the company to judgment and order of sale of its property for delinquent taxes, it appeals. Reversed in part. George W. Fithian and W. F. Johnson, [2-4] Appellant's railroad runs through sections 33 and 34, town 7 north, range 14 west of the second principal meridian. Said two sections, it is alleged in another objec tion, are claimed to belong to and be emdistrict No. 203 and are also claimed to bebraced in territory comprising high school both of Newton (John G. Drennan, of Chicago, of counsel), for appellant. William E. Isley, State's Atty., of Newton (Newlin, Park-long to and be embraced in the territory comer & Newlin, of Robinson, and C. A. Davidson, of Newton, of counsel), for appellee. FARMER, J. This is an appeal from a judgment of the county court of Jasper county, overruling objections of appellant to the judgment and order of sale of appellant's property for delinquent taxes. The taxes involved are the road and bridge tax for the town of Crooked Creek, in said county, and a high school tax in high school districts Nos. 125, 126, and 203. Dyer, 205 Ill. 575, 69 N. E. 70. It was shown on the trial that both districts had taxed the same property for the same purpose. In our opinion this was sufficient to defeat appellee's claim for judgment against the property of appellant for either high school district tax, and as to the high school tax levy by districts 203 and 125, extended against appellant's property in sections 33 and 34, the judgment is reversed. The judgment against appellant's property for the road and bridge tax is affirmed. Judgment reversed in part. prising high school district No. 125, and that both districts have unlawfully exercised the right to levy and cause to be extended taxes against appellant's property in both sections. Both high school districts could not lawfully exercise the power of levying taxes against the same property for the same purpose. People v. Militzer, 272 Ill. 387, 112 N. E. 57. If one district had the right to ley the tax, the other district did not have such right; but which of the two districts acquired jurisdiction and lawful authority to levy a tax [1] Appellant insists the road and bridge against said two sections was a collateral tax assessed against it for damages for lay-issue, not determinable in this proceeding. ing out, widening, altering, or ditching to Trumbo v. People, 75 Ill. 561; Evans v. drain roads is invalid, because, as a matter Lewis, 121 Ill. 478, 13 N. E. 246; People v. of fact, no damages for the above named purposes had been agreed upon or allowed. Section 56 of the Road and Bridge Act authorizes the levy of a tax for road and bridge purposes of 61 cents on each $100 of the assessed valuation. Section 58 authorizes a levy of not exceeding 20 cents on each $100 assessed valuation, when damages have been "agreed upon, allowed or awarded for laying out, widening, altering or vacating roads or for ditching to drain roads." The proof showed a rate of 72 cents on the $100 assessed valuation was extended by the county clerk against appellant's property for the taxes authorized by sections 56 and 58, and that 11 cents of said rate was for taxes levied for damages under the terms of section 58. The objection made to the road and bridge tax levied under the provisions of section 58 is that no damages had been agreed upon, allowed, or awarded for laying out, widening, altering, or vacating roads, or for ditching to drain roads. The proof showed damages had been agreed upon for the purpose of changing the channel of the Embarras river to protect the road and a bridge crossing the river. We are of opinion the purposes for which the damages were shown to have been agreed upon were sufficient to authorize the levy of the tax extended against appellant's property under section 58. One objection to the school tax in high school districts 125, 126, and 203 was that each of said high school, districts was organized under the act of 1911 (Laws 1911, p. 505), which was held unconstitutional in People v. Weis, 275 Ill. 581, 114 N. E. 331, and that the said districts were therefore void, and the members of the boards of education which levied the tax were neither de facto nor de jure officers, and for that reason the tax levies were void. This question was decided adversely to appellant's contention in People v. Leigh (No. 11670) 118 N. E. 495. CARTWRIGHT, DUNN, and DUNCAN, JJ., dissent. (282 III. 26) FEOPLE ex rel. HAUGENS, County Collector, v. CHICAGO, R. I. & P. RY. CO. (No. 11669.) (Supreme Court of Illinois. Dec. 19, 1917.) Appeal from Marshall County Court; D. H Gregg, Judge. Bernard Haugens, County Collector, against M. L. Bell and A. B. Enoch, both of Chicago, and Barnes & Magoon, of Lacon, for appellant. Andrew Tracy, Acting State's Atty. (Clarence W. Heyl, Quinn & Quinn, and Charles V. O'Hern, all of Peoria, of counsel), for appellee. CARTER, C. J. This was a proceeding in the county court of Marshall county involving the validity of the high school taxes alleged to be due and delinquent to township high school district No. 20, in said county, in the so-called "Henry District." The objections to these taxes were overruled, and judgment entered to that effect in the county court. This is an appeal from that judgment to this court. Proceedings were pending to test the validity of the organization of the district at the time of the hearing in the trial court. May 9, 1916, a petition was filed by the county superintend-16. CONSPIRACY 32-ESSENCE OF OFFENSEent of schools of Marshall county asking for FIELD OF OPERATION OF "CONSPIRACY. the organization of high school districts under Where a conspiracy was formed in Illinois the act of 1911 (Laws 1911, p. 505). It appears to obtain money by means of the confidence game from the record that such election was held and or by false pretenses, defendant, one of the conthe majority of the votes cast were in favor of so spirators, was guilty wherever the field of actual organizing the high school district. Thereupon operation of the "conspiracy," in Illinois or in an order was entered establishing such district | Indiana, and whether it was ever accomplished. under the provisions of said law. Later a board [Ed. Note. For other definitions, see Words of education was elected and a high school or- and Phrases, First and Second Series, Conspirganized. It was to pay the expenses connected acy.] with this school that these taxes were levied. It appears from the briefs of counsel in this case that it is identical as to its facts and the questions of law raised with that of People v. Leigh (No. 11670) 118 N. E. 495, and that the two cases were heard together in the lower court or substantially the same record, and the same ruling was there made. In People v. Leigh, supra, it was held that the organization of the district there involved was validated by the curative act approved and in force June 14. 1917 (Laws 1917, p. 744). On the reasoning of this court in that decision and the cases there cited, it must be held the same as to this district, and therefore it necessarily follows that the judgment of the county court in this pro ceeding was correct. The judgment of the county court will therefore be affirmed. Judgment affirmed. Error to First Branch Appellate Court, First District, on Error to Criminal Court, Cook County; Robert E. Turney, Judge. Fred Buckminster was convicted of conspiracy, and he brings error. Judgment affirmed. Benjamin C. Bachrach, of Chicago, for plaintiff in error. Edward J. Brundage, Atty. Gen., and Maclay Hoyne, State's Atty., and Edward C. Fitch, both of Chicago (George C. Bliss, of Chicago, of counsel), for the People. DUNN, J. The Appellate Court for the First District affirmed a judgment of the criminal court of Cook county convicting CARTWRIGHT, DUNN, and DUNCAN, JJ., Fred Buckminster of conspiracy, and this dissent. defendant. 2. CRIMINAL LAW 370, 371(3)—EVIDENCESIMILAR OFFENSES-GUILTY KNOWLEDge. In a prosecution for conspiring to obtain money by means of the confidence game or by false pretenses, evidence of similar transactions by defendant and his associates was admissible to show the guilty knowledge and intention of defendant, though the swindle in such previous cases failed of consummation. 3. WITNESSES 277(5)—CroSS-EXAMINATION OF DEFENDANT-ACQUAINTANCE WITH PERSONS NOT INVOLVED. In such prosecution cross-examination of defendant, over his objection, in regard to his acquaintance with two persons, one a fake race horse man, and one a "con" man with an international reputation, was improper, and should not have been allowed; such persons not having been involved in the transaction in contro versy. 4. CRIMINAL LAW ~~722(2) — TRIAL - ARGU MENT OF STATE'S ATTORNEY. writ of error has been sued out to reverse the judgment. [1] The indictment charged Buckminster, F. A. May, and J. Miller with conspiring to obtain $500 in money and a check for $3,000 from Martin Hupe by means of the confidence game in the first count, and in a second count by false pretenses. The evidence for the prosecution showed that Hupe was a farmer about 71 years old, living on his farm near Homewood, in Cook county. In May, 1915, an automobile containing four persons stopped in the road near his house, and he Buckwent out and talked with the men. minster was driving, and Miller was one of the men in the car. Miller said he wanted to buy a farm, and, after talking with Hupe about farms in the neighborhood, proposed that Hupe should go with him to look at farms, offering to pay him $5 a day. A few days later Buckminster and Miller returned in the car, and Hupe went with them and looked at various farms, for which he was paid $5. When they separated Miller said that there were a couple of farms in Indiana he wanted Hupe to look at, and he would be back in a few days for that purpose. Ac The argument of the state's attorney in re-cordingly Miller and Buckminster returned in gard to defendant's association with such persons was improper. 5. CRIMINAL LAW 11701⁄2 (5), 1171(1)—APPEAL-HARMLESS ERROR-IMPROPER CROSSEXAMINATION AND ARGUMENT. a few days and took Hupe with them to look at the Indiana farms. When they were a little west of East Chicago, in Indiana, Buckminster said there was something the matConviction of conspiracy will not be reversed ter with the car and he would have to take for the improper argument of the state's attorit to a garage. He drove to a garage in East ney referring to defendant's acquaintance with persons not involved in the transaction in controversy, or for defendant's improper cross-examination as to his acquaintance with such persons, where, without regard to such circumstances, verdict of not guilty could not have been properly rendered on the evidence. Chicago, stopping on the way to let Miller and Hupe out at a saloon to get a drink. They went out on the street and met Buckminster, who said it would take an hour to fix the car. Then Miller proposed taking a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes evidence for the prosecution was clearly amply sufficient to convict Buckminster if it was believed by the jury. Whether this evidence or that of defendant would be believed was a question for the jury to determine, and in our judgment they arrived at the proper conclusion. [2] The prosecution introduced evidence that Buckminster, Miller, May, and others, about a month after the swindling of Hupe, performed a swindle almost precisely duplicating it upon C. O. Olson by which the latter was defrauded of $10,000. Evidence was also admitted, over the defendant's objection, as to transactions with Joseph Stein, a banker of Milwaukee avenue, Chicago, and Henry Gottschalk, of the Homewood State Bank. The evidence of these two witnesses was admissible for the purpose of showing the guilty knowledge and intention of the defendant. While they did not show in either case a completed transaction of the same character as that in which Hupe was involved, the facts proved tended to show a conspiracy against Stein and Gottschalk, respectively, and though the swindle failed of consummation in each case, yet the facts were competent to characterize the defendant's actions. walk. They passed a man on the street with him. There were contradictions in other a pile of money which he was counting, whom points between Hupe's testimony and BuckMiller thought he recognized. Miller address-minster's which need not be detailed. The ed the man, asking if he was not the man who won $100,000 in St. Louis about a month ago. The stranger admitted that he was the man, but stated the amount was only $80,000. They all then went into the side door of a two-story frame building and into a room where there were two chairs and a table. In an adjoining room there was a blackboard on the wall and a man standing near it, and in the corner a table at which was a cashier with a bell behind him, and when it rang the names of horses that won and did not win, and the amounts won, were called off. The wealthy stranger, whose name Hupe subsequently learned was May, went back and forth between the small room and the larger room, apparently making small bets, always winning, and taking Miller and Hupe in on the winnings. When they had accumulated some $4,000 in this way, they all went into the larger room and made another bet, giving a check or memorandum to the cashier, the result of which was that their horse was announced to have won a sum amounting to $14,000. The cashier then said that it was necessary, before the payment of the money, that they should show that they were worth the amount of the check. Thereupon Hupe, Buckminster, and May went to the bank in Homewood, where Hupe got $500 in cash and a cashier's check for $3,000. They returned with the money to East Chicago, where they met Miller, and the $500 and the check were given to the cashier. It was still necessary for the cashier to see that the check was good, and the $14,000 was not paid over at that time, but the cashier promised that Hupe should get the money and get his check back again the next Tuesday. Miller, Buckminster, and Hupe came back to Blue Island in a car, where Hupe got out, and did not afterwards see either Buckminster, Miller, or May. Realizing that he had been swindled, he stopped payment on the $3,000 check. The check was presented the next day to the Edgewater State Bank by Buckminster, and he received $2,000 in cash and credit in the bank for $1,000. He afterwards repaid to the bank $1,500 of the amount of the check, and Hupe lost the other $1,500, besides the $500 cash. Buckminster in his testimony denied that he was in the house in East Chicago where the swindle was effected or had any knowl. edge of what was done there. He admittedly established the defendant's guilt. Without driving the car, as testified to by Hupe, but said that he was merely employed by Miller for that purpose. He said that he got the check the next day from one Mason and cashed it for Mason's accommodation, Mason telling him that Miller got the check in his real estate deal and Miller wanted some money right away; that he was going away, and thought Buckminster could get it cashed for [3, 4] The defendant was cross-examined, over his objection, in regard to his acquaintance with Joseph Weil, called the "Yellow Kid," and his knowledge that Weil was a fake race horse man, and had been convicted and sent to the penitentiary for wire-tapping or the fake race horse game, and as to his acquaintance with one Strosnider and his knowledge that Strosnider had been in various penitentiaries and had "an international reputation as a 'con' man," and had "worked this 'con' game racket on Kirby, and that he was found guilty and sentenced to the penitentiary." During the cross-examination of another witness a rogue's gallery picture of Weil was exhibited. Strosnider and Well had not been involved in the transaction in controversy, and this cross-examination, as well as the statements of the state's attorney, in his argument, in regard to Buckminster's association with these men, was improper, and ought not to have been allowed. [5] The error in permitting the same would have required a reversal of the judgment had not the evidence so completely and thorough regard, however, to these circumstances, a verdict finding the defendant not guilty could not have been properly rendered on the evidence. The conduct of the state's attorney showed a lack of appreciation of professional propriety and official duty, and is to be condemned, though in view of the record in this case the judgment will not be reversed because of it [6] It is earnestly contended that the in- defendant in error, on July 9, 1914, for 40 dictment does not support the evidence, be- barrels of a certain brand of olive oil at cause the conspiracy proved had for its ob- $1.30 per gallon; said oil to be delivered ject the obtaining of money and property in within one year, terms 60-day draft with the state of Indiana, and not in the state of shipment. On August 10th following, the Illinois. The position of the plaintiff in er- plaintiff in error (hereafter called plaintiff) ror is that a conspiracy formed in this state called upon defendant in error (hereafter for the doing of wrongful acts in another called defendant) for 5 barrels of olive oil. state is not punishable under the statute of Defendant on August 13th by letter acIllinois. The statute is not so restricted. It knowledged receipt of the said order for 5 punishes the act of conspiring to do certain barrels of the 40 barrels ordered July 9th wrongful acts, without regard to where such stating the European situation had affected wrongful acts are to be done. The crime the market in olive oil, and that the oil with which the plaintiff in error was charged quoted plaintiff at $1.30 was then worth $2.was conspiracy to obtain the money and prop-50 per gallon. The letter stated: erty of Martin Hupe by false pretenses and by means of the confidence game. Whether that object was ever accomplished or where it was to be accomplished are questions that are immaterial to the guilt of the plaintiff in error. If the conspiracy was formed, the plaintiff in error was guilty wherever might be the field of operation. "However, your order was taken for forty barrels, and, subject to immediate acceptance, we shall deliver this quantity net spot cash. It is the request of our credit department that we allow no credit on oil sold at this low price, and we shall therefore be obliged to give you this oil on these terms." Plaintiff called upon defendant to deliver him, as per the terms of his contract, 10 bar The judgment of the Appellate Court will rels of oil on October 12, 1914, 10 on May be affirmed. Judgment affirmed. (282 III. 281) COPPOLA v. MARDEN, ORTH & HAS- (Supreme Court of Illinois. Dec. 19, 1917. 1. COURTS 219(38) — JURISDICTION - ILLINOIS SUPREME COURT-HOW DETERMINED. 14, 1915, and 15 on July 2, 1915. Defendant refused in each instance to sell him the oil on credit, but offered him the same for cash at the contract price of $1.30 per gallon. Plaintiff refused to pay defendant cash for the oil and purchased it of other firms, the 10 barrels purchased May 14, 1915, costing $1.85 per gallon, and the other 30 barrels costing $2.20 per gallon; this being the market price at that time. Plaintiff Whether the Supreme Court has jurisdiction brought suit in the municipal court of Chion account of the amount involved depends up-cago against defendant for the difference beon the judgment in the trial court, and not in tween the contract and market price at the the Appellate Court. 2. SALES 418(2)-BREACH OF CONTRACT-place and on the different times purchased, and recovered a judgment for $1,537.50. On Where defendant took plaintiff's order for appeal to the Appellate Court the judgment olive oil at a stipulated price, terms 60-day draft was reversed and a judgment entered with shipment, and later, owing to market conditions, refused shipment except for cash, plain- against defendant for $21.67, this being intiff need not pay cash and so be entitled to dam-terest at the legal rate upon the price of the ages only in the amount of interest for 60 days oil for a period of 60 days, the length of on the sums involved, but he could purchase credit extended by the contract. Plaintiff elsewhere on his terms and recover the difference has brought the record to this court for rein price; the 60 days' credit being of the essence of the contract. view by writ of certiorari. DAMAGES. Error to Appellate Court, First District, on Appeal from Municipal Court of Chicago; Harry C. Moran, Judge. not having granted a certificate of importance, and the judgment of that court being for less than $1,000 such judgment is final. It is the judgment of the trial court in this Court, which determines this court's jurisdiccase, and not the judgment of the Appellate [1] Defendant insists, the Appellate Court Action by G. S. Coppola against the Marden, Orth & Hastings Company. To review a judgment of the Appellate Court reversing a judgment for plaintiff, he brings certiorari. Judgment of Appellate Court reversed (204 Defendant insisted in the Trial and AppelIll. App. 454) and of municipal court aflate Courts, and insists here, that its solici firmed. Donald L. Morrill and Worth Allen, both of Chicago, for plaintiff in error. Culver, Andrews, King & Stitt, of Chicago, for defendant in error. tion to issue writs of certiorari. tor had no authority to bind it by contract to sell plaintiff oil on credit, and that plaintiff failed to prove a contract allowing him 60 days' credit. Both the Trial and Appellate Courts held against defendant on that question, and, we think, correctly. FARMER, J. G. S. Coppola, plaintiff in [2] The other question involved relates to error, gave his written order to a solicitor the measure of damages for the breach of of the Marden, Orth & Hastings Company, the contract. The plaintiff contends, and It cannot be denied that there are authorities of high respectability sustaining, directly or indirectly, the measure of damages contended for by defendant; but the contrary authorities seem to us to be supported by sounder policy and reason. It is a sound and wholesome rule which makes it the duty of one damaged by the unlawful act of another to use reasonable diligence to prevent or lessen the damage; but to construe that rule to apply to a case of this character would be to impose a burden on the vendee of doing what the contract relieved him from, in order that the guilty party might be saved from the full consequences of his willful wrongdoing. We believe it to be sound both in law and morals that commercial contracts of a lawful character, knowingly and the trial court held, he was entitled to the difference between the contract price and the market price of the oil at the place and within the time mentioned in the contract, which was found to be $1,537.50. Defendant contends, and the Appellate Court held, plaintiff was only entitled to interest on the amount of the contract price for 60 days, amounting to $21.67. While it is true that upon a breach of a contract of sale by the seller the buyer is required to do what is reasonable to minimize or reduce his loss, he is not required to do all that is possible. Sutherland on Damages (3d Ed.) § 90; 24 Am. & Eng. Ency. of Law, 1156. The proof showed the securing of 60 days' credit to pay for the oil was one of the considerations moving plaintiff to enter into the contract for the purchase of the oil from de- understandingly entered into, are binding fendant. Plaintiff testified he would not obligations on both parties to them, and, give defendant's agent an order for the oil as said in substance in Illinois Central R. when first offered 30 days' credit, but insist- Co. v. Cobb, Christy & Co., 64 Ill. 128, it ed upon and was given 60 days' time in comes with an ill grace from a party who which to pay for the oil. Time in which to has refused to perform the agreement to pay, or credit, was clearly a material ele- demand that the other party, who has not ment of the contract. Defendant refused been at fault, should do something contrary to perform its contract to deliver the oil to the terms of the contract to mitigate or on 60 days' credit. It is apparent from the lessen the damages resulting from the refusevidence that the advance in price was the al to perform the contract. The following reason for its refusal, but the reason ascases support, either directly or in principle, signed was that the contract was not for a this view: Frohlich v. Independent Glass sale on credit but was for cash. Plaintiff Co., 144 Mich. 278, 107 N. W. 889; Campfield contended the contract gave him 60 days' v. Sauer, 111 C. C. A. 14, 189 Fed. 576, 38 time and insisted upon its performance ac-L. R. A. (N. S.) 837; Cook Mfg. Co. v. Rancording to its terms. Whatever may have dall, supra. been plaintiff's reason for wanting 60 days in which to make payment, the contract gave him that privilege and he was entitled to it. Although there are some authorities to the contrary, we do not think he was required to pay defendant or any one else cash for oil to take the place of oil he had contracted to pay for in 60 days. To have done so with defendant would have been, in effect, acquiescence in defendant's contention of what the contract was. We do not consider it important whether plaintiff could have borrowed the money to pay cash for the oil. He contracted for it on credit for reasons sufficiently important to him, and if he had not been given the credit he would not have contracted to purchase the oil of defendant, and he was under no obligation to pay cash for the oil in order to lessen the damages resulting from defendant's failure to keep its promise and perform its contract. Pertinent and applicable to this discussion is language of the Supreme Court of Iowa in Cook Mfg. Co. v. Randall, 62 Iowa, 244, 17 N. W. 507. The court there said: "It is true, as is said by counsel for plaintiff, that defendants were required to do all they reasonably could do to prevent damages,' but to require them to pay cash, when they had contracted for credit, is not within the bounds of reason. The condition as to credit was an important and essential provision of the contract." The judgment of the Appellate Court is reversed, and the judgment of the municipal court affirmed. Judgment of Appellate Court reversed. Judgment of municipal court affirmed. (222 N. Y. 159) CLEVELAND, Commissioner of Board of Waterworks, et al. v. CITY OF WATERTOWN et al. (Court of Appeals of New York. Dec. 21, 1917.) 1. CONSTITUTIONAL LAW 65-MUNICIPAL CORPORATIONS 4-FORM OF GOVERNMENT STATUTORY PROVISIONS LEGISLATIVE POWERS. Laws 1914, c. 444, setting forth a number of forms of government for cities, and authorizing any city of the second or third class to adopt any of such forms of government by a Const. art. 3, § 1, providing that the legislative majority vote of its electors, does not violate power shall be vested in the Senate and Assembly, or article 12. § 1, providing that it shall be the duty of the Legislature to provide for the organization of cities and incorporated villages, or section 2, providing that laws shall not be passed, except in conformity with the Constitution, or any other provision of the state or federal Constitution. 2. CONSTITUTIONAL LAW 38-VALIDITY OF STATUTES-TEST. A statute cannot be judicially declared beyond the power of the Legislature to enact, unless some provision of the Constitution which is in conflict with it can be specifically pointed to. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |