The proceeding to open the road in 1905 was] wife except his homestead estate. He was an admission by the public authorities having charge of the highways that there was no public road there at that time. Town of Princeton v. Templeton, 71 Ill. 68; City of Chicago v. Hill, 124 Ill. 646, 17 N. E. 46; Shields v. Ross, 158 Ill. 214, 41 N. E. 985. At the same time the highway commissioners bought the south 30 feet of the Martin tract from Elizabeth Martin, and, the plan of the commissioners being to have the road on the section line, Mrs. Martin moved her fence back 30 feet before Martha E. Weber bought the tract. Elizabeth Martin, the former owner of the tract, moved away from the place in October, 1908, and shortly afterward sold the property to Martha E. Weber.

the town of Buck; that a proper petition had PEOPLE ex rel. MATTINGLY et al. v. SNE- been filed with the town clerk requesting him

Appeal from Circuit Court, Edgar County; townhouse, whereat Snedeker received 176 John H. Marshall, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The information in this last case challenged the existence of the court, which was characterized as a pretended court, and called upon the respondent to show by what warrant he claimed to exercise the powers of a judge of a court having no legal existence. In Hinze v. People, 92 Ill. 406, page 413, this court said:

"The statute * provides that the writ shall lie, as well where any person unlawfully holds or executes any office or franchise, as where any person shall usurp or intrude into any office or franchise. If the law by which it is claimed the office is created is invalid and

of no effect because in contravention of the Constitution, any person who assumes to hold or execute such office must necessarily do so unlawfully, and therefore come literally within the language of the statute-that is, unlawfully hold and execute such office.' Whether there can, legally speaking, be a usurpation or intrusion, when there is no lawful office, is not, therefore, a material inquiry. Although there may have been no unlawful usurpation or intrusion, there was an unlawful holding and executing of an office, if the law by which it is claimed to have been created is unconstitutional."

ficer from exercising power not conferred upon him or in territory in which he was not authorized to act. It is largely on the doctrine laid down in that case that the text relied on in High on Extraordinary Legal Rem edies is based. We do not think anything is said in these authorities that in any way conflicts with the rulings of this court in the cases heretofore cited where quo warranto proceedings were allowed to oust a person or persons from illegally or unlawfully holding and executing an office that did not exist.

[2] It further appears from the pleadings and the admissions in the record that at the election at which the proposition was submitted the wording of the proposition was, "For Single Highway Commissioner System," while section 161 of the Road and Bridge Law of 1913 requires that the ballots to be used at such election shall be in the following form: "For Single Highway Commissioner System;" "Against Single Highway Commissioner System." Hurd's Stat. 1916, p. 2296. Under the rulings of this court in conIn the Hinze Case the information alleged struing similar statutes as to the form of that there was no law authorizing the office. ballots to be used in voting, we think it must In a quo warranto proceeding brought be held that these ballots for the organizaagainst certain persons claiming to be drain- tion of this district were improperly worded, age commissioners of Union drainage district and for that reason the district was not lein Du Page county, those persons were oust-gally organized. This provision of section

ed and deprived of their office upon a finding 161 of the Road and Bridge Law as to the by the court that the district was illegally form of the ballot is mandatory. Harvey v. organized. The information contained two Cook County, 221 Ill. 76, 77 N. E. 424: Peocounts, the first count challenging the organ-ple v. Hanson, 150 Ill. 122, 36 N. E. 998, 37 ization of the district. People v. Gary, 196 N. E. 580; People v. Sullivan, 247 Ill. 176, Ill. 310, 63 N. E. 749. See, also, to the same 93 N. E. 97. effect, People v. Weber, 222 Ill. 180, 78 N. E. 56, where the illegality of the office was first raised in the replication. The fact that the legality of the office was not alleged in the information was not raised in any pleading of the respondent.

Under the above authorities it is clear that the information contained allegations which justified the court in taking jurisdiction in this matter in quo warranto proceedings.

We do not deem the authorities relied on by counsel for appellant on this question in point. In People v. Whitcomb, supra, the question attempted to be raised by quo warranto was to test the constitutionality of an act of the Legislature which proposed to extend the territorial limits of the city of Morrison, in this state, and the court there said that the question attempted to be improperly raised was whether the city officers could enforce ordinances and levy and collect taxes in the territory annexed by said act when it is claimed that such act was unconstitutional and void, and it was there held that the writ could not be employed to restrain an of

[3] Section 14 of the Australian Ballot Law provides, among other things, that:

"On the back or outside of the ballot, so as to appear when folded, shall be printed the words, Official Ballot,' followed by the designation of the polling place for which the ballot is prepared, the date of the election and a fac simile of the signature of the clerk or other officer who has caused the ballots to be printed." Hurd's Stat. 1916, p. 1181.

It appears from the record before us that no such printing was on any of the ballots which were cast as to the adoption of the highway commissioner system. As we deem this provision mandatory with reference to the ballots cast at such election, it must be held that this election was invalid for this reason also.

As this decision on these two points disposes of the case, it is unnecessary to consider or decide the question whether the proper number of votes were counted in order to declare the election carried.

The judgment of the circuit court will be affirmed.

Judgment affirmed.

(282 Ill. 461)
CITY OF LEWISTOWN v. HARRISON.
(No. 11886.)

(Supreme Court of Illinois. Feb. 20, 1918.)
1. INTOXICATING LIQUORS 11- PROHIBI-
TION BY ORDINANCE-CONFLICT WITH STAT-
UTE.

A city, though it had not adopted the Lo

While there are other subsidiary, or minor questions involved, the principal one, in our judgment, is whether section 2 of Ordinance No. 112 is valid. That ordinance was passed on April 8, 1908, and approved April 23, 1908. Sections 1 and 2 are as follows:

"Section 1. It shall not be lawful to sell

intoxicating liquor in any quantity whatever cal Option Law (Hurd's Rev. St. 1915-16, c. 43, 88 25-43), having power before its passage and after the first day of May, 1908, nor to within the corporate limits of said city from to regulate as well as prohibit sale of intoxicating liquors, could pass an ordinance punish-grant or issue, or cause to be granted or issued, ing sale, barter, or exchange of intoxicating any license to sell intoxicating liquor in any liquor; this not being inconsistent with the quantity whatever within said city. prior statute on the subject. 2. CRIMINAL LAW 1086(14) RECORD-EXCEPTIONS. Under Practice Act, § 81, as amended by Laws 1911, p. 459 (Hurd's Rev. St. Ill. 191516, c. 110), to preserve rulings for review, formal exceptions need not be incorporated in the records; and this applies to exception to entry of judgment.

3. CRIMINAL LAW1086(14)

REVIEW-EXCEPTIONS.

APPEAL

APPEAL

-

Even were incorporation in the record of formal exceptions necessary to preserve rulings for review, exceptions to exclusion of evidence are sufficient for review thereof, without exception to entry of judgment.

4. CRIMINAL LAW 1017- APPEAL-MOOT QUESTION.

For review of ruling excluding from evidence an ordinance as invalid on prosecution by a city for its violation, it need not offer evidence of its violation by defendant; the law not requiring the doing of useless things.

Appeal from Circuit Court, Fulton County; Harry M. Waggoner, Judge.

Proceedings by the City of Lewistown against Everett Harrison, for violation of ordinance. From a judgment of not guilty, the City appeals. Reversed and remanded.

Marvin T. Robison and Harvey H. Atherton, both of Lewistown, for appellant. Burnett M. Chiperfield and Claude E. Chiperfield, both of Canton, for appellee.

CARTER, C. J. This was a proceeding begun by appellant, the city of Lewistown, in a justice court in Fulton county against appellee, Everett Harrison, for the violation of section 2 of a municipal ordinance of that city. On the trial before the justice of the peace appellee was found guilty and fined $40. An appeal was taken to the circuit court, where a jury was waived and a hearing had before the court. On the hearing before the circuit judge appellant offered in evidence Ordinance No. 112 of said city, except section 4 thereof, and Ordinance No. 259, being an amendment to section 5 of Ordinance No. 112. The court refused to admit either of said ordinances in evidence, and thereafter entered a judgment finding appellee not guilty. The trial judge certified that the questions in the proceeding involved the validity of a municipal ordinance, and that the public interests required that its validity be determined by this court. Thereupon an appeal was prayed and allowed directly to this court.

"Sec. 2. Whoever shall, by himself or another, either as principal, clerk or servant, directly or indirectly, sell, barter or exchange any intoxicating liquor in any quantity whatever within the limits of said city of Lewistown after the first day of May, 1908, shall be fined not less than twenty dollars ($20) nor more than one hundred dollars ($100). If any person shall be convicted of violating any provision of this section and shall subsequently violate any provision of this section, he shall, upon conviction thereof, be fined not less than fifty dollars ($50) nor more than two hundred dollars ($200). And in like manner if he shall subsequently violate any provision of this section, for such third offense and each subsequent violation he shall, upon conviction thereof, be fined not less than one hundred dollars ($100) nor more than two hundred dollars ($200).”

There are six sections to the ordinance, but the others we do not deem it necessary to set out or refer to at length, except section 5, which will be referred to later, in connection with the amendment to said section made by Ordinance No. 259.

[1] Counsel for appellee argue that it is manifest from a comparison of the provisions of Ordinance No. 112 and the so-called Local Option Law, which was enacted May 6, 1907, that said ordinance was based on and largely copied from the provisions of the Local Option Law, and that as the city of Lewistown had not adopted, at the time of this trial, said Local Option Law, the city was without power to enact Ordinance No. 112. Counsel for appellee concede that the city had the authority to prohibit the sale of liquor, but they argue at length that the provisions of section 2, which authorized convietion not only for the sale but for barter or exchange of any intoxicating liquor in any quantity, were not authorized by the general statutory charter provisions under which said city was organized. They concede that section 2 is worded substantially as section 12 of the Local Option Law, and that the Local Option Law has been held valid by this court, but they argue that, not having been adopted by the city of Lewistown, said law could not be invoked by the authorities of that city at the time of the passage of Ordinance No. 112.

A municipality may by ordinance restrict, regulate, and prohibit the same acts which are punishable and penalized under the law of the state, so far as authorized so to do by law. It may make more definite regulations than are usually provided by general legislation, and enforce them by appropriate

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

penalties. It cannot, however, adopt ordi-, direct sale. Rickart v. People, 79 Ill. 85; nances which infringe the spirit of a state law or are repugnant to the policy of the state as declared by general legislation, but the police regulations of a city, may differ from those of the state on the same subject, if not inconsistent therewith. City of Chicago v. Union Ice Cream Manf. Co., 252 Ill. 311, 96 N. E. 872, Ann. Cas. 1912D, 675; City of Decatur v. Schlick, 269 Ill. 181, 109 N. E. 737. This ordinance does not prohibit what | the statute in force before the passage of the Local Option Law permitted. We think the reasoning of the decision last cited is decisive of the question raised here by appellee. The court in that case, in discussing a somewhat similar question as to the power of municipalities, under the statute in force before the adoption of the Local Option Law, to pass an ordinance of this kind, said (269 Ill. 187, 109 N. E. 739):

People v. Law and Order Club, 203 Ill. 127, 67 N. E. 855, 62 L. R. A. 884; South Shore Country Club v. People, 228 Ill. 75, 81 N. E. 805, 12 L. R. A. (N. S.) 519, 119 Am. St. Rep. 417, 10 Ann. Cas. 383; City of Decatur v. Schlick, supra; People v. Gilmore, 273 Ill. 143, 112 N. E. 458. To permit the construction to be placed upon the words "barter or exchange" contended for by counsel for appellee would, in effect, overrule the reasoning of the decisions already quoted, and would permit a device to be used in lieu of direct sale that would "render all legislation on this subject nugatory." Under the reasoning of those decisions the conclusion necessarily follows that section 2 of Ordinance No. 112 is valid, whether the city of Lewistown had adopted the Local Option Law or not at the time it was enacted. The circuit court therefore improperly refused to admit this ordinance in evidence.

We "agree with appellants that it is immaterial whether the ordinance under conIt is argued by counsel for appellant that sideration was passed by the city before or after the vote was taken under the Anti-Saloon the court improperly also refused to admit Act in the town of Decatur. The city had Ordinance No. 259, in evidence, while counpower, under clauses 46, 48, 59, 66, 75, and sel for appellee insist that the introduction 98 of section 1 of article 5 of chapter 24, known of that ordinance was properly refused beas the City and Village Act (Hurd's Rev. St. 1915-16, c. 24, § 62) to pass the ordinance, cause the record shows it was passed after and its provisions are not inconsistent with this proceeding was begun in the trial the provisions of the anti-saloon statute. Peo- court. This amended ordinance has no bearple v. Cregier, 138 Ill. 401 [28 N. E. 812];

Kettering v. City of Jacksonville, 50 ill. 39; ing on the question involved in enforcing Laugel v. City of Bushnell, 197 Ill. 20 [63 N. Ordinance No. 112. It is unnecessary, thereE. 1086, 58 L. R. A. 266]. It must therefore, to decide whether the court erred in refore be sustained as a valid exercise of the legislative powers delegated by law to munic-fusing to admit it. ipal authority."

Counsel for appellee attempt to distinguish the Schlick Case from the one here, for they say it does not appear that the ordinance there in question included the words "barter or exchange" of intoxicating liquor, but referred exclusively to prohibiting the sale of liquor. We think in this counsel are in error, for the opinion in that case states (269 Ill. 184, 109 N. E. 738) that the ordinance was in all respects identical "with the said local option statute (the sections, however, being differently numbered)," etc. A reference to the record, abstract, and briefs in that case on file in the clerk's office of this court shows that the ordinance there in question was worded identically as to barter and exchange as section 2 of Ordinance No. 112, and therefore the conclusion in that case must be held conclusive here.

Independently, however, of the wording of the ordinance in the Schlick Case, we think from the reasoning in that case and in the cases cited therein, it is clear that under the Illinois statute, before the passage of the Local Option Law, city and village authorities were vested with authority to regulate, as well as prohibit, the sale of intoxicating liquors, and that no one, on a fair construction of the meaning of the words "barter or exchange," could defeat the purpose of such legislation by a subterfuge or artificial device, such as barter or exchange, in lieu of a

[2, 3] Counsel for appellee insist that the abstract of record is insufficient, and does not present for the consideration of this court any question of law or fact. They insist that the abstract does not show that any exception was taken to the entering of the final judgment in this case, and also fails to show that the bill of exceptions contained all the evidence offered on the trial of the case. This court has held, in construing section 81 of the Practice Act as amended in 1911, that the incorporating of formal exceptions into the record in order to preserve the ruling of the trial court for review is unnecessary, and that this applies to the requirements for an exception as to the entry of the judgment. Miller v. Anderson, 269 Ill. 608, 109 N. E. 1048. Furthermore, there was an exception taken and preserved in the bill of exceptions as to the ruling of the court in refusing to admit the ordinance in question in evidence, and therefore, under the repeated rulings of this court, the question as to the correctness of the court's ruling on the admission of this ordinance could be properly raised before the amendment of section 81 of the Practice Act, even though an exception was not taken as to the entering of the final judgment. Cincinnati, Indianapolis & Western Railway Co. v. People, 205 Ill. 538, 69 N. E. 40; Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61, 75 N. E 427; Climax Tag Co. v. American Tag Co.,