author: Honore, J.:—

text:
      (Circuit Court of Cook County.)

    People ex rel. John Reckinger vs. Edward F. Dunne, Mayor of the City of Chicago, et al. and Forty-four Other Similar Cases.
    (March 13, 1907.)
    Mandamus — To Compel Mayor to Enforce State Sunday Closing Law Against a Particular Person. Mandamus will not lie to compel the mayor of a city to enforce a state law compelling the closing of saloons on Sunday either generally or as. against particular individuals. If the court is not empowered, to compel the general .observance of the law, a fortiori it cannot entertain a large number of proceedings to compel the enforcement of the law against as many individuals.
    Petitions for mandamus, forty-five in number, to compel the-closing of thirty-one saloons and fourteen theaters which were-alleged to be violating the Sunday closing law. Each petition was directed against a particular saloon or theater. The-cases were heard before Judges Julian W. Mack, Lockwood Honoré and George A. Carpenter.

      Stedman & Soelke, for relators.

      J. Hamilton Lewis, corporation counsel, Daniel P. Murphy, assistant corporation counsel, and Levy Mayer, for respond-dents.
   Honore, J.:—

In the matter of the three petitions for mandamus, which were filed, each one of which were assigned to one of the three judges that sat here some time ago, each of the three judges has reached a decision in the particular case assigned to him, and it happens that they coincide so that each one will enter a similar judgment in the particular case before him. Judge Carpenter could not be here today, and asked me to say substantially what his views were in the matter; and I am sorry that counsel for the relators signified that they could not be here, either, but I think it is the judgment of the three — that is — that the decision of the supreme court in the case of People v. Dunne, 219 Ill. 346, is conclusive of this case. In that case the supreme court declined to entertain a .petition for mandamus to compel the mayor of the city of Chicago to enforce the Sunday closing law and based their decision upon the ground that it was not the intention of the courts to undertake the supervision of the executive departments of the government in their enforcement of the law generally, and if the courts would not undertake to compel the mayor by a writ to enforce a certain law generally, it seemed to follow a fortiori the court would not entertain five thousand writs to compel him to enforce the law, instead of in general terms, as to the five thousand different saloon-keepers, and for that reason I think the court is prepared to deny the petition for the writ.

(No appeal was prayed from the above decision.)

NOTE.

Mandamus will not lie to compel a public official to enforce a criminal law either generally or in a specific case.

In People v. Dunne, 219 Ill. 346, the court held that a writ of mandamus would not lie against the mayor of a city to compel him to enforce the Sunday closing law generally throughout the city.

In People ex rel. McCarroll v. Mohr, 1 Ill. C. C. 100, Judge Tuley of the circuit court held that mandamus would not lie to compel the president and hoard of trustees of a village to compel them to enforce certain laws and ordinances in relation to gambling, it being alleged -that gambling was being carried on at a certain race track.

In People v. Listman, 82 N. Y. S. 263, 40 Misc. 372 (af’d. 82 N. Y. S. 784), an application for a writ of mandamus commanding the defendant to enforce certain laws prohibiting Sunday employment, and dramatic performances, on Sunday was denied. But see People ex rel. Gallagher v. Peck, referred to in 82 N. Y. S. 263 (unreported).

In State ex rel. Clark v. Murphy, 2 Ohio Cir. Dec. 190; S. C. 5 Ohio C. C. 332, a petition for mandamus was filed against the superintendent of police of the city of Columbus to compel him to discharge his duty in enforcing the Sunday law against dramshops. The application was denied. This decision was relied on by Judge Tuley in People ex rel. McCarroll v. Mohr, supra.

In State v. Francis, 95 Mo. 44, S. C. 8 S. W. 1, a petition for a writ of mandamus to compel the police commissioners of St. Louis to enforce the state law prohibiting the sale of liquors on Sunday, was denied.

In State ex rel. v. Brewer, 39 Wash. 65, 80 Pac. 1001, a petition for mandamus was filed against the sheriff of the county and the marshal of the city alleging that it was their duty to make complaint and prosecute all persons violating the laws of Washington against keeping saloons open for the sale .of liquors on Sunday. The application was denied.

See also Mitchell v. Boardman, 79 Me. 469: Boyne v. Ryan, 100 Cal. 265; People v. Whipple, 41 Mich. 548; Merrill on Mandamus, sec. 69; High on Extraordinary Legal Remedies, pp. 315-6; Cady v. Ihnken, 129 Mich. 466, 89 N. W. 72; People v. Leonard, 74 N. Y. 443; 13 Ency. Pl. & Pr. 497.

Contra Cases.

State of Ohio v. Police Board,, 19 Week. L. B. 256, sometimes cited as holding a contrary doctrine, was overruled in State ex rel. Clark v. Murphy, 2 Ohio Cir. Dec. 190, S. C. 3 Ohio C. C. 332.

In State v. Cummings, 17 Neb. 311, 22 N. W. 545, mandamus was issued against a city marshal to compel him to report the names of all persons engaged in the liquor traffic.

In Moores v. State, 71 Neb. 522, 99 N. W. 249, mandamus was issued against the mayor and chief of police of the city of Omaha commanding them to enforce the laws in relation to gambling. The decision is based on certain statutory provisions.

In State v. Williams (Ore.), 67 L. R. A. 166, 77 Pac. 968, a petition for mandamus was filed against the mayor, chief of police, municipal judge anh members of the executive board to compel the arrest of certain persons for violating the state gambling statute. The relief was denied as against the chief of police and the writ was granted as to him for the reason that under the Oregon statutes the chief of police is made “a prosecuting officer.”

In Goodell v. Woodbury, 71 N. H. 378, 52 Atl. 855, a mandamus proceeding was instituted to compel the chief of police to prosecute certain persons for violating the liquor laws, and the relief was granted. This case is similar to State v. Williams, supra. See, also, In re Whitney, 3 N. Y. Supp. 838.

In People v. Mathiessen, 28 Chi. Leg. N. 345 (reported in this volume) it was held that it was not the duty of the mayor to enforce the Sunday closing law — Ed.


source: Caselaw Access Project

author: Puterbaugh, J.: — ■

license: Public Domain

text:
      (Circuit Court of Peoria County.)

    Chicago, R. I. & P. R. R. Co. vs. Brockerson, Mayor of City of Peoria, et al.
    (1869.)
    1. Practice — Temporary Injunction — When Granted. Where it appears that great mischief may be done if a temporary injunction be not granted without notice and the rights of neither party will apparently be impaired by its issuance a court will readily grant such a request.
    2. Streets — Control of — City’s Rights in Regard Thereto. While under the Illinois laws, a city is vested with the fee of streets within its limits and can adopt all needful rules and regulations for their use she has not the unqualified control thereof, but holds the fee in trust for the public without power to alien or otherwise dispose of their use.
    3. Streets — Rights of Public — Laying of Railroad Tracks. The city cannot prohibit the use of streets to its inhabitants or the public generally but it is nevertheless no perversion of their legitimate use to allow a railroad company to lay its tracks along them.
    4. Railroads — Rights In Streets — Power Conferred By Charter— Authority of City Council. Where a railroad corporation is given by its charter the right to construct a railroad between two cities, such a grant includes the right to enter the two cities. A city council has authority to give it the right to run along the streets of the city.
    5. Ordinance — Construction—Power Conferred in This Case on Railroad. An ordinance conferring power on a railroad corporation to locate its railroad through any street of the city in such a manner as to interfere as slightly as practicable with the convenience of the inhabitants of the.city, and also directing the company to construct safe crossings wherever the railroad runs along the streets, confers no power on the railroad company to construct side tracks, switches, etc., in the streets but merely to build its line along such streets as may enable it to conveniently get into and out of the city, provided it does not materially obstruct the streets in so doing.
    6. Ordinance — When Void — City Council Exceeding Power — Railroad in Streets. An ordinance conferring on a railroad company the power to run in any of the streets of eity, where-ever it sees fit to do so provided it does not materially obstruct the streets is beyond the» power of the city council, as such a disposition of the streets would prevent their general use by 'the public.
    7. Railroads — Nature of Right in Streets — Power to Lay Side Tracks. The right given a railroad to build its line carries with it the power to build side tracks but not in the streets of a municipality; its right of way in a street is a mere easement and if it wishes to lay side tracks it should obtain land by condemnation as pointed out in the statute.
    8. Pleading — Pleader Must State Facts. In pleading, it is a well known rule that the pleader must state facts, not conclusions.
    Bill for injunction. Heard before Judge Puterbaugh. The facts are stated in the opinion.

      Ingersoll & McGune, for complainant.

      H. W. Wells, for defendant.
   Puterbaugh, J.: — ■

- The complainant filed its bill for an injunction, alleging in substance that it is the lessee of the Peoria and Bureau Valley Railroad Company, and as such, succeeded to all its rights and privileges granted by its charter; that on the 28th day of July, 1853, the council of the city of Peoria passed an ordinance authorizing and empowering the Bureau Valley Railroad Company to locate, grade, finish and construct its railroad through and- along any street, lanes, avenues and alleys of said city, in such manner as might be necessary for the transportation of freight and passengers, and the loading and unloading of merchandise at necessary points, and to extend the same whenever necessary for its business, etc.; that under said ordinance, the Peoria and Bureau Valley Railroad Company, and the complainant as its lessee, have from time to time constructed, located and erected upon Water street in said city, such tracks, side tracks and switches as they found necessary for carrying on their business, etc. . The bill further avers that the immense increase of business, in loading and unloading and carrying merchandise upon the complainant’s road has made it necessary to locate and construct upon Water street an additional side track, extending from the junction of North Fayette and Water streets to its shops and freight-house; and that the complainant, as it had a lawful right to do, had recently constructed a side track between the points mentioned, and on the north side of Water street, but that said track is in an unfinished condition; that when finished it will be so constructed as to offer no material obstruction to the passage of teams driven with reasonable care along and upon said street. The bill alleges in general terms that in laying down said side track, it has conformed strictly to the provisions of said ordinance, and has is no manner acted illegally or encroached upon the rights of the city.

The bill then charges that the defendants, claiming to be lawful members of the common council of the city of Peoria, held a meeting on the evening of the 29th of November, 1869, and then and there conspiring, confederating, etc., to injure and annoy the complainant, and to unlawfully destroy and injure its property, and for the further purpose of wrongfully destroying and breaking up the lawful business of the 'complainant carried on in said city, agreed that they would, by force, tear up and throw out of the street the said side track, by the complainant lawfully constructed and maintained; that the defendants were collecting a crowd of men to commit such unlawful act on the night of November 30th inst.; that the complainant had not sufficient force to resist the defendants and their force. The bill prays for an injunction to restrain the defendants from tearing up said side track, as threatened by them.

The bill' is verified by affidavit, and alleges that there would be danger of the objects of the injunction being defeated, if notice was given to the defendant.

Under our practice, as applicable to this circuit, where the party enjoined is at liberty on short notice, and for cause shown, to procure a dissolution of an injunction, and is fully indemnified by the complainant’s bond, for all damages and expenses incurred by wrongful suing out of the writ, temporary injunctions are granted with considerable facility. The object of a preliminary injunction is to prevent some threatening injury until an opportunity for a full and deliberate investigation is given. The court, upon an application being made, will examine the bill to ascertain whether any serious mischief is likely to occur, and will act upon each case as justice may seem to require. It cannot be expected that a judge can at once in every case determine upon the facts and the law of the case as presented, and besides, the parties have a right to be heard upon the merits of their application. If an injunction without notice is granted, when the circumstances of the ease do not satisfy it, the party in whose favor it is granted, is compelled to suffer the consequences upon a dissolution.

In this ease the bill was filed on the evening of the 30th of November, and it charged that the defendants were about to do the act complained of the same night, consequently very little time was had for an examination of the bill, and the questions involved being of great public importance, and it appearing that no serious injury could occur to either party by a short delay, it was highly proper that-the condition of the parties should not be disturbed until their rights could be fully heard in open court, a témporary injunction was. allowed, subject to be dissolved on one day’s notice.

The defendants have appeared by their counsel, and demurred to the bill, and moved a dissolution of the injunction.

By the demurrer the defendants admit that all the facts alleged in the bill, and well pleaded, are true.

The only question material to be determined is, whether the-facts stated in the bill and exhibits, entitles the complainant to the relief asked, and to a continuance of the injunction.

By the common law, the proprietors of real estate, who lay out the same into towns ahd cities, retain the fee in the land' over which the streets and alleys pass,, the public only having the right to an easement. But by our statute the fee simple title to the land embraced by streets, vests in the municipal corporation, to be held in trust for the uses and purposes of the public. The corporate authorities may vacate, alter or change the streets, or may also establish others, but they have not the unqualified control and disposition of them. The city may improve and to a great extent control the streets and public ground, and -adopt all needful rules and regulations for their management and use, but she cannot alien or otherwise dispose of their use. At most she is but a trustee for the entire public, and like all other trusts, it must be exercised with prudence and discretion.

The municipal authorities of this city cannot divest themselves of, nor abridge their legitimate discretion and duty, to alter and regulate the streets as they in the exercise of sound judgment may deem the public good to require. Nor can they prohibit such use of the streets by its inhabitants and the public generally, as is granted by law to every citizen as a matter of strict right.

While the corporation has thus no right to sell or otherwise dispose of the public streets and alleys, it is no perversion of their legitimate use to allow a railway company to lay down its track upon them, provided it be not a franchise or monopoly only, and be equally open to all citizens.

The Peoria and Bureau Valley Railroad Company was authorized by its charter to construct a railway from Peoria to Bureau Valley, and this authority gave it the right to enter the city of Peoria. It was not the intention to compel it to stop as soon as it touched the city limits, and thus render the road comparatively useless both to the public and the company. The language of the charter requires no such limited construction, and the objects of the law would evidently be frustrated by so illiberal an interpretation. The city ■council had the power to authorize the company to lay down its road on Water street, and to run its cars and locomotives over it. The city having the right to grant this privilege to the company, the question arises, what authority and privilege did this ordinance confer.

The first section of the ordinance provides, “That the Peoria and Bureau Valley Railroad Company be, and they are hereby fully authorized and empowered to locate, grade, erect, construct and finish their said railroad through and along any street, lane, avenue or alley, in the said city of Peoria, the said Peoria and Bureau Valley Railroad Company so locating, grading and constructing the same through any and all of the said streets, lanes, avenues and alleys, to locate, grade and construct the same in such manner as to afford as little inconvenience as is practicable to the inhabitants of the said city.”

The second section provides that the company in crossing streets, etc., “shall prepare and construct a safe, commodious and convenient passage across the said railroad track by said company so located, graded or constructed,” etc.

The ordinance nowhere confers the right to lay side-tracks, switches, etc., as alleged in the bill.

It is claimed that this ordinance by implication confers upon the company the right to construct its road along and upon all the streets, avenues, lanes and alleys of the city, whenever it sees proper to do so, provided it does not materially obstruct the streets.

The ordinance in question will bear no such unreasonable and unjust construction. The evident intention and purport of the ordinance is, that the company should have the right to run its cars over any street in the city to enable it to reach its depot or place of business. That is to say, it should have the privilege of using the street in common with the balance of mankind, and to' that end was authorized to construct its road in the street to enable it to conveniently enter and depart from the city. If the ordinance meant that the company should so use the street, or any part thereof, so as to exclude or prevent the balance of the public from its common use, the city council in passing it, exceeded its powers, and the ordinance is void, because, as we have seen, the council have no power to dispose of the public streets so as to prevent their general use by the public.

The grant of this right of way, in my opinion, only conveyed the right to the company to erect their road on the street; it does not include the right to erect a depot, car house,, side tracks, switches and other structures for the convenience- or business of the road. If it has power to lay down sidetracks, it derives its authority from some other ordinance than the one in question.

Eailroads are permitted to use the public highways and str'eets in entering and departing from a city, upon the ground of public necessity and convenience. It would be impossible to construct a road, if it had not this right. But our highways should not be perverted from their legitimate use any farther than is rendered necessary by the necessities of the-case.

The counsel for the complainant contends that the right to construct a railroad carries with it the power to construct switches or side tracks. This will no doubt be conceded. But having this right, it does not give the company the power-to take the public highways for any such purpose. The right to construct a railroad, also carries with it the right to build' ear shops, machine shops, turn-tables, etc. Indeed, it would be impossible for a railroad to get along without them, and yet will the counsel pretend that because a railroad must have-these conveniences, that it can, by permission of the city, appropriate the public streets for that purpose? Any ground needed by a railroad for the convenience of its business may be purchased, and if it is unable to obtain it in that way it. may proceed to condemn private property in the manner pointed out by the statute.

If a railroad condemns land under the statute for its right, of way, it becomes the owner of such land in fee. Not so with a right of way on the highway and public streets. In the latter case it only requires the right to pass over the streets; in common with others. It does not own the ground over which its track is laid, and has no interest in it except the privilege of passing over it. It has no exclusive right to anyihing except the use of the rails over which it runs its cars.

It is.a well known rule of pleading, that the pleader must •state facts and not conclusions of law. The complainant has stated no facts in its bill giving it the right to lay down the •.side track in question, except the ordinance referred to, and in my opinion, that ordinance confers no such authority. And the company having no right to lay down a railroad track upon the public streets, except when authorized so to •do by the law, it became and was the duty of the municipal .authorities to remove or cause the same to be removed. For these reasons the injunction must be dissolved.

I have' not had time to give the authorities a close investigation, or to revise this hastily written opinion, and may have ■erred in some of the reasons given, but in the conclusions arrived at, I am confident of being correct.


author: McAllister, J.:—

text:
      (Criminal Court of Cook County.)
    People, ex rel. Hattie Brown, vs. The Sheriff.
    (Dec. 6, 1877.)
    •1. Statutes — Construction—Derogatory of Common Law. Statutes in derogation of the common law must be strictly construed.

      2. Vagrancy Statute of 1877 — Invalidity of — Trial by Jury. A conviction under the vagrancy act of 1877 which authorizes a justice of the peace to try the accused and sentence him to imprisonment, without the intervention of a jury, cannot be sustained. The constitutional provision which provides that “the right of trial by jury, as heretofore enjoyed, shall remain inviolate,” prohibits any deprivation of the right to trial by jury in any case where such right was enjoyed previous to the adoption of the present Constitution.

      Petition for habeas corpus. Heard before Judge McAllister. The facts are stated in the opinion.
   McAllister, J.:—

Section 2 of the vagrancy act of 1877 (Session Laws 1877, p. 88) under which relator was tried by the police magistrate without a jury, and sentenced to six months’ imprisonment, imperatively requires the justice of the peace or police magistrate before whom complaint is made against any person for vagrancy, to proceed within thirty-six hours, and try the accused; and if such justice shall find him guilty, he is authorized to sentence him to six months’ imprisonment in the jail, calaboose or house of correction, or at hard labor upon the public streets or highways. It then requires such justice of the peace, in all cases, to make a full record of the case, giving date of complaint, name of defendant, if known, character of charge, names of witnesses examined, “and his findings.” It requires the mittimus to state the same, and “the finding of the court, and the sentence.”

This is a particular, special and summary proceeding, in derogation of the common law, and the rule is universal that the statute must be not only strictly construed, but all its requirements must be strictly observed. Bullock v. Geomble, 45 Ill. 218; 1 Kent’s Com. (Comstock’s Ed.) 598, note A. and cases cited.

It follows necessarily and logically, from that rule, as applied to the statute in question, that if the statute cannot be executed precisely according to the terms of its provisions, it cannot be at all. By the terms of its provisions, it not only authorizes the justice of the peace to try the accused, without a jury, but it is indispensable to a record made in compliance with the- act that it show the finding of the justice upon the question of the guilt of the accused. It is also indispensable to a mittimus issued in the ease, that it truthfully recite the finding of the justice, and the sentence. So that the idea of a jury trial is wholly excluded. The justice can issue no warrant of commitment except upon his own finding of the facts in issue, upon the complaint.

The act, therefore, unquestionably denies the accused the right of jury trial in cases where the justice is authorized to inflict the punishment of six months’ imprisonment in jail, calaboose, house of correction, or at hard labor in the public streets or highways. Is a conviction under it of any validity when tested by the fundamental principles of our state government ?

To develop the true state of the question, a brief retrospect of the law as it existed prior to and at the time of the adoption of the constitution of 1870 will be necessary.

By section 9, article 13, of the constitution of 1848, the guarantee of the right of jury trail in criminal cases (except as it had existed at the time that instrument was adopted) was limited to prosecutions by indictment or information, which could be only in circuit courts, or other courts of record having concurrent jurisdiction. But the last clause of section 10 of the same article prohibited all jurisdiction of justices of the peace to try any person for any offense punishable with imprisonment or fine exceeding $100. The effect of this last clause was to require every criminal prosecution for an offense punishable with imprisonment to be heard in the circuit court, or some court of record having concurrent jurisdiction therewith. Said section 10 is as follows: “No person shall be held to answer for a criminal offense unless on the presentment or indictment of a grand jury, except in cases of impeachment, or eases cognizable by justices of the peace. * # * Provided, that justices of the peace shall try no person, except as a court of inquiry, for any offense punishable with imprisonment or death, or fine above $100. ’ ’

So that as is apparent from these provisions, the right to jury trial was, by the constitution of 1848, guaranteed in all cases of criminal prosecutions for any offense puinshable by imprisonment. But that is not all. Prom the adoption of the revised .statutes of 1845 down to a time subsequent to the adoption of the constitution of 1870, there was a statute in force defining the offense of vagrancy, making the person accused of it liable to indictment or to be complained against before two justices of the peace, to be there tried upon such charge; hut imperatively requiring that the fact of vagrancy should be established by a jury.- “Which shall in all such cases be sworn to inquire the truth thereof, whether the person be a vagrant or not.” R. S. 1845, p. 175. 1 Gross Stat. Ed. 1869, p. 144, sec. 138.

This retrospect shows the state of the laws, both constitutional and statutory, in regard to the right of jury trial, andl as practiced upon before and at the time of the adoption of the present constitution First, it extended to every case o£ criminal prosecution for any offense punished by imprisonment. Secondly, it was especially required in trials in justices’ courts, upon the charge of vagrancy. How is it by the present one? Section 9, art. 2, carefully omits the limitation to prosecutions upon information and indictment, contained in section 9 of article 13, of that of 1848; and extends the guarantee to every criminal prosecution, whether upon indictment and information or complaint before a justice of the peace. “In all criminal prosecutions the accused shall have the right to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.”

Nor is that the only guarantee involved as to this right in criminal cases. Section 6, article 13, of the constitution of 1848 declared, “that the right of trial by jury shall remain inviolate.” In Ross v. Irving, 14 Ill. 171, our supreme court, Mr. Justice Trumbull, giving the opinion of the court, gave an interpretation to that clause, and held that this guarantee was to be construed as preserving the right to jury trial, as it was understood to exist at the time of the adoption of the constitution. That decision was in accordance with the almost universal rule of interpretation recognized in this country, and involves these fundamental principles: (1) That the constitution speaks from the time of its adoption. (2) That the clause in question is not regarded as creating the right, but as being a guarantee of preservation of it as it existed at the time. (3) That the extent or limitation of the guarantee is to be ascertained by an investigation into the state of previous and existing laws, or usages, in respect to jury trials, and as practiced at the time the constitution begins to speak.

We have seen with perfect definiteness, and without the possibility of doubt, that, at the time of the adoption of the present constitution, the right of trial by jury extended to all criminal prosecutions, for offenses punishable with imprisonment and as to the specific offense of vagrancy that existed as an indispensable prerequisite to a conviction. But, notwithstanding the decision in the ease of Ross v. Irving, supra, the framers of the present constitution, out of superabundance of caution, and to remove the possibility of a doubt, changed the language employed in both of the former constitutions in this state as to the guarantee of this right, and expressed it thus: ‘ ‘ The right of trial by jury, as heretofore enjoyed, shall remain inviolate.”

To take these words in their natural sense involves no absurdity or conflict with any other provision of the instrument. That being so, it is the duty of the courts to take and enforce them in that sense, and no other. This is the settled doctrine of the supreme court of this state. “That which the words declare is the meaning; and neither courts nor legislatures have a right to add to or take away from that meaning.”

The framers of the constitution and the people who adopted it, must be understood to have employed words in their natural sense, and to have understood what they meant. Hills v. Chicago, 60 Ill. 86; Edwards v. City of Springfield, 10 Chicago Leg. N. 52.

No other construction but that of words in their natural sense, in the absence of conflict with other provisions, ought to receive the least countenance from courts. If the meaning which the words in their natural sense convey can be perverted and circumvented by the subtleties of artificial and far-fetched rules, then constitutions are a sham and a snare. Some may say that because the convicted party has the right to appeal on giving bond, the right is substantially preserved. It is not so. The right is preserved as it was theretofore enjoyed; that is, not only in the same cases, but in the same manner. As the law existed at the time the constitution began to speak, a jury trial was indispensable to a conviction upon the charge of vagrancy, whether the proceeding was by indictment in the circuit court or on complaint before justices of the peace. That was the right of trial by jury as heretofore enjoyed, and which is guaranteed as inviolate.

In the case of Greene v. Briggs, Curtis, C. R. 311, arising under the constitution of Ehode Island, and where no such -clause as we are considering was contained, Mr. Justice Curtis, of the supreme court of the United States, and one of the .ablest jurists that ever adorned that bench, said: ‘1 The legislature may confer on justices of the peace power to punish ■offenses; but it must be so done as to preserve, unimpaired, the right of trial by jury; otherwise the whole proceeding is void, ab initioThe constitution declares, that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury. ’ ’ But the learned judge further held in that case that the legislature cannot make the right of trial by jury in a criminal case dependent upon the accused giving a bond, with security for the payment of the penalty and costs.

That proposition is clearer and more obvious here, under the emphatic guarantee that the right of such trial as theretofore enjoyed shall remain inviolate, because, if made subject by statute to the condition of giving bond with surety, which was not a condition before, then it is not as theretofore -enjoyed.

Cases may be found where statutes giving justices of the peace jurisdiction to try without jury persons accused of minor offenses, created by such statutes, have been held valid. Such is Murphy v. The People, 2 Cow. 815; People v. Goodwin, 5 Wend. 251; Duffey v. The People, 6 Hill, 75; Plato v. People, 3 Parker Cr. 586; McGear v. Woodruff, 4 Vroom. (N. J.), 213; and there may be others; but in all of them the decision is and will be found to be, put upon the ground that similar ■statutes existed, and such trials were authorized and practiced before the adoption of the constitution under which the question arose, as well as the particular language of such constitution. Nor does it make any difference that the vagrancy act of 1877 in question makes additions to the definitions of the offense since the new constitution was adopted. In New York, where the right of trial by jury extends “to all cases in which it has been heretofore used,” it has been held that these words are generic and cover statutory additions made since the adoption 'of the constitution to the classes of cases in which jury trial was in use at the time of such adoption. Fire Department v. Harrison, 2 Hilton, 455; Wynehamer v. The People, 13 N. Y. 378, 426.

The same principle is applied where statutory additions are made to classes as to which the right did not extend at the time of such adoption. Duffey v. The People, 6 Hill, 75. I have given this matter a very careful investigation, and am fully satisfied — indeed I have not the slightest doubt — • that the second section of the act in question purports to confer on justices of the peace the power to try for vagrancy without á jury. Its terms can be complied with in no other way; that the right of jury trial, as to charges of vagrancy, not only existed for at least a quarter of a century before and at the time the present constitution was adopted, but such trial was indispensable in the first instance, and to a lawful constitution; that by the guarantee that such right, as it had theretofore been enjoyed, should remain inviolate, it was preserved as it existed and was enjoyed; and that, therefore, any conviction under, section 2, of this statute, whereby that right is denied, is void ab initio.

From these views it follows that the imprisonment of the relator is illegal, and she is entitled to be discharged.

NOTE. See the contra opinion of Judge McCulloch in People ex rel. v. Hitchcock and the later opinion of Judge McAllister in People ex rel v. Superintendent, immediately following this opinion. — Ed.

        City of Springfield v. Edwards, 84 Ill. 626. — Ed.

       Fed. Cas. 5,764. — Ed.


author: McCulloch, J.:—

text:
      (Circuit Court of Peoria County.)
    The People ex rel. Cain vs. Frank Hitchcock.
    (1878.)
    1. Criminal Code — Construed As An Entirety. The criminal code must he construed as an entire enactment. Amendments thereto must he read as if they constituted a part of the original enactment.
    2. Vagrancy Act of 1877 — Constitutionality of — Right of Trial By Jury Under. The vagrancy act of 1877 is not unconstitutional as depriving a defendant of the right of trial by jury. The sections in relation to vagrancy being a part of the criminal code must he construed in connection with the other portions of such code and inasmuch as a jury trial is provided for in other parts of such code a defendant charged with vagrancy is entitled to a jury trial.
    Petition for habeas corpus. Heard before Judge McCulloch. The facts are stated in the opinion.
   McCulloch, J.:—

The petitioner was convicted before a police magistrate of the city of Peoria on a charge of vagrancy, and sentenced to the county jail for a period of sixty days. He now petitions to be discharged from imprisonment on the ground that the statute under which he was convicted is unconstitutional, in that it denies him a trial by jury. The record of his conviction does not show, nor is it contended, that he even demanded a jury, nor that a jury was in fact denied him. He rests his case wholly upon the unconstitutionality of the act of the legislature of 1877, defining and punishing the offense of vagrancy. Had he demanded a jury trial, and had the same been denied him, a different question might have arisen. It is now contended that, by the terms of the statute, he is denied that right, and, therefore, it would have availed him nothing to have demanded a jury. The statute in question is entitled “An act to amend an act entitled an-act to revise the law in relation to criminal jurisprudence, approved March 27, 1874.” The act so entitled is chapter 38 of the revised statutes of 1874, better known as the Criminal Code. The act of 1877 provides in its first section that sections 27(hand 271 of the act of 1874, “be and the same are hereby amended to read as follows, ’ ’ etc. The two sections so amended relate to the subject of vagrancy, and the amendments are germane thereto. Section 270 provided that vagabonds, idle and dissolute persons, who go about begging, and others mentioned, might be confined in the county jail, or in the workhouse, or in the house of correction, not exceeding six months. See. 271 provided that when a person should be convicted before a justice of the peace, or police magistrate, of any offense mentioned in the preceding section, he might, instead of the punishment therein mentioned, be fined not exceeding $20, with or without condition that if the same, with the costs of the proceeding, was not paid within the time specified, he should be committed to the county jail, or to the workhouse or to the house of correction, as provided in the preceding section, which conditional sentence should be carried into execution, as in other cases of commitment. Neither one of these sections provided for a trial by jury. But we are at liberty to look to other portions of the same chapter for such provision. Sec. 1, div. IX, of the Criminal code (numbered 381 in the revision of 1874), gives justices of the peace jurisdiction in cases arising under said sections 270 and 271. Sec. 4, div. IX,' provides that the person accused may have the cause tried by a jury upon the same conditions (except as to payment of jury fee), and the jury shall be summoned and impanelled in the same manner as in civil eases, before justices of the peace. See. 44, ch. 79, R. S. 1874, provides that in all cases of trial before a justice of the peace, either party may have the cause tried by a jury if he shall so demand before the trial is entered upon. The number of jurors shall be six, or a greater number, not exceeding twelve as either party may desire. Sec. 5, div. IX, Criminal Code, provides that if the jury find the accused guilty, they shall assess the fine, or fix the punishment as aforesaid. Sec. 6 provides that upon, the jury returning their verdict the justice shall record the same in his docket, or record book, and proceed to render judgment thereon accordingly, with costs. Sec. 7 provides that upon the rendition of judgment, imposing a fine, the justice shall, except as otherwise provided, issue execution against the goods and chattels of the defendant for the fine and costs, which may be levied upon any personal property of the defendant not exempt from execution. Sec. 8 provides that if the execution is returned unsatisfied the justice shall issue a capias against the body of the defendant, who shall be committed to the county jail for forty-eight hours, and for twenty-four hours, additional for every $5 fine over and above $10. The provisions of these last two sections are so modified by the foregoing sections in relation to vagrants, that the justice may make it a part of his judgment that if the fine be not paid within a time specified, the defendant shall be committed to the county jail, work house or house of correction for a period not exceeding six months.

These references to the statute show very clearly that under sections 270 and 271, R. S. 1874, a party charged with vagrancy was not denied the right of trial by jury. If, now, we put in the place of these two sections, the amended sections of 1877, and read the whole chapter as one statute, as we are bound to do, there would seem to be no good reason for saying that a party charged with vagrancy is thereby denied the right of trial by jury, unless by the terms of the amendment that right is expressly taken away, or unless such trial would be incompatible with its provisions. The right of trial by jury is one which the legislature cannot take away. It will not be presumed that it intended to do so unless that intention is made clearly to appear. When a statute is amended, the change must be found in the words of the amendment, or it must follow as a necessary inplieation therefrom. It is provided in the constitution that no law shall be revised, or amended, by reference to its title only but “the law revised, or the section amended shall be inserted at length in the new act. ’ ’ The statute is then read as if the amended sections constituted a part of the original act, and the whole must be construed together, in order to arrive at the true meaning of the amendment. Applying these principles to the statute in question, we find in the context certain provisions relating to jury trials in all cases within the jurisdiction of justices of the peace and police magistrates, which a person charged with vagrancy may invoke, unless there be something in the amendments themselves which in terms or by necessary implication deny the right of trial by jury..

It is said, however, that because the amended sections provide only, for a trial by the justice or police magistrate, that there is no place in the statute for a jury trial. Were we to confine ourselves strictly to the amended sections, this might be true. But the same course of reasoning would destroy the efficiency of many of the provisions of the criminal code. The several provisions defining crimes and fixing the punishment, do not in terms- provide for trials by jury. There is no law providing specifically that any one charged with murder, arson, burglary, larceny, robbery, and the like, shall be tried by jury. It is only when we come to section 8, div. XIII, that we find it provided “that all trials for criminal offenses shall be conducted according to the course of common law, except when this act points out a different mode.” Now the legislature of 1877, amended sec. 36, relating to burglary, sec. 168, relating to larceny, sec. 186, relating to malicious mischief, and sec. 213, relating to taking illegal fees. It would be just as logical to say that each one of these acts is unconstitutional, because it does not provide for trial by jury, as to pronounce the law in question void for that, reason.

Sec. 271, as it now reads, provides that the justice of the peace, or police magistrate shall, within thirty-six hours after complaint made before him, proceed to try the person accused of being a vagabond; and if he pleads guilty, or if he be found guilty, the said justice of the peace or police justice may sentence the said vagabond to imprisonment at hard labor upon the streets or highways, or in the jail, calaboose or other building used for penal purposes of the county, town, village, city or other municipality in which such vagabond was convicted, or the house of correction of any city having a contract with such county for the care of prisoners, for a term of not less than ten days, and not exceeding six months, in the discretion of the said justice of the peace, or police justice; or the said justice of the peace or police justice may sentence the said vagabond to pay a fine of not less than twenty dollars, nor more than one hundred dollars, and costs of suit, and in default of immediate payment of said fine and costs so imposed, said vagabond shall thereupon be sentenced to imprisonment at hard labor in said jail, calaboose, or other building used for penal purposes, or in said house of correction or on the public streets or highways, for a term not less than five days, nor more than six months by said justice of the peace, or police magistrate.

The language so employed, if it stood alone, might be construed to mean that the trial and the fixing of the penalty were exclusively the work of the magistrate. "But by the same chapter as now amended (div. IX, sec. 4), it is provided that the person accused may have the cause tried by jury; and by the same statute (div. IX, sec. 5), it is provided that if the jury find the accused guilty they shall assess the fine, or fix the punishment. By section 6, the justice is required to record the verdict as part of the proceedings, in the case, and then to render judgment thereon. I am unable to see why these provisions do not apply as well to the sections relative to vagrants as to any other cases within the jurisdiction of the justice of the peace. He is required under the vagrant act to take a complaint, setting forth the name of the offender, if known, the place and date of the offense, and such other facts as will if substantiated by competent witnesses, estab < lish the guilt of the prisoner. He is also to make a full record of the case, giving the date of complaint and of the offense, name of defendant, if known, and character of the charge, the names of all witnesses examined, and his findings, together with all other proceedings in the case; and when the accused is committed the mittimus must show the date of the charge, name of the complainant, name of defendant, if known, the offense charged, names of all witnesses examined, date and place of trial, the finding of the court, and the sentence imposed. It will thus be seen that the proceedings for his conviction are quite as full, if not as formal, as if the defendant had been proceeded against in a court of record. The record so made would be as complete a bar to any future prosecution for the same offense as if the judgment had been rendered in any other court. '

Reference was made in the argument to a decision rendered in the criminal court of Cook county, by a very distinguished jurist, in which a different conclusion was reached. The People ex rel., Hattie Brown, Leg., N. Dec. 1877. I have carefully considered the opinion rendered in that case, and am constrained to say, that it ?eems to overlook the fact that the act of 1877 is an amendment to the criminal code, and must be read in connection therewith. It seems to treat that act as an independent statute, having no connection with, that of which it professes to be an amendment. I am compelled for the reasons hereinbefore indicated to come to a different conclusion, and to hold that the right of trial by jury is not denied to a person charged with vagrancy under the act of 1877.

It must be confessed the act is highly penal and ought to receive a strict construction. But I know of no reason why jurisdiction in this class of cases may not be conferred upon justices of the peace and police magistrates.

The constitution of 1848 (art. XIII, see. 10), limited the jurisdiction of justices of the peace in criminal cases to those in which the punishment was by fine only, and that not exceeding $100. I find no such limitation in the constitution of 1870. Art. VI, see. 21, provides that justices of the peace, police magistrates and constables shall be elected in and for such districts as are or may be provided by law, and the jurisdiction of such justices of the peace and police magistrates shall be uniform.

Art. II, sec. 8, provides that no person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is .by fine or imprisonment otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army and navy, or in the militia, when in active service, in time of war or public danger.

I find no other limitation upon the power of the legislature to confer upon justices jurisdiction in criminal cases. The statute in question confers jurisdiction in this class of cases upon justices of the peace and police magistrates, and authorizes them, upon conviction, to sentence the offender to imprisonment in the county jail for a period not exceeding six months. Inasmuch as ample provision, is made for the trial of such cases by a jury when demanded by the accused, I can see. nothing unconstitutional in the act. There being no other question raised in the ease, I can see nothing illegal in the petitioners imprisonment. He will therefore be remanded to the custody of the sheriff, to be held under the warrant of commitment until the expiration of his sentence.'

       Reported in this volume immediately preceding this opinion. See also the later opinion of Judge McAllister on the same subject, immediately following this opinion. — Ed.


author: McAllister, J.: — ■

text:
      (Circuit Court of Cook County.)

    People ex rel. Scully and O’Leary vs. The Superintendent of the Bridewell.
    (1878.)
    1. Criminal Statutes — Construction of. Criminal statutes must be strictly construed in favor of an accused.
    2. Trial by Jury — Waiver of. — A trial in a felony case by a jury of less than twelve jurors even with the express consent of the prisoner, would be void. In trials for misdemeanors the rule is otherwise.
    3. Trial by Jury — Constitution of 1870 — Construction of as Applied to New Offenses. The provision of the constitution of 1870 to the effect that the right to trial by jury “as heretofore enjoyed" shall remain inviolate, covers every new definition of the same class of crime as to which the right of jury trial was before enjoyed.

      4. Vagrancy Act — Constitutionality of — Denial of Trial by Jury. The vagrancy act of 1877 (section 271) is unconstitutional and void inasmuch as it deprives an accused of the right of trial by jury.
    4. Statutory Construction — Statute Directing Manner of Procedure. If an affirmative statute which is introductive of. a new law, directs a thing to be done in a certain manner that thing cannot be done in any other manner, even though there be no negative words.
    5. Same — Mode of Procedure Rendering Law Unconstitutional— Adoption of New Mode. If in a statutory proceeding the legislature has prescribed a mode of making it effectual, which is unconstitutional the courts have no authority to reject that mode and adopt a different one.
    ■6. Vagrancy Act — Punishment Under — Effect of Unconstitutional Amendment. Section 271 of the vagrancy act of 1877 being unconstitutional, the original section remains in force. The only punishment that can be imposed therefore is a fine of $20. '
    Petition for habeas corpus. Heard before Judge McAl- .. lister. The facts are stated in the opinion. ■
   McAllister, J.: — ■

The questions for decision here arise upon return to habeas corpus. Belators, without trial by jury or waiver thereof, were convicted before Geo. W. Mitchell, Esq., police justice of the town of Lake, for alleged vagrancy, under secs. 270 and 271 of the criminal code as amended by the act of 1877, and sentenced, one to sixty days and the other to ninety days’ imprisonment in the city bridewell. In Ex parte Brown, while holding the criminal court in December last, I passed upon the same question involved here, and held sec. 271, as amended, to be unconstitutional. But the correctness of that decision having been challenged by brother judges in other circuits, and a justice of the peace in this county having disregarded it, and the question being before me in these cases, I have re-examined it with greater care and deliberation.

Sec. 270 as it stood in the code of 1874 defined the offense cf vagrancy, and prescribed a punishment which was not ex-eeeding six months’ imprisonment. Then follows see. 271, which provides that when a person is convicted before a justice or police magistrate of any offense mentioned in the preceding section, instead of being punished as therein mentioned, he may be fined not exceeding $20. Then came the amendatory act of 1877. The first section declares,that sees. 270 and 271 of “an act to revise the law in relation to criminal jurisprudence, approved March 27, 1874, be and the same hereby are so amended as to read as follows:” Then follow two sections, 270 and 271. The former defines the offense by extending the definitions, but leaves off the punishment prescribed in the original 270. Sec. 271, as amended, prescribes the mode of procedure and the punishment, which may extend to six months’ imprisonment or hard labor on the highway. No question has ever been made as to the validity of sec. 270 as amended; but, being valid, it takes away the punishment prescribed in the original 270. It is section 271 alone whose validity is questioned. So that, if that section, as it purports to amend original 271, shall be found unconstitutional and void, then it is as nothing; the punishment mentioned in it cannot be inflicted; the original 271 will stand unaffected by the supposed amendment — the result of which will be, that the only punishment which can legitimately, be imposed, on conviction for vagrancy, will be the fine of $20 mentioned in the original 271.

In my view, therefore, the principal question in the inquiry is, whether that section as amended by the act of 1877 is valid, or unconstitutional and void. And in its investigation I propose to act only upon' settled principles of law, to be applied according to the best of my ability. The age is ripe with conflicting views about almost everything. But if, in the domain of law, there be not such things as established principles — if there be, in reality, no such thing as right reason — then the sages of the law have woefully deceived at least one of their humbler but devoted disciples; nor does the question turn upon a construction of that section with a general one in the criimnal code. This is a criminal statute only, and the rule is universal that such statutes must be construed strictly. What were the rights of a person accused of vagrancy when the act of 1874 was passed? The result of this inquiry is very material. "When the constitution of 1848 was adopted, there was, and for many years before had been, a statute in force in this state, defining vagrancy, and the mode of procedure for its punishment. One mode was by indictment, where a jury, unless expressly waived, would be required. The other was a prosecution upon complaint, and "before two justices of the peace, who were authorized to punish, the fact of vagrancy having been first found by a jury “which,” the statute said, “shall, in all such eases, be summoned and sworn to inquire the truth thereof, whether the person be a vagrant or not.” See: R. S. 1845, sec. 138, p. 175. Now, by that statute, it was not only the right of the accused to have a jury trial, but such trial was absolutely indispensible to a lawful conviction as much as in the ease of robbery, burglary, or any other felony, in which eases it has been held by some of the most respectable courts in the land that a trial by any less than twelve jurors, with even the express consent of the prisoner, would be void, because the tribunal would be one unknown to the law, the mere voluntary creation of the parties: Cooley Const. Lim. 319, cases in note. But in misdemeanors it would be competent to so agree.

The constitution of 1848, such statute being in force, contained the guarantee that “the right of trial by jury shall remain inviolate;” the interpretation to which, as given by the supreme court in Ross v. Irving, 14 Ill. 171, was that it preserved the right of jury trial as it was understood to exist at the time of the adoption of the constitution. The same statute continued in force down to the adoption of the consitution of 1870, and that contained the same guarantee expressed in broader language, viz: “The right of trial by jury, as heretofore enjoyed, shall remain inviolate.” These words are considered by the courts as generic, and cover every new definition of the same class of crime as to which the right •of jury trial was before enjoyed. See cases in Ex parte Brown, 10 Chicago Leg. N., No. 12, p. 96.

We are now prepared to consider the precise character of sec. 271 as amended. After providing, with an unintelligible jumble of words, for the arrest of accused, which I could never understand, and that he shall be taken before a justice of the peace, it says: “And the said justice of the peace or police magistrate shall, within thirty-six hours, proceed to try the person accused of being a vagabond, and if he pleads guilty, or if he be found guilty, the said justice of the peace or police magistrate, may sentence the said vagabond to imprisonment,” etc. Here no mention is made of a jury; thé language is entirely consistent with the justice only passing upon the question of guilt. Still, if this were all, I would say that it might be construed with reference to the other provisions of the criminal code, and a jury might be called. But the other provisions of the section mark out a particular mode of procedure entirely outside of anything in the criminal code, which utterly precludes the practicability of a jury trial, and shows that it was intended there should be none. They are as follows: “In all cases under this act the justice shall make a full record of the case, giving the date of the complaint and of the offense, name of the defendant, if known, and character of the charge, the names of all witnesses examined, and Ms findings, together with all other proceedings.” What is this the justice is to make? A record of the case; the case as it was; and that record must state “his findings.” Not the verdict of a jury, but the .finding of the justice in the place of a jury. But it has been said by a brother judge in another circuit that the expression, “his findings,” only meant his sentence or judgment, and that might be upon the verdict of a jury.

This argument is entirely refuted by a further provision in the section, which is so explicit as to leave no room for cavil or doubt. After the finding of guilt by the justice, and sentence, of which he is to make a record, then comes a provision for carrying into effect, and that is by a writ called a mittimus, well known to the law, it is true; but here particular requisites are prescribed, differing from any other in the code; “which said mittimus must show the date of the charge, name of the defendant, if known, the offense charged, names of all witnesses examined, date and place of trial, the finding of the court, and the sentence imposed.” Now if the “finding of the court,’’ and “the sentence imposed,” are one and the same thing, why are they both mentioned in this way by a copulative conjunction? The mittimus must not only state the finding of the court, but the sentence imposed also. One which omitted the finding of the court upon the question of guilt, and only stated the sentence, would be utterly void as not in compliance with the statute, assuming that to be valid. Those words, “the finding of the court,” have just as definite and well-understood meaning in this state as the words “verdict of the jury ” or “ finding of the jury. ’ ’ There is authority for parties, in civil eases, to waive a jury and by agreement try them before the court. In all those cases of trial of issues of fact without a jury, the conclusion of the court upon the __ evidence given on those issues is called “the finding of the court.” That expression is as common in the supreme court reports as!that of “the finding of the jury” or “verdict of the jury.” For these reasons that section denies the right of -trial by jury. The legislature did not intend there should be a jury trial, for there is no mention of it; it is excluded by the language used in the requirements both of the record and mittimus. Surely they did not intend the justice should make up a solemn record of a falsehood — a mittimus that recited a lie. This section is introductive of a new law, and describes a certain manner in which the statute shall be carried into effect; it therefore impliedly prohibits it being done in any other manner. “It is a maxim generally true, that if an affirmative statute which is introductive of a new law directs a thing to be done in a certain manner, that thing shall not, even though there are no negative words, be done in any other manner.” Potter’s Dwarris on Statutes 72, Sedgwick on Statutory Construction, 31. That rule directly applies here. There can be no substitution of something else in the place of any of those things which the provisions of that section say the record and mittimus must show. Leave out the finding of the court and substitute the verdict of a jury, and the whole proceedings are void, ab initio, assuming the statute to be valid. It is, therefore, the inexorable decree of logic and law that the provisions of that section cannot be carried into effect within their precise requirements without denying the right of trial by jury.

In Boss v. Irving, supra, the supreme court said: “In our view, the law must be carried into effect in the manner prescribed by the act itself, or not at all. It is a statutory proceeding, and, if the legislature has prescribed a mode of making it effectual which is unconstitutional, the courts have ncauthority to reject that mode and adopt a different one.’” This doctrine was approved and applied again in Union Building Association v. Chicago, 61 Ill. 439, 446, and is unmistakably applicable, to this case.

If that section deprives a defendant of the right of trial by jury, as I feel sure it does, it is clearly unconstitutional and void. It therefore did not amend the original sec. 271 and leaves it as it stood, authorizing a fine of $20. But original 270 having been amended by leaving out the punishment therein prescribed, there is no punishment left but in original 271. Disregarding sec. 271 as amended, prosecutions upon 270 as amended may be had, by giving the accused a jury-trial; but the punishment must be as above stated. This is the way the case works out in my mind, and until I am overruled by some other justice of the peace I hope to have no more trouble with these questions, before they are finally adjudicated by the supreme court.

The relators will be discharged.

NOTE.

See the former opinion of Judge McAllister and the contra opinion of Judge McCulloch in relation to the same subject, both of which opinions are reported in this volume. — Ed.

       Reported In this volume. — Ed.

       See the opinion in People v. Hitchcock reported herein. — Ed.

       Reported in this volume. — Ed.


author: Freeman, J.:—

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

    Frank H. Collier vs. Fannie G. Collier.
    (1898.)
    1. Divorce — Insanity. Insanity is not a cause for divorce in Illinois.
    2. Divorce on Ground of Cruelty and Desertion — Acts of Complainant Not a Bab When Committed Under Insane Impulse. When complainant is entitled to a decree of divorce on the ground' of cruelty and desertion, the fact that he has been guilty of misconduct does not debar complainant from obtaining such divorce, where at the time of the misconduct he was acting under an uncontrollable insane impulse.
    Bill for divorce and cross-bill. Heard before Judge Henry Y. Freeman. The facts are stated in the opinion.
    W. P. Black, S. A. Wight and Frank H. Collier, pro se, for complainant.

      Donahue & Hartnett, for defendant.
   Freeman, J.:—

The original bill of complaint in this ease, filed by the husband, Frank IT. Collier, charges the defendant, Fannie Collier, his wife, with cruelty and desertion. A cross-bill is also filed by the wife. Each party, also, charges the other with adultery.

In the view that I take of this case it will not be necessary to discuss the testimony with reference to this latter charge, as made in the original bill. I intentionally avoid any such consideration, because I believe that the complainant in the original bill is entitled to divorce upon the other grounds; and a just regard for the reputation and feelings of the innocent children of the parties seems to me to require that no unnecessary shadow shall be thrown over their future lives.

With reference to the charges of cruelty and desertion against the wife, it is, I think, only necessary to say that they are abundantly justified by the evidence; and this seemed to be practically conceded by the counsel for the wife in his closing argument.

The complainant in the bill in consequence, as the testimony tends to show, of a blow upon the head, inflicted about ten years ago, became the victim of what is known as circular insanity. The chief characteristics of the disease appear to. have been a period of excitement or mania, followed by a period of melancholia, which in turn has been succeeded by a period of comparative sanity, the longer duration of which ■of late is said to indicate a growing tendency toward restoration to normal health. The evidence tends to show, and the whole appearance and conduct of Mr. Collier during the hearing indicate, that he is at the present time in the full possession of his mental faculties; and, as several of the medical experts stated, apparently in better health than he ever has been since the original attack of the disease.

The testimony tends to show that soon after the malady manifested itself he was sent to Wauwatosa, a private retreat for persons afflicted with nervous and mental diséases. From there, according to testimony which is uneontradicted, he was brought to Chicago by a false telegram. When within the jurisdiction of the courts of Cook county he was immediately arrested upon a charge of insanity, and committed to an asylum. I shall not undertake to follow up the numerous trials, nor the commitments to and discharges from asylums, which are disclosed by this testimony; but it appears from the evidence that at the time his disease began to manifest itself Mr. Collier was the possessor of considerable property. He was by no means a pauper, and the evidence tends to show that had his estate been properly conserved it might have furnished adequate support for himself and his entire family •during the period of his illness. It appears, however, that at the instigation of his wife, and on her complaint, he was twice committed to the Cook county insane asylum at Dunning as a pauper. This treatment was certainly illy calculated to promote his restoration to a sound condition of mental health. The evidence tends to show that he was there subjected to indignities amounting even to cruelty, which could not but have had an injurious effect upon his malady. Possibly the conduct of his wife toward him at this and subsequent periods is explained by her own statement upon the stand, that even prior to this time she had come to entertain for her husband a feeling of loathing, which she says began prior to or about the time of the birth of one of her children, and has continued ever since.

As I have stated, it was conceded practically, by counsel for the wife, in his closing argument, — and I think the concession is amply justified by the evidence, which I deem it unnecessary to review at length — that the complainant is entitled to a divorce on the grounds I have indicated, unless the evidence should further show that the charges made in the cross-bill are of such a character and so sustained as to forbid granting to the complainant in the original bill any relief whatever.

It must be conceded that the conditions confronting the wife and children of the complainant during a portion of the period when he was under the influence of his malady were of a most trying character. There were times when the complainant, although discharged from confinement by action of the courts, as sane, and left in control of his property and children, was nevertheless indulging in conduct of such a nature that if he had been at the time in full possession of his mental powers it would have been not only inexcusable, but it would have entitled a wife to a decree against him. If these acts had been committed while he was sane they would have gone far to justify some portion of the treatment he received from his wife which I have referred to. But it is contended that at the time when he committed the acts in question the complainant in the original bill was under an uncontrollable insane impulse, and the expert testimony tends to sustain this contention. In other words, the defense is that these acts were not the acts of the complainant himself, but the acts of one who was insane and not responsible for his conduct. If this is true, then it must be held that conduct of which he was guilty at that time, committed under the influence of insane impulses over which he had no control, does not afford ground for the relief prayed in the cross-bill. Insanity itself is not a cause for divorce in this state. The marriage vow carries with it ordinarily the obligation on the part of both husband- and wife to care each for the other, in sickness as well as in health, and mental sickness does not change the obligation. The evidence tends to show that the acts complained of in the cross-bill were committed at the time when the husband was under the influence of the malady, and there is no sufficient evidence to sustain the contention that any of the acts alleged to have been committed by the husband, which would entitle the wife to the relief she seeks by her cross-bill, were committed at the time when the husband was free from the influence of mental disease.

The complainant is entitled to the relief which he seeks, and a decree may be prepared granting him a divorce upon the ground of cruelty and desertion.


author: Holdom, J.

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

    Thomas M. Meldrum vs. Sam. S. Shubert, et al.
    (March 12, 1904.)
    1. Tradename — Necessity oe Actual User to Establish Right To. To entitle a person to the exclusive use of a tradename two conditions must exist: first, adoption of the name or mark, and second, its actual use. An intent to use at some time in the future is not sufficient,
    2. Same — Use in Connection with Establishment. A tradename must actually be used in connection with the establishment which it is intended to designate.
    3. Same — Protection oe Tradename in Equity. The name established for a hotel or theater is a trade name, in which the proprietor has a valuable interest, which a court of equity will protect.
    4. Same — Nor Necessary to Show Financial Loss to Obtain Protection. It is not necessary in order to obtain protection in respect to a trade name, that the complainant be menaced with financial loss. It is sufficient if he might he inconvenienced, interfered with or annoyed.
    5. Same — The Name “Gabrick Theater” Protected. The complainants were the owners of a small local theater known as the “Garrick” theater. The defendants announced their intention of applying the same name to their theater, a large theater in the heart of a city, which was formerly known under another name. Held that the complainants were entitled to an injunction.
    Bill for an injunction. Heard "before Judge Jesse-Holdom.

      Taylor E. Brown, Thomas J. Graydon, Wm. Friedman and C. C. Poole, for complainant.

      Herman Frank, of Felsenthal <fi Foremm, for defendants.
    Statement, of Facts by the Court.
    The cause came before the court on October 3, 1903, upon bill filed and motion for injunction pendente lite, the injunction having been recommended by master in chancery Browning. The court declined to confirm the recommendation of the master and various hearings were had; additional affidavits filed by each party; a stipulation was entered into to the effect that various affiants whose affidavits had been filed, if called as witnesses, examined and cross-examined, would testify to the statements contained in said affidavits; and that the affidavits should be treated as proofs in the cause. The cause then proceeded to final hearing upon bill, answer, replication and proofs as filed, was argued and submitted "Wednesday, October 28th, and subsequently briefs were filed by each party. The following statement of facts was prepared by the court.
    Findings of Fact.
    Complainant, in October, 1902, leased a building at Milwaukee avenue and Will street, Chicago, for ten years, 'and at an expenditure of about ten thousand dollars converted it into a theater and called it “The New Garrick,’.’ and as such, on November 15, 1902, opened it to the public. That about December 1, 1902, it came to be called and known as the “Garrick.” Complainant from that time operated his said theater, and called it the “Garrick,” until the completion of the theatrical season, May 20, 1903, when it was closed for repairs and alterations, and was about to be re-opened for' theatrical performances as the “Garrick” theater at the time of the filing of the bill herein; that during all of the time mentioned, complainant’s theater was advertised in the newspapers, on billboards, letterheads and tickets, as the “Garrick” theater, and was so referred to in newspaper theatrical notices and criticisms of its actors and performances, during all of which time it was the only theater in Chicago with the word “Garrick” in its name.
    On March 19, 1902, defendants leased what was then known as the Dearborn Theater on Randolph street, near Dearborn, for a term of ten years, commencing September 1, 1903. That they thereupon concluded to adopt the name of “Garrick” for their new theatrical house. That as early as April, 1902, defendants caused to be published in the Chicago newspapers, articles announcing the new lease (although intentionally avoiding naming the lessees); and that after September 1, 1903, the theater would be renamed and called the “Garrick.” Knowledge of this fact at this time was not brought home to the complainant, and not until December 1, 1902, did he know of the intention of the defendants to name the Dearborn theater the “Garrick” on its coming into their■ possession, which fact he first learned by reading a statement to that effect on that day in the New York Clipper, a publication devoted to theatrical news. Complainant soon after reading the notice in the New York Clipper sent a letter to defendants, by mail, to New York, informing them of his being the operator of a theater called the “Garrick,” and enclosing posters, programs and advertising matter corroborative of such statement, and again on September 1, 1903, sent defendants similar notice by mail, with like enclosures, directed to them at Chicago.
    Complainant’s theater is what is generally known as a local and a neighborhood theater, its patrons being for the most part residents in the vicinity of its location; while the theater of the defendants is a large metropolitan theater in the downtown district and draws for its patronage upon all the residents of Chicago generally and the strangers within her gates.
    In most of the posters, programs, tickets, and other literature of defendants is printed, “The Garrick, formerly Dear-born Theater.” Since the opening of defendants’ theater, certain complications, owing to the use of the name “Garrick,” have arisen between the parties; such as bills intended for the one being sent to and received by the other; passes intended for one have been presented to the theater of the other and been dishonored; telephone messages intended for the Bandolph street Garrick have found their way into the box office of the Milwaukee avenue Garrick; the bill boards of the Milwaukee avenue concern have been posted over with the posters of the Bandolph street concern, to the obliteration of the announcements of the former.
    Defendants at the time of the filing of the bill had no other theater operated or owned by them known or called by the name of “Garrick.” At the time defendants concluded to call their Chicago theater by the name of “Garrick,” there was no theater in Chicago by that name. At the time they opened the Dearborn theater under the name of “Garrick” complainant’s theater under that name had been in operation nine months.
   Opinion.

Holdom, J.

(after stating the foregoing facts):—

At the time complainant adopted the name of “Garrick Theater” to designate Ms place of amusement he had a perfect legal right to do so and in so doing neither interfered, nor trespassed upon the right of any other person in Chicago. It became and was the only “Garrick Theater” in Chicago. His legal right to exclusively use and maintain this name for his theater must be tested under that branch of the law designated as “Trade Marks or Trade Names,” the principles of the former being applicable to the latter and resting for their maintenance upon the same correlative legal right and equitable principle.

Is the complainant entitled to maintain this right to the exclusion of the defendants within the limits of the city of Chicago, or may defendants share that right with him? If it can be so maintained it must find its support in primary actual use as distinguished from an adoption coupled with an intent to actually use at some time in the future.

All the authorities' decide, wherever the question has been presented for adjudication, that to entitle one to the use of a trade-mark or name, two conditions must exist: first, adoption of the name or mark, and second, its actual use; and the latter is as essential as the former to confer the right. Kathreiner’s Malzkaffee Fab. v. Pastor Kneipp Med. Co., 82 Fed. Rep. 325.

If a trade-mark, the emblem or symbol must be attached to the article designated to be protected, and if a trade name, then such name must be actually used in connection with the establishment which it is intended to designate, be it a hotel, theater, or business house. Candee, Swan & Co. v. Deere & Co., 54 Ill. 439; Hazleton Boiler Co. v. Hazleton Tripod Boiler Co., 142 Ill. 494-507; Bolander v. Peterson, 136 Ill. 215-217.

Paul on Trade Marks-makes the following definition's in sections 160 and 172: “A trade or a commercial name is the name under which a business is carried on, or by which it is designated, or the name of a place at which a business is located. * * * A trade name should be considered and treated as a trade mark..”

The supreme court of California applied these definitions in deciding Woodward v. Lazar, 21 Cal. 448, colloquially referred to as the “What Cheer House Case.” It said on page 451: “It has been decided, and with good reason, that the name established for a hotel is a trade mark, in which the proprietor has a valuable interest, which a court of chancery will protect against infringement.” The legal principle here announced is applicable with as much force to the theater of complainant in the case at bar, and is a controlling principle. In fact, no well-authenticated case within my knowledge holds to the contrary.

The only case cited to support defendant’s contention that the intention to adopt a name preserves the right to the one who, following on such declared intention, in fact does adopt, such a name, is the case of Kingsley v. Jacoby, 20 N. Y. Supp. 46. At the time of the institution of the action Kingsley had in course of construction on a prominent thoroughfare in. New York City, a hotel under plans designating it as the. “Holland House.” Kingsley at that'time had a wide and extended reputation as a caterer and the hotel at that time was well known in New York as the “Holland House.” The defendant, Jacoby, a dealer in cigars, registered a brand of cigars as “The Holland House Boquets,” claiming in defense that he did so because some of the tobacco of which they were made, was purchased from Holland houses engaged in the tobacco business — which the court characterized as a “disingenious afterthought” in the light of his letter to Kingsley, in which he said “the well known and just deserved popularity of your hotel has served as an inducement for me to apply its name, so widely known, to one of my new and best brands of cigars.” Nothing said by the court in its opinion can be construed as holding that Kingsley was protected in the use of the name “Holland House,” because of an expressed intention to so call his hotel. The name had been actually applied to the hotel, and the court said in its opinion “that it was well known in the City of New York as ‘Holland House. ’ ” However, the decision rested on the principle of unfair competition. Jacoby held himself out to the public-as selling Holland House cigars for the purpose of profiting: in their sale by reason of the well known reputation of that house for the excellent quality of the things emanating from it. This was a fraud in fact, as the Holland House had nothing whatever to do with Jacoby’s so-styled brand of cigars.

It is insisted on the part of the defendants that complainant has not and can not suffer any pecuniary loss by reason of their operating their theater under the name of “Garrick,” and that if any injury does result it is damage without injury, and that it therefore follows complainant is not entitled to invoke the relief here demanded.

It is true that complainant is not seriously menaced with financial loss by reason of defendants designáting their theater as the “Garrick” in violation of the right of complainant, to the exclusive use of that name for the Milwaukee Avenue. Theater. Yet the evidence shows beyond controversy that complainant is inconvenienced, interfered with and annoyed' in the conduct of his theatrical enterprise because of the existence of these dual theaters with the same name.

If the right to the exclusive use of the name “Garrick” by complainant is established, then aside from the question of his financial loss by reason of the invasion of such right by defendants, he would on the ground of inconvenience, interference and annoyance, thus resulting to him, be entitled to the relief here sought, regardless of the other question, whether the right to the use of such name may be regarded in law as a property right or not.

By complainant’s adopting and actually using in the conduct of his theater the name “Garrick” he acquired a trade name or mark therein which was neither divested nor impaired in any way, by defendants’ expressed intention prior to such use to so call the Dearborn Theater when they should in the future come into possession, of it, nor by their afterward calling it by that name. Neither the advertised intention of defendants so to call their theater prior to complainant’s actually using the name “Garrick” as the name of his theater, nor by, after such adoption and use by complainant of that name, applying the name “Garrick” to their theater, was the right of complainant impaired, nor did the defendants by either or both of said acts become vested with any right to so use the name “Garrick” as against the right of complainant or to use the same in the modified form “Garrick, formerly Dearborn,” without the consent of complainant, or against his protest.

A decree may be entered enjoining defendants as prayed, 'from using the name “Garrick,” or any modified form thereof in which the name “Garrick” appears, in either the designation or conduct of their theater on Randolph street, Chicago, formerly known as the “Dearborn Theater.”

Note. — An appeal was taken in the above case to the appellate court for the First District of Illinois. Thereafter the appellee was adjudicated a bankrupt and the trustee in bankruptcy was substituted as appellee. The appellant thereupon purchased, in the bankruptcy proceedings the right to use the name “Garrick Theater.” Error was thereupon confessed in the appellate court by the appellee and the case was reversed without any consideration of the questions involved. The above decision is therefore a final one and in principle it is unreversed. — Ed.