(196 Ill. 54) CITY OF CHICAGO v. CHICAGO LEAGUE BALL CLUB. (Supreme Court of Illinois. April 16, 1902.) MUNICIPAL CORPORATIONS SUPPRESSING RIOTS-AID OF MILITIA-LIABILITY OF CITY FOR EXPENSES.

1. Act June 16, 1887 (Laws 1887, p. 239) § 7, provides that whenever there is in any city, town, or county a tumult, riot, mob, etc., or when such riot or mob is threatened, and the fact is made to appear to the governor, it shall be his duty to order such military force as he may deem necessary to aid the authorities. Id. § 5, and section 13 of article 2 of the city and village act, confer on the mayors of the different cities the power to advise the governor that the state's assistance is needed. Subdivision 72, § 1, art. 5, of the latter act confers on cities the power and duty to prevent and suppress mobs, etc. Defendant's mayor called on the governor for assistance in preserving the peace, and the regiments sent by the governor took possession of plaintiff's baseball grounds. at the mayor's direc tion, occupying them for camping purposes for some 20 days. Held, that defendaut city was uot liable to the ball club for compensation for the use of its property, or for any injury caused to it by such occupation, but it was for the state, in its sovereign capacity, to determine whether compensation should be made out of its treasury.

2. The fact that Cr. Code, c. 38, § 256a, imposes on municipalities the liability of making partial restitution for injury committed by a mob of 12 or more persons, and that the presence of the militia was likely to relieve the city of much of the danger of liability thereunder, could not make the city liable.

matter, and testified that the mayor said the club "would be remunerated,-would have payment for the grounds." The appellee club claimed the militiamen, while in possession of the park, dug holes in the baseball diamond, drove horses pulling heavy caissons on and across the bicycle track, and broke down or damaged the turnstiles, ticket boxes, chairs, benches, etc., belonging to the club, causing injury and damage to the park and to the property of the club in the aggregate sum of $2,352.05. The club also demanded as the reasonable rental value of the ball park during the period it was so occupied by the troops the sum of $10,000, and brought this an action of assumpsit against the city to recover the sald rental value of the said park, and compensation for the injury and damage to its property. On the hearing the circuit court held the city was not liable to answer for the rent, or to respond in damage for any injury done to the property of the club. On an appeal to the appellate court for the First district, prosecuted by the appellee club, the judgment was reversed, and the cause was remanded for further proceedings in conformity with the opinion then handed down by the appellate court. Chicago League Ball Club v. City of Chicago, 77 Ill. App. 124. The cause was redocketed in the circuit court, and upon a trial before the court, a jury having been waived by agreement of the parties, judgment was entered in favor of the appellee club in the sum of $4,761. On a second appeal to the said ap

Granville W. Browning (Charles M. Walker, Corp. Counsel, of counsel), for appellant. Charles M. Sherman and John N. Swarts, for appellee.

BOGGS. J. On the 6th day of July, 1894, the mayor of the city of Chicago, acting in virtue of his official authority as such mayor, notified the governor of the state that the aid of the state militia was necessary to enable the authorities of the city of Chicago to preserve the peace and execute the public laws. The executive detailed five regiments of the state militia to aid the civil authorities of the city in so suppressing violence and enforcing the law. Two of these regiments were ordered from their homes, in portions of the state outside of the city of Chicago. By the direction of the mayor, these two regiments took possession of the grounds or park of the appellee league ball club, occupied the same as and for an encampment ground, and remained there for a period of 20 days. The possession of the park was taken, and the troops encamped therein, without the knowledge or consent of the appellee club, the owner thereof. The president of the appellee club without delay called upon the mayor with relation to the

The city has brought the cause into this court by a further appeal.

The only assignments of error necessary, in the view we have taken of the case, to be considered, are those relating to the action of the court in passing upon certain propositions of law in the case. Such propositions were as follows: "(1) That no liability arose against the defendant by reason of the occupation by the state militia of the premises described in plaintiff's declaration during the month of July, 1894, as testified to in this case, or by reason of any destruction of property by the militia at that time." "(5) That the occupation by the militia of said ball ground was the act of the state, and not of the city, the defendant: and the militia were in no sense the agents or servants of the city. and their occupation of said ball park in no sense created a llability on the part of the city, nor is the city liable for any act of destruction or waste by the militia. (6) That the occupation of the ball park by the militia was the act of the state, and not of the city, and the militia during all said occupation were under the orders of the state, and not of the city; and such occupation, and any waste or destruction suffered on account of the same, created liability on the state ouly, if upon any one." The court ruled that these propositions did not state correct principles of law applicable to the case. The action

The people, in their original, sovereign capacity, adopted the constitution of 1870, in order, as they declared in the preamble to the organic instrument, "to form a more perfect government, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." The general assembly, in whom the constitution vested the power to enact all laws for the government of the state, in order the more effectually to secure and maintain the public tranquillity and promote the safety of the person and property of the citizen, determined that, in the practical administration of the state government, it would be wise to invest local state agencies with limited power to exercise governmental functions. Incorporated cities and villages, among others, were selected to act as such governmental agencies within their respective territorial jurisdictions, and were clothed with such powers as the lawmaking department deemed proper to entrust to them. Though a city is regarded as a corporation created for its own benefit, and as having been invested with corporate life and power by its own desire and at its invitation, still, In the exercise of many of the powers conferred upon it by the general assembly, the city is but the representative of the general government of the state. Cities have powers and duties of two kinds: The first consists of public or governmental duties and powers; and the second, of private or proprietary dutles and powers. Subdivision 72, § 1, art. 5, of the city and village act confers upon cities the power, and charges it upon them as a duty, "to prevent and suppress riots, routs, affrays, noises, disturbances, disorderly assemblies in any public or private place." Rev. St. 1899, p. 277. The duty thus imposed upon a city is public or governmental in character, and in the discharge thereof the municipality acts as a public agency of the state. It is the duty of the city to exercise every power with which it is invested, in the endeavor to discharge the duty of maintaining the public tranquillity and suppressing disorder. The general assembly granted to these municipalities various powers, intended to be sufficient, under all ordinary circumstances, to enable them to discharge the governmental function of maintaining the peace, and making safe both life and property. These municipalities have, however, only such authority as the legislature has deemed it wise to grant to them; and one instrumentality for the suppression of riotous and tumultuous outbreaks (the last to be resorted to, and the most powerful and

military forces of the state) is not included in the grant of powers to them. In the state alone rests the power to organize, equip, and maintain armed bodies of militiamen, and the control of such organized forces is committed to the general government of the state. Section 14 of article 5 of the constitution of 1870 creates the governor the commander in chief of the military forces of the state, except when called into the service of the United States, and invests him with the sole power to direct the militia to be employed to aid in the execution of the laws of the state.

It is not within the power of the general assembly to confer upon cities and villages independent or primary power to employ the militia of the state in quelling riots and overcoming tumults, and no enactment of the lawmaking body of the state indicates it to be the legislative intent that these municipalities should be charged with the entire bur den of preserving the public peace, and preventing violence and disorder of this character within their respective limits under all and every emergency. Primarily, the duty of protecting the lives and property of the citizen from the unlawful violence of mobs or rioters rested in the state, and this sovereign duty was not devested or in any degree impaired or diminished by the delegation of power to the municipalities of the state; but the obligation of the state to preserve the public peace and tranquillity, and execute the laws, remained in full vigor, as an inalienable sovereign prerogative and duty. In recognition of this public and supreme duty the general assembly enacted the act entitled "An act to secure the peace and good order of society, to quell riots or disturbances, to secure the execution of the laws and to provide for special deputy sheriffs, and for calling out and using the military force of the state for the preservation of the peace and the protection of property," approved June 16, 1887, in force July 1, 1887. Laws 1887, p. 239. Section 7 of the act is as follows: "Whenever there is in any city, town or county a tumult, riot, mob or body of men acting together by force with attempt to commit a felony, or to offer violence to persons or property, or by force or violence to break or resist the laws of the state, or when such tumult, riot or mob is threatened, and the fact is made to appear to the governor, it shall be his duty to order such military force as he may deem necessary to aid the civil authorities in suppressing such violence and executing the law." Section 5 of this act and section 13 of article 2 of the city and village act confer upon the mayors of the different cities of the state the power to advise or make known to the governor that the assistance of the state is needed to enable the authorities of the city, acting as representatives of the state. to suppress unlawful vio lence and execute the law in their respective

municipalities, when, in their judgment and discretion, the emergency exists making such aid necessary. When the governor of the state is, in pursuance of these enactments and in accordance with their requirements, so called upon to aid the civil authorities of the local governmental subdivisions of the state, it becomes his duty to exercise the sovereign powers with which he is invested, to the end that the local agencies of the state shall be provided with the necessary governmental assistance to preserve the public peace and execute the public laws in each of the municipalities. Regiments of militia dispatched at the command of the governor to the scene of disorder and violence in any county, city, or village in the state are contributions of power by the state to aid the local agencies of the state in the governmental duty of protecting the lives and property of the people, and maintaining the supremacy of the laws. To the extent the powers with which a city is invested are sufficient to enable it to discharge this duty, the expense is that of the city. When a tumult or riot assumes such proportions that it becomes necessary that the sovereign shall interfere and exert the supreme power of the state, to that extent the general state government is the actor, and the burden of expense which its acts incur are not to be borne by the city. It is true, the militia, when thus in a city, are subordinate to the civil authorities; but in this position of supremacy the civil authorities are not in the exercise of their private or proprietary powers, but are acting as representatives of the state, and exercising governmental functions. The authority they may exert over the militia is not supreme, but is limited to the right to direct the specific acts to be performed by the militia. The officer in command of the militia acts independently of the city officials, and upon the authority of his office, as to the mode and manner of accomplishing the act ordered to be performed, and is required to transmit to the governor a copy of all orders given him by the civil authorities. Hurd's Rev. St. 1899, c. 129, art. 10, 3, p. 1644. The troops are to be governed by the code of rules or regulations which have been prepared by the adjutant general with the approval of the governor. Cr. Code, c. 38, § 2560. The power and authority of commander in chief still rest in the governor. The troops are at the scene of the disturbances by the authority of the state government, and the mayor of the city, the officers of the militia, the adjutant general, and the commander in chief are conjointty engaged, each in his respective position of rank or superiority, as the agents of the general government of the state, in all matters relating to the control, support, and maintenance of the armed force of the state. The powers given to the city have proven inadequate to the exigency, and the powers reserved in the state are employed for that reason. The duty of the state to so interfere to sup

press tumult, riot, and unlawful violence does not necessarily depend upon the decision of the mayor of the city, or notification by that officer that a state of lawlessness and violence exists which is beyond the power of the civil authorities to control. Section 1 of said article 10 of the military and naval code (Hurd's Rev. St. c. 129, p. 1643) authorizes the governor to act when the fact exists, and in any way is made to appear to him. There is no statute requiring cities and villages to defray any portion of the expenses attendant upon the movements of the militia of the state. There is no statutory provision for the equipment, maintenance, or support of the military forces, otherwise than at the expense of the people of the state. The employment of this arm of the state government does not cast upon any local subdivision of the state the expense of the maintenance of the forces; nor are counties, cities, or villages answerable for the damages to person or property occasioned by the torts or trespasses of the officers or privates of the militia. It is for the state, in its sovereign capacity, to determine whether compensation will be made out of its treasury. Of that we will not speak. It is sufficient for all the purposes of this decision that the burden has not been thrown upon the appellant city.

The state has imposed upon municipalities the liability of making partial restitution for injury or damage occasioned to real or personal property (not in transit) by a mob composed of 12 or more persons. Cr. Code, c. 38, § 256a. It is argued that the presence and assistance of the militia will likely operate to relieve cities of much of the danger of liability under this statute, and that therefore, upon grounds of abstract justice and right, the cities should be held to be responsible for the expense of sheltering the troops on such occasions. The legal liability of a city or village cannot be predicated alone on the merits or justice of a claim. Statutory power to create the indebtedness or incur the liability must be found. If this were not so, would it not be equally consonant with reason to argue that the legislature imposed only partial liability on cities to respond in damages for injuries or damage to property by mobs, for the reason that it had not deemed it proper to clothe such municipalities with all power available for the suppression of the mobs and riotous assemblages?

The judgment of the appellate court and that of the circuit court are each reversed, and the cause will not be remanded. Judgment reversed.

(196 Ill. 99)

McSORLEY v. SCHROEDER. (Supreme Court of Illinois. April 16, 1902.) ELECTIONS-BALLOTS-PASTERS-USE BY VOTERS-EFFECT.

1.2 Starr & C. Aun. St. (2d Ed.) p. 1690, provides that none but ballots provided in accordance with the provisions of the ballot law shall be counted. Id. p. 1684, provides that

top of the column headed "Union Ticket," in which appellant's name appeared, and also a cross in the square opposite the name of appellee in the column headed "Petition Ticket," and also three pencil marks drawn lengthwise across the name of Thomas McSorley. The circuit court held that this ballot was not a vote for either party and should not be counted. Of the remaining 82 votes, 41 were cast for Thomas McSorley, and 41 for Fred Schroeder, as president of the board of trustees. Twenty-one ballots had a cross in the circle to the left of the words "Union Ticket" in the column in which appellant's name appeared, and contained no other mark made by the voters. These ballots were counted for the appellant, and there is no dispute as to their having been so counted correctly. Thirty-one ballots had a cross in the circle to the left of the words "Petition Ticket" in the column in which appellee's name appeared, and contained no other mark inade by the voters. These ballots were counted for the appellee as president of the board, and it is not denied that they were so counted correctly. Of the 41 votes cast for McSorley 20 had yellow printed stickers, such as are above described, pasted over the name of one of the candidates for trustee as said ballots were originally printed, and containing the name of "Stephen Bunker," all of the pasters or stickers not being pasted over the name of the same candidate for trustee, but in some instances over the name of one of said original candidates for trustee, and in the case of other ballots over the name of some other of said original candidates for trustee. There was no cross in the square to the left of the yellow sticker so pasted over the name of one of the trustees. Besides the pasters above described, these 20 ballots had a cross in the circle to the left of the words "Union Ticket" in the column in which the name of appellant appeared. The cross and the sticker were the only marks made by the voters which appeared upon these ballots. Of the 41 votes that were cast for Schroeder, 10 of the ballots had a cross in the circle to the left of the words "Petition Ticket" in the column, in which appellee's name appeared, and the same kind of yellow stickers or pasters pasted on in the same way as those on the McSorley ticket; that is to say, they contained the printed name of "Stephen Bunker" pasted over the name of one of the original candidates for trustee, as said ballots were originally printed. The circuit court did not count any of the ballots containing the yellow stickers or pasters as aforesaid. In counting the remainder of the ballots, the court held that McSorley had only received 21 votes and Fred Schroeder 31 votes at said election, and therefore declared Fred Schroeder elected, and entered a decree accordingly.

W. E. Lewis and Morris & Hooper, for appellant. Doyle & Crangle, for appellee.

MAGRUDER, J. (after stating the facts). 1. Did the circuit court err in refusing to count the ballots on which the stickers or pasters were pasted by the voters? Section 26 of the ballot law of June 22, 1891, provides that: "If the voter marks more names than there are persons to be elected to an office, or if for any reason it is impossible to determine the voter's choice for any office to be filled, his ballot shall not be counted for such office. No ballot without the official endorsement shall be allowed to be deposited in the ballot-box, and none but ballots provided in accordance with the provisions of this act shall be counted." 2 Starr & C. Ann. St. (2d Ed.) p. 1690. The ballots upon which these stickers were pasted were not the ballots prepared by the clerk, who was authorized to prepare them. They were certainly not ballots provided in accordance with the provisions of the act of 1891. The only provision of the statute which authorizes the use of pasters is found in section 12 of the act. Id. p. 1684. By that section "it is made the duty of the election officer having charge of the ballots to place the name of a candidate supplied to fill a vacancy in certain contingencies upon the ballot by affixing a paster, or by writing or stamping, before the ballot is delivered to the voter." Roberts v. Quest, 173 Ill. 427, 50 N. E. 1073. In the case at bar there was no such vacancy as is contemplated by section 12. Even under the terms of that section the paster can only be used "when furnished as a part of the official ballot by the proper officer, when a vacancy has happened after the ballots have been printed." Id. Here no official ballots were furnished to the voters by the proper officer with pasters upon them, but the pasters were placed upon the ballots by the voters after they entered the voting booth. In Fletcher v. Wall, 172 Ill. 427, 50 N. E. 230, 40 L. R. A. 617, we held that the insertion of the names of candidates, not printed on the official ballot, by attaching to the ballot tickets or slips of paper on which such names are printed, is unlawful, and is not authorized by section 23 of the election law of 1891. Section 23 provides that "on receipt of his ballot the voter shall forthwith, and without leaving the inclosed space, retire alone to one of the voting booths so provided, and shall prepare his ballot by making in the appropriate margin or place a cross (X) opposite the name of the candidate of his choice for each office to be filled, or by writing in the name of the candidate of his choice in a blank space on said ticket, making a cross (X) opposite thereto." In Sanner v. Patton, 155 Ill. 553, 40 N. E. 290, we held that: "Section 23, which points out the mode or manner of voting after the voter receives the ballot, clearly confers upon the voter the power to insert in the ballot the name or names of such person or persons as he may desire to vote for for any office to be filled at the election, and vote for such