author: Thompson, J.:—

text:
      (Circuit Court of Coles County.)
    The People of the State of Illinois vs. Edgar A. Potter and Fred More Same vs. Edgar A. Potter, Francis S. Peabody, Arthur W. Underwood, Marshall Sampsell, Peter S. Grosscup and Fred More. Same vs. Charles Botts Same vs. Ben McClara
    (No. 3760, Criminal carelessness; No. 3761, Manslaughter.)
    (No. 3762, Manslaughter; No. 3763, Criminal carelessness.)

    ‘ (No. 3764. Manslaughter.)
    (No. 3765. Manslaughter.)
    (February 28, 1908.)
    1. Criminal Carelessness While in Change or Control oe Public Conveyance — Liability oe Ofeicers and Directors of Railroad. Section 49 of the criminal code which makes it an offense for any person having personal management or control of or over any public conveyance used for the common carriage of passengers, to be guilty of gross carelessness or neglect in or in relation to the conduct, management or control of such public conveyance, while being used for the common carriage of passengers, whereby the safety of any person shall be endangered, has no application to persons having the management or control of the business of a railroad, such as the officers and directors.
    (See note 1, p. 412.)

      2. Indictment — Misjoinder—Charging Different Defendants in Separate Counts. An indictment against a number of defendants cannot charge part of the defendants in one count and part of them in other counts. Therefore, an indictment which charges the directors of a corporation in some counts and the officers in other counts must be quashed.
    (See note 2, p. 413.)
    3. Indictment — Misjoinder of Defendants in Indictment for Neglect of Duty, Not Joint. In indictments for manslaughter and criminal carelessness arising out of an alleged neglect of duty, it is erroneous to join the defendants upon whom the-obligation to perform the alleged duty rests, unless it is shown by a proper and specific averment of fact that such duty-rested on all of the defendants alike. Where the board of ' directors of a corporation were indicted jointly with the officers and the superintendent of a railroad for negligence in the operation of the road, whereby a collision occurred resulting-in the death of a passenger, it was held that as no joint duty was alleged that the misjoinder was fatal.
    (See note 3, p. 414.)
    4. Directors of Corporations — Criminal Liability of for Neglect of Duty. The directors of a railroad corporation may be-criminally liable in certain cases of neglect of duty. But they cannot be held criminally liable jointly with the superintendent or general manager of such road who negligently or wilfully give orders which result in a wreck, or with the motor man who negligently or wilfully runs one car into another,, either in obedience to or in direct violation of" those orders.
    (See note 4, p. 415.)
    5. Indictment — Duplicity in — Each Count Must Contain Single Issue. An indictment should be certain and specific as to the defendants, the offense, and the manner of its commission, so-that the plea of “not guilty” will raise a single issue upon each count. If more than one issue is raised upon any count by that plea, the count is duplicitous.
    6. Indictment — Duplicity in — What Constitutes. A count of an indictment for manslaughter against the directors and officers of a railroad- which alleges that a death was caused in the operation of the railroad by a failure to provide safe, proper and sufficient rules for the operation and running of cars and also charges that the death was caused by the establishment and enforcement of unsafe, improper and insufficient rules and regulations, is bad for duplicity.
    7. Indictment — Allegations of, as to Duty. An indictment based on a neglect to perform a particular duty should allege the. existence of facts from which the law raises the duty, and it is not sufficient to allege that it was the duty to do the things in question.
    8. Indictment — Based on Failure to Establish Proper and Sufficient Rules for Operation of Railroad — Must Set Out Rules. Where an indictment charges manslaughter on account of a death in a railroad collision, alleged to have been occasioned by providing and enforcing improper, insufficient and unsafe rules, the indictment must allege what rules were violated and the rules must be set out in the indictment.
    9. Proximate Cause — Causal Connection Between Act and Death. Where it is alleged in an indictment for manslaughter that a collision was occasioned hy neglect to provide and enforce safe and sufficient rules and hy the enforcement of unsafe and insufficient rules, whereby death was caused, the allegations of the indictment must show a causal connection between the act and the death.
    10. Directors — Criminal Liability of Where no Civil Liability. Directors of a corporation cannot be held criminally liable for negligence in a case where they could not be held civilly liable. The person or persons directly responsible for a death are criminally liable.
    (See note 6, p. 422.)
    'll. Criminal Law — Principal or Master not Criminally Responsible for Negligence of Agent or Servant. A principal or master is not responsible criminally for the negligent acts of his agents or servants.
    (See note 5, p. 420.)
    12. Grand Jury — Validity of Where Improperly Served. The fact that the sheriff serves a number of the grand jurors hy mailing a copy of the venire with a return card to himself in which the grand juror acknowledged service, will not invalidate the proceedings of such grand jury where all the jurors were present even though such service was not in accord with the statute.
    13. Same — Failure to Cermet Selection of Jurors Within Five Days. The failure of the county clerk to certify the names of the grand jurors to the clerk of the court within five days after their selection, as required by the statute, does not invalidate the proceedings of such grand jury, as the provision of the statute is directory only.
    14. Grand Jury — Necessity of Hearing Evidence on Finding of Second Indictment. Where the grand jury hears evidence in support of an indictment, and thereafter at the request of the prosecutor finds a second indictment against the same person for the same offense, it is not necessary for such grand jury to hear evidence in support of the second indictment. (See note 7, p. 424.)
    15. Grand Jury — Witness Not Sworn by Foreman — Effect of. Although the statute contemplates that the foreman should swear ail witnesses, a failure to do so in the case of a particular witness, will not invalidate the indictment if there is other sufficient evidence.
    16. Indictments — Presence of State’s Attorney in Grand Jury Room. The state’s attorney is not authorized to he in the grand jury room during the deliberations of the grand jury. But the state’s attorney may properly be with the grand jury and advise and counsel with them as to their duties, so long ~j he does not prevail upon the grand jury to return an indictment which they would otherwise not have done.
    17. Grand Jury — Effect of Reoonveninq After Adjournment Without Entry of Reconvening Order — Validity of Indictments. Where a grand jury adjourns for the term sine die, and thereafter reconvenes during the same term without the entry by the court of a reconvening order, and returns indictments, such indictments must be quashed as the grand jury was without authority to act.
    18. Same — Power of Court to Recall Grand Jury After Adjournment. The court has no power to reassemble the grand jury after it has adjourned for the term, except under the provisions of the statute which provides for a special venire.
    Motion to quash indictments for manslaughter and criminal carelessness. Heard before Judge Morton W. Thompson.

      John McNutt, state’s attorney, for the people.

      Levy Mayer, Chicago, Ill., W. S. Graham, Springfield, Ill. John H. Marshall, Charleston, Ill., and Messrs. Andrews & Vause, Mattoon, Ill., for defendants Potter, Peabody, Underwood, Sampsel, Grosscup and More.

      Messrs. Andrews & Vause, for defendant Botts.

      Albert C. Anderson and Charles G. Lee, Charleston, Ill., and Edward C. Craig, Mattoon, Ill., for defendant McClara.
    Statement 'of Facts. ■
    The defendants, Edgar A. Potter, Francis S. Peabody, Arthur W. Underwood, Marshall Sampsell, and Peter S. Gross-cup, were the directors of the Mattoon City Bailway Company which operated an interurban line of railway between the cities of Mattoon and Charleston, Illinois. The defendant Edgar A. Potter, was the president and general manager of the company, and the defendant Fred More, the general superintendent. The defendants Charles Botts and Ben McClara, were motormen in the employ of the company. On August 30, 1907, a collision occurred between a freight motor ear and a passenger motor car which were proceeding in opposite directions on a single track, whereby sixteen persons were killed, and a large number injured.
    On September 11, 1907 the boad of supervisors of Coles county selected twenty-three persons to serve as grand jurors for the county of Coles at the October, 1907, term of the circuit court, and the county clerk was directed to certify the names of the persons selected to the clerk of the circuit court, pursuant to the statute. The clerk did so certify on September 18, 1907. The clerk of the circuit court thereupon issued a venire for the said' grand jurors and placed the same in the hands of the sheriff. The sheriff served several of the grand jurors in person but the service on a number of such grand jurors was had by depositing in the mail an envelope properly addressed to said persons, postage prepaid, containing a copy of the summons and a return postal card addressed to the sheriff and upon which the recipient was directed to acknowledge receipt of the summons. All of said cards were signed and returned to the sheriff.
    On October 14, 1907, the grand jurors appeared in the court house at Charleston and were duly impanelled as the grand jury and thereafter retired to their room and after hearing evidence, returned six indictments against the defendants for manslaughter and criminal carelessness.
    On October 30, 1907, the said grand jury reported to the court that they had no further business and the court thereupon ordered said grand jury to take an indefinite recess and instructed them that if the court should require their further service they would be notified.
    On December 9, 1907, the sheriff mailed to each member -of said grand jury a postal card upon which appeared the following:
    “By order of the judge of the circuit court, the grand jury will reconvene on Monday, January 6, 1908, at 1 p. m.
    “E. H. Slover, Sheriff.”
    No order was entered of record by the court reconvening said grand jury.
    On January 6, 1908, the said grand jury assembled. It was charged that the state’s attorney thereupon appeared before said grand jury and went with them into the grand jury room and told such grand jurors that he feared that the indictments found in October were not good and that therefore he had drawn new indictments, and that he wanted them to adopt the new indictments and vote on the same; that said indictments were already prepared and said state’s attorney presented the same to the grand jurors and requested them to adopt the same and said state's attorney remained in the grand jury room until the said grand jurors did vote upon the said indictments. The grand jury thereupon returned six additional indictments against the defendants. Upon the hearing of the motions to quash, the defendants moved to quash the first series of indictments on account of the pendency of the second series. The state’s attorney thereupon nollied the first series of indictments and the motions to quash the second series were thereupon argued.
    Indictment No. 3762 for manslaughter contained twenty-two counts. Count one alleged:
    That on the thirtieth day of August, in the year of our Lord one thousand nine hundred and seven, Edgar A. Potter, Francis S. Peabody, Arthur W. Underwood, Marshall Sampsell and Peter S. G-rosscup, were and then and there had assumed the offices and duties of directors of the Mattoon City Railway Company, and then and there composed and had assumed the duties of the board of directors of said company, a corporation organized and doing business under the laws of the state of Illinois, and the said Edgar A. Potter, was and then and there had assumed the office and duties of president of said Mattoon City Railway Company, and Fred More was, and then and there had assumed the office and duties of superintendent of said railway company that on the day aforesaid the said Mattoon City Railway Company owned and was then and there operating a single track railroad in and between the cities of Mattoon and Charleston in said county and state, and was transacting a railroad business of carrying passengers and freight for hire and was then and there operating and running a system of electric passenger and freight motor cars upon said single track railroad for the carrying of said passengers and freight; that on the day aforesaid and in the county and state aforesaid the said Edgar A. Potter, Francis S. Peabody, Arthur W. Underwood, Marshall Sampsell, Peter S. Grosscup and Fred More then and there composing the board of directors and superintendent as aforesaid of said company, had then and there taken on themselves the management, control and supervision of said railroad and the operation and conduct of the said passenger and freight motor ears of said company on said railroad, and it was then and there the duty of the said Edgar A. Potter, Francis S. Peabody, Arthur W. Underwood, Marshall Sampsell, Peter S. Grosscup and Fred More, as the board of directors and superintendent as aforesaid, to then and there provide and establish with due care and circumspection for the guidance of the employees of said company and for the protection of the lives and safety of the passengers then and there carried upon the aforesaid passenger cars, proper and sufficient rules and regulations relating to the safe and efficient operation of the said passenger and freight motor cars upon said single, track railroad so that the lives and safety of the passengers carried upon said passenger motor ears would be secured, and then and there take care and see to it that such rules and regulations as aforesaid were then and there provided, established and enforced in the operation and running of the aforesaid cars on said railroad, yet, not regarding their duty in that behalf and without due care and circumspection for the lives and safety of the passengers then and there being carried on the aforesaid passenger motor cars the said Edgar A. Potter, Francis S. Peabody, Arthur W. Underwood, Marshall Sampsell, Peter S. Grosscup and Fred More, as the board of directors and superintendent as aforesaid, did then and there feloniously and iuilfully, fail, neglect and omit to provide and establish, and to take care and see to it that said company and railroad were then and there provided with proper sufficient, and safe rules and regulations for the guidance of the employees of said company in and about the operation and running of the passenger and freight motor cars of said company on said railroad as aforesaid so that the safety and lives of the passengers then and there being carried on the said passenger motor cars would be secured, and did then and there feloniously, wilfully and negligently and without due caution and circumspection, provide and establish and enforce unsafe, improper and insufficient rules and regulations for the guidance of the employees of said company and for the preservation of the lives and safety of the passengers then and there being carried upon said passenger motor cars, by reason whereof, and the aforesaid felonious and wilful neglect and omission of the said Edgar A. Potter, Francis S. Peabody, Arthur W. Underwood, Marshall Sampsell, Peter S. Grosscup and Fred More, a passenger motor car of said company and a freight motor car of said company being then and there propelled by electricity in opposite directions and toward each other and at a high rate of speed along and upon said single track railroad on the day aforesaid, and in the county and state aforesaid came into violent contact and collision and said cars were then and there mashed, crushed and driven together and upon and into each other, and by means thereof mortal wounds were then and there inflicted upon and in the head and body of William Nelson, who was then and there a passenger on the aforesaid passenger motor ear of said company, of which said mortal wounds the said William Nelson'then and there instantly died. And so the grand jurors aforesaid do say that the said Edgar A. Potter, Francis S. Peabody, Arthur W. Underwood, Marshall Sampsell, Peter S. Grosscup and Fred More, did feloniously and willfuly the said William Nelson then and there kill and slay, contrary to the form of the statute in such case made and provided and against the peace and dignity of the said people of the state of Illinois.
    Count two was against Potter, Peabody, Underwood, Sampsell and Grosscup as directors and More as superintendent- and alleged that it was their duty to provide  ‘ a safe railroad, safe cars, safe methods for operating the cars of said company, and to provide with due caution and circumspection safe rules and regulations relating to the operation and movements of the passenger and freight electric motor cars of said company, and for the proper performance by the several servants of said company, of their respective and several duties, whereby the safety and lives of the passengers traveling upon said railroad would be reasonably secured.”
    Count three was against the same defendants and alleged that it was their duty “with due caution and circumspection to provide and establish for the guidance of the employees of said company, proper and sufficient rules and regulations relating to the said operation of the business and cars of said company upon the said single track railroad whereby the safety and lives of the passengers then and there traveling-upon said railroad would be reasonably secured.”
    Count four was against the same defendants and alleged that it was their duty “with due caution and circumspection, to prepare,. provide and establish and to see that said company and railroad was provided with, a system of rules and regulations for the operation and management of the business of said company and the operations and running of the cars of said company upon said railroad, under which system faithful and careful employees of said company could operate the-cars of said company on said railroad so that the lives and safety of the passengers upon said cars would be reasonably secured. ’ ’
    Count five was against the same defendants and alleged that it was their duty “with due caution and circumspection to operate, conduct and manage said railroad and the business of said company so as to safely transport all passengers upon the cars of said company to their several destinations.” Count six was against the same defendants except that Potter was charged also as president of the company. It alleged that they “then and there composéd the management of said railroad and said company and had then and there taken on themselves the care, control and supervision of the operation of said railroad and the business of said company and the running and management of the passenger and freight motor cars of said company on said railroad, and it was then and there their duty with due caution and circumspection to prepare, provide and establish a system of rules and regulations for the operation and management of said railroad and the business of said company and the running of said cars upon said railroad under which system faithful and careful employees of said company could operate the passenger and freight ears of said company on said single track railroad so that the lives and safety of the passengers traveling on said railroad would be reasonably secured.”
    Count seven was against the directors and Potter as president. It alleged that they exercised all the corporate powers, of the company and had taken upon themselves the entire control, management and supervision of the business of said railroad and that it was then and there their duty “with due caution and circumspection to prepare, provide and furnish for said company, and to take care and see to it that said company was provided and furnished with a system of rules and regulations for the operation and management of the business and the running of the passenger and freight cars of said company upon said single track railroad under which system, so to ]ie provided and furnished as aforesaid, faithful and careful employees of said company could operate the passenger and freight motor cars of said company upon and along the said single track railroad so that the lives and safety of the passengers carried upon said passenger cars would be reasonably secured.”

      Count eight was against the directors and alleged that it was their duty “with due caution and circumspection to provide, select and employ for said company, and to take care and see to it that said conpany was provided with and had employed such officials and servante as would and could operate, manage and conduct the business of said company and the system of passenger and freight motor cars of said company on said single track railroad with due caution and circumspection for the safety of the passengers carried upon the passenger motor cars of said company.”
    Count nine was against the directors and alleged that they “had taken on themselves the care, management and control of said single track railroad and the duty of with due caution and circumspection in providing for and seeing that said company and railroad were provided with proper rules and competent officials, so that said single track railroad could and would be operated with due care and circumspection for the lives and safety of the passengers carried upon said pas•senger motor cars of said company on said railroad.”
    Count ten was against the directors and alleged that they “had taken on themselves the care, management and control of said single track railroad and the business of said company and the duty of with due caution and circumspection providing for said company and seeing that said company was provided with proper rules and regulations; so that said single track railroad and said passenger and freight motor cars could and would be operated with due care and eircum-spection for the lives and safety of the passengers carried upon said passenger motor cars of said company on said railroad and for the prevention of collisions between said passenger and freight motor ears while the same were being used in the transaction of the business of said company.”
    Count eleven was against the directors and alleged that they had “taken on themselves the care, management and control of said single track railroad and the business of said company and the duty of- with due caution and circumspection providing for said company and railroad and seeing that said company and railroad was provided with proper rules and regulations so that said single track railroad and said system of passenger motor cars and said freight motor car could and would be operated on said railroad with due care and circumspection for the lives and safety of the passengers carried on said passenger cars and for the prevention of collisions between said passenger motor cars and said freight motor car while the same was being used in the transaction of the business of said company.”
    Count twelve was against the directors and alleged that they had “taken on themselves the care, management and control of said single track railroad and the business of said company and the duty of with due caution and circumspection providing for said company and railroad and seeing that said company and railroad (were) provided with proper rules and regulations (and competent and efficient officials and employees) so that said single track railroad and said system of passenger motor cars and said freight motor car could and would be operated on said railroad with due care and circumspection for the lives and safety of the passengers carried on said passenger cars and for the prevention of collisions between said passenger motor cars and said freight motor car while the same were being used in the transaction of the business of said company.”
    Count thirteen was substantially the same as count twelve except Potter was charged as president and More as superintendent.
    Count fourteen was against Potter as president and More as superintendent and alleged that they had “taken on themselves the care, management and control of said single track railroad and the business of said company and the duty of with due caution and circumspection providing for said company and said railroad and seeing that said company and railroad were provided with proper rules and regulations and competent employees so that said single track railroad and said system of passenger motor cars and said freight motor ear could and would be operated on said railroad with due care and circumspection for the lives and safety of the passengers carried on said passenger cars and for the prevention of collisions between said passenger motor cars and said freight motor car while the same were being used in the transaction of the business of said company.”
    Count fifteen was in substance the same as count fourteen.
    Count sixteen was against Potter alone and was in substance the same as count fifteen.
    Count seventeen was against the directors and alleged that they “had then and there taken on themselves the management; control and supervision of said railroad and the operation and conduct of the said passenger and freight motor cars of said company on said railroad; and it was then and there the duty of the said * * * as such directors and board of directors as aforesaid thus in charge of and control over the operation of the aforesaid passenger motor car and the aforesaid freight motor ear with due caution and circumspection to use and exercise and cause to be used and exercised all proper, reasonable and effective measures and all means within their power to prevent the said passenger motor car and the said freight motor car from colliding and to place the said passenger motor ear and the said freight motor car under the government and control of employees properly trained and experienced and competent to run the aforesaid passenger and freight motor cars along the said single track railroad with safety.”
    Count eighteen was against the directors and alleged that it was their duty “with due caution and circumspection to use and exercise and cause to be used and exercised all proper, reasonable and effective rules and measures and all means within their power to prevent the said passenger motor ear and the said freight motor car from colliding, and to ascertain and know that the said passenger motor car and the said freight motor car could be operated and run in opposite directions on said single track railroad under the rules and regulations and the officials and employees then and there employed and used in the operating and managing of said cars on said railroad with due caution and circumspection for the lives and safety of the passengers-carried upon said passenger motor ear, and to place the-operation, dispatching and management of said passenger motor ear and said freight motor car under the government and control of some official or employee properly trained, experienced and competent to operate, dispatch and manage the said passenger motor car and the said freight motor car on said railroad with- safety.”
    Count nineteen was against Potter as president and general manager and alleged that it was his duty “to use and exercise and cause to be used and exercised all proper, reasonable and effective rules and measures and all means within his power to prevent the said passenger motor car and the said freight motor car from colliding on said railroad and to place the said passenger motor car and the said freight motor car under the government and control of employees properly trained, experienced and competent to run, dispatch and manage the said passenger motor car and the said freight motor ear on said railroad with safety to the passengers then and there carried on said passenger motor car and to ascertain and know that the said passenger motor car and the said freight motor car could be operated and run in opposite directions on said railroad under the rules and regulations and the employees then and there employed and used in the operating, dispatching and running of said ears with due caution and circumspection for the lives and safety of the passengers carried upon said passenger motor car.”
    Count twenty was against More as superintendent and was in substance the same as count nineteen.
    Count twenty-one was against Potter - as president and general manager and More as superintendent and alleged that it was their duty “ to ascertain and know that the said passenger motor car and said freight motor car could be operated and run in opposite directions and toward each other and at a high rate of speed on said railroad under the rules and regulations and the employees then and there employed and used in the operation and running of said cars, with due caution and circumspection for the lives and safety of the passengers then and there carried upon said passenger motor car and to use and exercise and to cause to be used and exercised all proper, reasonable and effective measures, rules and regulations and all means within their power to prevent the said passenger motor car and the said freight motor car from colliding on said railroad and to place the said passenger motor car and the said freight motor ear under the government and control of motorneers and conductors properly trained and experienced and competent to run said cars in opposite directions along said railroad with due caution and circumspection for the lives and safety of the passengers carried on said passenger motor ear.”
    Count twenty-two was against the directors and alleged that the company operated its road under a system of “improper, unsafe, unfit and inefficient rules and regulations and a president and general manager who was then and there incompetent, untrained and inexperienced in and about the management of said railroad and the dispatching and operation of said ears thereon,” and that the said directors did “unlawfully cause, suffer and permit to be and remain established and in force and effect as the rules and regulations and the president and general manager under which said company was to operate and did operate said railroad and said cars thereon.”
    Indictment No. 3763 for criminal carelessness contained ten counts. Count one alleged:
    That on the thirtieth day of August in the year of our Lord one thousand nine hundred and seven Edgar A. Potter, Francis S. Peabody, Arthur W. Underwood, Marshall Sampsell and Peter S. Grosscup were then and there and had assumed then and there the offices and duties of directors of the Mattoon City Eailway Company and then and there composed and had assumed the duties of the board of directors of said company, a corporation organized and doing business under the laws of the state of Illinois; and said corporation owned and was then and there operating a single track railroad in said county for the common carriage of passengers and freight for hire by means of a system of passenger motor cars and one freight motor car propelled on said railroad by electricity; and on the day aforesaid and in the said county of Coles and state aforesaid the said Edgar A. Potter, Francis S. Peabody, Arthur W. Underwood, Marshall Sampsell and Peter S. Grosseup as such board of directors had then and there taken on themselves the personal management and control of and over said railroad and the operation of said passenger motor cars and said freight motor car and of a certain passenger motor then and there governed and controlled by employees of said corporation on said railroad which said passenger motor car was then and there being operated as aforesaid and was then and there a public conveyance then and there being used for the common carriage of William Nelson and other persons as passengers for hire on said railroad; and it was then and there the duty of the said Edgar A. Potter, Francis S. Peabody, Arthur W. Underwood, Marshall Sampsell and Peter S. Grosseup as ‘such board of directors and having then and there the personal management and control over said public conveyance and said railroad as aforesaid to provide and cause to be provided employees who are competent, trained and experienced in and about the careful and safe dispatching arid operation of said public conveyance and said freight motor car upon said railroad so that the safety of the said William Nelson and other persons then and there passengers on said public conveyance would not be unreasonably and unnecessarily endangered, yet, unmindful of their duty in that behalf the said Edgar A. Potter, Francis S. Peabody, Arthur W. Underwood, Marshall Sampsell and Peter S. Grosseup, were then and there guilty of felonious, wilful and gross carelessness and neglect in, and in relation to, the conduct, management and control of said public conveyance while the same was then and there being used for the common carriage of the said William Nelson and other persons as passengers as aforesaid, in that they, the said Edgar A. Potter, Francis S. Peabody, Arthur W. Underwood, Marshall Sampsell and Peter S. Grosscup as such board of directors as aforesaid did then and there feloniously, wilfully and with gross carelessness provide and caused to be provided an employee for the operation and dispatching of said public conveyance and said freight motor car along and upon said railroad which said employee was untrained, incompetent, and inexperienced in and about the safe and careful operation and dispatching of said public conveyance and said freight motor car as aforesaid; and the incompetency, unfitness and inefficiency of said employee for the purpose of providing safety to the said William Nelson and other persons so being passengers ■ás aforesaid should have been known to the said Edgar A. Potter, Francis S. Peabody, Arthur W. Underwood, Marshall Sampsell and Peter S. Grosscup and they might by the exercise of ordinary observation and inquiry have ascertained the same and should so have ascertained before said public conveyance and the said freight motor ear were operated and caused to be operated as herein mentioned; and‘notwithstanding the premises, the said Edgar A. Potter, Francis S. Peabody, Arthur W. Underwood, Peter S. Grosscup and Marshall Sampsell were then aqd there guilty of felonious, wilful and gross carelessness and neglect in that they feloniously and wilfully and with gross negligence did then and there •on the day aforesaid and in the county and state aforesaid the said public conveyance then and there being used for the common carriage of said William Nelson and other persons •as aforesaid, and the said freight motor car, operate and run .and cause, suffer and permit to be operated and run on said railroad in opposite directions and toward each other and at a high rate of speed under the dispatching and direction of the aforesaid employee who was then and there incompetent, untrained and inexperienced in and about the careful, safe and proper manner to so dispatch and operate the said public •conveyance and the said freight motor car in opposite directions and toward each other as aforesaid so that the safety of the said William Nelson and the other passengers on said public conveyance would not be then and there unreasonably and unnecessarily endangered; and by reason thereof the-said public conveyance and the said freight motor car being-then and there operated and dispatched and controlled as. aforesaid did then and there come into violent contact and. collision and were then and there by reason of such collision, mashed, crushed and driven together and upon and into each other and by reason thereof the said William Nelson was then, and were thrown down and upon the beams, timbers and iron pieces and other component parts of said public conveyance and mortal wounds were then and there inflicted thereby upon and in the head and body of the said William Nelson from which said mortal wounds the said William Nelson then and there instantly died. And so the said Edgar-A. Potter, Francis S. Peabody, Arthur W. Underwood, Marshall Sampsell and Peter S. Grosscup were then and there guilty of felonious, wilful and gross carelessness and neglect in and in relation to the conduct, management and control of said public‘conveyance while the same was being then and there used for the common carriage of the said William Nelson and other persons as aforesaid and by reason thereof and-whereby the safety of the said William Nelson who was then, and there a passenger on said public conveyance was then and there by the felonious, wilful and gross carelessnees and neglect of the said Edgar A. Potter, Francis S. Peabody,. Arthur W. Underwood, Marshall Sampsell and Peiter S. Grosscup endangered contrary to the form of the statute in such case made and provided and against the peace and dignity of the people of the state of Illinois.
    The remaining nine counts contained the same variations with respect to parties, duties, etc., as indictment No. 3762' supra.
    It is unnecessary to a correct understanding of the opinion-of the court to refer to the indictments against the other defendants.

       Indictments Nos. 3700, 3710, 3713, 3714, 3741, 3742 and 3743 were nollied on account of the pendency of the second series of indict.ments. — Ed.

   Thompson, J.:—

I desire now to express my appreciation to the state’s attorney and each of the attorneys for the defendants, for the very able and exhaustive arguments made in these eases. I realize the seriousness of this matter, both to the defendants-, who stand charged with a felony, and to the victims of that unfortunate occurrence, and I am not unmindful of the very bitter feeling engendered throughout this county by it.

The Mattoon City Railway, an Illinois corporation, owns and operates a single track interurban electric railroad, between the cities of Mattoon and Charleston, Illinois, a distance of about eleven miles. On August 30, 1907, an express car going west on a sharp curve, which rounded a high point of land, collided with a passenger car going east, and eighteen people were killed and about as many more injured.

As a matter of common knowledge we all know that accidents of that kind do not occur without the fault of somebody. Some one, or more persons, was to blame for that unfortunate occurrence. One can hardly realize such an occurrence without involuntarily saying, “someone has blundered, someone was negligent, someone was to blame and should be punished.”

As said by Blaekstone, the principal object of criminal prosecution is not so much to punish the defendant, as to set an example to others, to not violate the law. The state does not ask for vengeance alone. It cannot benefit the state to hang a man for murder, except in so far as it sets an example to others not to kill.

The motion to quash of course challenges the legal sufficiency of the indictments, and each count, and under that motion, numerous reasons are urged against their sufficiency, some of which I shall not take the time to even mention, much less to discuss.

Indictment No. 3762 is against the defendants for “manslaughter,” and contains twenty-two counts, some of which include only the directors, others the directors and officers, and still others the directors, officers and superintendent of said railway company.

Indictment No. 3763 is against the defendants, for “criminal carelessness,” and contains ten counts, some of which include only the directors, others the directors and general manager, and still others the general manager and superintendent, and is drawn under section 49, of the criminal code of Illinois, which is as follows:

“Whoever, having personal management or control of or over any steamboat or other public conveyance used for the common carriage of persons, is guilty of gross carelessness or neglect in, or in relation to, the conduct, management or control of such steamboat, or other public conveyance, while being so used, for the common carriage of persons, whereby the safety of any person shall be endangered, shall be imprisoned in the penetentiary not exceeding three years, or fined not exceeding $5,000.00.” (Hurd’s Eev. Stat., 1906, p. 681).

I will discuss the second indictment first, as much of what I shall say will also apply to the first.

Let us for a moment discuss that statute. So far as I can learn it was passed in 1874, or at least was in the revision of that date, and has been in force ever since and it seems a little significant that after the exhaustive research of counsel, no prosecution under it can be found in this state. Being a penal statute, it should be, and under the well known rules of construction, is to be strictly construed. By express terms it is limited to “whoever having personal management and control.” Of what? A business? A company? A corporation? A railroad? No! “A steamboat or other conveyance-used for the common carriage of persons.” When? “While being so used.” How? “For the common carriage of persons, whereby the safety of any person shall be endangered, shall be imprisoned,” etc. I do not think this statute was ever intended to apply to persons having the management or control of the business, such as directors or officers of a corporation.1

It is also urged that the indictments are bad, because of the misjoinder of the defendants. An indictment is a charge, against one or more defendants, and additional counts may be added, charging the commission of the offense in different ways, in order that the proof, if it should not be as the pleader anticipated in the first count, would prove the allegations of some one of the others. If there is absolute certainty as to the proof, there is no necessity for more than one count in an indictment for an offense. I do not understand, and I have not been referred to any authority which holds than an indictment can charge part of the defendants in some of its counts and part of them in others, as in both of these indictments, charging the directors alone in some counts, the directors and general manager in others and the general manager and superintendent in still others.2

But it is urged by the prosecutor, that he can nolle the counts which charge separate defendants, thereby leaving only those counts which charge the same defendants. An indictment is a charge against a certain person or persons, with the commission of an offense, but the separate counts must charge the same defendants with the same offense, but not necessarily of having committed it in the same way. For example, A is found dead in a pool of water. B and -C are indicted. One count charges them with having murdered him by choking him; another count by striking him on the head; another by drowning him. The defendants are the same, the offense is the same but the manner of committing it is different. I think both indictments are bad for that reason, nor do I believe it will make such an indictment good to nolle the bad counts. I do not think you can make a good indictment out of a bad one by nollying the bad counts.

It is also urged that these indictments are bad because there is no joint legal duty and responsibility resting upon the defendants. In other words, the duties and responsibilities resting upon the directors were not the same as upon the general manager or the superintendent. Consequently the violation of the duty owing by some of the defendants would not apply to others. As was said in the Ford Theater Case (Ainsworth v. United States, 1 App. Cas. [D. C.] 518), the duties resting upon the architect who drew the plans and specifications for the improvement, were different from the superintendent who had general supervision of the work and also of the foreman directly in charge of the men who excavated the earth beneath the supports, and thereby caused the building to collapse.3

There is no question in my mind as to the criminal liability of directors of a corporation in certain cases of neglect •of duty. There are certain duties and responsibilities resting upon the board of directors, which they are no more at liberty to violate or disregard than those 'resting upon individuals, and in many ways may be likened to the owner in case the business was owned and conducted by an individual instead of a corporation. To say that the owner of this railroad would be jointly liable, criminally with the superintendent or general manager, who negligently or wilfully gave orders which resulted in the wreck, or with the motorman who negligently or wilfully ran his car into another, either in obedience to or in direct violation of those orders, would not, upon the mere statement of the proposition, meet the approval of any fairminded person. To include the directors with the other defendants, in these indictments, I think makes them bad.4

It is urged that each and every count in both indictments is bad for duplicity. An indictment should be certain and speciñe as to the defendants, the offense, and the manner of its commission, so that the plea of ‘‘not guilty” will raise a single issue upon each count. If more than one issue is raised upon any count by that plea, the count is duplicitous, and would be bad for that reason in a common law declaration.

Take for example the first count of No. 3762. It alleges that on August 30, 1907, Potter, Peabody, Underwood, Sampsell and Grosseup “were and then and there had assumed the offices of and duties of directors of” said railway company, a corporation, etc., and the said Potter “was and then and there had assumed the office and duties of president of said Mattoon City Railway Company, and Fred More was, and then and there had assumed the office and duties .of superintendent of said railway company,” and “that on the day aforesaid the said Mattoon City Railway Company owned and was then and there operating a single track railroad in and between the cities of Mattoon and Charleston, in said county and state,” etc.; that on that day said directors and More composing said board and superintendent as aforesaid “had then and there taken on themselves the management, control, and supervision of said railroad and the operation and conduct of the said passenger and freight motor cars of said company on said railroad, and it was then and there the duty of the said Potter' Peabody, Underwood, Sampsell, Grosscup and More, as the board of directors and superintendent as aforesaid, to then and there provide and establish with due care and circumspection for the guidance of the employees of said company and for the protection of the lives and safety of the passengers then and there carried upon the aforesaid passenger cars, proper and sufficient rules and regulations relating to the safe and efficient operation of the •said passenger and freight motor cars upon said single track railroad so that the lives and safety of the passengers carried” would be secured, etc., “and to then and there take care and see to it that such rules and regulations as aforesaid were then and there provided, established and enforced in the operation and running of the aforesaid cars on said railroad, yet, not regarding their duty in that behalf and without due care and circumspection for the lives and safety of the passengers then and there being carried on the aforesaid passenger motor cars the said” directors and More, as the board of directors and superintendent as aforesaid, “did then and there feloniously and wilfully fail, neglect and omit to provide and establish, and to take care and see to it that said company and railroad were then and there provided with proper, sufficient, and safe rules and regulations for the guidance of th¿ employees of said company in and about the operation and running of the passenger and freight motor cars of said company on said railroad as aforesaid so that the safety and lives of the passengers then and there being carried on the said passenger motor cars would be secured, and did then and there feloniously, wilfully and negligently and without due caution and circumspection, provide and establish and enforce unsafe, improper and insufficient rules and regulations for the guidance of the employees of said company and for the preservation of the lives and safety of the passengers then and there being carried upon said passenger motor cars, by reason whereof, and the aforesaid felonious and wilful neglect and omission of the said ‘directors and More,’ a passenger motor car of said company and a freight motor car of said company, being then and there propelled by electricity in opposite directions and toward each other and at a high rate of speed along and upon said single track railroad on the day aforesaid, and in the county and state aforesaid, came into violent contact and collision and said ears were then and there mashed, crushed and driven together and upon and into each other, and by means thereof mortal wounds were then and there inflicted upon and in the head and body of William Nelson,” a passenger, etc.

A count should allege the existence of facts upon which the law creates the duty, and it is not sufficient to allege that it then and there became and was the duty of defendants to provide and establish with due care and circumspection for the guidance of the employees and safety of the passengers, proper and sufficient rules, and regulations relating to the safe and efficient operation of said freight and passenger cars, and to see that they were enforced in the running of said cars.

Then again, line 69, page 21, “did then and there feloniously, wilfully and negligently and without due caution and circumspection, provide and establish aud enforce unsafe, improper and insufficient rules and regulations,” etc. Line 59 alleges the defendants did ‘‘fail, neglect and omit to provide and establish,” proper, sufficient, and safe rules, etc. In line 59, committed manslaughter by negligently omitting to provide and enforce safe rules, and in line 69, committed manslaughter by negligently providing and enforcing unsafe .rules.

Again no rule or regulation is alleged that the court may .judge as to whether or not it is safe, reasonable, proper or sufficient. What rules were violated? How were the defendants negligent?

Again, the allegations should show a direct casual connection between the act and the death. To allege that A shot B ' with a gun and that B afterwards died is not sufficient. So far as the allegations of this count are concerned, one or both motormen may have been, at the time of the accident, wilfully violating some positive rule of the railroad, which resulted in the collision.

Neither do I see how the directors can be held liable at common-law for manslaughter. They cannot be held liable civilly,5 and no authority has been cited, which holds them criminally liable in such a case.6 That the corporation is liable in damages, no one will dispute. That the person or persons directly responsible for the death is criminally liable I do not doubt. Suppose the board of directors, or the superintendent provided proper rules,, and the motorman either negligently or wilfully, in violation of the rule, causes a death, upon what legal principle would the directors or superintendent be criminally liable?

Suppose I tell my man to take the horse to the shop to be shod, and on the way, he negligently or wilfully runs, over a child in the street, would anyone say I could be convicted of manslaughter and confined in the penitentiary?

The mere statement of the proposition is abhorrent to any fair-minded person. If that was the law no one would dare engage in any business beyond that of driving his own team, for fear of the criminal consequences.

As to the objection to the legality of the indictments as found and returned by the grand jury according to the affidavits filed. The grand jury met on October 14, 1907, and returned indictments against all these defendants in these cases, and finished the work for that term on October 30,

1907, but were told by the presiding judge to not adjourn, as they might be needed again and if so they would be notified. The grand jury did not adjourn, but as the affidavits say, ‘ drew their pay and went home. ’ ’ All the indictments against these defendants, returned at that time, have been nolled. On January 6, 1908, the members of the grand jury, in response to a postal card sent them by the sheriff upon notice from the clerk, that the judge wanted them to return, met at 1:30 p. m. and returned all these and other indictments into court, and adjourned at 2 -.45 p. m.

Section 19, chapter 78, Rev. Stat. of 111. provides that “The judge of any court of record of competent jurisdiction may order a special venire to be issued for a grand jury at any time when he shall be of opinion that public justice requires it. The order for such venire shall be entered on the records of the court by the clerk thereof; and such clerk shall forthwith issue such venire, under his hand and the seal of the court, and deliver the same to the sheriff, who shall execute the same by summoning, in the same manner now provided or that may hereafter be provided by law for summoning jurors, twenty-three persons, qualified by law, to constitute a grand jury.”

, Objection is made that several of these grand jurors were summoned by the sheriff enclosing a copy of the venire and a return card to himself, in a letter to the juror upon which the juror acknowledged service and promised to be present. This practice has obtained in a number of counties in this state. No authority has been cited upon that objection, and since every juror reported and was impaneled, I will not hold the grand jury was illegal for that reason. I think the service was not as required, and had some one so notified failed to appear, and his place filled, it might make it an illegal grand jury. I would not want to issue an attachment upon that notice.

“If a grand jury shall be required by law or by the order of the judge for any term of court, it shall be the duty of the county board # ® to select twenty-three persons,” etc.,

and to cause their clerk within five days thereafter to certify them to the clerk of the court, etc. (sec. 9, chap. 78 Rev. Stat. of Ill.)

It is objected that because the clerk of the county did not so certify these persons to the circuit clerk for seven days after they were selected, the grand jury is illegal. I think that provision of the statute is directory only, and failure of the clerk to so certify them, should not be held to avoid the grand jury.

It is also urged that these indictments are void, because they were not read to the grand jury, and it heard no evidence at that meeting, and all the knowledge it had of their contents was the statement of the prosecutor, to the effect that the others returned might prove insufficient or defective, and he desired these returned. I do not think it can be said that no evidence was heard in support of these indictments. It is conceded that the grand jury heard evidence in these cases in October, and the mere fact that they were not prepared and returned till January 6, would not avoid them. I know of no law or reason why the grand jury should return indictments within any specified time.7

It is also .urged that because the witness Jenkins was sworn by another member of the grand jury, in the absence of the foreman, and testified in these eases, that these indictments .are illegal.

Section 17 provides: “After the grand jury is impaneled, it shall be the duty of the court to appoint a foreman, who shall have power to swear or affirm witnesses to testify before them,” etc. While the statute does not exclusively authorize the foreman to swear witnesses, I am inclined to think that was intended by the legislature. Certainly he is expressly given that authority and had the legislature intended, it could as easily have said “all members” as “the foreman.” But the affidavits show that other witnesses were sworn by the foreman, and testified upon the same matters as Jenkins, and if his testimony was improperly received, there still remains sufficient evidence.

It is also urged that the state’s attorney should not have been present when these indictments were voted. I know of no statute which authorized the state’s attorney to be present in the grand jury room, during its deliberations, but so far .as I know, it is the general custom throughout the counties of this state. He generally conducts the examination of witnesses and prepares all indictments. It would be practically impossible to leave the preparation of indictments to the members of the grand jury and expect good indictments. It is pretty difficult for an experienced lawyer to get them sufficient in many eases. I think the state’s attorney may properly be with the grand jury and advise them and counsel with them, as to their duties and work, so long as he does not prevail upon it to return an indictment which it would not otherwise have done, for it would then be his, and not the grand jury’s.8

It is also urged that when the grand jury returned their indictments October 30, and as the affidavit states “drew their pay and went home,” that terminated their authority and duty as a grand jury. Had the grand jury adjourned for a week, a month, or until January 6, 1908, I would have no doubt of their authority to act at such adjourned meeting. But it seems to me that under the facts in this case they were through, providing the judge should not order them reconvened, In other words, to all intent and purposes they were discharged, if he did not send for them, but if he should send for them they were not discharged.

The affidavits state that the judge made no order on his. docket as to the recalling of the grand "jury, but that the clerk without legal authority, wrote it up as an order of court. I cannot see how that can tend to support the indictments for if the judge made no order, then the meeting on January 6 was without the order of the judge, and certainly it will not-be claimed that the clerk or sheriff had power to recall a grand jury. But I think it was the duty of the clerk to correctly record the court proceeding of the day, and if the judge so directed the grand jury the court proceeding should so show.. Still, I am aware of no law which places the grand jury under the direction of the judge, clerk or sheriff, during the entire term of court, to be called together at any time to make presentments.

Section 19 above quoted contemplates just such a situation and provides that a special venire may be ordered by the-judge at any time when he shall be of opinion that public-justice requires it, and provides- how it shall be done. This-section of the statute is absolutely of no force, if the methods, pursued -in this case are to be held legal. If that is the law,, a grand jury would be a sort of censor over the people of' the county from one term of court till the next, come and go-as they pleased, never adjourn, meet at any time of their own notion, or at the request of the judge, clerk or sheriff,, and return a few indictments and separate at will.

I think that when the grand jury quit on October 30, 1907, its authority ended, and all the indictments returned on January 6, 1908, were without authority and void. The motions will be sustained, and each of said indictments ordered, quashed and the defendants discharged.


source: Caselaw Access Project

license: Public Domain

text:
      (Superior Court of Cook County.)

    Brainard vs. Brainard.
    (March 28, 1908.)
    1. Constitutional Law — Section 13 of Practice Act — Validity— Serving Process on Non-resident -Partnership — Due Process of Law. Section 13 of the new practice act which provides that a co-partnership whose members are all non-residents but who have a place of business in this state, may he served with process by serving the same upon any of its agents is unconstitutional as depriving a person of his property without due process of law; its effect being to authorize a personal judgment on substituted service.
    2. Same — Immunities—Discrimination. The law is also invalid because it discriminates against the citizens of other states, thus violating clause 1, sec. 2, art. 4 of, and the 14th amendment to the Federal constitution.
    Motion to quash attachment writ. Heard before Judge Ben M. Smith.
    This action was in assumpsit by the plaintiff against her divorced husband to recover on a decree of alimony rendered by the circuit court of Sangamon county. The suit was commenced on October 22, 1907, and on the same date plaintiff sued out an attachment in aid against the defendant as a non-resident, alleging his place of residence to be at Detroit, Michigan. The sheriff made a. return upon the attachment writ that he had served the same upon the firm of A. 0. Brown & Co., a co-partnership, as garnishees, by serving the same upon an agent of said co-partnership in charge of the Chicago office of said firm. The garnishees, Albert 0. Brown and five other individuals composing said firm of A. 0. Brown & Co., appeared specially and moved to quash the writ and to dismiss said suit as to them for the reason that said writ was not served upon them or any or either of them.
    It was admitted that the firm of A. 0. Brown & Co. was composed of six members, all residents of the state of New York, in business as brokers, having a main office in New York City and branch offices in Chicago and also in Detroit, in which latter office the defendant, Brainard, was in their employ.
    The plaintiff attempted to sustain such service under section 13 of the new practice act, approved June 3, 1907 which is as follows: “A co-partnership, the members of which are all non-residents but having a place or places of business in any county of this state in which suit may be instituted, may be sued by the usual and ordinary name which it has assumed and under which it is doing business, and service of process may be had in such county upon such co-partnership by serving the same upon any agent of said co-partnership within this state. ’ ’
    By the motion to quash the writ, the constitutionality of said section 13 was directly put in issue.

      Seth F. Crews, for the plaintiff; M. Paul Noyes for the garnishees.
   Judge Smith held said section unconstitutional for two reasons:

First: That it is : obnoxious to the constitutional requirement that no person shall be deprived of property without due process of law (U. S. const. 5th and 14th amendments and 111. const, art. 2, see. 2), the necessary effect of the statute, if sustained, being to authorize a personal judgment without personal service, and ■

Second: That it is invalid as discriminating against citizens of other states, thereby violating the 14th amendment to the federal constitution and also clause I, see. 2, art. 4 of the federal constitution.

Note. The same conclusion was reached by Judge John H. Hume of the municipal court in Jones v. Auditorium Theater Co. (decided 1908, unreported). — Ed.


author: Scott. J.:—

text:
      (Circuit Court of McLean County.)

    H. H. Littlefield vs. William Green.
    (January Term, 1869.)
    1. Courts — Jurisdiction of Subject Matter — Consent of Parties. If a court has no jurisdiction of the subject matter of a controversy the consent of the parties can never confer it.
    2. Venue — Change of — Motion to Continue Cause — Waiver of Irregularities. If a court has jurisdiction of the subject matter of a controversy then all irregularities in the manner of taking a change of venue are waived by a motion either to continue the cause or by setting it down for hearing in the court to which the change has been taken.
    3. Words and Phrases — "Action.” An action is defined to be the “form of a suit given by law for the recovery of that which is one’s due or it is a legal demand of a man’s right.”
    4. Venue — Change of — “Crvn, Cause in Law or Equity” — Contested Election. As a contested election case is neither a cause in law or equity the venue act does not authorize the parties thereto to transfer the cause from the court in which it was originally instituted.
    5. Same — Jurisdiction of Subject Matter — Remanding Cause. As there is then no authority in the statutes for taking a change of venue in a contested election case an order allowing a change is a nullity which confers no jurisdiction of the subject matter on the court to which the order runs and therefore the latter court must remand the cause.
    Motion to remand cause. Heard before Judge John M. Scott. The facts are stated in the opinion.
   Scott. J.:—

This is a proceeding under chapter 37 of the revised statutes of 1845, entitled "Elections,” to contest, for a certain cause set forth in the notice, the election held in Cass county-on the 9th day of April, A. D. 1867, to remove the county seat of said county from the town of Beardstown to the town of Virginia in said county. The act under which said election was held provides that any citizen oí said county who may legally vote at said election may contest the legality and validity of said election by giving his notice in writing of his intention so to do to any other citizen of said county who may legally vote at said election in opposition to the vote cast at said election by the person contesting, and said contest shall be conducted in compliance with the existing laws of this state with reference to the contest of elections for county ■officers, in all respects so far as the same may be applicable.

This proceeding was commenced in the mode prescribed hy the statute, and was heard before three justices of the peace in Cass county, who made their certificate in favor of the contestant, H. H. Littlefield, who contested said election on behalf of those who voted against the removal of the county seat from the town of Beardstown, and thereupon the contestee perfected his appeal under the statute to the circuit court of Cass county.

At the March term, A. D. 1868, of the Cass county circuit ■court, the contestee filed his petition, verified by affidavit, praying for a change of venue from said circuit on account of the prejudice of the judge of said circuit court, and on motion of the contestee the court awarded a change of venue in said proceeding.

Affidavits on file show that after the court had determined to award a change of venue in said cause against the protest of the contestant, that the contestant, by his counsel, consented that if the venue was to be changed, the cause should be sent to the county of McLean, although that circuit was not the next nearest circuit.

The papers in the cause were accordingly sent to the circuit court of McLean county, and were filed in that court on the 28th day of March, A. D. 1868. At the September term, 1868, of the McLean circuit court, the parties appeared, and the contestant, by his counsel, entered his motion to remand the cause to Cass county, which motion, without being heard by the court, was withdrawn by the contestant, and thereupon the contestant filed his affidavit and motion for the continuanee of said cause, which motion the court was about to overrule, and the motion to continue was by consent of parties withdrawn, and the cause set for hearing on the second day of the next December term of said court.

On the second day of the December term, A. D. 1868, of said circuit court, the parties again appeared, and the contestant by his counsel entered his motion to remand this cause to the circuit court of Cass county, for the reason that the venue of said- cause was improperly changed.

The contestee insists: First, that the venue was properly changed. Second, that the motion comes too late; for the reason that the contestant has submitted to the jurisdiction of the McLean circuit court, by filing his affidavit and -motion and consenting to a continuance and setting the cause for hearing.

If the court has no jurisdiction of the subject matter of the controversy between the parties, no consent can confer the jurisdiction. If the court has jurisdiction of the subject matter of the controversy, then all irregularities in the manner of taking the change of venue are waived by the motion to continue, and the consent to set the case for hearing at the present term of this court.

It is only necessary, therefore, to consider whether the circuit court of Cass county had power to award a change of venue in this case.

The first section of the “Venue Act,” revised statutes of 1845, page 527, provides as follows:

“If either party in any civil cause in law or equity which may be depending in any circuit court shall fear that he will not receive a fair trial in the court in which the action is pending on account that the judge is interested or prejudiced, or is related to or shall have been of counsel for either party, * * * such party may apply to the court in term time, or the judge thereof in vacation, by petition, setting forth the cause of the application, and praying a change of venue, accompanied by an affidavit verifying the facts in the petition stated, and such court or judge, reasonable notice of the application having been given to the other party or his attorney, shall award a change of venue to some county where the causes complained of do not exist.”

It is insisted that the proceeding to contest an election is not a civil cause in law or equity within the meaning of this act, and therefore that there is no authority of law for changing the venue in such a proceeding.

There is no special act of the legislature authorizing such change, and if allowed at all, it must be done under the provisions of the act above cited.

The question presented seems to be entirely new. It has been argued with great ability on both sides by counsel who have made diligent search for authority exactly in point on this question, but no case has been found in which this exact question has been determined.

I am not aware that it has ever been decided. If it has, I have been unable to find such ease, and if such case exists, I am persuaded that the diligence and earnestness of the counsel in this cause would have produced it for examination.

Is this a “ease” in law or equity? If it is, the venue can be changed under the provisions of the act above cited. If it is not a “case” in law or equity, then I know of no provision, of law for changing the venue in such a proceeding.

When this cause was first submitted to me, I was of opinion, and so announced to the counsel, that any question to be tried and determined by a court, was necessarily a “case” in law or equity. In the section of the statute above quoted the words “civil cause,”" “action” and “case,” are all used as meaning the same thing.

An “action” is defined to be the “form of a suit given by law for the recovery of that which is one’s due, or it is a legal demand of a man’s right.”

On the contrary, it would seem that a mere “proceeding” is the determination of a question by a person or persons designated by law to determine the same, who are not judicial officers.

The case of Lighty v. French, 9 Ind. 475, is a case of contested election under a statute very similar to that of this state. In that case the court, after determining that no appeal would lie in such a case under the laws of that state, cite approvingly the ingenious argument of the counsel, thus:

“Appeals to the supreme court are authorized by the provisions of the practice act in civil and criminal cases only. A proceeding to contest an election is neither the one nor the other, but simply what it is named — the contesting of an election.”

It was not necessary to the decision of the question then before the court to adopt that line of argument; the statute allowed no appeal, and there the argument might have stopped.

I was not inclined to adopt the reasoning of the court after the decision of the case, for it seemed impossible to me to define a question pending before and to be decided by a court except to designate it as a “case” in law or equity.

I was at a loss to see why the “contesting of an election” is not the “form of a suit given by law for the recovery of that which is one’s due” as much as the demand by one man of another of so many dollars and cents is a civil cause in law.

Since announcing the above views, and before the disposition of the case, the supreme court filed their opinion in the ease of Moore v. Mayfield, error to Morgan county.

I regard this case as decisive of the question now before this court. It is here clearly decided that the proceeding to contest an election is not a “ease” in law or equity; that it is “merely a statutory proceeding for recanvassing the votes cast at an election, in which the illegal votes may be rejected, and those which are legal may be counted and the result ascertained.” It must, therefore, be the duty of the court designated by law to make such re-canvass to perform this duty itself, and it cannot transfer such duty to another court. If, then, the proceeding to contest an election is not a “case” at law or in equity, I am of opinion that the first section of the venue act does not authorize a change of venue in such cases.

And as there is no special act of the legislature authorizing such change of venue, I am of opinion that the circuit court of Cass county had no power to award a change of venue in. this case, and consequently such order could give this court no jurisdiction to hear and determine this case on its merits.

It becomes my duty to conform whatever imperfect views I may have formed on this question to the judgment of the supreme court, which I most cheerfully do. The cause is remanded to Cass county.

       47 Ill. 167. — Ed.


author: Smith, J.

text:
      (Circuit Court of Cass County.)

    H. H. Littlefield vs. William Green.
    (May Term, 1869.)
    1. Elections — Fraud—Throwing out all Votes Except those Proven Legitimate Outside Record. In an election to remove a county seat, 2820 votes were cast in favor of removal in a precinct in which there were but 453 registered voters, held, that all the votes in the precinct would be thrown out except those proven outside the record, the circumstances of the case rendering it impossible to separate the legal from the illegal votes so as to count in the votes of the 453 legal voters, even though there were no votes cast in the precinct against removal.
    2. Elections — Voters Naturalized in County Court. Votes cast by persons naturalized in the county court are illegal.
    Contested election. Heard before Judge Arthur A. Smith. The facts are stated in the opinion of the court.

      J. Henry Shaw, attorney for contestant.
   Smith, J.

On the 9th of April, A. D. 1867, an election was had for or against the removal of the county seat of Cass county, from Beardstown to Virginia, in said' county.

The election was authorized by an act of the legislature passed that year.

The act provides that any citizen of said county, who may legally vote at said election may contest its legality, by giving a notice in writing of his intention so to do, to any other citizen of said county who may legally vote at said election in opposition to the vote cast by the person contesting, and said contest shall be conducted in compliance with existing laws of this state, with reference to the contest of elections for county officers, so far as the same may be applicable, R. S. 1845, chap. 37. This proceeding was commenced in the mode prescribed by statute, and was heard before three justices of the peace in said county, who made their certificate in favor of H. H. Littlefield, the contestant, and thereupon Green, the contestee, perfected his appeal to the circuit court of Cass county.

The principal contest was made on the returns from the Virginia precinct. It was claimed that illegal votes were cast in the Beardstown and Lancaster precincts; but no particular irregularity was shown to have occurred in the election.

It was admitted on the argument that if the Virginia vote was thrown out the majority would be against removal; if counted there would be a majority for removal. Virginia precinct cast at said election 2820 votes, and the judges of said election certify that 2820 votes were cast for removal, and none against removal. That precinct had at the date of the election an entire population of between 1700 and 1800, and about 450 legal votes. The names of the first 668 voters, as appears from the poll books, appears to have been registered and voted in alphabetical and numerical order. As for example, John Needham is the first name that appears upon the poll books, as having voted on the 9th day of April. His name appears first upon the register under “N,” and the next name on the poll books that begins with “N” is registered immediately under the name of Needham, and so on all through these poll books and registers up to about No. 668. 'The voters appear to have been registered and voted in this exact alphabetical and numerical order. From 668 to 955, the voters appear to have voted in alphabetical order from 1"‘A,” running through the alphabet to “Z,” and then from “Z” to “A” in the inverse order. From 955 to 985, this order is changed, and the names on the poll books appear from 4 to 6 together, commencing with the same letter of the alphabet. From 986 to 1191, the alphabetical order is resumed and this continues with an occasional break through the entire poll books to 2820.

It was not however claimed upon the argument by the eontestee, that the names upon the poll books are genuine after 668, but that up to that number they are legal voters. But the proof showed that there were but 453 legal voters in the entire Virginia precinct, and that the names of these voters, instead of appearing first upon the poll books, read in consecutive order as they should have done, were scattered through the entire poll books from No. 1 to No. 2500.

Take, for example, the name of L. B. Freeman, who swears that he voted about 2 p. m., his number is 480. H. D. Freemen states that he voted not long after, and his name is 2572, and that J. M. Stribling and Joseph-Hunt voted about the time he did and their numbers are 2571 and 2573. The Free-mans could not have voted so near together in point of time and their numbers be so far apart; and then H. D. Freeman, Stribling and Hunt were legal voters and their names should have appeared within the 453 or at least within 667, upon the theory of eontestee that the first part of the poll books are genuine up to No. 667, and the balance fabricated, 'and not one of the witnesses are able or willing to explain how the names of those legal voters got into company of those that it is admitted are spurious and fictitious.

It was insisted upon the argument by eontestee that the poll book of the Virginia precinct should be taken as evidence that as many as 400 or 450 legal voters had voted at that election for removal, and the question is here presented, whether the irregularities and frauds appearing upon the face of the poll books in connection with the other testimony in the case destroys them as evidence of what they purport to be.

It is undoubtedly the rule that if the canvassing court can separate the legal from the illegal votes and reject the illegal ones, and that mere irregularities in the manner of conducting an election as a fraud on the part of the officers, will not vitiate, unless it is of so gross a character as to destroy all means of ascertaining the true results. Piatt v. The People, ex rel. Am. Cent. R. R. Co., 29 Ill. 55, 72; People v. Cook, 8 N. Y. (4 Seld.) 68.

Our own supreme court has laid'down this rule, “If an irregularity of which complaint is made, is shown to deprive no legal voter of his rights, or admitted a disqualified person to vote, if it casts no uncertainty on the result and has not been occasioned by the agency of a party seeking to derive a benefit from it, it may be overlooked. Piatt v. The People, 29 Ill. 72. Angel & Ames on Corporations, 94.

How then does the vote of the Virginia precinct appear in the light of this law. Do the irregularities and frauds admitted to have been practiced, place the true result in uncertainty; were disqualified persons admitted to vote, and was this procured by those seeking to derive benefit from their own frauds? It was admitted that out of the 2820 votes cast in that precinct for removal, that not more than 453 could be legal votes. But it is insisted by contestee that inasmuch as they have proved that upwards of 400 legal votes were in the Virginia precinct at that time, that they should be counted for removal.

But which 400 names on the poll book or ballots can the court count as legal votes? The first, second, third or fourth 400? For it is in proof that a large number of the names of those claimed to be legal votes do not appear upon the poll books within the first 400, or the second 400, but many of them appear as high up as 2,500.

It would be impossible, then, for the court to count the first 400 names on the poll books as legal votes. Where shall the court commence to count the legal votes, and where shall it draw the line between the legal and illegal votes? Do not these facts cast an uncertainty over the whole result? But how do the poll books, registers and ballots appear in the light of -the testimony of the officers who conducted the Virginia election.

It appears from the evidence that theVirginia interest was determined from the first to carry the election for removal at all hazards. And hence two of the board of registry, after acting two days, declined to act further; one for the reason that he would not be a party to the frauds that were about to be perpetrated, and the other for the reason that he could do more off the board than he could do on it, to further the ends to be obtained. Other men were selected who were not so tenderfooted upon questions of honesty, and the registers were completed, and they contained as the board say, 2820 names of legal voters in a precinct that contained about 1700 inhabitants all told.

And when one of this board was asked if any other person assisted in making the registers, he refuses to answer because it may subject him to a criminal prosecution. And when asked what guide they had to enable them to make the corrected registers for the Virginia precinct, he refuses to answer for the same reason.

On the day of election these officers shut themselves up in a 'school house, an aperature in the window is prepared through which to receive the ballots, and thus these officers of the law, after having solemnly sworn “that they would studiously endeavor to prevent fraud, deceit and abuse in conducting the election;” with their false and fabricated registers before them, commenced receiving the 2820 votes that they certify were cast on that day for removal in the Virginia precinct, when they must have known there were not to exceed 453 legal votes in the precinct. And when one of the judges is asked if 2820 different persons actually presented themselves to vote on that day he refused to answer because it might subject him to a criminal prosecution. And when asked how many names were on the poll books when the polls closed he refuses to answer for the same reason. And when asked how many bona fide ballots were counted out of the box after the polls closed, he refuses to answer because it might subject him to criminal prosecution. And when asked whether any other persons acted as clerks in preparing the returns on the night succeeding the election in the Virginia precinct, he refuses to answer for the same reason. This is substantially the character of the testimony of all the officers conducting this election on this point.

One of them swears that he cannot account for the names appearing in alphabetical order on the poll books from “A” to “Z” and from “Z” to “A,” but thinks that men voted in that order, a thing impossible and incredible. Another of these judges of election swears that they quit counting the ballots about midnight and lay down on the benches and slept until daylight; that they left the ballot-box sitting there unsealed; at daylight, they resumed counting, and went to breakfast at the usual hour and left the ballot-box in the house — other persons were in the house. This witness when asked whether he numbered all the ballots that were put in the ballot-box that day refuses to answer because it may criminate him, and asks the protection of the court; and yet this judge of election says he was the one whose duty it was to receive the ballots and put them into the ballot-box.

He refuses to answer whether he put in 1000 ballots, because it may criminate him, but thinks he may have put in 800 — is quite certain he put in 600, but can’t say that they were all legal votes. Another of these election officers swears that the names of the voters may have been called off by some person having a list of them outside and the ballots handed in through the hole by this person. Another witness swears that he voted through a hole in the window and could not see what was going on inside. And this is the class of testimony running through a thousand pages or more of manuscript, from which the court is asked to rescue the legal votes, and decide that at least 453 legal votes were cast for removal in the Virginia precinct. The difficulty is, that these registers, poll books, ballots and testimony in connection therewith are so contradictory, mysterious, evasive, false and fraudulent that they are utterly unworthy of credit. If they could be personified and put upon the stand as witnesses, and made to speak their contents, they would not be believed for a moment in the lowest and most insignificant court in the country.

I think it may be fairly inferred from the evidence that some time before the election, the leading spirits of Virginia including many of her representative citizens, concocted a plan to carry this election by fraud or unfair means; and their only excuse was that they feared that Beardstown would be guilty of the same thing; and hence a board of registry was selected to carry out this fraudulent purpose. The ballot box on the day of election was stuffed with 2370 illegal votes; the poll books and the registers have on almost every page these badges of fraud; and the officers of this election have the effrontery to come forward and attempt to sustain it by the most unblushing testimony that was ever heard in a court of justice. The law will presume everything against a set of men who are shown to be pursuing such a fraudulent and dishonest course.

But it is insisted by the contestee that it is in proof that 453 legal voters voted in the Virginia precinct for removal, and that they ought to be counted, notwithstanding the frauds perpetrated by the officers of the election — that a legal voter ought not to be disfranchised on account of the misconduct of an election officer. But there is no proof outside of the poll books that 453 legal voters actually voted at said election.

There is some proof that this number resided in the precinct at that time, but the court cannot presume that they voted on the 9th of April, much less that they voted for removal. There is evidence dehors the poll books that about 50 legal voters did actually vote for removal in the Virginia precinct, and they should be counted; but there is no evidence except the poll books that the 400 voted at all. Their names might have been furnished, for all that appears, the same as the 2370 fictitious ones that were voted that day.

As I have remarked, the irregularities at the Virginia election, the fraud on the part of the officers conducting it, and those who were to derive a benefit from its success; the unaccountable manner in which the names appear upon the poll books, the contradictory and unsatisfactory testimony introduced to support them, and the refusal on the part of the perpetrators of this fraud to give the court any insight into this labyrinth of uncertainties, renders these poll books and ballots entirely unworthy of credit, and renders it impossible to count the legal votes and reject the illegal ones.

It is probable that Virginia upon a fair and honest vote, could remove the county seat; such a vote would be sanctioned by the law of the land, and indorsed by the moral sense of the community. Were I, however, to declare the result in favor of Virginia, upon these facts, it would indeed have the force and effect of law, but it would not be law. It would be allowing the majority by fraud to trample upon the rights of the minority. It would be an indorsement by a court of justice of one of the most stupendous frauds of modem times.

It is insisted by the contestee that there were frauds committed in the Beardstown precinct, and so there were; but this did not justify fraud on the part of Virginia. But the court cannot offset one fraud against another and give the victory to the one committing the greatest fraud. But no fraud on investigation was charged upon the officers conducting the election in Beardstown. But it was proved that about 47 illegal votes were cast against removal by thirty-day men and those naturalized in the county court, and they must be thrown out.

So with Lancaster precinct, 194 illegal votes were cast for removal, and these must be thrown out. The court in these two cases has no difficulty in separating the true from the false. After rejecting the poll books, and other record evidence of the Virginia precinct, and allowing it all the legal votes proved dehors the record (about fifty), it leaves a majority against removal of two hundred' and twenty-seven votes. -

It is due to the importance of this contest, to the able and' distinguished counsel on both sides, and to the earnestness- and zeal with which counsel for the contestee have urged their points, that I should have considered this contest well, carefully, and at length; and, while I may have erred, I have a consciousness of having done right.


author: Schofield, J.:—

text:
      (Supreme Court of Illinois.)

    Gregory vs. Wilson.
    (1874.)
    Wbit of Erbob — Only Lies Where no Other Mode of Review. A writ of error will not lie to review a judgment of a county* court where the statute provides for an appeal to the circuit court.
    Motion to dismiss writ of error to Jefferson county. No. 46.
   Schofield, J.:—

This is a motion to dismiss the writ of error, on the ground that a writ of error does not lie from this court to the judgments of county courts in such eases. The judgment was rendered under the act of 1872, enlarging the jurisdiction of county courts. That act provides that appeals shall be taken from the judgments of the county courts to the circuit courts; and that writs of error may be prosecuted on such judgments from the circuit courts. A writ of error only lies from the court to the judgments of inferior courts where no other mode of reviewing such judgments is provided by law. The writ must be dismissed


author: Craig, J.:—

text:
      (Supreme Court of Illinois.)
    T. McNeeley vs. John K. Wright.
    (1874.)
    When Dismissal op Appeal Will be Set Aside. An order dismissing an appeal for failure to file appeal bond within time fixed by order of court below will be set aside on showing.
    Motion to set aside order dismissing appeal from Washington county. No. 156.
   Craig, J.:—

The appeal in this case was dismissed on account of the failure of the appellant to file an appeal bond within the time specified by the order of the court below. A motion is now made to set aside the order of dismissal. We think sufficient grounds have been shown, and the order will be set aside.


author: Sheldon, J.: — •

text:
      (Supreme Court of Illinois.)

    Howell, Millspaugh & Co. vs. Jonah Morlan.
    (1874.)
    Dismissal op Appeal pob Lack op Judgment. An appeal will be dismissed where the record proper does not show a judgment even though the bill of exceptions show a judgment was ren- . dered.
    Motion to dismiss appeal from White county. No. 165.
   Sheldon, J.: — •

In this case there was a motion to dismiss the appeal because there was no finding of judgment. The record proper merely shows a verdict, a motion for a new trial, and then a prayer for an appeal. It does not show that any judgment was rendered upon the verdict. It is true the bill of exceptions sets forth that a judgment was entered, but the statements of a bill of exceptions cannot supply the want of a judgment entered on the record proper. The motion will be allowed, and the appeal dismissed.


author: Sheldon, J.: — ■ Scott, J.

text:
      (Supreme Court of Illinois.)

    James Harrington, et al. vs. Henry Stees.
    (1874.)
    When Cause Will not be Remanded.
    Motion to set aside decision and remand cause. Error to Edwards county. No. 201.
   Sheldon, J.: — ■

This is a motion to set aside the decision and remand the cause. We have considered the suggestions on both sides, in favor of and against the motion, and we do not think there is any sufficient reason for remanding the cause, and the motion will be overruled.

Scott, J.

— Idesire to say that I do not concur in the opinion of the court. I believe there is ample reason shown for remanding the cause.


text:
      (Supreme Court of Illinois.)

    Charles H. Roberts, et al. vs. Calvin Stigleman
    (1874.)
    Dismissal of Appeal on Account of Defective Bond.

      Motion, to dismiss appeal. Error to Jersey county. No. 74.
   Schofield, J.:—

This is a motion to dismiss the appeal for want of a sufficient appeal bond; the bond is entirely defective, and the appeal will be dismissed.