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between the river's edge and the southerly, D. 1088. Mere travel by the public does not, ends of the lots as platted, in both the old of itself, constitute an acceptance (Forbes v. and new plats, was known as Water street, Balenseifer, 74 Ill. 183), but, taken in conand in 1888 the village authorities passed an nection with other acts and circumstances, ordinance, stating that, commencing at the it may be regarded as tending to show acOhio river and going north, the name of the ceptance (City of Rock Island v. Starkey, 189 first street should be Water street, and in Ill. 515, 59 N. E. 971; Woodburn v. Town of another ordinance that the banks of the Sterling, 184 Ill. 208, 56 N. E. 378). This Ohio river, within certain easterly and west- plat, as we have seen, was not a statutory erly limits, which include the bank in front one. It therefore could have no effect as a of block 4, should be public landing places conveyance. Viewed in the most favorable for the village. There was no evidence in light for the plaintiffs in error, it could only the record indicating that either of these constitute an offer to dedicate, under which, plats can be held to be statutory. There- upon acceptance by the public, an easement fore, in deciding whether this property was of passage would be acquired by the public. dedicated for a street, we must be guided by La Salle Varnish Co. v. Glos, 254 Ill. 326, 98 the rules that govern common-law dedication. N. E. 538. Therefore the question of acceptIn order to constitute such a dedication, the ance by the public is a vital one in the deciproof must be clear and convincing that the sion of the case, as until such acceptance the owner intended to donate the land to the owner or his grantee could revoke the offer public use for a street, and that the public to dedicate. City of Chicago v. Drexel, have accepted it for that purpose. Doss v. supra, and cases cited; 8 R. C. L. 913; 1 Bunyan, 262 Ill. 101, 104 N. E. 153, and cases Elliott on Roads and Streets (3d Ed.) § 165; cited; City of Chicago v. Drexel, supra. In 3 Dillon on Mun. Corp. (5th Ed.) § 1091. Aftthe last case cited, as in this, no question er it is once accepted by the public a dedicawas raised as to the rights of the owners of tion is irrevocable (Moffett v. South Park land in the platted property. No private Com’rs, 138 Ill. 620, 28 N. E. 975), except owners are parties to the proceeding, and with the consent of the public and of those none of them are asking to contest the relief persons who have vested rights in such dediwhich the complainant is seeking by her bill cation (3 Dillon on Mun. Corp. (5th Ed.] $ to obtain as against the village. It was said 1091). See, also, Hill v. Kimball, 269 Ill. 398, in that case on this point (141 Ill. 106, 30 110 N. E. 18. N. E. 780):

There is no satisfactory evidence that the “It may be admitted that owners of lots in offer to dedicate this disputed strip of propsaid subdivision who have purchased by the plat are entitled to certain easements in and erty for a street, between the river bank and over the grounds laid off on said plat as ways, the south line of the land as platted, had but their right to such easements has no tend- been accepted by the public before the death ency to establish the title of the city to said of the original owner, McFarlan. No express ways as public streets or highways."

action is shown by the village authorities These rights were purely

before that date which has any bearing on "in the nature of private rights, founded upon such acceptance. Mere travel, as we have a grant or covenant, and no public rights attached to such streets or lands until there has seen, is not sufficient to show acceptance by been an express or implied acceptance of the the public, and such travel, in order to have dedication, evidenced either by general public any weight on the question of acceptance, user or by the acts of the public authorities."

must have been adverse, as a matter of right, [3-12] The making of a common-law plat and not merely permissive. Palmer v. City and the sale of lots with reference thereto of Chicago, 248 11. 201, 93 N. E. 765, and are merely evidence of an intent to dedicate,

cited cases; 4 McQuillin on Mun. Corp. $ which, like every other dedication, to be

1582. The evidence is very conflicting as to made complete and carried into effect so as to create public rights, must be accepted and the sort of travel that passed across this acted upon by the public. 3 Dillon on Mun, strip before the death of McFarlan, some Corp. (5th Ed.) $ 1090; Littler v. City of Lin-witnesses testifying positively there coln, 106 Ill. 353; Russell v. Chicago & Mil- quite a well-defined line of travel, and other waukee Electric Railway Co., 205 I11. 155, 68 witnesses testifying just as positively to the N. E. 727; Mason v. City of Chicago, supra. contrary. There is no evidence in the record The acceptance may be an express one, evi- tending to show, in the slightest degree, that denced by some formal act by the public au- the village authorities ever did any work thorities, or it may be implied by their acts, with reference to a roadway across this propsuch as repairing, lighting, or assuming con- erty, or ever attempted to exercise any au. trol of the lands dedicated, or may be im-thority over it before McFarlan's death. The plied by user by the public for the purposes first time they attempted to do any work or for which it was dedicated. When the dedi- exercise such authority was shortly previous cation is very beneficial or greatly convenient to the beginning of the litigation between or necessary to the public, acceptance will be themselves and defendant in error. There is implied from slight circumstances. Alden no question that for a considerable portion Coal Co. *. Challis, 200 Ill. 222, 65 N. E. 665; of the time before McFarlan died the strip


impassable for travel along a defined right of, was marshal and street commissioner of the way. There is also evidence tending to show village for 8 or 9 years, between 1880 and that this travel was permissive by the owner, 1889, testified positively that she told him and not adverse. The proof of such accept that this was her private property, and that ance by the public must be unequivocal, the village authorities could not do any work clear, and satisfactory. City of Chicago v. on it; that she owned it and had entire conDrexel, supra; City of Carlinville v. Castle, trol over it, and further testified that because 177 Ill. 105, 52 N. E. 383, 69 Am. St. Rep. 212. of this, during the time he was street superThe acceptance need not immediately follow intendent, he did not attempt to do any work the offer to dedicate, but must be within a for the village on this strip, and, so far as reasonable time and before withdrawal by he knew, no wagon drove over it during that the offerer. Elliott on Roads and Streets (30 time, or claimed any right to do so, and that Ed.) 172; People v. Johnson, 237 Ill. 237, in his judgment there was not a public road S6 N. E. 676. What constitutes a revocation there at that time. The village authorities, of an offer to dedicate depends very largely so far as the evidence shows, acquiesced in upon the circumstances of the particular this claim by her. If the offer to dedicate case, and is usually a question of fact. It had not been revoked previous to this by her may be shown, before acceptance, by acts in- husband, it was certainly revoked by her durconsistent with the public use to which the ing these years. Whatever force the ordi. land was offered to be dedicated, as by con nances of the village, passed in, 1888 with veyance of the property offered to be dedicat. reference to the name of this street and the ed, or by inclosing the land so as to exclude public landing, might have had if such action the public use, or by erecting buildings on had been taken before the revocation, they land offered to be dedicated as a street. 9 would have no effect after the withdrawal of Am. & Eng. Ency. of Law (20 Ed.) 78; 3 Dil- the offer to dedicate. Birge v. City of Cenlon on Mun. Corp. (5th Ed.) § 1091; 4 Mc- tralia, supra; Chicago, Milwaukee & St. Paul Quillin on Mun. Corp. § 1592. McFarlan Railway Co. v. City of Chicago, supra. clearly showed that he intended to revoke [13] The argument of counsel for the plainthis dedication by the use to which he put tiffs in error that other parts of this strip of the land long before his death. At that time land between the southerly line of the lots it was owned by his wife, and, apparently fronting on the river, on the old and new acting for her, he built the pavilion or sum-plats, and the river, had been accepted by the mer house. This tended strongly to show public, and therefore, by implication, this that he, as well as his wife, understood that portion of the strip was also accepted, is there had been a revocation of the dedication without force, because an acceptance of a as to this strip.

part of the streets on a plat does not necesCounsel for plaintiffs in error further ar- sarily constitute an acceptance of other gue that the testimony of the witnesses who streets in the same plat (City of Chicago v. stated that the fences on the easterly and Drexel, supra; Jordan v. City of Chenoa, 160 westerly sides of lot 4 formerly ran to the 111. 530, 47 N. E. 191 ; Reichert Milling Co. v. river's edge and were washed away in 1860, Village of Freeburg, 217 Ill. 384, 75 N. E. or shortly thereafter, is unsatisfactory, as it 544), and it must necessarily follow that the is shown that their recollection was very acceptance of a portion or all of said strip poor. Of course, if these fences did run to between the south line of the old plat and the the water's edge, that fact, in itself, would river could not, in any way, affect the acstrongly indicate that McFarlan had revoked ceptance of any portion of this strip on the the offer to dedicate. It is very clear from new plat. all the testimony that this property was used (14) Neither do we think, on the facts in by him, as well as by his wife after him, as this case, there is merit in the argument that if it were private property in which the pub- in this case the acceptance should be implied lic had no rigbt. Had this property been from slight circumstances because the dedicaowned by him at the time of his death, the tion of this disputed strip was necessary or offer to dedicate would have been revoked by convenient to the public. The proof, as we implication by that event. People v. John- have already stated, shows, without contrason, supra; Chicago, Milwaukee & St. Paul diction, that for more than 20 years before Railway Co. v. City of Chicago, 264 III. 24, the beginning of this litigation the defendant 105 N. E. 702. It not having been accept- in error had claimed exclusive authority over ed by the public during his lifetime, the offer and use of the disputed strip, and that she to dedicate could hardly be understood as had used it practically, during all those continued or held open by his grantee or years, to the exclusion of public travel or grantees, considering the circumstances public rights. It is quite obvious from the shown in this record, unless they did some testimony that th trees and rocks were loaffirmative act indicating that they intended cated on this disputed strip in such a manto continue such offer. The testimony shows, ner as to prevent any well-defined line of without contradiction, that McFarlan's wife, travel as a public highway over said strip, while she owned the property, claimed this and the evidence is uncontroverted that for strip as her private property. The man who years before the beginning of this nigation a

wall of rock built across the eastern portion / plainants, to compel the board to reinstate them of said strip prevented teams from driving or to permit them to return to the school, dur. across it. Then, too, the proof shows conclu- ing the pendency of which they would be de

prived of the advantage of school attendance, sively that the strip called Water street, east would not afford a complete and adequate remof this disputed strip above the line of the edy at law. top of the bluff, is practically impassable for

[Ed. Note. For other cases, see Schools and public travel, not only because of the deep School Districts, Dec. Dig. Om 155.] gully at the east of lot 4 and the impassable Appeal from Circuit Court, Cook County; character of the bluff east of this gully be- Jesse A. Baldwin, Judge. tween Pearl and Dunn streets, but because Bill for injunction by Herbert Ashley and immediately east of lot 4, in front of one of others against the Board of Education of the lots, for several years previous to this School District No. 102, in Cook County, and litigation, a bogpen was built, and has since others. Demurrer to bill sustained by cirbeen in use. Manifestly no great loss or in- cuit court, and bill dismissed for want of convenience was suffered by the public be- equity, and complainants appeal. Reversed cause of defendant in error's control of this and remanded, with direction to overrule the strip of land, or an attempt by the public demurrer. authorities to open the street would have

Jesse E. Roberts, of Chicago (Roberts & been insisted on long ago, as it is uncontradicted that the village authorities knew that Swain, of Chicago, of counsel), for appelMrs. Rose claimed to own and have authority lants. S. P. Shope, of Chicago (F. S. Mcover the disputed strip from the time the Clory, of Chicago, of counsel), for appellees. property was deeded to her.

DUNN, J. The appellants are 79 children The evidence, under the reasoning in City of Chicago v. Drexel, supra, Mason v. City of between the ages of 6 and 15 years, inmates

of the Illinois Masonic Orphans' Home, situChicago, supra, and other cases heretofore cited, was ample to support the finding of the district No. 102, in the county of Cook, who

ated in La Grange, Ill., and within school circuit court. Its decree must therefore be filed a bill in the circuit court of Cook counaffirmed.

ty against the board of education of the Decree affirmed.

school district, its president and members,

and the principal of the schools, to enjoin (275 Ill. 274) ASHLEY et al. v. BOARD OF EDUCATION schools of the district unless the Illinois

them from excluding the appellants from the et al. (No. 10475.)

Masonic Orphans' Home would pay tuition (Supreme Court of Illinois. Oct, 24, 1916.)

for them, in accordance with a resolution 1. SCHOOLS AND SCHOOL DISTRICTS 153–

adopted by the board of education. The RIGHT TO ATTEND SCH001-"RESIDENCE.

Under Hurd's Rev. St. 1915–16, c. 122, s court sustained a demurrer to the bill, and 127, requiring a board of education to estaba dismissed the bill for want of equity. Jish a sufficient number of free schools for the It appears from the bill that the Illinois accommodation of all persons in the district of Masonic Orphans' Home is a corporation orschool age, children, inmates of an orphans' home within the district, having no other home and ganized under the laws of the state of INI. residing there per'nunently, without means of nois, which is the owner of real estate in dissupport, had a right to admission to the public trict No. 102, and has maintained on its said schools of the district without a charge for real estate a home for the support, care, and tuition, since the “residence' required by the statute is not that required to establish a dom- custody of minor children between the ages of icile, a right to vote, etc., and the only require- 3 years and 15 years, the children of Master ment as to residence is a dwelling in the dis- Masons, members of the Order of Ancient trict. [Ed. Note.-For other cases, see Schools and have been committed to its care; that each

Free and Accepted Masons in Illinois, who School Districts, Cent. Dig. $$ 324, 325; Dec. Dig. Om 153.

of the appellants has no other home and For other definitions, see Words and Phrases, lives and resides permanently in the Illinois First and Second Series, Residence.]

Masonic Orphans' Home; that each of them 2. INJUNCTION 114(2) MISJOIN DER has no money, property, or other means of SCHOOL DISTRICT.

On a bill to enjoin the board of education of support, and no parents or relatives able to a school district from excluding children, in- give them the maintenance and care necesmates of an orphans' home in the district, from sary for children of their ages, though in the district schools, unless they paid a tuition, some instances one of the parents is living, where the right sought to be enforced was com- and in some both are living, but the father mon to all the complainants, and their claims were covered by the same legal rule upon the is insane, or in prison, or has disappeared, same facts, they were properly joined.

but they are all provided with a home, food, [Ed. Note.-For other cases, see Injunction, clothing, and care in the Illinois Masonic Cent. Dig. 88 203-210; Dec. Dig. Om114(2).) Orphans' Home at La Grange by the trus3. SCHOOLS AND School DistrictS Om 155— tees of said home, to which they have been MANDAMUS-ADEQUATE REMEDY AT LAW-voluntarily committed for the purpose of seEXCLUSION FROM PUBLIC SCHOOLS.

An action of mandamus, which could be sus-curing a home and the care and attention tained only if the board bad excluded the com- they require for their rearing and well-being,

their parents or other relatives or guardians | seven months in each year, and longer it having voluntarily surrendered the care, cus- practicable, a sufficient number of free schools tody, and control of the appellants to the for the accommodation of all persons in the home, where the appellants must remain un. district over the age of six and under twentyder the control thereof, the parents, rela- one years and to secure for all such pertives, or guardians of the appellants having sons the right and opportunity to an equal so consented, until they are disposed of un- education in such schools.” Hurd's Stat. der the rules for the conduct and operation 1916, p. 2366, § 114. The same obligation of such home, and they have not been sent rests upon boards of education. Hurd's Stat. there and are not there for the sole purpose 1916, p. 2370, $ 127. The appellees insist that of attending the public schools maintained only residents of the school district are enin that school district under the laws of the titled to the benefit of the schools without state of Illinois.

the payment of tuition; that the appellants Before March 20, 1911, the Illinois Masonic are minors, who cannot voluntarily change Orphans' Home had been located in the city their place of residence, and that their legal of Chicago, but the Masonic Grand Lodge residence and domicile is in the place where purchased the property upon which the home their parents reside; that they are entitled at La Grange was erected, and constructed to attend schools in district No. 102 only a building thereon designed as a home for upon being transferred to such schools, in the children of Masons in the state of Illi- the manner authorized by law, from the disnois similarly situated to the appellants, hav- trict in which they reside, with the consent ing a capacity for accommodating about 100 of the directors of both districts. On the children, and on or about that date many of other hand, the appellants contend that they the appellants were taken from the home in are bona fide residents of district No. 102, Chicago to the home in La Grange. Many and entitled, under the law, to attend the of the appellants were residents of the coun- public schools. ty of Cook before their admission to the It is not essential to the right of a child home, and all of them, as well as their par- to attend the public schools of the state that ents, were residents of the state of Illinois. it should have a legal domicile in the place Upon the removal of the home from Chicago in which the school is held. The schools are to La Grange the inmates were admitted to required to be maintained for all persons in the public schools of the school district with the district over the age of 6 and under out the payment of tuition or any demand der this language is not such as would be

21 years of age. The residence required untherefor, and others who subsequently be

required to establish a right to vote, or which came inmates were also admitted to the would fix the liability of a township or counschools in the same way and attended the ty for the support of a pauper. The right to schools without objection on the part of the attend school is not limited to the place of school authorities, until January 24, 1912,

the legal domicile. A residence, even for when the president of the board of trustees of the home was notified by the secretary of a temporary purpose, in a school district, is

sufficient to entitle children of school age to the board of education of the passage of a

attend school. resolution by that board that after Febru: for a temporary purpose, and, according as

A man may leave his home ary 1, 1912, the trustees would be required the exigencies of his interests or his business to pay tuition at the rate of $35.08 per an

or his public or private employment require num for each pupil attending the schools from the home, less the proportionate share longer or shorter time in a different part of

or his pleasure dictates, may reside for a of the school taxes paid by the home. The the state. He does not thereby lose his legal tuition not having been paid on March 7, domicile or his right to vote there at elec1913, the secretary of the board of educa

tions. Should he become a public charge, tion notified the president and trustees of the town or county of his legal domicile would the home that, unless payment or provision be liable for his support. His children, bowfor payment were made before March 24, ever, would not be obliged to attend school 1913, the children from the home would be in the district of his domicile. Within the excluded from the schools.

The appeal is brought directly to this meaning of the School Law they would be court, because the appellants insist that the and entitled to attend school without the pay

in the district of his temporary residence resolution of the school board is a violation ment of tuition, and without any transfer of the right of the appellants to free admis- from the district of his domicile. The only sion to the public schools under the consti- requirement, so far as residence is concerntutional provision which requires the General ed, is dwelling in the school district. Every Assembly to provide a thorough and efficient child of school age in the state is entitled system of free schools whereby all children to attend the public schools in the district in of the state may receive a good common which it actually resides for the tiine being, school education,

whether that be the place of its legal domi(1) Among the duties imposed upon school cile, or the legal domicile of its parents or directors by the statute they are required “to guardian, or not. This has always been the establish and keep in operation for at least I view which has been held, so far as we are

informed, by those charged with the adminis-, consent of the directors of that school distration of the School Law. In Bateman's trict or of the directors of the district in Common School Decisions (Ed. of 1890) p. which such child actually resides. Cases 135, it is said:

have been cited from other states for and “As a general rule, the residence of parents is against this position. They are of little value the residence of their children. Boarding chil- in the determination of this question in the dren in a district does not, of itself, entitle them to the benefits of the free 'school in' said district. construction of our own statute. The mere temporary residence of a family in a [2, 3] The appellees insist that the bill was district, solely to enjoy the benefits of the free properly dismissed because of the misjoinschools and with the intention of removal as der of the complainants. The right sought soon as that purpose is accomplished, does not entitle the children to the privileges of said to be enforced by the bill is common to all schools. The removal of a portion of a family the complainants. The order excluding them from the legal domicile to another district in affects them all alike. Their claims are all order to send to the free schools thereof does governed by the same legal rule and involve not confer the right to do so. rule, the residence of their parents is the resi- similar facts. They were properly joined dence of employés; hence the privilege of the in the bill. City of Chicago v. Collins, 175 free schools in another district is not acquired Ill. 445, 51 N. E. 907, 49 L. R. A. 408, 67 by placing children temporarily at service in that district. This includes those who are plac

Am. St. Rep. 224. Mandamus would not ed in families to attend school and do chore afford a complete and adequate remedy at work for their board, etc. The most liberal law. An action of mandamus could only be policy is, however, recommended toward this sustained after the board of education had class of children. The state has as much interest in their education as in that of the more excluded the appellants, for the purpose of favored, and, although not legally eligible to at requiring the board to re-instate them or tend free, the directors should permit them to do permit them to return to the school. In the so when not inconsistent with the rights of oth meantime, during the pendency of the suit, ers and the welfare of the school. Children who have been apprenticed or adopted into a new appellants would be deprived of the advanfamily, or who have been placed permanently in tages of attendance on school-a damage the care of others, with no intention of with- incapable of estimation at law and irrepdrawal, or those over whom parents have re

arable. linquished all control, from whatever cause, or those who have no parents or guardians, or

The decree of the circuit court will be rewhose parents or guardians live in another state versed, and the cause remanded, with direcor country and exercise no control over their tions to overrule the demurrer to the bill. children, or those who have no permanent abode, but go from place to place in search of

Reversed and remanded, with directions. employment, and whose only home is where they find work-the children included in all the above classes are to be cnumerated in the district

(275 Ill. 236) where they live, and are entitled to all the rights PEOPLE ex rel. SUCHERMAN V. STATE and benefits of the free schools in said district."

BOARD OF PHARMACY. (No. 10782.) The appellants are all actual residents of (Supreme Court of Illinois. Oct. 24, 1916.) school district No. 102 in the ordinary and 1. DRUGGISTS 3 — LICENSE - CERTIFICATE popular meaning of that term. They have no OF RENEWAL-STATUTE. other home. They have lived there for some

Under Pharmacy Act (Hurd's Rev. St. time, with the intention of remaining in 1915–16, c. 91, 20). 88, where a registered definitely, and have no present intention of his profession, complied with all the provisions going elsewhere. They were delivered by of the statute necessary to entitle him to a retheir parents or relatives or persons having newal certificate when he duly tendered his their actual custody to the care of the Illi- | not legally deny the certificate without positive

yearly fee, the state board of pharmacists could nois Masonic Orphans' Home for the purpose proof that he was a man of such habits as the of providing for their maintenance and rear- statute deemed unworthy of such certificate, ing in the place where that home is located the board was induced to find him to be a com

or that, by reason of some fraud on his part, until they attained the age of 15 years, and petent pharmacist in the first instance, when in there is no present intention on the part of fact he was not competent. anybody having any authority or control over

[Ed. Note. For other cases, see Druggists, the minors that this residence should be chang- Cent. Dig. $8 2, 3; Dec. Dig. 3.] ed. In the case of poor persons it is fre- 2. MANDAMUS O154(2)--PLEADINGS.

In mandamus to compel the state board of quently necessary, particularly when one of pharmacy to issue a renewal certificate to a the parents is dead or disabled, or for any registered pharmacist, under Pharmacy Act, š reason cannot or will not assist in the sup- 8, the averment of the petition that petitioner port of his family, that homes shall be found is now engaged as a registered pharmacist in

a drug store in the city of Chicago" was a for the children in places other than those sufficient averment that petitioner was engaged where the parents reside, and under such in the active practice of his profession, within circumstances the child is entitled to be enu- the statute. merated among the school children and to at [Ed. Note.-For other cases, see Mandamus, tend the school in the district in which it actu- Cent. Dig. § 297; Dec. Dig. Em 154(2).] ally resides, as a matter of right, not depend


In mandamus to compel the state board of ent upon the payment of tuition by the school pharmacy to issue a renewal certificate to a district in which the parents reside or the registered pharmacist, under Pharmacy Act, $

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