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connected therewith on either side. From business. It is a question of fact whether a this point east the track is fenced, but it is certain point constitutes part of the deput not inclosed between the cattle guard and the grouuds or whether the erection of a fence west end of the depot grounds. The plain at any particular place would interfere with tiffs live and are in business at Bridal Veil. the company's employés in the performance On the evening of April 11, 1904, they turned of their duties.” 3 Elliott, Railroads, $ 1202. their horses out to graze on the uninclosed
In Grosse v. Chicago & Northwestern R. Co.. lands south of the depot as they had been
91 Wis. 482, 65 X. W. 185, the unfenced accustomed to do for some time. During the portion of the right of way was half a mile night the horses strayed onto the track of in length and extended north beyond a switch the defendant, and were killed by its moving
which was 1,400 feet from the depot building. trains. The evidence tended to show that At a highway crossing a short distance south the horses entered upon the tract west of of the switch it was customary to load and the east end of the passing track, but were unload freight. Between such crossing and run down and killed east of the cattle guard. the switch, plaintiff's colts came upon the The court below directed a nonsuit on the right of way and were killed, and it was ground that the place of entry was within
held that it was a question for the jury the depot grounds of the defendant and at whether the place of entry was a part of the a place it was not required to fence. The depot grounds. In Rhines V. Chicago & statute makes a railroad company liable for Northwestern R. Co., 75 Iowa, 597, 39 N. W. the value of stock killed by its moving trains, 912, it was held that whether that part of the engines, or cars, upon or near an unfenced company's ground which was not the ordinary track (B. & C. Comp. § 5139), and is broad place of receiving or delivering freight but enough to include animals killed at the depot where freight of a single shipper was hangrounds. It has, however, been held that the dled, should be left unfenced, was a question statute did not extend to depot grounds be of fact for the jury. And, in Dinwoodie v. cause the purposes for which they are used, Chicago, etc., Ry. Co., 70 Wis. 160, 35 N. W. and the right of public convenience are incon 296, it was likewise held to be a question of sistent with the obligation to fence at that
fact whether the defendant's right of way at point. Moses v. Southern Pacific Co., 18 Or. a point 60 rods from the station building 385, 23 Pac. 498, 8 L. R. A. 135; Sullivan where there was a side track in addition to v. 0. R. & N. Co., 19 Or. 319, 24 Pac. 408. the main track was necessary and conven
The question for decision upon the trial, ient and actually used for loading and untherefore, was whether the place where the loading freight so as to make it a part of animals of the plaintiffs entered upon the
the depot grounds, thus relieving the company track of the defendant was within or with from the duty of fencing it. And in Bean out the depot grounds. If within the depot v. St. Louis, Iron Mountain & So. Ry. Co., grounds, the plaintiffs cannot recover in this 20 Mo. App. 611, it was ruled that where action, but if not, defendant is liable under a COW was killed adjacent to a railroad the statute unless the plaintiffs were guilty station and at a place used by the railroad of contributory negligence. The parties dif for switching purposes in connection with fer radically as to whether the question thus its station grounds, the court could not depresented is one of law or of fact. The plain- | clare as a matter of law that the company tists claim that it was a question of fact, and was not bound to fence its track at thar should have been submitted to the jury, while point. See, also, Indiana, etc., Ry. Co. . the defendant insists that it was a matter of Hale, 93 Ind. 79; Chicago, etc., Ry. Co. v. law for the court. The rule is, we take it, Modesitt, 124 Ind. 212, 24 N. E. 986; Mcthat whether a railway company shall fence Donough v. Milwaukee, etc., Ry. Co., 73 Wis. its track at its depot grounds is a question of 223, 40 N. W. 806. The depot or station law, and, if the testimony shows that animals grounds of a railway company is the place entering upon such grounds are injured or kill where passengers get on and off the trains ed by moving trains, the owner cannot recor and where freight is loaded and unloaded. er under the statute, and the liability of the and includes all grounds reasonably necessary company is for the court. Moses v. Southern or convenient to that purpose, together with Pac. Co., 18 Or. 385, 23 Pac. 198, 8 L. R. A. the necessary tracks, switches, and turnouts 135; Eaton v. Oregon R. & Nav. Co., 19 Or. thereon or adjacent thereto for handling and 371, 391, 24 Pac. 413; Eaton v. McNeill, 31 Or. making up trains, storage of cars, and the 128, 49 Pac. 875; Ilarrey y. Southern Pac. Co., like, and so much of the main track outside 46 Or. 505, SO Pac. 1061. But it is often a dis the switches as is requisite for the proper puted question as to whether a certain point bandling of trains at the station: 3 Words constitutes a part of the depot grounds, and & Phrases, 2005 et seq.; 9 Am. & Eng. Enc. if the evidence is conflicting or different in Law (2d Ed.) 367; Grosse v. Chicago, etc.. ferences may be drawn from it, the question Ry. Co., 91 W'is. 482, 65 N. W. 185; Grondin is for the jury, and not the court. Mr.
v. Duluth, etc., Ry. Co., 100 Mich. 598, 59) Elliott says: “While it is purely a question
N. W. 229. And where grounds have been of law whether or not a railway company
appropriated, surveyed, and set apart by the shall fence at its depot grounds or at points
railway company for station or depot purwhere the erection of a fence would inter poses, it affords very strong, if not conclusive, fere with the company in transacting its
evidence that their boundaries and extent are
such as and no more than are necessary and proper, and their limits should not be curtailed or extended by the court or jury unless in a very clear case: 3 Elliott, Railroads, $ 1194; Chicago, etc., Ry. Co. v. Campbell, 17 Mich. 263, 11 N. W. 132; McGrath v. Detroit, etc., Ry. Co., 57 Mich. 555, 24 N. W. 851; Rabidon v. Chicago, etc., Ry. Co., 115 Mich. 390, 73 N. W. 386, 39 L. R. A. 405.
Yow, there was no evidence in this case that the place where the plaintiffs' horses entered upon defendant's track was within the limits of the station grounds, as set aside and designated by the defendant, or within such grounds, as hereinbefore defined, and therefore the court could not declare as a matter of law that defendant was not required to fence its track at such point. The north track constructed by the defendant in 1902, so far as the evidence shows, was intended to be used for the passing of trains, and was in no way connected with or necessary to the use of the depot grounds; nor, indeed, that it was on such grounds. We think, therefore, that the question whether the point where the horses entered was within the depot grounds was a question for the jury, and should have been submitted to them. A claim is made that plaintiffs were guilty of contributory negligence in turning their horses out to graze upon the uninclosed lands near the depot, but whether this was such contributory negligence under the circumstances as will defeat a recovery was for the jury. Moses v. S. P. Co., supra; 2 Thomp. Neg. $ 2004.
Judgment reversed, and new trial ordered.
clearly not a private track confined exclusively to the use of defendant or any limited number of persons, and, being available to the public generally for shipping purposes, its use is a public one. The number of shipments made by different individuals or firms over a track is not the criterion by which to judge whether or not it is a public track. The public or private character of a track or way depends upon the right of the public generally to its use and not upon the extent of the exercise of that right. If such right is confined to a limited number only, it is a private use and a private track, although such persons may use it an equal or unequal number of times each, while, if it is available to all the public who desire to use it for shipping purposes, it is a public use, although some one or more of the public may use it more frequently than others. As stated in Phillips v. Watson, 63 Iowa, 33, 18 N. W. 659, "if all the people have the right to use it, it is a public way, although the number who have occasion to exercise the right is very small.” Elliott on Railroads, (3d Ed.) $ 961; Bridal Veil Lumber Co. v. Johnson, 30 Or. 210, 46 Pac. 790, 34 L. R. A. 368, 60 Am. St. Rep. 818; Towns v. Klamath County, 33 Or. 233, 53 Pac. 604.
The former opinion sufficiently covers the only other point in the case, and we adhere to that opinion. The decree of the lower court will therefore be affirmed.
(48 Or. 479)
WOLFARD et al. v. FISIIER. (Supreme Court of Oregon. Nov. 21, 1906.) RAILROADS - RIGIITS IN STREETS - USE OF
Where a railway switch, though used largely by defendant, is open to all persons for shipping purposes, it is a public track, and its presence in a public street does not constitute a nuisance per se.
[Ed. Note.--For cases in point, see Cent. Dig. vol. 41, Railroads, SS 195, 199.]
On Rehearing. Affirmed.
(48 Or. 359) HEYWOOD BROS. & WAKEFIELD CO. v.
DOERNBECHER MFG. CO. (Supreme Court of Oregon. Nov. 21, 1906.) 1. COSTS--TAXATION ON APPEAL.
Laws 1903, p. 209, provides that costs and disbursements shall be taxed, and allowed by the court or judge, but if any objections are made to the items of the cost bill, the clerk shall enter the same as a part of the judgment. If objections duly verified are filed, the court or judge must, without a jury, proceed to hear the issues involved on evidence introduced, each party being authorized to except to the ruling of the court or judge on questions of law, and appeal from such allowance and taxation. Held, that such section had no application to the taxation of costs and disbursements on appeal to the Supreme Court. 2. SAME-HEARING BY CLERK FINDINGS.
There being no statute or rule regulating the taxation of costs on appeal, where objections are filed, such objections are properly heard by the clerk of the Supreme Court in the first instance, his findings being subject to review by the court.
[Ed. Note.--For cases in point, see Cent. Dig. vol. 13, Costs, $ 1006.] 3. SAME-OBJECTIONS-VERIFICATION.
Where objections to the taxation of costs, though not verified, were accompanied by a supplemental affidavit which explained the item objected to, there was a substantial compliance with Laws 1903, p. 210, requiring objections to items of costs to be verified. 4. REVIEW
The taxation of $100 for transcribing stenographer's notes of the testimony in a case, which expense was incurred in preparing the
HAILEY, J. On the rehearing in this case it was strenuously contended by the counsel for the plaintiff that the track in question is used for private purposes only, for the benefit of defendant, and, being so used on a public street. is a public nuisance per se. The evidence, however, shows that, while the track is used largely by the defendant for shipping in grain for his mill and shipping out his products, it has also been used by others, including at least two of the plaintiffs, for shipping other products, such as lumber, shingles, brick, sand, hops, and other freight, and is open to all persons for shipping purposes. Such being the case, it is
case for presentation to the trial court for ar the same and indorse upon, or append to, gument, was a matter within the trial court's
the verified statement the charges allowed or discretion which could not be reviewed by the Supreme Court unless brought there by appeal.
disallowed, and that the party aggrieved by
the decision of the clerk in the allowance of Appeal from Circuit Court, Multnomah
the costs and disbursements might have County.
such action reviewed by the judge in a sumAction by Heywood Bros. & Wakefield
mary manner, by filing a motion in the cause Company, a corporation, against Doernbech
to have the costs and disbursements retaxel er Manufacturing Company. On motion to
(Id. 8 569). These sections have been amendretax costs on appeal. Motion denied.
ed so as to require the costs and disburseA. King Wilson and W. T. Muir, for appel ments to be taxed and allowed by the court lant. Cake & Cake and 0. L. Price, for re or judge, but, if no objections are made to spondent.
the itens of the cost bill, the clerk is requir
ed to enter the same as a part of the judg. MOORE, J. This is a motion assailing the ment. If objections duly verified are filed, sufficiency of objections to a cost bill and however, the court or judge must, without a to strike from the files findings made there. | jury, proceed to hear the issues involved,
The judgment herein having been re and in doing so may take relerant and comversed (86 Pac. 357), a cost bill was filed petent testimony produced by either party which contained a claim for the sum of and thereupon determine the matter. Each $100 paid by the defendant to the official
party may except to the ruling of the court stenographer for transcribing the notes of
or judge upon the questions of law arising the testimony given at the trial. The plain- at such hearing and the same shall be emtiff's counsel' filed an objection to such claim bodied in a bill of exceptions and an apon the ground that a stipulation had been peal may be taken from such allowance and entered into by the parties to the effect that taxation. Laws Or. 1903, p. 209. A perusthe cause should be tried in this court on al of the amendment referred to will show an abstract of record, and that the original that its provisions are applicable only to bill of exceptions was not to be copied but the trial court. It may also well be doubtthat the agreement did not provide for the ed if the original statute was ever intended payment of the expenses of transcribing such to regulate the manner of taxing costs and notes. The objections so filed were not veri disbursements incurred on appeal. This fied, but an affidavit, made by plaintiff's court, however, has generally followed the counsel, was filed at the same time, wherein statute thus prescribed and the practice in it was stated that the costs of extending the this respect has acquired the binding force notes were divided and the defendant's part of a tacit rule. As the consideration of causes thereof was the sum so paid, and that the on appeal demand the time of the court, the testimony taken was used at the argument taxation of contested claims for items of in the lower court. Based on the issues cost and disbursements have heretofore been thus made, the clerk of this court made find submitted to the clerk as a referee for his ings of fact, respecting the several items in. determination in the first instance, subject the cost bill, but disallowed the claim for to review upon motion by a party aggrieved transcribing the notes, whereupon defend by his allowance or rejection. As this pracant's counsel filed the motion hereinbefore tice facilitates the dispatch of business, and mentioned and an affidavit showing that it as the statute now in force does not apply was necessary for the trial judge to examine to this court, we shall adhere to such prothe extended transcript of the notes, because cedure, though no formal rule to that effect of the objections of the plaintiff's counsel to has been adopted. The findings made by the the bill of exceptions, and that the sum of clerk upon the objections to the cost bill $100 was requisite and incurred in prepar will, therefore, not be stricken from the files, ing the cause for appeal.
but his action in rejecting the claim for It is contended by defendant's counsel transcribing the notes of the testimony, harthat the clerk of this court has no authority ing been challenged by a motion, will be reto make findings of fact on contested items viewed. of a cost bill or to determine the matters As a preliminary matter the sufficiency relating thereto, which duty devolves on the of the objections will first be considereil. court, and hence the findings complained of The statute declares that they must be verishould be stricken from the files. The stat fied. Laws Or. 1903, p. 210. The objections ute originally declared that costs and dis interposed failed technically to comply with bursements should be taxed and allowed by this requirement, but there was filed at the the clerk (B. & C. Comp. $ 568), and also pro same time a supplemental alidavit which vided that, when objections were made to a explained the item controverted, and this, claim for costs, the party seeking to recover in our opinion, was a sufficient obedience to the sums so demanded was required, within the provision of the statute. The charge of a given time, to file with the clerk a verified $100 for transcribing the stenographer's statement, showing the materiality and notes of the testimony was an expense innecessity of each item so objected to, where curred in preparing the cause for presentaupon the clerk was required to pass upon tion to the lower court for argument, and
the taxation thereof is a matter with which this court cannot intermeddle or even review unless the question has been regularly brought here by an appeal, which has not been done in this instance. The clerk, therefore, very properly disallowed the claim, and, this being so, the motion to retax is denied.
tracting of indebtedness for the purpose of obtaining control of public utilities. Held, that such act was not in violation of Const. art. 11, $ 5, providing that acts for the incorporation of cities and towns shall restrict their powers of taxation, borrowing money, contracting debts, and loaning their credit.
Appeal from Circuit Court, Marion County; William Galloway, Judge.
Suit by J. E. Murphy against the city of Salem. From a judgment in favor of defendant, plaintiff appeals. Aflirmed.
W. H. Holmes and M. E. Pogue, for appellant. John H. McNary and Tilmou Ford, for respondent.
( 19 Or. 54)
MURPHY v. CITY OF SALEJ. (Supreme Court of Oregon. Nov. 21, 1906.) 1. STATUTES-TITLE-PLURALITY OF SUBJECTS.
Sp. Law's 1903, p. 337, was entitled “An act to amend" certain specified sections "of an act entitled 'An act to incorporate the city of Salem, and to repeal an act entitled "An act to incorporate the city of Salem," approved October 15, 180-2, and an act entitled "An act to incorporate the city of Salem,” approved February 15, 1893, and to repeal all acts and parts of acts in conflict therewith,' approved f'ebruary 17, 1899, and to amend" certain specified subdivisions of such "act as amended by certain other sections "of an act entitled 'An act to amend (certain sections) of the * * * act,' approved February 151, 1901.” Acts 1903, § 1, amended the act incorporating the city of Salem by extending the territorial limits thereof so as to include plaintiff's land. Held, that the act of 1903 was not in violation of Const. art. 4, § 20, requiring that every act shall embrace but one subject which shall be clearly expressed in its title, etc.
[Ed. Yote.--For cases in point, see Cent. Dig. vol. 44. Statutrs, $$ 125, 126, 171, 204.] 2. SAME-AMENDATORY ACTS.
The title to an amendatory act is sufficient if it refers to the particular seciion it is intended to alter, and is not violative of ('onst. art. 1. $ 20, requiring that every act shall embrace but one subject which shall be expressed in its title, unless the provisions of the amenament are such that they could not have been included in the original art as matters properly connected therewith.
[Ed. Note.--For cases in point, sre Cent. Dig. vol. 41, Statutes, $ 204.1 3. SAME-SUBSTITUTION OF WORDS.
Sp. Laws 1899, p. 921, was entitled “An act to incorporate the city of Saiem," and to repeal an act entitled “An act to incorporate the city of Salem," approved October 1862. etc., and to repeal all acts and parts of acts in conflict "herewith.” Special Laws 1903, p. 337, amending the former act, in purporting to set out its title introduced the number "1.5" in the space between the word “October" and the number "1862" and changed the word "herewith" to "therewith.” Heid, that the insertion of such number and the substitution of the word, were insufficient to defeat the amendment.
[Ed. Note.-For cases in point, see Cent, Dig. vol. 44, Statutes, $ 205.] 4. MUNICIPAL CORPORATIONS-INCORPORATION
ACT – ALTERATION--l'OWERS OF TAXATIONCREDIT.
Laws 1903, p. 337, $ 23, amending Salem incorporation law, provides that the common council shall not create any debt or liability provided that at the end of each year an estimate should be made of the actual revenues to be derived from all sources, and from the tot:ll of that estimate the total of fixed charges should be deducted, and the disbursements of the city council should be restricted to the balance. That no debt should be contracted in excess of the estimated revenues, except in case of an emergency, etc., and that the indebtedness of the city should not exceed $20,000 except as provided by section 6, which authorizes the con
MOORE, J. This is a suit by J. E. Murphy against Charles Lembcke, John W. Roland, and W. J. Culver, as assessor, clerk, and sheriff, respectively, of Marion county, and also against the city of Salem, to enjoin the assessment of plaintiff's real property and tle levy thereon, or the collection therefrom of any municipal tax, and involves the constitutionality of an act of the legislative assembly (Sp. Laws Or. 1903, p. 337), attempting to amend the charter of that city so as to include within its boundaries plaintiff's premises, containing about 23 acres of farm land and having thereon a dwelling house, barn, outbuildings, and a tile factory. The cause was tried on an agreed statement of facts, resulting in a decree dismissing the suit, and plaintiff appeals.
It is maintained by his counsel that the title of the act referred to contravenes section 20 of article 4 of the organic law of the state, in that it is insufficient to support the provisions of the attempted enactment. The act complained of is entitled as follows: "An act to amend sections two (2), five (5), six (6), eight (8), ten (10), fifteen (15), twentythree (23), twenty-five (25), and seventy-four (74), of an act entitled 'An act to incorporate the city of Salem, and to repeal an act entitled “An act to incorporate the city of Salem," approved October 15, 1862, and an act entitled "An act to incorporate the city of Salem," approved February 15, 1893, and to repeal all acts and parts of acts in conflict therewith,' approved February 17, 1899; and to amend subdivisions nine (9) and fourteen (14) of section six (6) and sections five (5), fifteen (15), twenty-five (25), and seventy-four (74) of said act as amended by sections one (1), two (2), three (3), four (4), five (5), and ten (10), of an act entitled 'An act to amend section five (5), subdivisions nine (9) and fourteen (14) of section six (6), and sections fifteen (15), twenty-five (25), twenty-seven 27), thirtyone (31), forty-seven (47), sixty-one (61), and seventy-four (74) of the aforesaid act,' approved February 15, 1901." The clause of the fundamental law so claimed to have been infringed is published as follows: "Every act shall embrace but one subject, and matters properly connected therewith, which subjects shall be expressed in the title. But if any
subject shall be embraced in an act which ed shall be set forth and published at full shall not be expressed in the title, such act length" (Const. Or. art. 4, § 22), the amendshall be void only as to so much thereof as ment strictly complies with this requirement. shall not be expressed in the title.” Const. The title of an amendatory act is suflicient Or., art. 4, $ 20.
if it refers to the particular section it is inThe act under consideration, so far as tended to alter and is not violative of article deemed material, is as follows:
1, section 20, of the fundamental law of the Section 1. That section two (2) of the said state, unless the provisions of the amendaet incorporating the said city of Salem, ment are such as could not have been inOregon, be amended so as to read as follows: cluded in the original act as matters properly Sec. 2. The limits of the said city shall be connected therewith. David v. Portland Waas follow's'"-setting out the boundaries of ter Committee, 14 Or. 98, 12 Pac. 174; State the city as given in the act of February 17, 4. Phenline, 16 Or. 107, 17 Pac. 572; Ex 1899 (Sp. Laws Or. 1899, p. 921). "Pro parte Howe, 26 Or. 181, 37 Pac. 536; State vided, that on and after the first day of 1. Robinson, 32 Or. 43, 48 Pac. 357. Any October, 1903, the limits of said city shall amendment that introduces new subject-matbe as follows”-particularly describing the ter into an act is not germane thereto, and boundaries so as to include, with other prem could not have been included in the original ises, plaintiff's land.
statute. 14 Am. & Eng. Enc. Law (2d Ed.) It is stated in the brief of plaintiff's coun 1004, note 4; 20 Cyc. 1187, note 97. Thus, sel that the framers of the Constitution, in under a Constitution which provided that the clause thereof hereinbefore quoted, hav
"each law shall contain but one subject ing selected the word “subjects," which must which shall be clearly expressed in the title," be expressed in the title of an act, the plural
an act regulating the trial of misdemeanors torm thus adopted necessitated a declaration cannot, by a mere reference to the title, be in the title in question that the act, incor amended so as to provide for the trial of porating the city of Salem, was not only to felonies. · Ilarper v. State, 109 Ala. 28, 19 he amended, but that the boundaries of the South. $57. So, too, an act regulating the municipality were also to be enlarged. taking and catching of fish in inland lakes, very ingenious argument, founded on the use (annot be amended, unless the title is disof the word "subjects” was rendered inef closed, so as to include other waters than t'ectual at the trial by an examination of the such lakes. Fish v. Stockdale, 111 Mich. 46, enrolled copy of the Constitution which dis 69 X. W. 92. Before resorting to this rule, closes that the singular form only of that to determine wliether or not the amendment word is there used, and that a mistake has complained of in section 2 of the act of been made in publishing this clause of the
February 17, 1903, introduces new subjectorganic law. It will be remembered that matter into the original act, it becomes nethe author of the act now under considera essary to consider the title of the amendatory tion in framing the bill set out in section 2 statute. thereof the entire section of the same number The title of the act attempted to be amendis it then existed (Sp. Laws Or. 1899, p. ed is as follows: "An act to incorporate :21), and also displayed the section as it the city of Salem, and to repeal an act was to be amended. The degree of care entitled 'An act to incorporate the city of manifested in thus presenting the original Salem,' approved October, 1862, and an act section and the proposed amendment in the entitled 'An act to incorporate the city of Sabill evinces an abundance of caution that is lem,' approved February 15, 1893, and to renot usually exercised in preparing measures peal all acts and parts of acts in conflict for enactment.
herewith." Sp. Laws Or. 1899, p. 921. A In Montgomery v. State, 107 Ala. 372, 18 comparison of this title with that of the South. 157, in construing clauses of a Con amendatory act (Sp. Laws Or. 1903, p. 337), stitution which provided that "each law as hereinbefore set out, will show that the shall contain but one subject which shall be latter title, in purporting to detail the former, clearly expressed in the title," and also re introduces the number "15" in the space bequired an amended law to be "re-enacted and tween the word "October," and the number published at length," it was held that setting "1862," and also changes the last word out in an act as altered, without reciting the quoted from "herewith" to "therewith." It old law as it stood before the amendment is contended by plaintiff's counsel in arguwas a sufficient compliance with the require
ment that the substitution of the latter word ments of the fundamental law. The manner for the former was such an error as to defeat of stating the amendment of the boundaries, the amendment. Statutes, like all other writset out in the act of February 7, 1903, is not ings, are not to be overthrown on account of material to a decision herein, and is mention errors, mistakes, or omissions therein, if the ed only because of a criticism thereof in intention of the legislative assembly can be plaintiff's briefs. Unusual care seems to have collected from the entire language used. . heen exercised in this respect, and as the Endlich, Int. of Statutes, $ 302; Sutherland, organic law declares that "no act shall ever Statutory Construction, $ 260; State v. Robinhe revised or amended by mere reference to son, 32 Or. 43, 48 Pac, 357; School Directors its title, but the act revised or section amend v. School Directors, 73 Ill. 249.