H. S. McCartney, for the appellants.
    Mr. Thomas S. McClelland, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This is an appeal to reverse a decree of the circuit court of DuPage county, rendered in a proceeding instituted by ap-pellee to set aside a tax deed which was alleged to be a cloud on .the title of appellee in and to the premises in controversy.

Two grounds are relied upon in the argument to reverse the decree: First, that appellee failed to prove that the premises were vacant, as alleged in the bill; and second, appellee failed to prove that she was the owner of the premises. Neither of the questions relied upon can be considered on this appeal. What purports to be a transcript of the record of the circuit court contains no certificate from the clerk of the circuit court that it is a transcript, of the record in this or any other case. Section 73, chapter 110, of the Revised Statutes of 1874, provides that authenticated copies of records of decrees, judgments and orders appealed from, shall be filed in the office of the ■clerk of the Supreme Court on or before the second day of the succeeding term of the court. Here, the appeal was taken ■on the 29th day of March, 1889, and as no authenticated copy of the record was filed on or before the second day of the succeeding term,—the October term, 1889,—the appeal must be ■dismissed. Hosmer v. The People, 96 Ill. 58, if authority is needed, is a case in point..

Appeal dismissed.


text:
    The City of Lake View v. H. Tate.

      Filed at Ottawa

      November 26, 1889.

      1. Municipal cop.pop.ations—powers—regulating the speed of railway trains—and herein, of discriminating between different roads. By paragraph 24 of section 1, article 5, of the general Incorporation law, cities organized under that act are given power to regulate, by ordinance, the speed of railway cars and locomotives within their limits. But section 24 of the act in relation to the fencing and operating of railroads provides that no ordinance shall limit the rate of speed, in case of passenger trains, to less than ten miles per hour, nor in any other case to less than six miles per hour. Except so far as limited by the last named act, the whole matter of regulating the speed of trains is left to the sound discretion of the municipal authorities.
    2. "Where one railroad runs through a densely populated part of a city, where a high rate of speed of its trains would be extremely dangerous to persons and property, and another railway runs through a portion of the same city where there are but few inhabitants, and where it is improbable that injury will happen to any person who is in the exercise of ordinary care, an ordinance making a discrimination as to the speed at which the trains of the two roads may be run can hardly be said to be unreasonable.
    3. But when no such disparity of circumstances is shown, making it necessary to apply different regulations to the different roads, an ordinance which limits the speed of the trains on one road and leaves the other to run through the city without such limitation, will be unreasonable, and therefore void.
    4. Same—ordinances—reasonableness to be considered. Although the subject matter and provisions of a municipal ordinance be left to the discretion of the city council, such, discretion is not absolute, but is subject to the limitation that the ordinance must be reasonable.
    5. Where the legislature, in terms, confers upon a municipal corporation the power to pass ordinances of a specified and defined character, if the power thus delegated be not in conflict with the constitution, an ordinance passed pursuant thereto can not be impeached as invalid merely because it would have been regarded as unreasonable if it had been passed under the incidental power of the corporation, or under a grant of power general in its nature. But when the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then the ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be held invalid.
    6. Same—validity of ordinance is a question of law. Whether an ordinance is unreasonable, and therefore void, is a question for the court, and not for the jury, and evidence bearing on the question is properly addressed to the court; but in determining it, the court will have to regard all the circumstances of the city, the objects sought to be attained, and the necessity which exists for the ordinance.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Criminal Court of Cook county; the Hon. Oliver H. Horton, Judge, presiding.
    Mr. Jonas Hutchinson, for the appellant:
    The constitutional prohibition against special legislation applies only to the legislature, and not to cities, etc. People v. Harper, 91 Ill. 370; Covington v. East St. Louis, 78 id. 548; Baldwin v. Philadelphia, 99 Pa. St. 164.
    As to the power of cities to regulate the speed of cars and trains within their limits, see Redfield on Railways, 577, 578 ; Dillon on Mun. Corp. sec. 713; Cooley’s Const. Lim. (5th ed.) 575; Railroad Co. v. Haggerty, 67 Ill. 113; Fertilizing Co. v. Hyde Park, 70 id. 646.
    An ordinance may make discriminations as between places. East St. Louis v. Wehrung, 46 Ill. 392; Railroad Co. v. City of Richmond, 96 U. S. 151; Barber v. Connelly, 113 id. 27; Railway. Co. v. Dill, 22 Ill. 265; Merz v. Railway Co. 88 Mo. 872.
    Messrs. Walker & Eddy, for the appellee:
    The ordinance is void because it discriminates between the two competing railway lines. An ordinance which is partial or makes unjust discriminations is void. Cooley’s Const. Lim. 393; Tugman v. Chicago, 78 Ill. 405; Dillon on Mun. Corp. secs. 253-256, 261; Railway Co. v. Jacksonville, 67 Ill. 37; Meyers v. Railway Co. 57 Iowa, 555.
   Mr. Justice Bailey

delivered the opinion of the Court:

This was a suit brought by the City of Lake View against H. Tate, before a justice of the peace, to recover the penalty imposed by an ordinance of said city regulating the speed of railway trains. The trial before the justice of the peace resulted in a judgment in favor of the city for $200 and costs. On appeal to the Criminal Court of Cook county, a trial de novo was had before the court, a jury being waived, resulting in a judgment in favor of the defendant. That judgment being taken to the Appellate Court by appeal, was affirmed, and by a further appeal the record is brought to this court for review.

The city of Lake View, during the period of time covered by the matters in question, was a municipal corporation organized under the general law, embracing a territory extending north and south along the shore of Lake Michigan, from the city of Chicago to the town of Evanston, a distance of five miles, and having an average width of about two miles. Ashland avenue runs north from the north line of Chicago to a point about one mile south of the north line of Lake View, where it is intersected by Clark street, and the latter street runs from the point of intersection in a course nearly due north to said north line of Lake View, said street and avenue thus forming a continuous line north and south through Lake View, and dividing it into two nearly equal sections. Two lines of railway, and two only, run through said city, viz, the Chicago and North-Western and the Chicago and Evanston, both in a north and south direction and nearly parallel with each other. The Chicago and North-western Bailway runs from the city of Milwaukee through the town of Evanston to its general passenger station in the city of Chicago, and passes through the city of Lake View parallel with Ashland avenue and about one-eighth of a mile westerly therefrom. The Chicago and Evanston Bailway runs from the town of Evanston to its general passenger station in Chicago, and passes through Lake View on a line nearly parallel with Ashland avenue and from a third to a half of a mile easterly therefrom.

On the 19th day of July, 1886, a general ordinance regulating the speed of trains in Lake View was passed, said ordinance being applicable alike to all railways, and limiting the speed of passenger trains to ten miles an hour and of freight trains to six miles an hour. On the 2nd day of August, 1886, said ordinance was so amended as not to apply to any railway company which should maintain gates or flagmen at certain designated crossings. January 13, 1888, the following ordinance was passed, to-wit:

“Be it ordained by the city council of the city of Lake View: Section T. That in order to regulate the speed of railroad trains within the city of Lake View, the following described districts are hereby established: First, all that part of the city of Lake View lying east of Ashland avenue and North Clark street, northward from the point where North Clark street intersects with Ashland avenue, shall be, and the same is hereby declared to be, the east railroad district; second, all that part of the city of Lake View lying west of Ashland avenue and North Clark street, at the point where North Clark street intersects with Ashland avenue, shall be, and tliQ same is hereby declared to. be, the west railroad district.

“Sec. 2. That no railroad train, locomotive, engine or car used for the transportation of passengers, shall be run through or within the limits of the east railroad district, as above described, at a greater rate of speed than ten (10) miles an hour, and in any other case than passenger trains the rate of speed within such districts shall not exceed six (6) miles an hour.

“Sec. 3. If any railroad corporation, or its conductor, engineer, or other agent or servant, shall violate the provisions of the preceding section, such corporation, conductor, engineer, or other agent or servant, shall be deemed guilty of a misdemeanor, and shall be punished by a fine not exceeding $200. for such-offense, in addition to the liability to such punishment as is provided by the statute of the State of Illinois for like offense.

“Sec. 4. The mayor of the city of Lake View is hereby charged with the duty of using all means and measures in his power to detect and punish any violation of this ordinance; and the city attorney is hereby charged with the duty of rendering the mayor such assistance in the premises as may be necessary to bring to punishment any offenders against this ordinance.

“Sec. 5. An ordinance entitled ‘An ordinance to regulate the speed of railroads,’ passed and approved July 19, 1886, and an ordinance amendatory thereof, passed August 2,1886, are hereby repealed.

“ Sec. 6. This ordinance shall take effect and be in force from and after its proper publication.”

The defendant was a locomotive engineer in the employ of the Chicago and Evanston Railway Company, and the com-' plaint charges that, on the 21st day of February, 1889, he ran a train of cars on said railway, through the “East Railway District” of said city of Lake View at a greater rate of speed than ten miles an hour, in violation of said ordinance.

It was proved at the trial, and is admitted here, that the defendant, at the time and place charged in the complaint, ran a passenger train on said railway at a greater rate of speed than ten miles an hour, the only contention being as to the validity of said ordinance.

Paragraph 24 of section 1, article 5, of the General Incorporation Law, empowers the city council of any city organized thereunder, “ to regulate the speed * * * of cars and locomotives within the limits of the corporation.” 1 Starr & Curtis, 464. Section 24 of the Act in relation to fencing and operating Railroads, provides, that no ordinance shall limit the rate of speed, in case of passenger trains, to less than ten miles per hour, nor in any other ease to less than six miles per hour. 2 Starr & Curtis, 1941. With this exception, there is no statute which attempts to prescribe either the mode or measure of the limitation which municipal corporations may impose upon the speed of trains running within their corporate limits. So far then as the statute is concerned, the whole matter, with the above exception, is left to the discretion of the municipal authorities.

The law is well settled, however, that where the subject matter and provisions of a municipal ordinance are left to the discretion of the city council, such discretion is not absolute, but is subject to the limitation that the ordinance must be reasonable. “Where the legislature, in terms, confers upon a municipal corporation the power to pass ordinances of a specified and defined character, if the power thus delegated be not in conflict with the constitution, an ordinance passed pursuant thereto can not be impeached as invalid because it would have been regarded as unreasonable if it had been passed under the incidental power of the corporation, or under a grant of power general in its nature. In other words, what the legislature distinctly says may be done can not he set aside by the courts because they may deem it unreasonable or against sound policy. But where the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then the ordinance passed in pursuance thereof must he a reasonable exercise of the power, or it will be pronounced invalid.” 1 Dillon on Municipal Corporations, sec. 328; id. section 319, and authorities cited. Whether a particular ordinance is unreasonable and therefore void is a question for the court and not for the jury, and evidence bearing upon the question is properly addressed to the court, but in determining it, the court will have regard to all the circumstances of the city, the objects sought to be attained, and the necessity which exists for the ordinance. Id. section 327. See also Tugman v. City of Chicago, 78 Ill. 405; City of Chicago v. Rumpff, 45 id. 90.

It is alleged that the ordinance in question is unreasonable because it constitutes a special and unwarranted discrimination between two rival and competing lines of railway. Both of said railways are engaged in the business of transporting passengers from the town of Evanston to the city of Chicago, large numbers of whom, as the evidence shows, are being transported between those points daily. The Chicago and Evanston Railway, running as it does through the East Railroad District, is limited to a speed of ten miles an hour. But the previous ordinances which were applicable to the entire city being repealed, and no new limitation being imposed upon the speed of trains in the West Railroad District, the trains on the Chicago and North-western Railway ivere subject to no limitation as to speed, but might run at a much higher rate. In suburban transportation speed is a matter of prime importance, and the railway company that is able to offer to the public the speediest transportation, thereby acquires a very important and manifest advantage over its competitors.

That said ordinance constitutes an important discrimination between said lines of 'railway does not admit of serious question. Its validity, then, must depend upon whether the special circumstances, as shown by the evidence, are such, that in the interest of public safety, such discrimination is necessary and therefore warranted. Undoubtedly the circumstances of two lines of railway running through the same city may be such as to justify or even necessitate the imposition of different measures of restraint upon the speed of their trains. One may run through a portion of the city which is densely populated and where a high rate of speed would be extremely dangerous to persons and property, while the other may run through a portion of the same municipality where there are but few inhabitants, and where it is extremely improbable that injury will happen to any person who is in the exercise of ordinary care. In such case a discrimination could hardly be said to be unreasonable.

' In the case before us, no such disparity of circumstances seems to be shown. Part of the line of both railways is. through thickly settled portions of the city and part through sections where there are but few inhabitants. It may be fairly inferred from the evidence that the number of persons and vehicles ordinarily crossing the track of the Chicago and Evan-ston Railway at the street crossings of the city within a given time is somewhat greater than the number of those crossing the track of the Chicago and North-western Railway during the same time, but it appears that the number crossing the tracks of both railways is very large, and that the disparity is. not so great as to necessitate or even justify different regulations as to the speed of trains. We are of the opinion then that no justification for the discrimination is shown, and that the ordinance therefore must be held to be invalid.

Thus far we have discussed the question of the validity of the ordinance as though it were„open to this court to consider and weigh the evidence bearing upon that question; but if the-matters thus presented are to be regarded as mere questions of fact upon which the judgment of the Appellate Court is-final, the same result necessarily follows. The ease was tried in the Criminal Court before the court without a jury, and was-submitted to the court upon the evidence, no propositions being presented to be held as the law in the decision of the case. If then the determination of the validity of the ordinance involved the decision of a question of fact, or even of a mixed question of law and fact, such questions are conclusively settled by the judgment of the Criminal Court, affirmed, as said judgment has been, by the Appellate Court. In either view of - the ease, the judgment of the Appellate Court must be affirmed.

Judgment affirmed*.


author: Mr. Justice Wilikin Shops, C." J.: Magruder, J.:

text:
    William Ritter v. The People of the State of Illinois.

      Filed at Springfield

      October 31, 1889.

    1. Criminal law—self-defense. To justify the taking of human life in self-clefense, it must appear that the person killed was the assailant, or that the slayer had in good faith endeavored to decline any further struggle before the mortal blow or wound was given. When the person killed is the assailant, and, after separation, renews or attempts to renew the conflict under such circumstances as to justify a reasonable apprehension in the mind of the slayer that he is in danger of losing his life or of receiving great bodily harm, and he inflicts a mortal wound upon his assailant under such apprehension, he will be justified.
    2. Same—instruction—in regard to self-defense. On the trial of one for manslaughter, in which the accused attempts to justify under the plea of self-defense, which the evidence tended to sustain, it is important to the defendant that the jury should be fairly instructed as to the law applicable to his theory of the case, and especially that they shall be left free to determine the fact as to whether his conduct was as he claims, or as contended by the prosecution.
    3. Evidence—testimony on another occasion—as affecting credibility of witness. On the trial of a party for manslaughter, witnesses for the defense, on cross-examination, testified as to what they had sworn to before the coroner. The defendant asked the court to instruct the jury, “that what any witness or witnesses may have testified to before the grand jury or at the coroner’s inquest is no evidence of the guilt of the defendant,”—which the court refused: Held, that the refusal was error, as the answers of the witnesses could only be considered by the jury, in weighing their testimony, as to the facts sworn to before them, and not as establishing independent facts testified to on a former occasion.
    Writ of Error to the Circuit Court of McLean county; the Hon. Owen T. Reeves,.Judge, presiding.
    Messrs. Herrick, Lucas & Spencer, for the plaintiff in error.
    Mr. George Hunt, Attorney General, Mr. E. H. Miner, State’s Attorney, and Mr. E. O’Connell, for the People.
   Mr. Justice Wilikin

delivered the opinion of the Court:

At the November term, 1885, of the circuit court of McLean county, plaintiff in error was convicted of the crime of manslaughter, for killing one Jeff Adkins, and sentenced to the penitentiary for a term of five years. From that judgment he prosecutes this writ of error.

Without going into a general review of the evidence, the following facts are accepted as being established upon the trial: The defendant was a farmer, residing on a farm in McLean county at the time of the killing. Deceased had been employed by him as a farm hand for one month, his time expiring about noon on the 3d of August, 1888. On a settlement that day, a dispute arose between the parties as to whether or not ten dollars of the wages due Adkins should be paid to a neighbor of defendant, to whom Adkins owed that amount. Angry words ensued, and finally Adkins assaulted defendant, striking him several violent blows in the face, defendant making no resistance. Bystanders interposed, and with difficulty took Adkins off of defendant. Just before he struck defendant, Adkins displayed a knife, but did not attempt to use it, and, when defendant called attention to it, put it in his pocket, saying, he could whip him without it. Immediately after they were separated, defendant ordered Adkins to leave the place; but this he refused to do, saying, he would not go until he had whipped him, or “given him a good licking.” Defendant then went to his house, a distance of some fifty feet, and got a breech-loading shot-gun. While in the house he was heard to say, with an oath, “Let me go.” His wife called out about the same time, telling Adkins to leave the place,—that her husband had a gun.- During the time defendant was in the house, Adkins got two brick-bats, each about the size of a half brick. As defendant came out with the gun, he ordered Adkins several times to leave his place, at the same time advancing towards him. Adkins replied once, or perhaps oftener, “Damn you, you have got your gun,—I am not afraid of it.” A Mr. Freed, who was present, is entirely disinterested and in no manner discredited, testifies as follows: “Then Bitter said the third time, ‘Now, Adkins, I want you to go off of my place as quick as you can.’ Adkins said, ‘I won’t do it; you have your gun, but you dasn’t use it.’ Then Bitter came to a full stop, and Adkins advanced toward him two or three steps.” To the question, “I will ask you, if, as he advanced with a brick, he assumed a striking position, ready to throw ?” he answered, “Yes, sir,” and he described the attitude of Adkins as one in the act of throwing, and said, “then Bitter shot; the shot struck him in the left side.” As nearly as can be ascertained from the evidence, the parties were some ten or twelve feet apart when the shot was fired.

Adkins died the same day from the effects of the wound. He was a man of great physical strength, and his reputation was shown to be that of a quarrelsome, violent man, and so known to the defendant. He had previously threatened to whip the defendant if he did not settle satisfactorily with him, and on the day of the shooting he told another farm hand on the place, if he (Bitter) did not settle right he would give him a good whipping. This was communicated to the defendant shortly before the attempted settlement.

The People introduced evidence tending to show, that when defendant went to the house for the gun he made the remark “that he would make it hot for him;” and one witness testified, that after the shooting he said, alluding to the deceased, “Let him die, the damned Kentucky son of a bitch.” This last remark was denied by the defendant. In the view we take of the case it is not important to determine whether such language was used or not.

In the controversy which led to the first act of violence the defendant was not blameless, but he did nothing to justify the assault made upon him by the deceased. The defendant testified, in his own behalf, that he had not used the gun for two months previous to that day, and did not know whether it was loaded or not, and that he had, at the time, no intention of shooting the deceased. He also testified: “I thought at the sight of the gun he would go away.”. It does not appear that he said anything about shooting, or that he presented the gun previous to firing the shot. He swears that at the time the shot was fired the deceased was in the act of throwing, and that the shot was fired without any deliberation, and in self-defense. On the other hand, it is ably argued by counsel for the People, that from the position which the parties are shown to have been in when the gun was fired, and the manner in which'the shot took effect on the face of the deceased, he could not have been in the act of throwing at the defendant when he received the fatal wound, and that from all the facts and circumstances proved, it was shown that the shooting was prompted by a spirit of revenge, because of the former attack made by the deceased, and not in self-defense.

Under the plea of self-defense, and the foregoing state of the evidence, it became a matter of first importance to the defendant that the jury should be fairly instructed as to the law applicable to his theory of the case, and especially that they should be left free to determine the fact as to whether his conduct was as he claimed it to be, or as contended by the prosecution.

The fifth instruction given on behalf of the People is quoted from the statute, as follows:

“If a person kill another in self-defense, it must appear that the danger was so urgent and pressing, that in order to save his own life or prevent his receiving great bodily harm, the killing of the other was absolutely necessary; and it must appear, also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal bloio was given.”

The sixteenth of the same series of instructions must be understood as applying the law, as stated in this fifth instruction, to the case on trial. It is in the following language:

“The court instructs the jury, that if they believe, from the evidence, the defendant did not renew the fight, but in good faith sought to decline any further struggle, yet if they believe, from the evidence, beyond a reasonable doubt, that the defendant had no reason to believe that Adkins intended to take his life or inflict on him great bodily harm, or have anything more than a fair fight, and that he fired the fatal shot in revenge or in a reckless spirit, then the defendant is not entitled to claim exemption from punishment on the ground that the killing was in "self-defense. It must appear that the defendant not only really and in good faith endeavored to decline any further struggle, or to escape from his assailant, before the fatal shot was fired, but it must also appear that the circumstances were sufficient to excite the fear of a reasonable person, and that the defendant really acted under the influence of those fears, and not in a spirit of revenge, to entitle the defendant to an acquittal on the ground of justifiable homicide.”

This instruction puts the prisoner in the attitude of an assailant, making it incumbent upon him to show, that under the law, as laid down in the fifth instruction, above quoted, he had really and in good faith endeavored to decline any further struggle before the fatal shot was fired. It assumes that his conduct, prior to the shooting, had been such as to make it his duty to so endeavor to decline further struggle, before he could invoke the right of self-defense. The first part of the instruction is fairly susceptible of no other construction. Its language, “if they believe, from the evidence, the defendant did not renew the fight, but in good faith sought to decline any further struggle,” is but another mode of telling the jury, that, being the assailant, he could not, under the fifth instruction, exercise the right of self-defense, unless it appeared that he had declined further struggle. But the last clause (which is, in effect, an independent instruction,) still more directly and positively tells the jury that the defendant was the assailant. Although he may have had reasonable ground to believe, and did honestly believe, that he was in imminent peril of life or limb when he fired the fatal shot, and did so in his necessary self-defense, and not in any spirit of revenge, still, under this instruction, unless it also appeared that he had really and in good faith endeavored to decline any further struggle, he would not be justifiable. The theory of the defense was, that he was not the assailant; that the deceased, having assaulted and struck him, refused to leave his premises until he had further beaten him; that in the exercise of a right to compel him to leave", but with no intention of shooting him, defendant took the gun, hoping thereby to frighten him away; that before he in any way attempted to use the gun as a weapon, Adkins again assailed him, and was in the act of hurling a dangerous missile at him when the shot was fifed. There was certainly evidence tending to support that theory. The jury was not bound to accept it, but if they did, the right of self-defense in no way depended upon the question as to whether or not he had declined further struggle. The sixteenth instruction is, in our opinion, manifestly erroneous, and in effect took from the defendant the right of self-defense, under his theory of the evidence.

Numerous instructions were given on behalf of the People, many of which are criticized by counsel for plaintiff in error, but we have discovered no substantial error in them, except as stated. Several of those asked by the defendant were refused, among others the following:

“The court instructs you, that what any witness or witnesses may have testified to before the grand jury or at the coroner’s inquest is no evidence of the guilt of the defendant.”

In view of the evidence of the uncle of the defendant, and of Mrs. Roberts, on their cross-examination as to what they had sworn to before the coroner, this instruction should have been given. The cross-examination was proper, but the answers could only be considered by the jury, in weighing the testimony of the witnesses, as to the facts sworn to before them, and not as establishing independent facts testified to on a different occasion.

For the errors indicated, the judgment of the circuit court will be reversed.

Judgment reversed.

Shops, C." J.:

I do not concur in the reasoning or conclusion reached by the opinion in this case.

Magruder, J.:

I do not concur.


author: Mr. Justice Baker

text:
    The Kankakee Drainage District v. The Commissioners of Lake Fork Special Drainage District.

      Filed at Springfield

      October 31, 1889.

    1. Drainage law—connecting districts—liability as between them— the statute construed. Section 42 of the Farm Drainage act of 1885, which provides that “the owners of land outside the drainage district, or another drainage district, may connect with ditches of the district already made, by the payment of such amount as they would have been assessed if originally included in the district, or, if such connection, by increase of water, requires an enlargement of the district ditches, then the outside owners of land so connecting, or other drainage district, as may be, shall pay the cost of such enlargement,” is applicable alike to all of the several classes of drainage districts formed under that act or the act of which it was a revision and amendment, but does not apply to and impose burdens upon a connecting drainage district formed .under another and wholly independent act of the legislature.
    2. A drainage district was formed under the act relating to farm drainage districts, and constructed a ditch or drain through a slough. Afterward, another drainage district was organized under the “Act to provide for the construction, reparation and protection of drains, ditches and levees across the lands of others, for agricultural, sanitary and mining purposes, and to provide for the organization of drainage districts,” approved and in force May 29,1879, which provided for a different and independent system of drainage districts from those contemplated by the Farm Drainage act, and the latter district constructed ditches above that of the former drain, and connecting therewith, whereby the flow of water in the first drain was increased, but the water in the upper district naturally flowed over the lands in the lower district: Held, that.the upper district was not liable, under the statute, to the lower district for the cost of enlarging its drain, made necessary by the connecting of the upper ditch or drain with the drain of the lower district.
    3. In such case, unless imposed by some statute, there was no duty upon the upper district, when it connected its ditch or drain with that of the lower district, either to contribute and pay any portion of the expense that was incurred by the latter district in constructing its ditch which afforded an outlet for the water from the upper district, or to pay the cost of so enlarging the ditch of the lower district as that it would be of sufficient capacity to carry off the increased volume of water.
    4. Action—under repealed statute. An action will not lie upon a repealed statute unless the cause of action shall have accrued prior to its repeal.
    Writ of Error to the Appellate Court for the Third District-;—heard in that court on appeal from the Circuit Court of Piatt county; the Hon. James E. Hughes, Judge, presiding.
    Mr. William B. Webber, for the plaintiff in error.
    Mr. S. R. Reed, Mr. H. H. Crea, and Mr. W. E. Lodge, for the defendant in error.
   Mr. Justice Baker

delivered the opinion of the Court:

The commissioners of Lake Fork Special Drainage District in the counties of Piatt, Champaign and Douglas, prosecuted this action on the ease in the Piatt circuit court, against the Kankakee Drainage District, and recovered judgment for $4000, and the judgment was affirmed hy the Appellate Court for the Third District.

Numerous questions are raised by the assignments of error, and are discussed by counsel, but in the view we have taken of the case it will be necessary to consider but one of these.

There are two counts in the declaration. The substance, briefly stated, of the first count, is, that the plaintiff corporation was duly organized under the Drainage act, approved May 29,1879, and in force July 1, 1879 ; that it constructed a ditch along or near the channel or bed of the Lake Fork or Okaw slough, of sufficient capacity to carry off all the waters that would fall upon the Lake Fork Special Drainage District, and properly drain all the lands in the district, and also carry off all water that would naturally flow into said district from lands above the same; that the defendant district cut a ditch through the lands lying above the Lake Fork district, and numerous lateral or side ditches connecting therewith, and on the 12th of July, 1885, connected its main ditch with the upper end of the Lake Fork ditch, so that a much larger quantity of water was caused to flow into the latter ditch than would naturally flow into it, rendering it necessary to enlarge the same, which was done by the Lake Fork Special Drainage District, at great cost and expense, and that it was the duty of the Kankakee Drainage District to pay the cost and expense of such enlargement.

The second count, briefly stated, is, that the plaintiff district located and laid out its ditch; that thereafter the Kankakee Drainage District cut a ditch through the lands of which it was composed, lying above those of the plaintiff district, and connected said ditch with and emptied its waters into the ditch' of the plaintiff district; that the cost of the ditch of the plaintiff district was $10,000, and that it became and was the duty of the Kankakee Drainage District to pay such amount as it or the lands embraced therein would have been assessed if it or they had been originally included in such plaintiff district, etc.

It is very evident that both counts of the declaration are predicated upon the provisions of section 42 of the Farm Drainage act, approved June 21, 1885, and in force July 1, 1885, (Laws of 1885, p. 11,) which act was an amendatory revision and consolidation of the act-in force July 1, 18l9, and the several acts amendatory thereof, and under which the plaintiff district had been organized and was operating. Said section, among other things, provides as follows: “The owners of land outside the drainage district, or another drainage district, may connect with the ditches of the district already made, by the payment of such amount as they would have been assessed if originally included in the district; or if such connection shall, by increase of water, require an enlargement of the district ditches, then the outside owners of land so connecting, or other drainage district, as may be, shall pay the cost of such enlargement.”

This section 42 is one of the general provisions of the act of 1885, and is applicable alike to all of the several classes of drainage districts formed under that act or the act of which it was a revision and amendment. The question is presented, whether or not said section applies to and imposes burdens upon connecting drainage districts formed under another and wholly independent act of the legislature. The General Assembly has, in the latter part of section 78 of the act of 1885, declared the legislative intention in respect to the scope of that act. It is there enacted: “This act * * * shall not affect other independent laws for drainage and levees not herein mentioned, but shall be construed as an independent act, not affecting other independent drainage laws, * * * and the special provisions of this act for their own class of districts shall apply only to such districts, but the general provisions applicable to all districts shall apply to all districts provided for in this act.” This section 42 being a general provision, applicable to all districts, and the act declaring that provisions of that kind “shall apply to all districts provided for in this act,” it follows, upon the familiar principle that the expression of one thing is the exclusion of another, that the reasonable implication is, that section 42 has no application to districts organized under another and different law, and being component parts of an independent system of drainage. Said section 42, in express terms, imposes a liability upon “owners of land outside the drainage district” who connect with the ditch oi; such district, and if it had been intended that a like liability should be incurred by a corporation not the owner of land, and formed under a different and independent act, for making such connection, it must he presumed such intention also would have been clearly expressed. Moreover, it is difficult to perceive how this section 42 could be construed as part of “an independent act, not affecting other independent drainage laws,” and yet be effectual to burden drainage districts organized and operating under such “other independent drainage laws” with legal liabilities to which they are not otherwise amenable. And the mandate of the statute is imperative that the “act shall not affect other independent laws for drainage and levees not herein mentioned.” The language we have above quoted from section 78 is a legislative construction of the act of 1885, including said section 42, by the legislature that enacted such law, and is contained in the very act itself, and is entitled to great and controlling weight in ascertaining the intention of that law.

The ditches of both the Lake Fork Special Drainage District and of the Kankakee Drainage District were located and dug in the natural depression, regular channel or water-course known as the Lake Fork or Okaw slough, and the lands in the first named district are the lower or servient lands, and the lands in the latter district are the upper or dominant lands. In Peek v. Herrington, 109 Ill. 611, it was held by this court, that while the owners of dominant lands are not authorized to create new channels for surface water through the servient lands, yet they may make such drains for agricultural purposes, through their own lands, as may be required by good husbandry, although by so doing the flow of water may be increased in a regular, well defined channel, which carries the water from the upper to the lower lands. It was also there held, that the owners of land upon which there is a pond, in which is collected only the surface water from rains and melting snow, may, when good husbandry so requires, drain the same by an artificial drain constructed upon their own lands, whereby its water is thrown into the same outlet or natural drain it was accustomed to take before, when the pond was full, notwithstanding the flow of water over servient lands might be thereby increased. The rules so held in Peck v. Herrington were not based upon any statute, but, there being no statutory provisions relating thereto, were decided to be the law of this State. It can not be concluded that plaintiff in error, by availing itself of an acknowledged legal- right, has rendered itself obnoxious to respond in damages, without such liability is clearly and plainly fixed by statute. In the absence of such statute, the loss, if any, occasioned by its act, would be merely damnum absque injuria.

It is evident, then, that without some statute imposed upon the Kankakee Drainage District, when it connected its ditch or drain with the ditch or drain of the Lake Fork Special Drainage District, the duty either to contribute and pay some portion of the expense that was incurred by the latter district in constructing its ditch, which afforded an outlet for the waters from the upper district, or to pay the cost of so enlarging the ditch of the lower district as that it would be of sufficient capacity to carry off the increased volume of water, there was no legal duty or obligation incumbent upon said Kankakee Drainage District so to do.

The record made and proceedings had in the formation and operation of the Kankakee Drainage District, were, upon the trial, put in evidence by said district, and it clearly appeared therefrom that said district was organized under the provisions of “An act to provide for the construction, reparation and protection of drains, ditches and levees across the lands of others, for agricultural, sanitary and mining purposes, and to provide for the organization of drainage districts,” approved and in force May 29,1879, which act provided for a different and independent system of drainage districts from those contemplated by the Farm Drainage act, under which the Lake Fork Special Drainage District was formed. We think, therefore, for the reasons already stated, that it is also manifest that section 42 of the Farm Drainage act was not intended to and did not impose any legal liability in that behalf.upon the plaintiff in error.

It is suggested, however, that section 69 of the amendment of 1881 to the Drainage act of 1879, under which the Lake Fork Special Drainage District was organized, gave it a right of action. It would be a sufficient answer to this claim, that the causes of action alleged in the declaration are not based upon that statute. But besides this, and without any .consideration of various serious questions that would arise in respect to the construction to be given said section 69, suffice it to say, that said section 69 was repealed by the revised Farm Drainage act, in force July 1,1885, and that it was the finding both of the trial court and of the Appellate Court that the ditch of the Kankakee district was connected with that of the Lake Fork district after said first day of July, 1885, and such finding of fact is conclusive upon this court, and that, consequently, no cause of action had accrued, under section 69, to the Lake Fork Special Drainage District, prior to the time said section ceased to be the law, by the Kankakee district opening a drain or ditch into the drain or ditch of said Lake Fork district.

Our conclusion is, that after the evidence introduced by the Kankakee Drainage District had established the fact that said . district was organized and operating under independent laws for drainage and levees, not mentioned in the amendatory, consolidated and revised act of 1885, the circuit court should have held that section 42 of said last mentioned act gave no cause of action to the Lake Fork Special Drainage District, as against the plaintiff in error, and that it was error in said court, in its, rulings upon the instructions to the jury, to act upon the theory a legal liability was imposed upon plaintiff in error, by said section 42, to respond in damages to the defendant in error.

For the error indicated, the judgments of the Appellate and circuit courts are reversed.

Judgment reversed.