author: Windes, J.:—

text:
      (Criminal Court of Cook County.)
    People of the State of Illinois vs. William A. Paulsen, et al.
    (October, 1907.)
    Bail — Surrender of Principal — Power to Make, Outside of County Where Principal Bound to Appear — Section 14, Div. Ill, of Criminal Code Construed. A surrender to the sheriff of the county where the principal of a bail bond is required to appear made outside of said county is effective to release the sureties on the bond of their liability; for section 14, div. Ill, of the Criminal Code (S. & C. Ann. St., p. 1365) which provides that “the surrender shall he made to the sheriff of the county where the principal is required to appear,” excludes the idea that the surrender must be made within said county.
    Suit on bail bond. Motion to direct verdict. Heard before Judge Thomas G. Windes.
    Statement of facts:
    At the October, 1900, term of the criminal court of Cook county William A. Paulsen was convicted of the crime of embezzlement. He thereupon sued out a writ of error in the supreme court, and upon his motion an order was entered in that court on December 11, 1900, directing the sheriff of Cook county to admit him to bail in the sum of $5,000, upon his entering into a recognizance conditioned as provided in said order with William M. Booth and Edwin A. Casey as sureties.
    Pursuant to said order of December 11, 1900, said Paul-sen as principal and said Booth and Casey, as sureties, did execute their certain recognizance in the penal sum of $5,000 tor the use of the people, etc., which said recognizance was conditioned as provided in and by said order. Said recognizance was duly taken and approved by the sheriff of Cook county on December 12, 1900.
    On February 21, 1902, the supreme court affirmed the judgment of the criminal court of Cook county. On April 21, 1902, said supreme court allowed a writ of error from its judgment of affirmance to the United States supreme court, which was to operate as a supersedeas until it was disposed of by the supreme court of the United States.
    In October, 1904, the supreme court of the United States dismissed the writ of error.
    On Dec. 12, 1904, Casey, one of the sureties delivered to Thomas E. Barrett, as sheriff of Cook county, a certified copy of the recognizance and appointed him as his (Casey’s) agent to arrest Paulsen. The next day (the 13th), by virtue of this authority, the sheriff by one of his deputies, arrested Paulsen in DuPage county and made a return upon the recognizance to the effect that Paulsen had been taken into custody by him. On December 14, 1904, while in Du-Page county in the keeping of the deputy sheriff of Cook county, Paulsen filed a petition in the circuit court of the 16th judicial circuit of the state of Illinois, for a writ of habeas corpus, directed against said sheriff Barrett, etc.; said writ was made returnable first on December 20, 1904, and thereafter was continued to December 27, 1904. The habeas corpus writ was served on the sheriff and the latter pursuant thereto produced Paulsen before the judge of the circuit court of the 16th circuit, making a return in which he stated that he held Paulsen by virtue of a certain surrender on a recognizance. On Dec. 27, 1904, Paulsen was discharged from custody after a hearing on the habeas corpus writ. He had been continuously in jail under the writ since its issuance.
    On December 15, 1904, there was filed with the clerk of the criminal court of Cook County the order of affirmance of the supreme court of Illinois and on December 16, 1904, there was filed the order of December 11, 1900 (directing the sheriff of said Cook county, to admit said Paulsen to bail) and also the recognizance in question, which had been executed by said Paulsen, as principal, and Booth and Casey as sureties, on December 12, 1900.
    Immediately upon the filing of said recognizance, on December 16, 1904, there was entered in said criminal court of Cook county an order of forfeiture against both said principal, Paulsen, and said sureties, Booth and Casey.
    Immediately thereafter and within the time allowed by law, said Paulsen and Casey (said Booth being dead) made motions to vacate the order of December 16, 1904, declaring a forfeiture of said recognizance and in support of said motions filed certain affidavits.
    Thereafter on January 22, 1906, an order was entered denying said motion to vacate said forfeiture, and directing said principal and surety to plead to the writ of scire facias. Principal Paulsen and surety Casey thereupon pleaded to said writ of scire facias, and a trial was had.

      John J. Healy, state’s attorney, Hobart P. Young, and Charles F. McKinley, for the People.

      Att Brothers, for William A. Paulsen.

      Moran, Mayer & Meyer, for Edwin A. Casey.
   Windes, J.:—

I am somewhat surprised at the authorities cited on behalf of the plaintiff here being so strict in holding a surety on a recognizance. They certainly are far more strict than the usual authorities on sureties on bonds of other kinds. I think that the decision in this case turns upon the construction of the section of the statute here which to my mind has not been passed upon directly by any of the decisions cited by counsel.

Now there is no question but that the sureties may go anywhere within the state and arrest the principal and bring him to the sheriff of the county where he is to appear and surrender, and in that way relieve the surety 'from any liability upon the recognizance. Here the sheriff is made the agent of the surety to do that .thing. At the same time, according to the evidence here, he has acted as sheriff of Cook county outside of the county. Section 307 referred to says: “The surrender shall be made to the sheriff of the county where the principal is required to appear.” That does not say that the surrender shall be made in the county where the principal is bound to appear, but to the sheriff of the county where the principal is required to appear, so I take it that a fair construction of the statute is under the facts here that the moment this surrender — I mean the moment this arrest was made by the sheriff of Cook county, his deputy acting for him, that moment the sheriff of Cook county was in possession of the principal the condition of the bond was complied with. If the statute said that the surrender must be made within the county or in the county where the principal is required to appear, that would be another thing, but when the agent and the sheriff are both made one person it seems to me that there is a sufficient surrender to comply with the statute here by the principal, and that being my view of it I will give the iristruction for the defendant and refuse the instruction for the plaintiff.


source: Caselaw Access Project

author: Stein, J.:—

license: Public Domain

text:
      (Court of Cook County.)
    Clingman vs. World’s Columbian Exposition, et al.
    (-, 1893)
    1. Contempt — Violation of Injunction — - Directors Ordering World’s Columbian Exposition Closed on Sunday. All the directors who voted to keep the World’s Columbian Exposition closed 'on Sunday in spite of an injunction to the contrary are in contempt of court.
    2. Same — Mitigating Circumstances. A director, who voted in favor of the resolution because the official attorney of the fair told him that through court proceedings the injunction would be modified so that the vote would not result in a violation o£ the injunction, has mitigating circumstances in his favor but is nevertheless in contempt as he took no further steps to see that the injunction was not violated.
    3. Same — Executive Officers — Advice of Counsel. Executive officers who followed the directions of the board of directors upon being advised by counsel that the injunction had lost its effect will he discharged.
    4. Same. An executive officer who followed the directions of tne board of directors because he was told to do so is'in contempt.
    Motion, to attach for contempt.
   Stein, J.:—

On the 14th day of July last, the board of exposition directors adopted two resolutions, prefaced by four preambles, the meaning, intent and object of which was to keep thereafter the World's Pair closed on Sundays. The persons voting for the resolutions did so without any one advising them that the injunction which forbade the closing of the fair on Sunday was no longer in force. Of the respondents now before the court, Lyman J. Gage, Charles L. Hutchinson, Charles Henrotin, Andrew McNally, William D. Kerfoot and Victor P. Lawson voted for the resolutions and Adolph Nathan- voted against them. The resolutions in terms provided that a certified copy thereof and of the preambles be transmitted to the council of administration, consisting of Messrs. Higinbotham and Schwab, members of the board of directors, and St. Clair and Massey, members of the national commission. Although it does not expressly appear, it is fair to presume from the proofs that the certified copy of the preambles and resolutions reached the council of administration on or about the 22nd day of July. On that day, the council, acting upon and in pursuance of the resolutions, ordered all buildings within the exposition grounds and the gates of admission to be closed on July 23rd,- and directed a copy of the order to be forthwith sent to the director general, George E. Davis, with instructions to enforce the same. Accordingly, the grounds were closed to the public on Sunday, the 23rd day of July.

That this was a violation of the injunction issued by the court is beyond a doubt. It is also clear that the persons primarily and principally liable for the violation are the directors who voted for the resolutions; without the passage of the resolutions nothing that followed would have happened; it is the directors who manage and control the affairs of the corporation. The council of administration and director general are merely executive officers, carrying out the orders given them by their superiors.

At the time the injunction was applied for the directors made no objection. When it served their purposes and was in their way as an obstruction to Sunday closing, they simply ignored it. There is nothing in the proofs which tends to mitigate or excuse their act in defying and overriding the process of this court. It is an offence which cannot be permitted to go unrebuked. In ordinary eases the facts constituting the breach of an injunction are known to none but the immediate parties; yet, when the breach is brought to the knowledge of the court, the law is swift to punish the •offender. Here the violation of this injunction was as public and notorious as it possibly could be; it was commited by men of the highest standing and intelligence in the community, who, of all others, should have scrupulously obeyed the law and thereby set an example to the rest.

It is the sentence of the court, and it is hereby ordered, that Lyman J. Gage, Charles L. Hutchinson, Charles Henrotin, Andrew McNally and William D. Kerfoot be each fined one thousand dollars and stand committed to the county jail until such fine is paid. As to Adolph Nathan, who voted against the resolutions, the rules are discharged.

The ease of Mr. Lawson stands upon a somewhat different footing. He also voted for the resolutions, but under mitigating circumstances. As appears from his answer, he was told by Edwin Walker, the solicitor general of the exposition, that through some court proceedings the injunction would be modified or dissolved, and that the contemplated action of the directors in adopting resolutions would not result in any violation of the injunction and would not be carried into effect until after a modification or dissolution. Thus believing, he voted for the resolutions. Thereupon, it became his duty to see to it that they would not be enforced until the injunction was out of the way. But he did nothing of the kind, so far as appears. For the contempt committed by him he is fined one hundred dollars, to stand committed with the others.

Before the council of administration took action upon the resolutions by way of directing the director general to close the fair, they applied to Mr. Eddy, law partner of Mr. Walker for advice. He advised them that by reason of the people of the state having been made a party to the suit, the injunction had lost its effect. While the court is of opinion that the advice thus given was unsound, yet the members of the council acted upon it in good faith. They swear that had they not been so advised, they would not have ordered the closing of the fair. As to them, being Messrs. Higinbotham, Schwab, St. Clair and Massey, the rule is also discharged. Neither Higinbotham nor Schwab voted for the resolutions and St. Clair and Massey are not directors.

The remaining respondent is Mr. Davis. If his excuse that he only did what he was told to do were to avail, a ready method would be provided for evading every injunction hereafter to be issued; still his guilt is much less aggravated than that of the directors, and he also was informed that before actually closing the fair on Sundays, steps would be taken to get the injunction modified or dissolved and he believed this had been done when he ordered the fair closed. A mere belief, however, was not sufficient; it was his duty to inquire and ascertain whether in point of fact the injunction had ceased to be operative or to obtain the advice of counsel. He did neither, but took it upon himself to close the fair and thereby committed a breach of the injunction. For this breach he is fined two hundred and fifty dollars and to stand ■committed until the fine is paid.


text:
      (Supreme Court of Illinois.')

    George W. Brackett vs. The People, ex rel.
    (June Term, 1874.)
    Bill of Exceptions — Striking from Files. A bill of exceptions will not be stricken from the files even though not filed in time where it was presented to the judge and was not returned in time, and the party used due diligence in trying to obtain it.
    Motion to strike bill of exceptions from files. Appeal from St. Clair county.
   There is a motion in this case to strike the bill of exceptions from the record. It is true the bill of exceptions was not filed within the time ordered by the circuit court. It appears, however, that the appellant had prepared it in time, and presented it to the circuit judge; but, for some reason he did not return it in time to file it, though several times asked for it by appellant. We think the appellant showed sufficient diligence, and the bill of exceptions will have to be retained. The motion is overruled.


author: Per Curiam:—

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

    Clingman vs. World’s Columbian Exposition, et al.
    (August 31, 1893.)
    1. Public Property — Diversion of — When One of General Public Can Enjoin. While it is true that one who suffers no special damage cannot enjoin public authorities from diverting land from the public use for which it was acquired,' yet where relief is prayed against a private corporation to whom such land may have been turned over, one of the general public can maintain a bill in equity in his own name in behalf of all.

      2. Parks — Diversion from Public Purpose — Power of Legislature. The legislature has the right to divert the use of land the fee of which has been acquired for a public park to other than park purposes.
    3. Parks — What Does Not Constitute a Dedication of Land for. The declaration of the legislature that land is to be used for park purposes for the “rest and recreation of the people and free forever” does not in law amount to a dedication of the property.
    4. Dedication — Defined. A dedication is an appropriation of land for some public use made by the owner and accepted for such use by and on behalf of the public. This implies that there must be a giving by one party and an acceptance by another.
    5. Parks — Right of Legislature to Authorize Municipal Corporation Holding Park Lands in Pee to Change Use of or Sell Same. Where lands acquired by condemnation or otherwise are held by a municipality in fee for park purposes, the legislature can authorize a change of use of or a sale of the same.
    Motion to. dissolve temporary injunction. The facts are stated in the opinion of the court. Heard before Judges Edward F. Dunne, Theodore Brentano and James Goggin.

      William E. Mason, for complainant.

      T. A. Moran, Levy Mayer, Walker & Eddy, Sidney Smith, John Barton Payne, George W. Miller, David Fales, William Street and T. H. Gault, for various defendants.
   Per Curiam:—

This is a motion to dissolve the injunction heretofore granted in the above entitled cause, restraining the defendants, their agents, etc., from closing on Sundays that part of the South Park now occupied by the World’s Columbian Exposition.

The motion to dissolve is based upon the bill of complaint and the answers filed thereto. Able and exhaustive arguments have been heard upon the same.

In the argument of counsel for the complainant, he disclaims for his client any rights or standing in court on the ground of being a stockholder. It becomes therefore, unnecessary for us to consider him in that capacity.

It remains for us to determine but two questions, to-wit:

First: Has the complainant in his capacity, solely as tax payer and citizen, such a standing in court as entitles him to bring this suit for an injunction to protect the alleged rights of himself and the general public, or must the suit be brought by the attorney general of the state, or in his name or with his consent? And if it is determined by this court that the complainant has such standing in court,

Second: Has the complainant the right to an injunction restraining the company from closing the gates of the park on Sundays, because Jackson Park was created by the act of the legislature of Illinois, approved February 24th, 1869, a “public park for the recreation, health and benefit of the public, and free to all persons forever” (1 Private Laws of 111. 1869, page 358), and paid for by the taxation of property in South Chicago, Hyde Park and Lake. Or differently stated, was it not beyond the power of the state legislature, or the park commissioners, to pass any act or ordinance closing the park on Sundays or any other day.

It is contended on the part of defendants that the complainant, as an individual or a mere member of the general public, cannot come into a court of equity and claim to represent the general public, and that the suit must be brought by the attorney general of the state representing the public at large. They urge that a citizen or taxpayer who suffers no peculiar damage or injury different from the general public, by reason of the diversion of public property from the suse for which it was intended at the time of its acquisition, cannot maintain a bill in his own name for any injunction to prevent such diversion of use.

This is undoubtedly the law in cases where it is sought to enjoin public or municipal authorities at the suit of a mere member of the general public. In this case, however, the writ is not invoked against the public authorities having in their charge or control public property, but it is prayed for as against a private corporation, to-wit, the World’s Columbian Exposition, to whom was surrendered and given over a public park by the park commissioners under a special act of the general assembly.

The case of Davidson v. Reed, 111 Ill. 167, seems directly in point. That was a bill in equity filed by a private individual to restrain another private individual from meddling or interfering with certain graves in land which had been dedicated to the public to be used as a place of burial of the dead. It was held that the complainant as a private individual could maintain the bill in his own name for the benefit of all. To the same effect is Maywood Company v. Maywood, 118 Ill. 61.

It appearing from the averments of the bill that the complainant has a common interest in preventing a diversion of the use of a public park to private purposes, he can in his own name maintain the suit, and it is not necessary that the attorney general be a party thereto.

Moreover, the attorney general, having reconsidered his motion to withdraw his appearance from the case, must be held to abide by his original appearance, still on file, which prays for the same relief as sought by the complainant. Such appearance has the same force and effect as if the attorney general had primarily moved in this suit.

There remains for consideration the vital question in the ease: Had the legislature the power to authorize the South Park commissioners to turn over to the World’s Columbian Exposition Company the land embraced in Jackson Park and in the Midway Plaisance, as provided in section -three (3) of the act of August 5th, 1890 (Laws of 111. 1890, page 4), which reads as follows:

“Sec. 3. In case the site or sites for the holding of the said World’s Columbian Exposition, as finally located and fixed by the authorities in charge thereof, shall include the whole or any part of any public park which is, or may be, under the control and management of park commissioners, then and in that event it shall be competent, and express authority for that purpose is hereby granted to the park commissioners having the control and management of such public park, to allow the use of the same or my part thereof, for the» purposes of said World’s Columbian Exposition, upon such terms and conditions as may be agreed upon between the said park commissioners and the authorities having the management of said exposition. ’ ’

It is conceded that if the legislature had such power, the World’s Columbian Exposition, pursuant thereto, obtained from the park commissioners, by their ordinance, ■ the right to occupy and enclose Jackson Park and the Midway Plaisance from the first day of October, 1892, until the first day of January, 1894. Sec. 5, of the ordinance of South Park commissioners, adopted September 19th, 1890.

It is urged with great force by the learned counsel for. complainant, that the act creating the South Park commissioners expressly provides: “Which said land and premises, when acquired by said commissioners, as provided by this act, shall be held, managed and controlled by them and their successors, as a public park, for the recreation, health and benefit of the public, and free to all persons forever, subject to such necessary rules and regulations as shall, from time to tim, be adopted by said commissioners and their successors, for the well ordering and government of the same. ’ ’ See. 4, of the act approved February 24th, 1869, creating South Park commissioners (1 Private Laws 111. 1869, page 358).

And it is forcibly contended by the learned counsel, that the language of the act clothes the property acquired by the commissioners with a public use; that it amounts, in the language of learned counsel, to “a public dedication;’’ and that the public enjoy, by virtue of this provision of the act, a usufruct in these lands for their rest and recreation which is absolutely inalienable under any law or ordinance; and that any citizen at the present time, or among the generations yet to come, may, by an appeal to a court of chancery, obtain relief by injunction against diverting these lands to any use other than the “recreation, health and benefit of the public,” without money and without price. And counsel claims that this usufruct in the people is a perpetuity, the enjoyment of which can never cease.

It is admitted in the answers of the defendants, that the World’s Columbian Exposition has enclosed these grounds with a fence, and that they are charging an admission fee to all persons desirous of entering therein, and that it is their intention to absolutely close the same on Sunday. So that if the contention of counsel obtains, the motion to dissolve this injunction should be denied.

In support of the position taken by counsel, he has cited numerous authorities to this court. In view of the gravity of the question raised, and of the important consequences which may result by way of precedent, in case this court should determine that the legislature has the right to divert, even for a temporary purpose, the use of a public park for any other purpose than that of a park, the court has felt it to be its duty to consider with the greatest care the position taken by counsel and the authorities he has cited in support thereof.

. Such consideration has been given and as the result thereof the court is forced to the conclusion that the position of counsel for the complainant is not supported by the authorities.

In none of the cases cited can there be found a single instance of what counsel has designated “a public dedication.”

In each and every case where a court of chancery has intervened to prevent the diversion of lands used by the public for streets, parks, or other purposes, it will be found that the fee to the land so used by the public rested in some private person or corporation, who had dedicated it to public use, by platting the same, or by conveying the same to the public upon certain trusts or conditions.

• The case of The Maywood Company v. The Village of Maywood, 118 Ill. 61, cited by counsel for the complainant, discloses the following state of facts: The Maywood Company was the owner of certain lands and recorded a plat of the same upon which appeared one block marked “Maywood Park,” and issued numerous circulars and pamphlets, for the purpose of selling the lands designated in said plat, in which, assurances were given that the land so marked would be improved and ornamented as a park. The supreme court held that this amounted to a dedication of the land for public use and enjoined the company from afterwards using the block in question for any other than park purposes.

In the ease of Davidson v. Reed, et al., 111 Ill. 167, also cited by counsel, the supreme court held that there had been a dedication by a private owner of a tract of land for cemetery purposes; and that in view of such dedication, his heirs, or grantees could not afterwards change the purpose for which the said land was dedicated and given for public use.

The same is true of the case of The City of Jacksonville v. The Jacksonville Railway Company, 67 Ill. 540. The land had been dedicated to the public for use as a public square by the original proprietors by a plat duly recorded. And .the court, in giving its reasons for enjoining the use of the property in question for railway purposes, declared: “The power of the legislature to repeal the charters of municipal corporations cannot be extended to the right to .divert property given to the public for one use, to a wholly different and inconsistent use. The power cannot exist to divert property from the purpose for which it was donated.”

This clearly indicates that the ground for the intervention of a court of chancery, was that there was a dedication by the original owners of the fee to the public for a specific use.

The case of The City of Morrison v. Hinkson, 87 Ill. 587, was a case in which a citizen sought to recover damages at common law for injuries to his property resulting from the running of a public waterworks, by the city, on one of the public streets of the same. It was not disclosed in the record in whom the fee title to the street rested, and the supreme court simply held that a citizen could recover special damages for injuries to his property occasioned by the running of the waterworks. No question of the diversion of the public use of the street was raised.

The case of Grogan v. The Town of Hayward, 6 Sawyer, 498, 4 Fed. 161, was also a case of dedication by a private owner to a special public use.

This is also true of the cases cited by counsel, Carter v. Chicago, 57 Ill. 283; Price v. Thompson, 48 Mo. 361; and Sheen v. Stothart, 29 La. Ann. 630, which were all the cases referred to by counsel in which a court of chancery interfered to prevent the diversion of the use of public property to other than public uses, or to a different public use.

The plain distinction between this class of cases and the ease at bar, rests in the opinion of this court, in the fact that in the ease under consideration, the land acquired by the South Park commissioners was not donated to public use by private owners, clothing it with a special use for the benefit of the public, and retaining the ownership of the fee in the donator or dedicator. The lands held by the South Park commissioners were acquired by them by purchase or condemnation, and paid for by public taxation.

The corporation designated by the legislature holds the lands for the people’s use, it is true, and the legislature has declared when creating this corporation, for what purpose the land is to be used; but it does not follow as a matter of law, that because the legislature has declared at one time a special purpose for which the land was to be used, the same legislature, or any subsequent legislature, acting for and on behalf of the people, cannot by law, change the use to which the land may be put.

The declaration by the legislature in the act of 1869, that the land was to be used for park purposes for the “rest and recreation of the people, and free forever,” cannot be held in law to be a dedication of the property. The definition of a “dedication” as given by Bouvier, is “an appropriation of land to some public use, made by the owner and accepted for such use by or on behalf of the public.”

This implies that there must be a giving by one party and an acceptance by the other. A person or corporation, public or private, cannot in the nature of things give to itself. He or it may devote their property to certain uses, hut we are able to discover no law, or precedent, for the position, that a person or corporation, holding title in fee simple to land', and devoting it to a certain use, cannot at any time change that use of its or his own volition.

However desirable it might be, that public lands devoted to park purposes for the rest and recreation of the people in a great city like Chicago, should be forever sacredly devoted to that purpose, the present law and constitution are not effective for that purpose. This desirable consummation can only be attained, in our opinion, by an amendment to the constitution.

It is the province of a court not to make law, but to expound and interpret it. In the absence of constitutional restriction, the legislature of the state is omnipotent.

Counsel for the complainant has not been able to point out to this court any constitutional provision which limits the power of the legislature to control the use of lands, the fee to which belongs to the people; and in the absence of such constitutional restriction, we are forced to conclude that it has such power. Authorities are abundant in support of this position.

In Yol. VII, Am. & Eng. Eney. of Law, 417, the doctrine is stated in the following language:

“When lands held by a municipality for public use, are not subject to any special trust, the legislature may authorize a municipal corporation to sell and dispose of the same or apply them to uses different from those to which they are devoted, but, in the absence of such authority, the municipality has no implied power to do so. If the 'title to the lands has been acquired by condemnation proceedings, the legislature may authorize a sale thereof, if the fee is vested in the city, although the title of the city may be deemed to have been impressed with a trust to hold the lands for the uses for which they were condemned. If, however, the lands have been dedicated by private individuals for a public park or square, the legislature has no authority to authorize any diversion from the use to which they were originally dedicated. ”

In the case of Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234, the city of Brooklyn acquired by the right of eminent domain, a certain tract of land for a public park; and the act authorizing the same provided that the title to all the lands should vest forever in the city. The city after-wards ordered a conveyance of one lot to the defendant who refused to take the title, alleging that the act of the legislature authorizing the transfer was unconstitutional, and that neither the mayor nor the park commissioners, who held the title for the city, could give a valid title to the fee.

Exactly the same questions were raised as in the case at bar and in passing upon them the court declares: (p. 243.)

“It is to be observed that the act of 1861 vested the lands in the city of Brooklyn former, hut for the uses and purposes in that act mentioned. Though the city took the title to the lands by this provision, it took it for the public use as a park, and held it in trust for that purpose. Of course, taking the title, had it taken it also free from such trust, it could have sold and conveyed it away, when and as it chose Receiving the title in trust for an especial public use, it could not convey without the sanction of the legislature; and the act of 1870 expresses the legislative sanction. Under its provisions (Laws of 1870, ch. 373, p. 848), it is authorized to sell and convey, with covenants, certain portions of the lands taken (§ 1), of which the premises in question in this case are a part. It was within the power of the legislature to relieve the city from the trust to hold it for a use only, and to anithorize it to sell and convey. * * # Where the property is taken, the owner paid its true value, and the title vested in the public, it owns the whole property, and not merely the use; and, though the particular use may be abandoned, the right to the property remains. The property is still held in trust for the public by the authorities. By legislative sanction it may be sold, be changed in its character from realty to personalty, and the avails be devoted to general or special public purposes. ’ ’

In the ease of Clark v. City of Providence, 16 R. I. 337, 15 Atl. 763, it was held that the general assembly of Rhode Island had the power as against the public to authorize the discontinuance of a public park, the fee of which is in the city, and the sale of the park lands.

In the case of Mowery v. City of Providence, 16 R. I. 422, 16 Atl. 511, it was held that a court of chancery had no power to enjoin a city from discontinuing a park and selling the land under an act of the legislature, unless the act conferring- the authority was unconstitutional.

In the case of the Chicago, Rock Island cmd Pacific Railroad Company v. City of Joliet, 79 Ill. 25, the supreme court of this state held (p. 33) that where property was dedicated by the owner thereof, as public ground generally, it was an unrestricted dedication to public use, and that the legislature, under such a dedication, had the right to authorize the change of the use by the public from that of a court house yard to railway purposes.

Dillon, in his admirable work on municipal corporations, (4th ed.), see. 651, lays down the law upon this subject in the following terms:

“As between the municipality and the general public, the legislative power is, in the absence of special constitutional restriction, supreme, — and so it is in all cases where there are no private rights involved. If the municipal corporation^ holds the full title to the ground for public uses, without restriction, the legislature may doubtless direct and regulate the purposes for which the public may use it. But if a grant be made by a proprietor of a town in laying it out for a specific and limited purpose, as, for example, a ‘public square, ’ the municipality or public acquiring it upon a trust for the uses and purposes set forth on the plat or in the conveyance, it has been decided by the supreme court of Iowa that the grantor in such a case retains an interest therein of such a nature that it is not, as against .him, within the power of the legislature to authorize its sale by the municipality. * * *”

And in the following section, Dillon lays down the general rule in the following language:

“That while the general rule is that the legislative dominion over the uses of public property is plenary, it is also true, as is more fully shown elsewhere, that there may be rights in the dedicator or in the abutting owner of such a nature, — ■ that is, property rights and rights resting upon contract,— that they cannot be destroyed, and of which he can only be deprived by the exercise of the right of eminent domain. * * *”

In the case of City of Newark v. Stockton, 44 N. J. Eq. 179, the court, (p. 186) in passing upon the question as to whether or not the city of Newark had a right to divert the use of a certain tract of land, acquired by its inhabitants for burial purposes, declares:

11 The general principle of law on the subject is, that municipal property is subject to legislative authority. When property is put in trust in the hands of such a corporation the effect is to prevent the corporation from perverting, at its own will, such property to other uses; but when the uses are public, and not derived from private grant, they are liable to be modified or changed, with the concurrence of the law-making power. No case has been found that conflicts with this rule.”

Our own supreme court, in the case of People v. Walsh, 96 Ill. 232, has recognized the right of the legislature to control and change the uses of property, the fee of which is held by or for the public. In that case the right of the South Park commissioners to change the use of one of the streets of the city of Chicago to a boulevard, was called into question by quo warranto; and in passing upon the question the court says: (p. 248.)

“The fee of the streets here, is, on both sides, stated to be in the city. That is to say, the city, as the agent or representative of the public, holds the fee for the use of the public, — not the citizens of the city alone, but the entire public, of which the legislature is the representative.” Citing Chicago v. Rumsey, 87 Ill. 355.

And on page 250, the court continuing says, that “The legislature represents the public. So far as concerns the public, it may authorize one use today and another and different use tomorrow. If the new use affects private rights, proceedings for condemnation may have to be invoked, but so far as it affects the public alone, its representative, in the absence of constitutional restraint, may do as it pleases.”

It would seem needless to refer to other authorities of the same import. Indeed the doctrine is recognized in some of the cases cited by counsel for complainant.

In the case of Price v. Thompson, 48 Mo. 361, 364, 365, cited by him, the court says: “The park (referring to the land in controversy) was public property, and whether they (the town authorities) could divert it from its original use and the purpose specified by the donor in the act of dedication, is the question. The property did not inure, nor was it acquired by the exercise of the right of eminent domain. There is no act of the legislature directing what use shall be made of the corporate property. * * *” .

In the case of People v. Mayor, 51 Ill. 17, 31, also cited by counsel for the complainant, the supreme court says:

“It is conceded that municipal corporations, which exist only for public purposes, are subject at all times to the control of the legislature creating them, and have, in their franchises, no vested right, and whose powers and privileges the creating power may alter, modify or abolish at pleasure, as they are but parts of the machinery employed to carry on the affairs of the state, over which, and their rights and effects the state may exercise a general superintendence and control. * * *”

That the South Park commissioners is such a municipal corporation has been expressly held by our supreme court in numerous cases, beginning with the case of People v. Salo mon, 51 Ill. 37, and ending with the West Chicago Park Commissioners v. McMullen, 134 Ill. 170.

The conclusion, therefore, seems irresistable. That the legislature of the state of Illinois, in the absence of constitutional restraint, (and none appears) has plenary power to declare, by legislative enactment, to what use the lands in question should be put. In pursuance of that power it has enacted two laws bearing upon the subject:

First: The act of February 24th, 1869, (1 Priv. Laws of 111. 1869, p. 358) in which it declares in section four (4), that the lands in question “shall be held, managed and controlled by them and their successors as a public park, for the recreation, health and benefit of the public, and free to all persons forever, subject to such necessary rules and regulations as shall from time to time be adopted by said commissioners and their successors, for the well ordering and government of the same.”

But by section thirteen (13) of the same act, they also authorize the said board “to have the full and exclusive power to govern, manage and direct said park; * * * and generally, in regard to said park, they shall possess all the power and authority now by law conferred upon or possessed by the common council' of the city of Chicago, in respect to the public squares and places in said city. * * *”

The charter of the city of Chicago, then in force, authorized the city of Chicago to take and hold, purchase, lease and convey such real, personal or mixed estate as the purposes of the corporation may require, within or without the limits aforesaid.

Section one (1) charter of the city of Chicago, approved February 13, 1863, Gary’s edition of laws and ordinances of the city of Chicago, 1866.

It would thus appear that in the very act which created the South Park commissioners a corporation, power was given to these commissioners to lease the land in question.

But even if this were not sufficient to authorize the South Park commissioners to pass an ordinance, under the terms of which, they might turn over Jackson Park and the Midway Plaisance to the World’s Columbian Exposition, the defendants do not in this casei rest the right so to do upon that act. They set up specially in their answers, the act of August 5th, 1890, in and by which (section 3) they are specifically authorized to allow the use of the same, or any part thereof, for the purposes of the World’s Columbian Exposition, upon such terms and conditions as may be agreed upon between said South Park commissioners and the authorities having the management of said exposition. And by virtue of this said authority in the act of 1890, the South Park commissioners have, by ordinance, turned over the grounds in question to the World’s Columbian Exposition, giving them full and absolute power to take exclusive possession of the same from the first day of October, 1892, until the first day of ■January, 1894.

By virtue of these acts and of that ordinance, the court is ■of the opinion that the World’s Columbian Exposition is in lawful possession of the property, and had, under the ordinance in question, the right to enclose the property during that peripd and if it had the right to enclose it, it has the right to charge an admission fee on any days upon which it may be open; and has also the right to foreclose it upon the first, the last, or any other day of the week, during the period mentioned.

This right it need not rest upon the police power, and it does not invoke the same. In the exercise of their judgment as business men controlling a stupendous business undertaking, and acting under the authority conferred upon them' by the legislature, and the ordinance of the South Park commissioners, the directors of the World’s Columbian Exposition have deemed it for the best interests of the corporation, that it be closed upon Sundays; and in the exercise of that discretion, we are of the opinion, that a court of chancery has no right to' interfere.

This court is unanimously of the opinion that there is no religious question involved in this case; and that in the exerelse of their sound discretion as business men, in ordering the gates closed on Sunday, the directors of that company have not and do not discriminate between any classes of religious people. Whether we are or are not a Christian nation is not the question in issue in this case.

If they had decided to keep the gates of the exposition .grounds open every day of the week, it would have been their right so to do; and in that event there would have been no more ground for the interference of a court of chancery than there is at the present time.

We are, therefore, of the opinion, that the injunction in this case should be dissolved, and are of the opinion that if the. issues presented to this court en banc and heretofore discussed by us had been submitted to the able and learned chancellor who issued the temporary injunction herein, he would not have granted the same.

The motion to dissolve the injunction in this cause is sustained.

Judge Goggin in his dissenting opinion said:

The principal question presented in this case is whether the World’s Columbian Exposition by virtue of its agreement with the South Park Commissioners obtained lawful control over the park grounds and acquired the power to enclose the same with a fence and exclude the public therefrom on the first day of the week commonly called Sunday. It is claimed by the defendants that the South Park Commissioners have the right to confer such control and power for two reasons: First, because they were authorized so to do by section 3 of the act of August 5, 1890, and second, because of the general powers conferred upon them by the act of February 24, 1869. It is plain, however, that the position assumed by the defendants is not tenable.

First. Section 3 of the act of August 5, 1890 is as follows:

“Sec. 3. In case the site or sites for the holding of the said World’s Columbian Exposition, as finally located and fixed by the authorities in charge thereof, shall include the whole or any part of any public park which is or may be under the control and management of park commissioners, then and in that event it shall be competent and express authority for that purpose is hereby granted to the park commissioners having the control and management of such public park to allow the use of the same or any part thereof for the purposes of said World’s Columbian Exposition upon such terms and conditions as may be agreed upon between the said park commissioners and the authorities having the management of said exposition. ’ ’

It cannot be doubted that, if this statute is valid, its terms are broad enough to confer the right thus claimed. But it is very plain that the act referred to, so far as the section quoted is concerned, is invalid.

Section 22 of Article 4 of the Constitution of 1870, provides that the General Assembly shall not pass local or special laws in any of certain enumerated cases, among which is a local or special law for ‘ ‘granting to any corporation, association, or individual, any special or exclusive privilege, immunity or franchise whatever. ”

By reference to the act in question it will be observed that it does not purport to authorize the park commissioners to al- . low the use of park property to exposition companies or associations generally. The sole power given is to allow the use of park property to the authorities of the World's Columbian Exposition, a partieuler corporation or association. That the right to take possession of and use park property for the purpose of conducting an exposition or any other enterprise of a private corporation is a “privilege” within the meaning of the constitution is too plain to admit of dispute. The act in question is, therefore, plainly one granting to a particular corporation or association a special privilege not granted to other corporations or associations, and unconstitutional.

This position is not rendered any the less tenable by the fact that the act in question does not directly grant to the exposition authorities the privilege of taking possession of and using park property, but simply authorized thé park • commissioners to grant the privilege. The right given by the act to the exposition authorities to obtain by contract the right to use park property and to reap the benefits of such contract would itself be a “privilege” within the meaning of the constitution. Apart from this, it is evident that what the constitution forbids the Legislature to do directly, it cannot be permitted to accomplish by indirection. Being forbidden to itself confer by special law a special privilege upon any corporation, association or individual, it cannot defeat the purpose of the constitution by authorizing its agents to confer that privilege.

But even were the act in question not in contravention of the constitutional provision above referred to, it would still be invalid for another reason. While it may be true, as a general rule, that the legislature has such power over municipal corporations that it may direct land purchased for park purposes to be diverted to other uses, yet that power can only be lawfully exercised in accordance with the limitations imposed upon the legislature by the constitution.. Upon consideration of the various provisions of the constitution, it will be found that it contains no warrant for ah act of the legislature which purports to authorize a municipal corporation to surrender control of park lands to a private corporation for the purpose of carrying on a private business or enterprise.

That the legislature has no power under the constitution to grant to corporate authorities the right of taxation for any other than corporate purposes is well settled: Constitution

of 1848, sec. 5, Art. 9; Constitution of 1870, secs. 1, 9 and 10, Art. 9; Harvard v. St. Clair, etc., Drainage Co., 51 Ill. 130; Board of Trustees of Schools, etc., v. People ex rel. Toledo, etc. Ry. Co., 63 Ill. 229; Sleight v. The People, etc., for use of Weller Township, 74 Ill. 47; People ex rel. Cairo & St. Louis Ry. Co. v. Dupuyt, 71 Ill. 651; People ex rel. Cairo & St. Louis R. R. Co. v. Trustees of Schools, 78 Ill. 136; Board of Supervisors of Livingston Co. v. Weider, 64 Ill. 427.

It is plain, therefore, that if the legislature had authorized the South Park Commissioners to levy taxes for the purpose of purchasing land and had declared that the land thus purchased should be turned over to the World’s Columbian Exposition authorities to be used in the manner in and for the purpose for which it is now being used, no one would have the hardihood to contend that such an act of the legislature would have any validity. Taxation by any municipal corporation for the purpose of raising money to aid a private corporation in carrying on a show or exhibition to which the public are admitted only upon paying an admission fee, which fee is to belong to such corporation, is clearly taxation for a purpose not corporate. Livingston Co. v. Weider, 64 Ill. 427; People v. Dupuyt, 71 Ill. 651; People v. Trustees, 78 Ill. 136.

In People v. Trustees, 78 Ill. 136, the question arose whether the legislature could, under the Constitution of 1848, authorize the trustees of schools of a township to subscribe for the capital stock of a railroad company and levy taxes to pay for the same. The court in deciding the case said:

“It is urged by appellees, that Art. IX, Sec. 5, of that Constitution, prohibited the general assembly from conferring that power on such a body; that the creation of such á debt, and the levy of such a tax, is not for a corporate purpose. That section provides that ‘the corporate authorities of counties, townships, school districts, cities, towns and villages may be invested with power to assess and collect taxes for corporate purposes. ’ This clause was manifestly intended to limit the legislative power in conferring authority-on corporate bodies as assess and collect taxes. ’ ’

Without any provision in the constitution on the subject, the general assembly have the power to impose taxes as they may choose. They could impose a tax on one species of property, and exempt another. They could fix the mode of ascertaining and the manner of its imposition as they might choose, if the power was not limited, and the mode prescribed in the fundamental law. This was, then, most clearly a limitation of legislative power.

Had this restriction not been imposed, the general assembly could have empowered any of these quasi corporations or municipalities to levy and collect taxes for any purpose, whether germane to the object of its organization, or for other purposes. They could have authorized a school district to levy and collect a tax to build a court house, a jail, bridge, or other county object; or a school township or district to erect a poor house and maintain the paupers of the county.

These school townships' were created and are continued for school purposes alone, and not for municipal purposes. They are only intended to establish schools, and loan and manage the school fund of the township, and pay the teachers of schools taught in their jurisdiction. This is the purpose of their organization. They were not created to exercise any of the functions of government, and hence are not municipal in their nature or purpose, nor are they provided with the officers or the power to exercise the functions of government. Cities, towns and villages are endowed with such powers and are created and maintained for their exercise. Their very object is to aid in the government of the people. And such is true, in a more limited sense, of counties.. But none of these functions are conferred upon school townships or districts, but their creation is purely to aid in the great scheme of accomplishing universal education.

The body of men who framed the constitution must be supposed to have known the meaning of the language employed, and they must have believed that it would be understood in its. ordinary sense, and they must have supposed it would- receive a reasonable interpretation and a practical application in the administration of government. When, therefore, they used the language ‘for corporate purposes,’ they supposed that, if any question arose in the construction of this clause, the legislative, executive or judicial department of the state, which was required to apply its principles, would look and see what was the object of the creation of the body, and limit it to that purpose. They did not, on the one hand, expect that there would be an effort to push the construction to the extent that it would embrace all purposes which might, by possibility, be brought in the corporate power. Nor yet, on the other hand, to so contract and narrow the construction as to exclude purposes that are embraced in their charters, but which may not be strictly germane to corporations of that character; but that it would be held to authorize the exercise of the power, when the body is created for specified public purposes, although of a mixed character; as, if these school townships had been empowered, in addition to the duties imposed upon them, to locate, open and maintain roads' in the limits of their territory, then they couid have been empowered to levy a tax for the maintenance of roads, as that would have been a corporate purpose.

But school townships are not invested with such powers over roads, and hence they cannot be invested with authority to assess and collect a road tax, nor can they be until one of the purposes of its existence shall be to repair the roads in the township. To give any other construction would be to abrogate and wholly disregard this provision. To say that because the general assembly confers the power to levy a tax for any purpose, the law of the organization for such body is thereby changed, and the tax is for a corporate purpose, would be to render this restriction wholly nugatory. We fail to comprehend the force of such reasoning, and we must give some effect to this constitutional provision. Although that constitution has ceased to be a rule for the guidance of the departments of government, still all laws adopted whilst in force, and all rights acquired under it, must be tried by and enforced as though it was in full vigor.

Had the construction contended for by appellant been what was intended, why not have simply said that these bodies might be invested with power to ‘assess and collect taxes?’ Or why insert any provision on the subject and let the power of the general assembly remain unrestricted? That strikes us as the more natural and reasonable course that would have been pursued. Tested by these rules, the subscription by a school township or school district for the stock in a railroad company or the levy of a tax to raise the money to pay for the same, cannot be held to be a corporate purpose. Such a tax in nowise aids or promotes education, for which such bodies are created. And this is the construction given to this clause in the cases of Trustees of Schools, etc., v. Toledo, Wabash and Western Railway Company, 63 Ill. 299, and People ex rel. v. Dupuyt, 71 Ill. 651, when the same question was before the court as is presented by this record.”

In view of what is thus said by the court in the case cited, it is plain there can be no sound foundation for the contention that the holding of an exposition or other exhibition under the control of a private corporation involving the fencing up of park property and the exclusion of the public therefrom, excepting upon the payment of an admission fee, is a “corporate” purpose of park commissioners such as the South Park Commissioners, who are organized as a corporation for the purpose of acquiring lands to be “held, managed and controlled by them and their successors as a public park, for the recreation, health and benefit of the public, and free to all persons forever.” It is, on the contrary, a purpose in direct conflict with the object for which the corporation known as the South Park Commissioners was brought into being. Hence .a legislative act authorizing a tax to be levied for the benefit of such an exposition or exhibition would be unconstitutional and void.

If, then, the legislature has no power to authorize park commissioners to levy taxes for the purpose of purchasing property to be donatéd or turned over to a private corporation to be used by it for a purpose not corporate, it follows necessarily that it cannot direct that land already purchased by money raised by taxation for corporate purposes shall be thus donated or turned over. To permit such a power to be •exercised would allow that to be done indirectly which cannot be done directly.

It is manifest, therefore, that the inhibition of the constitution against acts of the legislature-purporting to confer upon municipal corporations the power to levy taxes for purposes not corporate, carries with it necessarily a like inhibition against any legislative act permitting money or property obtained from the people by taxation to be diverted to a purpose-not corporate.'

The act referred to for both the reasons suggested is, therefore, unconstitutional and void.

Second. The act of February 24, 1869, declares that the park lands, “shall be held, managed and controlled by them (i. e., the park commissioners) and their successors, as a public park, for the recreation, health and benefit of the public, and free to all persons forever, subject to such necessary rules and regulations as shall, from time to time, be accepted by said commissioners and their successors for the well ordering- and government of the same;” and it further provides that they shall “have full and exclusive power to govern, manage and direct said park * * * and, generally, in regard to-said park they shall possess all the power and authority now by the law conferred upon or possessed by the common council of the city of Chicago in respect to public squares and places in said city. ’ ’ As the charter of the city of Chicago then in force authorized it to take hold, purchase, lease and convey such real estate as the purposes of the corporation may require, it is claimed, as a sequence, that the park commissioners had the power to lease the park land to the authorities of the World’s Columbian Exposition.

If the park commissioners had purchased land for park or other corporate purposes which they could use for such lawful purpose and at the same time increase their revenues by such partial leasing of the same as would not interfere with its use-for the corporate purpose for which it was intended, it is probable that such partial leasing might be tolerated, upon the same principle that a corporation having had power to-hold so much real estate as may be necessary for the transaction of its business, and becoming the owner of a larger building than it needs, may lawfully lease the portion thereof which it does not need.

But such is not this case. Here the land turned over to the exposition authorities was not land not needed by the park commissioners for the corporate purposes, but land included in a park which, at the time it was thus turned over, was in use as such and open to the -public. Its turning over, further-more, involved to a large extent, the destruction of its trees and other ornaments which enhanced its usefulness as a public park “for the recreation, health and benefit of the public.”

Again, so much of the act last referred to as purports to confer upon the park commissioners “all the power and authority now by the law conferred upon or possessed by the common council of the city of Chicago in respect to public squares and places in said city,” must be so construed as to be consistent with the other parts of the act. To lease a public park to a private corporation is manifestly inconsistent with its being “held, managed and controlled * * * as a public park for the recreation, health and benefit- of the public and free to all persons forever.” The power and authority to be exercised by the park commissioners, therefore, is such power and authority as is consistent with the holding and managing of the property “as a public park for the recreation, health and benefit of the public and free to all persons for-' ever.” It is a self-evident propositiion that property cannot be “held, managed and controlled * * * as a public park for the recreation, health and benefit of the public and free to all persons forever,” and at the same time be leased to a private corporation with power to exclude the public thereform.

Apart from this it is clear that even the city council of the city of Chicago would have no power, by a lease or otherwise, to divert a public square or other place to a use that was not corporate. The evident meaning of the legislature, by giving park commissioners ‘1 all the power and authority now by law conferred upon or possessed by the common council of the city of Chicago in respect to public squares and places in said city,” was not to give them power to lease such property to private individuals for noncorporate purposes, but simply to authorize them to exercise the same general power, supervision and control as is generally exercised by the corporate authorities of cities over similar property.

Finally, what is above said, with respect to the act of August 5, 1890, is in part equally applicable to the attempt to construe the law of February 24, 1869, as giving the park commissioners power to lease the park lands to the exposition authorities. The park commissioners, having no power to levy taxes for other than corporate purposes, are not authorized, after having levied taxes and purchased property with the money collected, to divert that property to a non-corporate purpose and thus do indirectly what the constitution forbids to be done directly.

I am, therefore, clearly of the opinion that the action of the South Park Commissioners in turning the park lands over to the authorities of the World’s Columbian Exposition was without sanction of law and that it was flagrant disregard of the constitution of this state. Being of that opinion I cannot permit myself to enter an order in this case giving to such action judicial sanction.

The point is made that this suit can not be maintained in the name of the complainant, but that only the attorney-general can maintain such a bill, I do not regard the authorities cited by counsel for defendants as sustaining their position. However this may be, in the absence of a decision of the supreme court of this state directly in point, I am not willing to lay down a rule by which the success of a private corporation in seizing upon and holding a public park and excluding the public therefrom will be made to depend solely upon the whim, caprice, dishonesty or ignorance of the individual who may for the time being happen to fill the office of attorney-general. But this suit though not instituted in the name of the attorney-general, has his express sanction, and this I regard as, in any event, sufficient.

The complainant, therefore, would, in my opinion be entitled to an injunction restraining the authorities of the World’s Columbian Exposition from excluding him from the park land on any day or from demanding from him the payment of an admission fee at any time. All he has asked, however, is, in effect, that the exposition authorities be enjoined from excluding the public from the park grounds on Sunday, and that is all the court granted. The fact that he asks for less than he is entitled to can not he successfully urged by the defendants as a reason for refusing him any relief at all. It would be an unheard of proceeding to deny a complainant any relief, because his rights were more extensive than those which he chose to assert.

The motion to dissolve the injunction must, therefore, be denied.


author: Windes, J.

text:
      (Criminal Court of Cook County.)
    People of the State of Illinois vs. Gustave Myers.
    '(July 11, 1908.)
    1. Perjury — Indictment—Alleging Substance of False Testimony. In an indictment for perjury it is insufficient to set out the substance of the alleged false testimony.
    2. Indictment — Certainty of. In criminal pleading the highest degree of certainty is always required.
    3. Perjury — Indictment Based on False Statement of Witness to Effect that He Did Not Remember. An indictment for perjury can he predicated upon the false statement of a witness that he did not remember a certain fact. The difficulty lies only in the making of the proof.
    4. Same — Sufficiency of Indictment as to Materiality of Testimony. An indictment for perjury must allege that the alleged false testimony was material to the issue or point in question. It is insufficient to merely allege that it was material.
    5. Same — Materiality of Testimony as to Effect Produced by Libel. A witness may testify as to the impression produced upon him by a libel and such testimony is material.
    6. Same — Materiality of Improper Cross Examination. Where a witness is cross-examined with respect to matters not germane to the direct testimony, perjury cannot be assigned on such cross examination.
    Motion to quash indictment for perjury. No. 87,430.

      Statement of Facts.
    The defendant was indicted for perjury, alleged to have been committed in a libel suit. The indictment consisted of three counts. Count I alleged:
    That heretofore, to-wit, on the second day of March, in the year of our Lord, one thousand nine hundred and eight, at Chicago * * * in the municipal court of Chicago, in the said county of Cook, the Honorable William N. Cottrell, judge of said municipal court of Chicago, presiding in a- certain judicial proceeding, to-wit, a certain issue between one Robert D. Lay and Gustave Myers, late of * * * in a certain plea of trespass on the case, wherein the said Robert D. Lay was plaintiff and the said Gustave Myers was defendant, to-wit, a certain suit for alleged damages to the amount of $1,000 and no more, resulting from the alleged composition and publication by the said Gustave Myers of and concerning the said Robert D. Lay, in a certain printed pamphlet, which said pamphlet was then and there introduced and received in evidence as an exhibit, to-wit, plaintiff’s Exhibit B, on the trial of said cause, on behalf of the said Robert D. Lay, a certain alleged false, scandalous, malicious and defamatory libel, came on to be tried in due form of law, and was then and there in the city of Chicago in the county of Cook aforesaid duly tried before the said William N. Cottrell, judge of said municipal court of Chicago so presiding as foresaid, upon which said trial the said Gustave Myers then and there appeared as a witness for and on 'his own behalf, to-wit, on behalf of the said Gustave Myers, defendant in the plea aforesaid, and was then and there duly sworn in due form •of law by Harry S. Holmberg, deputy clerk of the said municipal court of Chicago, that the evidence which he, the said Gustave Myers should give to the court there touching the matters then in question between the said parties, should be the truth, the whole truth and nothing but the truth, he, the said Harry S. Holmberg, deputy clerk as aforesaid, then and there had full power and authority to administer said •oath to the said Gustave Myers in that behalf, and the said municipal court of Chicago so presided over by the said William N. Cottrell, judge as aforesaid, then and there had jurisdiction to the-amount of $1,000 of the parties to and the subject-matter of said cause to the amount of $1,000.
    And the jurors first aforesaid, upon their oaths further present that at and upon the trial of said issue so joined between the said parties as aforesaid, it then and there became and was a material' question whether he, the said Gustave Myers, was the author of said alleged libel contained in said pamphlet introduced and received in evidence on behalf of the plaintiff in said cause as plaintiff’s Exhibit B, as aforesaid ; and whether or not he, the said Gustave Myers, had at any time theretofore received copies of said alleged libel.
    And the jurors first aforesaid, upon their oaths aforesaid, do further present, that the said Gustave Myers, being so sworn as aforesaid, not regarding the laws of this state, but contriving' and intending to prevent the due course of law and justice, and unjustly to aggrieve the said Robert D. Lay, the plaintiff in the said issue, and to deprive him of the benefit of his suit then in question, and to subject him then and there on the trial of said issue to sundry heavy costs and expenses, upon his oath aforesaid, falsely, feloniously, corruptly, wilfully, knowingly and maliciously, before the said William N. Cottrell, judge as aforesaid, did then and there, to-wit, on the 5th day of March, in the year of our Lord, one thousand nine hundred and eight, depose and swear, among other things, in substance as follows:
    “I am not the author of that paragraph” (meaning and intending thereby to say that he, the said Gustave Myers, was hot the author of said alleged libel contained in said pamphlet introduced and received in evidence on the trial of said cause as plaintiff’s Exhibit B, as aforesaid). “I never have received the copies that you speak of. I never have received them” (meaning and intending thereby to say that he, the,said Gustave Myers, had never at any time theretofore received any printed, written or other copies of said alleged libel contained in said pamphlet introduced and received in evidence on the trial of said cause as plaintiff’s Exhibit B, as aforesaid), which testimony was false, etc.
    Count II alleged that the defendant deposed “in substance ’ ’ that he 11 did not remember where he * * * had first seen the said pamphlet introduced and received in evidence on the trial of said cause as plaintiff’s Exhibit B, as aforesaid; * * * that he, * * * did not then and there remember whether or not he, * * * had caused said alleged libel contained in said pamphlet introduced and received in evidence on the trial of said cause as plaintiff’s Exhibit B, as aforesaid, to be printed by the HOI Printing Company in Toledo, Ohio, in the month of October, in the .year of our Lord, one thousand nine hundred and seven; * * * that he, * * * did not then and there remember how many times he, * * * had before then met one John N. Hill, the person who had printed or caused to be printed said alleged libel contained in said pamphlet introduced and received in evidence in said cause as plaintiff’s Exhibit B, as aforesaid; * * * that he, * * * did not then and there remember whether or not he, * * * had met said John N. Hill in Toledo, Ohio; * * * that he * * * did not then and there remember whether or not he * * * had delivered to said John N. Hill at his place of business in the city of Toledo in October, in the year of our Lord, one thousand nine hundred and seven, or at any other time, a manuscript of said alleged libel contained in said pamphlet introduced and received in evidence on the trial of said cause, as plaintiff’s Exhibit B, as aforesaid, or which contained in substance the same alleged libel aforesaid ; * * * that he * * * did not then and there remember whether or not he, * * * had paid to John N. Hill any money for printing the said alleged libel contained in said pamphlet introduced and received in evidence as plaintiff’s Exhibit B, as aforesaid; * * * that he, * * * did not then and there remember whether or not he, * * * had ever before then seen a certain printer’s proof of said printed pamphlet containing said alleged 'libel, which said printer’s proof had on the trial of said cause been introduced and received in evidence on the part of the said plaintiff as an exhibit, to-wit, plaintiff’s Exhibit E; * * *

    that he * ® * did not then and there remember whether or not he ® * * had seen said printer’s proof introduced and received in evidence on the trial of said cause as plaintiff’s Exhibit E, as aforesaid, in the place of business of the said Hill Printing Company, in October, in the year of our Lord, one thousand nine hundred and seven, in the city of Toledo, Ohio; * * * that he * * * then and there could not say whether or not certain writings, to-wit, the words ‘recognize the district of Columbia,’ then and there appearing upon said printer’s proof, to-wit, said Exhibit E, were in the handwriting of him, the said Gustave Myers,” which testimony was false, etc.
    Count III alleged that in a certain action at law the said defendant “was charged by the said Robert D. Lay, in substance, with having theretofore maliciously written, published and circulated a certain alleged libelous statement of and concerning the said Robert D. Lay in a certain printed pamphlet entitled ‘The Crime of a Life Insurance Company/ and which said alleged libelous statement was and is in words and figures as follows, to-wit: ‘Robert D. Lay, the secretary of the company, is a young man and is said to be a relative of Mr. E. A. Shedd, one of the principal owners of this company. According to the. National Life’s sworn statement to the insurance department of the state of Minnesota, Mr. Lay’s salary is given as $4,000 per annum. Still, it is reported that when asked by a friend a short time ago what his salary was, he replied that he was making $12,000 a year OUT OP IT; ’ and in and by which alleged libelous statement the said Robert D. Lay in said cause further alleged and contended, in substance, that the said Gustave Myers falsely and maliciously intended and meant to and did state and charge that the said Robert D. Lay had theretofore stated and admitted, and that the fact was, that he, the said Robert D. Lay, had surreptitiously and unlawfully, while acting as the secretary of a certain life insurance company, t'o-wit, the National Life Insurance Company of the United States of America, appropriated from the funds of said company $8,000 in excess of his salary per annum. ’ ’
    That the said defendant was called as a witness in.his own behalf and testified as follows:
    “Q. Are you acquainted with A. M. Andrews?
    “A. Yes, sir.
    “Q. How long have you known him?
    “A. Three years.
    CÍQ. I will ask you to state whether at any time Andrews had a conversation with you in which the salary, earnings or income of Robert D. Lay, the secretary of the National Life Insurance Company, was under discussion? Answer yes or no.

      “A. Yes.
    “Q. When was that; about ?
    “A. It was shortly after I resigned from the National Life.
    “Q. We don’t know when you resigned from the National Life; tell us about the -month.
    “A. It must have been either the latter part of 1906 or the early part of 1907.
    11Q. The latter part of 1906 or the early part of 1907 ?
    “A. I think so, yes, sir.
    “Q. That is as close as you can fix the time?
    “A. For the present.
    “Q. Where did this conversation take place?
    “A. At his office.
    “Q. Where was his office?
    “A. In the Woman’s Temple building.
    ‘ ‘ Q. Who were present at this meeting ?
    “A. Just he and me.
    “Q. You and him?

      “A. Yes¡ sir.
    “Q. Now, what, if anything, did Andrews say to you, m regard to the salary of Robert D. Lay ?
    “A. He said, ‘Gus, what is Lay’s salary?’ and I told him that I understood it to be $4,000 a year.

      “Q. Well, what did he say? Go on.
    “A. I can’t state what he said.
    “Q. Well, if you can’t state, then step off; don’t you know?
    ££A. Well, excepting it is vile what he said in connection with the exact statement.
    ££Q. Will you please say what he said, or say that you don’t want to say it, or do whatever you please about it?
    ££A. Why, he said, he told me ‘I asked him some time ago what he was getting and he told me he was making $12,000 a year out of it.’
    ££Q. Is that all the conversation that you remember?
    ££A. No.
    ££Q. Well, tell us something more; go on.
    “A. He said to me ‘Myers was usually serious,’ — will you please read the question again?
    “ Q. Tell us What he said to you in regard to Lay’s salary. Plave you stated it all?
    “A. Tes, as far as the salary is concerned, about all, yes.
    “Q.. Very well; that is all I wanted to know. Mr. Myers, 1 will ask you to look at the passage in the pamphlet marked Plaintiff’s Exhibit B, at the bottom of page 21. Have you ■seen it before?
    “A. Yes.
    “Q. Did you read it?
    “A. Yes.
    “Q. State to the court what impression the reading of it made upon you as to whether it was intended to charge Robert D. Lay with surreptitiously and unlawfully appropriating from the funds of the company $8,000 in excess of his salary ?
    “A. It made no such impression.
    “Q. State whether or not, in your opinion, the language is or is not compatible with perfect honesty on the part of Lay.
    “A. Yes.
    “Q. Have you read the whole of the pamphlet?
    “A. Yes.”

      That on cross-examination the defendant testified that he “did not then and there remember where he had first seen the said pamphlet containing the alleged libelous paragraph aforesaid, and the said Gustave Myers, having taken said lawful oath as aforesaid, did further unlawfully, wilfully, corruptly, falsely, knowingly and feloniously then and there depose, swear and testify in substance, among other things, that he, the said Gustave Myers, did not then and there remember whether or not he had caused the alleged libelous paragraph aforesaid to be printed, and that he did not then and there remember whether or not he had caused the alleged libelous paragraph to be printed by the Hill Printing Company in Toledo, Ohio, in the month of October, in the year of our Lord one thousand nine hundred and seven; * * * that he * * * had never received any copies of said printed paragraph aforesaid; * * # that he * * * did not then and there remember when and where or how many times he had then before met one John N. Hill, who had then before, to-wit, in October, in the year of our Lord one thousand nine hundred and seven, printed said alleged libelous paragraph, and that he did not then and there know whether or not he * * # had met the said John N. Hill in Toledo, Ohio; * * * that he * * * did not then and there remember whether or not he had delivered to John N. Hill, at the place of business of the said John N. Hill in Toledo, in October, in the year of our Lord, one thousand nine hundred and seven, or at any other time, a manuscript of the particular paragraph that he * * * had theretofore in his direct examination as aforesaid interpreted; * * * that he did not then and there remember whether or not he had paid to the said John N. Hill any money for printing the particular paragraph that he * * * had in his direct examination aforesaid interpreted; * * * that he * * * had not, to his recollection, ever before seen and that he did not then and there remember whether or not he had seen in the city of Toledo, Ohio, in the place of business of the Hill Printing Company, in October, in the year of our Lord, one thousand nine hundred and seven, a certain printer’s proof of the said printed pamphlet containing the said alleged libelous paragraph as aforesaid, which printer’s proof had in the trial of said cause been introduced in evidence by the plaintiff, and then and there marked Exhibit E, and which said.Exhibited E was then and there exhibited to the said Gustave Myers - * * * that he * * * did not then and there think he could say whether or not certain written words appearing upon said printer’s proof, Exhibit E aforesaid, were in his handwriting; that he, * * * could not then and there say whether or not the words ‘recognize the District of Columbia,’ appearing upon said exhibit, were in his own handwriting; that he * # * could not then and there say whether or not the words ‘in the form of dividends,’ appearing upon said printer’s proof, Exhibit E as aforesaid, were in his own handwriting; that he * * * did not then and there know in whose handwriting the words ‘look for lead line,’ appearing upon said printer’s proof, Exhibit E as aforesaid, were; ” which testimony was false, etc.
    A motion to quash the indictment was made and argued before Judge Thomas G. Windes.

      John J. Healy, state’s attorney, for the People.

      Benjamin D. Magruder, George King, Harry Fisher and John F. Geeting, for defendants.
   Points for Defendant.

I.

krhe indictment does not show that the municipal court had jurisdiction over the subject-matter of the libel suit. Kizer v. People, 211 Ill. 407; Maynard v. People, 135 Ill. 425; 2 Bishop’s New Criminal Procedure (4th ed.), see. 910a; Pankey v. People, 2 Ill. 80; 22 Ency. of Law (2d ed.) p. 683; Johnson v. State, 58 Ga. 397; United States v. Jackson, 20 D. C. 424; Renew v. State, 4 S. E. 19; Elkin v. People, 28 N. Y. 177; Franklin v. State, 91 Ga. 712; State v. Furlong, 26 Me. 69; State v. Plummer, 50 Me. 217; People v. Howard, 111 Cal. 655; United States v. Wilcox, Fed. Cas. 16,692; State v. Jenkins, 1 S. E. 437.

II.

It is insufficient to set out the alleged false testimony in substance only. Wilkinson v. People, 226 Ill. 135; Coppack v. State, 36 Ind. 513; State v. Blackstone, 74 Ind. 592.

III.

The deputy clerk of the municipal court has no authority to administer the oath in his own name. He acts as deputy only for and in his principal’s name. Sees. 14 and 15, Municipal Court Act; see. 1, eh. 101, Rev. Stats, of Ill.; United States v. Hall, 21 Pac. 85; Wimbish v. Woolford, 33 Tex. 110; Talbott’s Devisees v. Hooser, 75 Ky. 408; Schott v. Youree, 142 Ill. 233; 13 Cye. 1043; 9 Ency. of Law, p. 381; Village of Auburn v. Goodwin, 128 Ill. 57; Norton v. Colt, 2 Wend. 250; Glencoe v. Edwards, 78 Ill. 382; Ditch v. Edwards, 2 Ill. 127; Ryan v. Eads, 1 Ill. 217; Vol. 3, “Words and Phrases,” pp. 2208 et seq.

IV.

The testimony set forth in count III is immaterial. The cross-examination has reference to matters entirely foreign to the direct examination. Perjury cannot be assigned on cross-examination unless the original testimony is material and the cross-examination affects the credibility of the witness. Kizer v. People, 211 Ill. 407; Wilkinson v. People, 226 Ill. 135; 2 Russell on Crimes (5th Am. from 3rd London ed.), pp. 600 et seq.; Pollard v. People, 69 Ill. 148; Young v. People, 134 Ill. 37; Morrell v. People, 32 Ill. 499; Pankey v. People, 2 Ill. 80; 2 Bishop’s New Criminal Law (8th ed.), see. 1033; 2 Russell on Crimes (5th Am. ed.), p. 642; State v. Budd, 65 Ohio St. 1; Commonwealth v. Pollard, 12 Metc. 225.

V.

The materiality of the testimony as to the impression produced by the libel. 25 Cyc., pp. 502 et seq.

A. In slander cases a witness may be asked as to the impression the words made upon him, or as to the sense in which the words were understood by the hearers. Tottleben v. Blankenship, 58 Ill. App. 47; Foval v. Hallett, 10 Ill. App. 265; McKee v. Ingalls, 4 Scam. 32; Nelson v. Borchenius, 52 Ill. 236.

B. It is not permissible for readers of an alleged libelous article to testify as to its meaning. Gribble v. Pioneer Press Co., 34 N. W. 30; Quinn v. Prudential Ins. Co., 90 N. W. 349; Beardsley v. Maynard, 4 Wend. 337; Rep. Pub. Co. v. Miner, 20 Pac. 345; Hearne v. De Young, 52 Pac. 150; Railway Co. v. McCurdy, 8 Atl. 233; Anderson v. Hart, 27 N. W. 289; Smart v. Blanchard, 42 N. H. 137.

C. If words are not actionable in themselves, the testimony as to their effect or meaning is incompetent. Hamm v. Wickline, 26 Ohio St, 81.

D. Perjury cannot be assigned on cross-examination where. the direct testimony was not material. Wilkinson v. People, supra; 22 Ency. of Law, 687; Stanley v. United States, 33 Pac. 1025.

VI.

The publication is not libelous per se. 25 Cye. 250; Cerveny v. News Co., 139 Ill. 345.

A. An innuendo and colloquium are essential. 25 Cyc. 439, 441; Patterson v. Edwards, 2 Gilm. 720; Strader v. Snyder, 67 Ill. 404; Townsend on Slander & Libel (3rd ed.), pp. 198 et seq.

B. An innuendo cannot enlarge the meaning of words, or make certain that which is uncertain. There must be" an averment of extraneous matter, so that the court can see that the libel is susceptible of the meaning attributed to it. 25 Cyc. 449; Gault v. Babbitt, 1 Ill. App. 130; Brown v. Bur nett, 10 Ill. App. 278; Hrrick v. Tribune Co., 108 Ill. App. 244; Patterson v Edwards, 2 Gilm. 720; Strader v Snyder, 67 Ill. 404; Brown v. Brown, 14 Me. 317; Carter v. Andrews, 16 Pick. 1; Weed v. Bibbins, 32 Barb. 315; Railway Co. v. Sheftall, 45 S. E. 687; Wallace v. Homestead, 90 N. W. 835; Kilgour v. Newspaper Co., 53 Atl. 716; Townsend on Slander & Libel (3rd ed.), sees. 308, 335, 336, 337, 338, 341, 342; Van Vechten v. Hopkins, 5 Johns. 210; Moss v. Harwood, 46 S. E. 385; Russell on Crimes (5th Am. ed.), 644, 647; McLaughlin v. Fisher, 136 Ill. 111; McLaughlin v. Schnellbacher 65 Ill. App. 50; Newell on Slander & Libel, sees. 18, 34, 35; Railway Co. v. McCurdy, 8 Atl. 230; 2 Bishop’s New Criminal Proc. (4th ed.) sees. 785, 786, 793, 794; Lanston v. Linotype Co., 147 Fed. 871 (aff. 154 Fed. 42); Ukman v. Daily Record Co., 88 S. W. 60; Kenworthy v. Brown, 92 N. Y. S. 34; Hardness v. News Co., 102 Ill. App. 163; Patterson v. Edwards, 7 Ill. 720; Smith v. Gafford, 33 Ala. 168; Jorallmon v. Pomeroy, 22 N. J. L. 271.

VII.

If the pamphlet was not libelous the testimony given on the trial was not material Rex v. Dunston, R. & M. N. P. R. 109; 21 Eng. C. L. 712; Morrell v. People, 32 Ill. 499; Rex v. Benesech, Peake Add. C. 93; Russell on Crimes (5th Am. ed.), p. 601, 602; Leak v. State, 61 Ark. 599.

Windes, J.

(onally) :—

In the Myers case, I heard -arguments all day long and I had to cut off counsel in order to get home Saturday night. I refer to counsel for the defense; I did not cut off the state. That is on that indictment for perjury. I will not attempt to review the innumerable authorities cited to me on the argument of the cause, but I will merely state, as quickly as I can, the conclusions at which I have arrived. Owing to the great pressure of other business, I have not been able to give the full consideration to the case I should have been glad - “to give. Since this argument, I have tried three manslaughter cases and a large number of less important cases.

The statute with regard to perjury reads as follows: “Every person, having taken a lawful oath or made affirmation, in any judicial proceeding, or in any other matter where by law an oath or affirmation is required, who shall swear or affirm wilfully, corruptly and falsely, in a matter material to the issue or point in question, * * * shall be deemed guilty of perjury. * * * ” (Sec. 225, eh. 38, Rev. Stats, of 111.)

The words “material to the issue or point in question” are very important in this ease, though, of course, the statute with regard to the offense is of great importance in every indictment for perjury or subornation of perjury.

There are three counts in this indictment. They all allege that the defendant Myers swore to certain things in substance. The latest expression of the supreme court of this state on this proposition is in the case of Wilkinson v. People, 226 Ill. 135. It seems to me to be a very carefully considered case. The court, in passing upon the sufficiency •of the indictment in that case, at page 140, says:

“All the precedents to which our attention has been called, in a ease like this aver that it became a material matter whether the defendant- made the false statements assigned, ■for perjury in the indictment. We do not regard the averment that the testimony was material to the issue, generally, ns sufficient. Moreover, the so-called second assignment of perjury, and each of those following, as shown above, is, that he, Linder Wilkinson, upon the trial of said indictment aforesaid, then and there further unlawfully, knowingly, wilfully and feloniously testified on a matter material to the issue aforesaid, in substance, etc. There is no averment here that the testimony was corruptly given, which is always necessary in an indictment for perjury. Neither is it sufficient to state the substance of the alleged false testimony.”

That seems to be in conflict with all other decisions of our supreme court, as I construe them, especially Hereford v. People, 197 Ill. 222, 238, but being the later expression of the supreme court, it ought to be followed, and the court in this case uses this language (226 Ill. 135, 141):

“In criminal pleading the highest decree of certainty is-always required.”

The second and third counts of the indictment allege, in. substance, that Myers swore that he did not remember certain things that he was asked about, — the alleged perjured' testimony. I think that what is said by the court of appeals, of New York in People v. Doody, 64 N. E. 807, 172 N. Y. 165, is applicable. I did not read the decison, as I thought it was-in accordance with reason clearly, and counsel on both sides argued it quite at length. While there are decisions — a. number of them — to the contrary, there are none such in this state, I believe, directly to the point, and the decision in that ease appeals to my ideas with regard to perjury.

It is a matter of proof as to whether or not a man remembered a specific thing. A man may get on the stand today and swear that he did not remember certain things material to the issue in question, and it would be shown by a hundred witnesses that he had said two hours before that he did remember all about it. Of course, that is an extremé case, but. insofar as the indictment alleges that he did not remember so-and-so, I think it is good. It is a matter of proof.

The first, .second and third counts of the indictment all fail to allege, in direct terms, that the alleged false testimony was material to the issue in the case that was being-tried. T have read you the section of the statute. It says, “A matter material to the issue or point in question.” There-must be no doubt, I think, from the allegations of the indictment, that the alleged false testimony was material to the issue, and in this last decision to which I have referred, the-Wilkinson ease, the court uses this language (p. 145) :

“It is well understood that in every prosecution for perjury it is essential that the alleged false testimony must have-been material to the issue upon trial. ’ ’

Now, a matter may be material in a suit when not material to the issue. There are numerous authorities to that effect, for instance, on the question of credibility. A matter-may be material, but not material to the issue. Now, the third count alleges — I mean it is claimed that the testimony set up in the third count, which it is alleged was false, was the cross-examination of the witness. Now, it is said that the testimony on the direct examination was not material to the issue. There is some doubt in my mind whether, strictly speaking, it is material to the issue in the libel case, but from a reading of Nelson v. Borchenius, 52 Ill. 236, and Dexter v. Harrison, 146 Ill. 169, 173, and the appellate court cases cited by counsel for the state, I think that the testimony there referred to and alleged to be perjury is, in part, material. I think it is material here. Speaking of the person Andrews, with whom he had talked:

“Q. What, if anything, did Andrews say to you?”

Now, that I do not regard material.

"Q. S'tate to the court what impression the reading of it made upon you, as to whether it was intended to charge Robert D. Lay with surreptitiously and wrongfully appropriating from the funds of that company $8,000 in excess of his salary?

“A. It made no such impression.”

Under Nelson v. Borchenius, 52 111. 236, I think that part was material to the issue as to how the libel would be considered. Also this:

“Q. State whether or not, in your opinion, the language used is or is not compatible with perfect honesty on the part of Lay?

"A. Yes.”

That testimony is material, I think, but there is not a word of the cross-examination that relates to that part of the testimony of the witness. Therefore, it is not germane, I think, to the direct testimony, and it could not, for that reason, be assigned as perjury. That is decided in the Wilkinson case, also.

A number of other points were made by counsel in the argument, but it seems to me that they are mostly very technical, and it is not necessary to go into them.

Ftor the reason that I have stated here, that all the counts allege that the testimony which is claimed to be perjury was in substance as follows, and that the testimony set up in the three counts is all cross-examination not germane to the direct, perjury cannot be assigned thereon, and because none of the counts allege clearly and directly that the testimony was material to the issue in the case, I will quash all the • counts of the indictment. i

        Tottleben v. Blankenship, 58 Ill. App. 47; Foval n. Hallett, 10 Ill. App. 265. See also McKee v. Ingalls, 4 Scam. 30. — Ed.