tion. Eugene Van Schaick, opposed. No opin- PFEFFER v. KLING et al. (Court of Ap- PER CURIAM. Judgment (58 App. Div. PARKER, C. J., and BARTLETT, PHENIX NAT. BANK, Appellant, v. KEIM, PLATT et al. v. NEW YORK & S. B. RY. POULSON et al., Appellants, v. DE NA- PER CURIAM. Judgment (57 App. Div. O'Grady, for appellant. P. M. French, for re- PER CURIAM. Judgment (57 App. Div. In re ROGER'S ESTATE. (Court of Ap- PER CURIAM. Order (71 App. Div. 461, 75 PARKER, C. J., and O'BRIEN, BART- SANDFORD, Appellant, v. WAGNER, Re- In re SCHAEFER et al. (Court of Appeals PER CURIAM. Motion to dismiss appeal PARKER, C. J., and GRAY, HAIGHT, SMITH, Appellant, v. BOWERS et al., Re- PER CURIAM. Judgment (57 App. Div. STEEVES et al., Respondents, v. SINCLAIR PER CURIAM. Judgment (56 App. Div. STOWELL et al., Respondents, v. CLARK pellants. A. J. McCrary, Alex Cumming, and PER CURIAM. Judgment (47 App. Div. PARKER, C. J., and GRAY, HAIGHT, SUGDEN et al., Respondents, v. MAGNO- PER CURIAM. Judgment (58 App. Div. PARKER, C. J., and GRAY, O'BRIEN, SULLIVAN, Respondent, v. GEORGE RING- PER CURIAM. Judgment (59 App. Div. 184, PARKER, C. J., and GRAY, O'BRIEN, TABERNACLE BAPTIST CHURCH, Re- PER CURIAM. Judgment (60 App. Div. ULSTER & D. BLUESTONE CO. v. CAR- VAN NOTE, Respondent, v. COOK, Appel- PER CURIAM. Judgment (55 App. Div. 55, PARKER, C. J., and GRAY, O'BRIEN, In re WATSON'S ESTATE. (Court of Ap- WEIANT, Respondent, ▼. ROCKLAND WENK, Appellant, v. CITY OF NEW WETMORE, Respondent, v. WETMORE, PER CURIAM. Appeal dismissed, with PARKER, C. J., and GRAY, O'BRIEN, WOODBURN, Respondent, v. HYATT, Ap- PER CURIAM. Judgment (54 App. Div. W. P. FULLER & CO., Respondent, v. PER CURIAM. Judgment (58 App. Div. PARKER, C. J., and GRAY, HAIGHT, YARD, Respondent, v. YARD, Appellaut. PER CURIAM. Judgment (59 App. Div. YOUNG, Respondent, v. GILMOUR, Appel- of the appellate division was unanimous; that there was evidence tending to sustain the findings of fact; that no question of law is involved, and the exceptions are frivolous; and that the record presents no question that can be reviewed by the court of appeals. William H. Deady, for the motion. D. J. Newland, opposed. No opinion. Motion granted, and appeal dismissed, with costs and $10 costs of motion. METZGER et al. v. WOOLDRIDGE. (Supreme Court of Illinois. June 19, 1902.) ApAcpeal from appellate court, Third district. tion by Alexander P. Wooldridge against William Metzger and another. From the judgment of the appellate court (99 Ill. App. 283) affirming a judgment for plaintiff, defendants appeal. Affirmed. A. E. De Mange and Geo. K. Ingham, for appellants. V. Warner, for appellee. PER CURIAM. This case presents the same state of facts and same questions of law as that of Metzger v. Morley (Ill.) 64 N. E. 280. The judgment will be affirmed, for the reasons stated in that case. Judgment affirmed. VILLAGE OF AUGUSTA v. WEINBERG. (Supreme Court of Illinois. June 19, 1902.) Appeal from circuit court, Hancock county; John A. Gray, Judge. Action by Aaron Weinberg against the village of Augusta. From a judgment for plaintiff, defendant appeals. Reversed. W. H. Mead and David E. Mack, for appellant. Appollos W. O'Harra and Adolph Weinberg, for appellee. between Jacob M. Julian and the board of commissioners of Morgan county. From a judg ment for Julian, the board of commissioners appeal. Transferred to supreme court. W. R. Harrison and Elliott, Elliott & Littleton, for appellant. Renner & McNutt, for appellee. PER CURIAM. One of the judges, being of counsel in another case involving the same question presented by the record in this appeal, for that reason declines to participate in the deci sion, and, four of the other judges being unable to agree upon a decision, the case is transferred to the supreme court, under Act March 12, 1901 (Acts 1901, p. 565). HOLLINGSWORTH v. CHICAGO, I. & L. RY. CO. (Appellate Court of Indiana. May 27, 1902.) Appeal from circuit court, Clark county. Action by Marshall P. Hollingsworth, administrator, etc., against the Chicago, Indianapolis & Louisville Railway Company. From judgment for defendant, plaintiff appeals. Transferred to supreme court. M. W. Fields and C. L. & H. E. Jewett, for appellant. E. C. Field, W. S. Kinnan, and M. Z. Stannard, for appellee. PER CURIAM. The court being equally divided, and being unable to agree upon a decision of this case, it is therefore transferred to the supreme court under Act March 12, 1901 (Acts 1901, p. 565). (198 Ill. 340) PEOPLE ex rel. OLIVER v. KNOPF, OLIVER. (Supreme Court of Illinois. Oct. 18, 1902.) For majority opinion, see 64 N. E. 842. PER CURIAM. This was a suit in trespass quare clausum fregit, tried by the court without a jury. The village took down and removed a fence, cut down some trees on a strip KNOPF, County Clerk, v. PEOPLE ex rel. of ground claimed by appellee as a part of his premises, and graded said strip, claiming that it was a part of one of its public streets. The case is precisely the same, as to questions of law and fact, as Village of Augusta v. Tyner, 64 N. E. 378, and what was said in that case is equally applicable to this. The strips of land involved in the two cases were from the same common tract, and were claimed by the village to be a part of the same street. The decision in the Tyner Case is decisive of this case also, and for the reasons stated in the opinion therein the judgment herein must be reversed and the cause remanded. Reversed and remanded. SMITH, Auditor, v. STATE ex rel. LEWIS et al. (Supreme Court of Indiana. June 27, 1902.) Appeal from circuit court, Marion county; Henry Clay Allen, Judge. Mandamus, on the relation of Martha Lewis and others, against Harry B. Smith, auditor of Marion county. From an adverse judgment, defendant appeals. Affirmed. Hawkins & Smith, for appellant. Wm. L. Taylor, Atty. Gen., Merrill Moores, C. O. Hadley, and W. B. Schwartz, Pros. Atty., for appellee. GILLETT, J. This is the second appeal of this cause. Upon the first appeal, decided at the November term, 1901, under the title of State v. Smith, 63 Ń. E. 25, 214, the essential questions on this appeal were determined against the appellant herein. On the authority of the decision rendered in said former appeal, the judgment of the court below, from which this appeal is prosecuted, is affirmed. DOWLING, C. J., and MONKS, J., dissent. BOARD OF COM'RS OF MORGAN COUNTY v. JULIAN.1 (Appellate Court of Indiana. May 27, 1902.) Appeal from circuit court, Morgan county; Geo. W. Grubbs, Judge. Action WILKIN, J. (dissenting). Upon a reconsideration of the questions involved in this case, I am convinced that our former conclusion was wrong, and, while the modified opinion holds the act of 1901 invalid only in so far as it provides for the election of the additional judges for the short terms, the reasoning, as I understand it, must finally lead to holding the whole act unconstitutional and void. The constitution of 1870, by sections 12 and 14 of article 6, provides for uniform terms of six years for all judges of circuit courts, and fixes the time for their election on the first Monday in June, 1873, and every six years thereafter. Those provisions were intended to apply to all circuit judges elected under the provision of that instrument at the time of its adoption. It was, however, realized that additional circuit judges would be necessary in the future, aud hence, by section 15 of the same article, the general assembly was authorized to divide the state into judicial circuits of greater population and territory than those fixed by section 13, "and provide for the election therein of not exceeding four judges," the additional judges to hold the circuit courts in the circuits for which they were elected in the manuer provided by law. There was no limitation as to the time when such an act might be passed. It also, by section 23, provided that the general assembly might increase the number of judges of the circuit and superior courts of Cook county "by adding one to either of said courts for every additional 50,000 inhabitants in said county, over and above a population of 400.000." No time was limited within which such change might be made. Under section 15 the act of 1877 was passed, creating larger circuits and providing that the judges of the circuit courts then in office should be judges for the respective circuits in which Transferred to Supreme Court, 65 N. E. 750. Rehearing denied. they resided, and that on the first Monday in August of the year 1877 there should be elected in each of said enlarged circuits one additional circuit judge. It was also further provided that the terms of office of the judges elected under the act on the first Monday in August, 1877, should expire on the first Monday of August, 1879, thus fixing their terms of office at two years; also, that on the first Monday of June, 1879, there should be elected in each of said circuits three judges, whose terms of office should be six years, and that every six years thereafter there should be elected three judges of the circuit court, whose terms of office should be six years. In 1887, under the provision of section 23, the school census for the year 1886 having shown the inhabitants of Cook county to be of the requisite number to entitle the county to six additional judges, it was enacted that an election should be held on the first Monday of June next after the act should take effect (that is, in June, 1887) for six additional judges of the circuit court, whose terms of office should expire upon the first Monday in June, 1891, upon the election and qualification of their successors; and by section 2 of that act it was provided that upon the first Monday in June, 1891, and every six years thereafter, there should be elected, at the same time and in the same manner as the other judges of said circuit court, six judges, successors in office of the judges by the act authorized to be elected. Again, in 1893, the school census of 1892 showing the population of the county to be over 1,500,000, entitling the county to additional judges, it was provided that the number of circuit judges be increased to 14 and the judges of the superior court to 12, thus adding 3 judges to each of said courts. By section 2 of the same act it was provided that on Tuesday after the first Monday in November, 1893, these additional judges should be elected, and by section 3 that the additional superior judges should hold their offices for six years and until their successors were elected. By section 4 the terms of office of the three additional circuit judges were to expire on the first Monday of June, 1897 (a period of something over three years); upon the election and qualification of their successors in office, and upon said first Monday in June, 1897, and every six years thereafter, there should be elected, at the same time and in the same manner as the other judges of the circuit courts, three successors in office of the circuit judges by the act authorized to be elected. Judges were elected in pursuance of and in conformity with the provisions of both of said last mentioned acts, and they and their successors have held office and transacted business in said court ever since, the constitutionality of the acts being unchallenged. After the passage of the act of 1877 and the election of the additional judges as therein provided, the question arose, among the objections to the validity of the law, whether the legislature had the power to provide for terms of office of the additional judges for a term of less than six years; it being insisted that the act was violative of section 12 of article 6 of the constitution in that regard. The question came before this court in the case of People v. Wall, 88 Ill. 75, and it was held that the twelfth section did not affect the tenure of office of the additional judges. In the opinion the following language is used (page 80): "The general election for all judges of the circuit courts is fixed by the constitution to take place on a certain day, and they are to be elected for the same length of time; but, in projecting a new system, that is not practicable, nor is there anything in the constitution that makes it imperative to observe that clause of section 12. The power to create and establish such courts would seem to carry with it, by necessary implication, authority to do that which would be necessary to render them effectual for the purposes for which they were to be created; otherwise, it would be abortive to attempt to create such courts. Where power is granted to the general assembly for any specific purpose, it must be everything necessary to make it effectual or requisite to attain the end is implied." That decision was followed in People v. Board of Sup'rs, 100 Ill. 495, holding an act of the legislature of 1881 valid which extended the terms of office of certain county officers one year, as was claimed, in violation of section 28 of article 4 of the constitution; and in that case it was said (page 506): "In the case of People v. Wall, 88 Ill. 75, where the constitutionality of a statute was called in question upon the ground that it provided for the election of certain judges of circuit courts in 1877 for a term of two years, while the cousti tution declared that the terms of office of judges of circuit courts shall be six years, it was held by this court that this general provision for terms of six years had no application to legis lation enacted to accomplish a change in the circuit system, which change was provided for in the constitution, but as to the mode of accomplishing the change the constitution was silent. So the amendment of 1880, having provided for a change in the times for the election of certain county officers and for a change of the terms of certain of them, being silent as to what shall be done in bringing about such change prior to November, 1882, and the change being such that it cannot practically be brought about except by doing, prior to the time of which the amendment speaks expressly, one of two abnormal things, and which things are each in contravention of other general provisions of former parts of the constitution, we think that such general provisions plainly can have no application to such legislation as may be had in the necessary attainment of the object and end authorized by the amendment itself." In Knickerbocker v. People, 102 Ill. 218, in which the constitutionality of the act creating probate courts in counties of 70,000 or more population was in question, we find this language (page 224): "The constitution having authorized the legislature to establish one of these courts in each county of the state, subject to the limitation with respect to population, and having fixed no time for the exercise of such authority, the clear and necessary implication is that the framers of the constitution intended the legislature should determine for itself when and under what circumstances it would exercise the authority conferred. It is conceded by counsel on both sides that this as well as all other provisions of the constitution must be read and construed, if it can be done without involving an inconsistency or absurdity, in the popular and ordinary sense in which the people understood it when voting for it. Applying this test to the provision in question, we have no doubt of the correctness of the construction we have given it." And again: "Holding, then, as we do, it was the intention of the framers of the constitution that the legislature, in giving effect to the section under consideration, should be guided entirely by the wants and necessities of the people with respect to such courts in the several counties in the state having the requisite population, it follows the other provisions of that instrument must be so construed as to give effect to that intention," etc. The acts of 1887 and 1893 were passed after the foregoing decisions were rendered, both of which are unconstitutional and void if the act of 1901 must be so held. It is true that the facts in the Wall Case differ from those involved here; but I am unable to see wherein the principle there decided and subsequently followed is not conclusive as to the validity of the foregoing several acts, including that of 1901. Section 23 confers the power upon the legislature, in its discretion, at any time, the population being sufficient, to increase the number of judges of Cook county "by adding one to either of said courts"; and to give practical effect to the exercise of that pow er-i. e., to increase the number of judges at such time as the legislature deems necessary for the dispatch of the business of the courts-the general limitations in sections 12 and 14 cannot be applied. It may be that, eliminating the words "by adding one to either of said courts," and substituting therefor "by adding one to the superior court,' the necessities of the county might be provided for; but the power is given, by the express language of the section, to add to the judges of the circuit court, and I know of no rule of construction which will justify changing the language of the section in order to hold the act invalid. On the contrary, every provision of the constitution and every act of the legislature must be so construed as to uphold the law, if it can reasonably be done. I might concede that by the strictest construction the act could be held void, but I contend that to do so would defeat the clear intention of the framers of the constitution and the people who adopted it. Importance is attached to the last sentence of the twenty-third section, which is: "The terms of office of the judges of said courts, hereafter elected, shall be six years.' That limitation does not necessarily apply to the additional judges provided for, but was intended to fix the general terms of office for all the judges thereafter elected for said courts, and, except as to the superior judges, it adds nothing whatever to the force of section 12. It is, in other words, a provision applying to the regular terms of office of the judges of the superior and circuit courts, and, as was said in the Wall Case, in no manner affects the tenure of office of the additional judges authorized in the body of that section. The act of 1901, as well as the acts of 1887 and 1893, by the provision for short terms, simply intended to bring the new order of things in Cook county into harmony with the general judicial policy of the state as to the time of electing circuit judges and their uniform terms of office; and, whether the question should be treated as purely a political one or not, within the rule announced in People v. Board of Sup'rs, supra, certainly no private rights can be injuriously affected by sustaining their validity. I have already extended this opinion beyond its intended limits, and in support of the views announced and in harmony with the previous decisions of this court will simply cite, without comment, State v. Askew, 48 Ark. 82, 2 S. W. 349, and cases there cited; Hagerty v. Arnold, 13 Kan, 367; Wilson v. Clark, 63 Kan, 505, 65 Pac. 705; State v. Andrews (Kan.) 67 Pac. 870; State v. Emerson, 39 Mo. 80. As to the superior judges, whether it was necessary, or even wise, to provide for a short term, is immaterial. I think the legislature had the power to do so. MAGRUDER, C. J., concurs in the dissenting views of WILKIN, J. END OF CASES IN VOL 64. |