that the court erred in finding that it had appointed his wife, Emma Y. McCarty, his [1] The first and third errors assigned are son John McCarty, and George C. Kemp executors, and gave them power to sell and convey any property, real or personal, as freely as he might do if living, and to give new mortgages or renew or take up any mortgage existing at the time of his death. Emma Y. McCarty qualified as executrix, administered her trust, made her final report, and was discharged. She has not remarried. None of the children were married at the time of the death of the testator, but John McCarty, William F. McCarty, and Laura F. McCarty have married since that time; Laura F. McCarty now being the wife of John L. Vance, Jr. John McCarty has three children, John Wesley McCarty, aged six years, Mary Josephine McCarty, aged four years, and Laura Carolyn McCarty, aged two years, and there are no other grandchildren. On February 16, 1916, Emma Y. McCarty, the widow, John McCarty and wife, William F. McCarty and wife, Caroline McCarty, Laura F. McCarty Vance and husband, and Frances McCarty, executed a deed of the real estate of which the testator was possessed at the time of his death to Bert Parker, and on February 29, 1916, Bert Parker execut-trustees to lease, mortgage and sell, improve, exed a deed of the same lands to the widow, Emma Y. McCarty. change and invest any portion or all of any trust estate, or to do any other act or thing, or exerfor the conservation, preservation, protection or cise any power and discretion which is necessary betterment of said estate during any period of contingency pending a contingent remainder or executory devise or otherwise." The deeds having been executed, the defendants in error, Emma Y. McCarty, the widow, John McCarty, William F. McCarty, Caroline McCarty, Laura F. McCarty Vance, and Frances McCarty, filed their bill in the There was nothing in the bill calling on the circuit court of Douglas county against the court to exercise any power for the conservaplaintiffs in error, John Wesley McCarty, tion, preservation, protection, or betterment of Mary Josephine McCarty, and Laura Caro- the estate during any period of contingency lyn McCarty, the infant children of the de- pending a contingent remainder or executory fendant in error John McCarty, asking the devise or otherwise. The bill was filed solely court to construe the will and remove the for the purpose of having the court declare ambiguities existing therein, to remove the the contingent remainders destroyed and excloud upon the title of Emma Y. McCarty, tinguished and the legal title to be in Emma and to declare her to be the owner in fee sim-Y. McCarty, one of the complainants, and the ple of the real estate, free and clear from remainder of the amendment merely dispensany claim or claims of future interests on ed with the necessity of a trust for the exerthe part of the plaintiffs in error, or on the cise of the jurisdiction. Under the amendpart of any child or children or issue of the ment the existence of a trust is not a test body of any of the defendants in error that of the jurisdiction of courts of equity to might be living at the time of the death or construe wills, where there is doubt or unremarriage of the widow who might survive certainty as to the rights and interests of their parents. The court appointed a guard- parties arising from ambiguous language in ian ad litem for the infant defendants, and the will; but in this case the terms of the he filed an answer, committing their interests will were not doubtful, and their validity is to the protection of the court. The court en- not contested. The construction of the will tered a decree on March 15, 1916, reciting of Francis A. McCarty was no more involved that the cause was heard upon the bill of in the suit than such construction is involved complaint, the answer of the guardian ad in any case where a will is in the chain of litem, the replication thereto, and evidence title of the complainant and where there is heard in open court, and finding the facts as no uncertainty or ambiguity as to its meanabove stated. The decree adjudged that the ing. The suit is not by an executor or devcontingent remainders created by the will isee claiming under the will, but was brought were destroyed and prematurely extinguished by complainants, who allege the destruction by the merger of the life estate of the widow of contingent remainders created by the will, in the fee in reversion vested in the heirs at law, and that she held the title thereto. The guardian ad litem sued out a writ of error in this case to obtain a review of the decree. and there was no difference between the parties respecting the construction of the will. The first point stated in the brief for the guardian ad litem is that the widow was legal form has arisen, and there is no occaonly given a life estate, and the second is that sion to call upon a court to quiet a title althe provisions of the will created contingent | ready quiet and in a state of perfect tranremainders with a double aspect. There is no quility. There have been cases where the question concerning the construction of the court has construed wills as incident to the will which is even debatable. It is argued granting of relief within the jurisdiction of by the guardian ad litem that on account of courts of equity, and since the amendment of the power given to the executors to sell and 1911 there have been some such cases. Wakeconvey property, real and personal, or to field v. Wakefield, 256 Ill. 296, 100 N. E. 275, mortgage real estate, the conveyances are Ann. Cas. 1913E, 414, was one of them. It ineffective; but the argument is without was an appeal from the order of the cirfoundation, because the estate had been set-cuit court requiring a purchaser at a sale tled without the exercise of the power and the executrix had been discharged, so that there was no longer any possibility of the exercise of the power, if it was ever a matter of any importance. [2] Considered as a bill to quiet title or remove a cloud, there was no averment of fact which would give the court jurisdiction. No fact was stated that called for protection of the property rights of Emma Y. McCarty, since her possession and enjoyment of the property were not even threatened. The only averment in the bill respecting any claim contrary to her right was that some of the relatives of the testator were contending that the remainders were vested, and not contingent, and that it was not possible to destroy such remainders; but courts of equity do not take jurisdiction to remove a mere verbal assertion of ownership in land as a cloud upon title. Parker v. Shannon, 121 Ill. 452, 13 N. E. 155. It was not alleged that the statements of some relatives of the testator who neither had nor claimed any interest in the property, but were giving legal opinions, were an injury to Emma Y. McCarty's title or depreciated its market value. The contingent remainders limited to the children of the testator's children were not estates or interests in the land, and would never become estates or interests except upon the happening of future uncertain events, and courts of equity do not generally entertain suits to declare the rights of parties on a state of facts which has not yet arisen and which may never arise. under a decree to comply with the terms of the sale, and he contended that a deed from the master in chancery would not convey a merchantable title. In Belding v. Parsons, 258 Ill. 422, 101 N. E. 570, the bill sought to remove as a cloud upon the title a contract for the conveyance of the land made by a former owner, and Barr v. Gardner, 259 Ill. 256, 102 N. E. 287, was a case where a bill for partition was filed. [4] There have been cases where the courts of equity have taken jurisdiction to construe wills under circumstances substantially like those existing here and the decrees have been reviewed, but no error was assigned that the jurisdiction was improperly exercised. As courts of equity always had power to construe wills, a decree construing a will is not void, although the jurisdiction was erroneously exercised, but is binding until re versed on appeal or writ of error. Wakefield v. Wakefield, supra. In this case the jurisdiction is challenged by the assignment of errors, which it is the duty of the court to consider. The bill did not point out any part or portion of the will which was doubtful or uncertain, or required construction, and the will was both simple in its provisions and as plain as language can make it. There was no equitable estate to be protected or equitable right to be enforced. There was no claim to an interest in the lands appearing in some legal form, but which was, in fact, unfounded and might be shown by extrinsic evidence to be invalid or inequitable, and consequently [3] A cloud upon a title is a claim appar- no cloud on title was alleged. The only purently valid, which may be removed by ex-pose of the bill was to have a court of equity trinsic evidence; but if there was any defect in the title of Emma Y. McCarty, it appeared on the face of the will, and resort to extrinsic evidence was not necessary. If the General Assembly intended by the present statute to give power to courts of equity to establish and confirm purely legal titles where no equitable right, estate, or interest is involved, this case is not one for the exercise of the power. No controversy in any certify that Emma Y. McCarty had defeated the intention of the testator and had a legal title in fee simple, not against any existing estate claimed or held by any one, but in view of the possibility of some future, uncertain event. It is error for a court to assume jurisdiction for such a purpose. The decree is reversed, and the cause re manded, with directions to dismiss the bill. Reversed and remanded, with directions. (275 111. 555) sonable is a question for determination of the [Ed. Note. For other cases, see Carriers, Cent. Dig. 88 11, 15-20; Dec. Dig. 12(5).] 5. CARRIERS 12(7) - RATES-BURDEN OF PROOF. STATE PUBLIC UTILITIES COMMISSION commission. 7-PowER OF COMMISSIONS RIGHT TO QUESTION RATES. Where rates of a publie utility as a street railroad are attacked as unjust, it has the burden of showing that the rates are reasonable and not excessive. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 15-20; Dec. Dig. 12(7).] 6. CARRIERS 12(2)—AUTHORITY OF COMMISSION-JOINT RATES. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 8, 15-20; Dec. Dig. 12(2).] 7. CONSTITUTIONAL LAW 298(2)-DUE PROCESS OF LAW-TAKING PROPERTY WITHOUT. Public Utilities Act (Hurd's Rev. St. 191516, c. 111a) 32, provides that all rates and charges made, demanded, or received by any public utility, or by any two or more public utilities, shall be just and reasonable, while section 33 provides that every public utility to file with Where joint rates charged by interurban and the Public Utilities Commission and keep open street railroad companies are confiscatory as to to public inspection, schedules showing all rates, one and excessive as to the other, the Public charges, and classifications which are in force Utilities Commission may adjust and apportion for any service performed by it or them, and the joint rates so as to make them just and that such rates, charges, and classifications reasonable and sufficient to be reasonably reshall not without consent of the commission ex-munerative to both companies. ceed those in effect on July 1, 1913, but that the commission may approve or fix rates and charges in excess or less than those shown by the schedules. Section 35 declares that no service shall be rendered until such schedules are filed, save in case of emergency, and section 36, that no change shall be made by any public utility, in any rate mentioned in such schedule, unless the commission so orders, and that no change shall be made without good cause shown and a finding that an increase is justified, while section 37 requires public utilities to make their charges [Ed. Note.-For other cases, see Constitutionaccording to the schedules unless altered. Sec-al Law, Cent. Dig. § 847; Dec. Dig. 298(2).] tions 68 and 69 provide for appeals from orders of the commission. Held, that the commission 8. CARRIERS 12(4)-AUTHORITY OF UTILIcannot, where rates filed with it are attacked, require a public utility to charge a less rate, pending its determination, whether the rates at: tacked are unjust and unreasonable. [Ed. Note.-For other cases, see Public Service Commissions, Dec. Dig. 7.] 2. CARRIERS 12(4) — REGULATION-FILING OF RATES. A rate that is confiscatory or insufficient to pay the cost of transportation and other necessary outlays, as well as to return the carrier a reasonable profit on the investment, is invalid as depriving the carrier of its property without due process of law. TIES COMMISSION-RAILROAD RATE LEGISLA- 1907-08, p. 476), fixing the reasonable maxi- [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 10, 15-20; Dec. Dig. 12(4).1 STATUTES 179-CONSTRUCTION-DEFINITION OF TERMS. Section 86 declares that the act shall not take effect until January 1, 1914, while section 72 provides that when complaint has been made to the commission concerning any rate, and the commissioners found after hearing that a public utility has charged an excessive amount, the commission may order reparation to be made. By schedules filed December 31, 1913, the defendant street railway and interurban railway companies increased the rates which were charg-9. ed on July 1st of that year. These rates were put into effect December 31, 1913, and filed subsequently with the Public Utilities Commission. Held, that on complaint against the rates the commission could not, pending determination of the question, prohibit defendants from charging rates in excess of those charged July 1, 1913, for the statute did not intend public util: ities to continue such rates and a remedy for unjust rates was furnished. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 10, 15-20; Dec. Dig. 12(4).] 3. CARRIERS 12(4)—PUBLIC UTILITIES ACT -FILING OF RATES. After passage of the Public Utilities Act, but before it went into effect, street railway and interurban railway companies might without consent of the Public Utilities Commission increase their rates, provided the rates established were reasonable and just. The Legislature may in any act define terms specifically for that act; therefore no complaint can be made that the Public Utilities Act, § 10, defining the term "public utility," declares that it shall include corporations or receivers that own, control, operate, or manage any plant, equipment, or property used in connection with the transportation of persons, and defines the terms "railroad" as including every railroad other than a street railroad by whatsoever power operated, and a "street railroad" as including every railroad being laid upon, above, or below any street. [Ed. Note. For other cases, see Statutes, Cent. Dig. § 258; Dec. Dig. 179.] 10. CARRIERS ITY. 12(1)—RATES-ACTS-VALID Public Utilities Act, providing for the regulation of the rates of street railway companies, does not violate Const. art. 11, § 4, declaring [Ed. Note.-For other cases, see Carriers, that no law shall be passed by the General AsCent. Dig. 88 10, 15-20; Dec. Dig. 12(4).]sembly granting a right to construct and op 4. CARRIERS 12(5)-RATES-POWER OF COM MISSIONS. erate a street railroad within a city without requiring the consent of the local authorities, for the prohibition does not deprive the General AsWhether rates established by street or inter-sembly of the right to regulate the rates. urban railway companies before the Public Util- [Ed. Note.-For other cases, see Carriers, ities Act went into effect were just and rea- Cent. Dig. §§ 7, 15-20; Dec. Dig. 12(1).] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes PUBLIC UTILITIES 18. CARRIERS 12(1)-CONSTITUTIONAL LAW 11. CARRIERS 12(1) [Ed. Note.-For other cases, see Carriers, 62-REGULATION THORITY. The state may regulate the fares and rates which may be charged by railroads and other carriers, and such power may be lawfully delegated by the Legislature to an administrative commission, as the Public Utilities Commission. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 7, 15-20; Dec. Dig. 12(1); Constitutional Law, Cent. Dig. §§ 94-102; Dec. Dig. 62.] Appeal from Circuit Court, Sangamon 12. STATUTES 141(2) PUBLIC UTILITIES County; Frank W. Burton, Judge. ACT-VALIDITY. Proceedings before the State Public UtiliPublic Utilities Act, $ 81, providing for the repeal of the "act establishing a board of rail-ties Commission, on the relation of Harley road and warehouse commissioners," together B. Mitchell and others, against the Chicago with acts declaring express companies to be & West Towns Railway Company and ancommon carriers, subject to the jurisdiction of other. the railroad and warehouse commission, is not in violation of Const. art. 4, § 13, declaring that no law shall be revived or amended by reference to its title only, for the utilities act is complete in itself, and not an amendment of any prior act. [Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 48, 209; Dec. Dig. 141(2).] 13. CONSTITUTIONAL LAW 298(1) DUE PROCESS OF LAW-WHAT CONSTITUTES. The Public Utilities Act, providing for the hearing of rate cases by Public Utilities Commission, is not invalid as depriving public utilities of their property without due process; the persons affected by the hearings being given notice and opportunity to be heard. From an order of the Commission, defendants appealed to the circuit court, and, the order being reaffirmed, they again appeal. Reversed and remanded. McEwen, Weissenbach & Shrimski, of Chicago (Willard M. McEwen and Israel Shrimski, both of Chicago, of counsel), for appellants. P. J. Lucey, Atty. Gen., Timothy F. Mullen, Fred B. Silsbee, and Willis Melville, all of Chicago, for appellees. DUNCAN, J. The Suburban railroad runs from Fortieth avenue and Twenty-Second street in the city of Chicago to Brainerd ave [Ed. Note.-For other cases, see Constitution-nue in La Grange, a distance of approxial Law, Cent. Dig. § 847; Dec. Dig. 298(1).] mately 10 miles, and it passes through Haw14. CONSTITUTIONAL LAW 298(1) — DUE thorne, Clyde, Riverside, and Brookfield, bePROCESS OF LAW-WHAT CONSTITUTES. tween said terminal points. The company The Public Utilities Act, declaring that the also owns and operates a crossline on Fiftyfindings and conclusions of the commission on questions of fact shall be taken as prima facie Second avenue, running from Twelfth street true on appeal, and that no rule, regulation, or to Twenty-Fifth street, in Chicago, and order of the commission shall be set aside, unless one on Harlem or Seventy-Second avenue, it appears that the findings of the commission running from Twenty-Second street north inwere against the weight of the evidence, does not invalidate the act on the theory that it to Forest Park, making the total mileage deprives public utilities of their property with- operated about 121⁄2 miles. It is a doubleout due process of law; only a rebuttable pre-track line, except the track north of Twentysumption being created. Second street on Harlem avenue, the total 298(1).] single-track mileage being 24.706 miles. The 2-STAT- Railroad Act about 20 years ago, and owns company was organized under the general a large portion of its right of way in its own right that is not located in any public street. No freight is carried on the La Grange line. The cars are of suburban or interurban type, carrying only passengers and their hand baggage. There are no depots on the line. [Ed. Note. For other cases, see Public Serv-There are waiting stations or shelters at difice Commissions, Dec. Dig. 2.] [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 847; Dec. Dig. 15. PUBLIC SERVICE COMMISSIONS UTORY PROVISIONS. The Public Utilities Act is not void because the right to a supersedeas on appeal from an order of the commission is restricted, for while the Constitution preserves the right of an appeal or writ of error in all civil cases, the right to have the same made a supersedeas is not guaranteed. 16. STATUTES 64(2) — VALIDITY INVALIDITY. PARTIAL The Public Utilities Act will not be held invalid because of the invalidity of portions of the act which are not necessary or inseparable parts of the act without which it would not have been passed, where their elimination will leave a valid act capable of being carried out. [Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 59, 195; Dec. Dig. 64(2).] 17. CONSTITUTIONAL LAW 42-VALIDITY OF STATUTES-RIGHT TO ATTACK. Persons not injured by portions of a statute cannot question its constitutionality. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 39, 40; Dec. Dig., 42.] ferent points along the line, but no agents are stationed at them. Tickets are sold on the cars, and sometimes by merchants in towns along the line as an accommodation to their customers. The Chicago & West Towns Railway Company was organized under the Street Railways Act. It was formerly the County Traction Company, and took over certain lines outside of the city of Chicago in the so-called "traction settlement," and is operating west and northwest of the city of Chicago with a mileage of approximately 47 miles, and has a single-track mileage of approximately 72 miles, running within the city of Berwyn, the town of Cicero, and the villages of Lyons, Riverside, Forest Park, Oak Park, River Forest, and Maywood. when a public utility desires to change its schedule of rates it shall file its application for such change, with a showing of the proposed rates and charges; and that where the rates and charges of the public utility in effect on July 1, 1913, are discriminatory, such utility must forthwith apply for consent to change its schedule of rates so as to comply with the law against discrimination in rates. No notice of said order was given to appellants by the commission until after the proceedings before the commission hereinafter mentioned. Prior to December 30, 1913, both of said lines had established a flat rate of 5 cents and exchanged transfers, and that rate had been charged from Chicago to La Grange and intermediate points. By agreement both lines were operated under the same management-i. e., they were managed from the same office by the same office help, but two sets of books were kept. Each line was operated by its own force and paid its own operatives and the expense of operation and the upkeep of its lines. On December 30, 1913, the said lines made an increase in their rates which became effective December 31, 1913, and in January, 1914, in accordance with section 33 of the Public Utilities Act, they filed with the Public Utilities Commission their schedules showing all their rates and other charges and classifications then in force by them, and the schedules so filed contained the same increased rates and charges in effect December 31, 1913, and those rates have been charged and were being charged by said lines from said date and up to October, 1914. On the 3d day of March, 1914, two affidavits were filed before the Public Utilities Commission-one by George W. McGhee and the other by C. H. Greer-setting up, in substance, that on the 29th day of March, 1914, they boarded the cars of the Chicago & West Towns Railway Company at Brookfield, Ill., and tendered 5 cents for a continuous ride to Chicago, the old rate in force July 1, 1913, which fare was registered, and for failure to pay the further increased charges on demand they were put off its car after they had ridden the distance covered by the 5 cents paid, under the new rate. On March 26, 1914, the parties to said affidavits and others as a committee wrote the commission a letter from Chicago, stating, in substance, that they were a committee appointed to ask immediate relief against said increase of rates by an order from the commission commanding the said utility companies to immediately discontinue said advance rate and return to their rates of July 1, 1913. The said commission on March 27, 1914, entered what is called in this record a general order, which recites, in substance, that the commission holds that any changes made by a public utility in its rates, charges, and classifications for service since July 1, 1913, whereby the rates and charges exceed those in effect on said date, are all illegal unless the same have been consented to by the commission, and if any changes of rates are deemed necessary, application should first be made to the commission for its consent to make such changes; that in case any public utility has made such a change in rates it is ordered and directed to return to the rates and charges of July 1, 1913, and to continue the same in force until the commission has In addition to the facts already recited in given its consent to change the same; that this opinion, the evidence for appellants es On April 15, 1914, a petition was filed by the relators, Harley B. Mitchell and others, residents of La Grange and Brookfield, before the commission, asking for a hearing in regard to the violation of said order of March 27, 1914, by the Suburban Railroad Company and the Chicago & West Towns Railway Company in charging excessive rates or rates in excess of those charged by said companies July 1, 1913, and setting forth in their petition certain charges that said lines were making in excess of those charged July 1, 1913. Their prayer in said petition was that the commission enter an order directing said companies to return to the rates and charges on said lines of July 1, 1913, pending a hearing on their petition, and to show cause why they should not be punished for the violation of said order of March 27, 1914. A petition was also filed by Emil G. Schmidt, receiver of the Suburban Railroad Company, asking the commission that the schedules of joint rates filed by the Chicago & West Towns Railway Company and the Suburban Railroad Company with the commission in January, 1914, being the same rates put in force by said companies December 31, 1913, by an order of the commission, be approved as just, reasonable, and lawful. The petition set forth the rates, and averred that on and prior to July 1, 1913, the Suburban railroad was operated upon a 5-cent fare, but always at a loss, and had been operated at a loss up to January, 1914. Both petitions were consolidated for a hearing before the commission, and the evidence was heard thereon. The commission entered what it termed a preliminary order on October 15, 1914, directing appellants to return to the fares in effect on July 1, 1913, "until such time as this commission may determine and fix the just and reasonable rates and fares, based upon the fair value of the property" of such companies. It further ordered that said companies file with the commission a correct and complete inventory of their property by January 15, 1915. A petition for rehearing by said companies was overruled by the commission. On appeal by said companies to the circuit court of Sangamon county the order of the commission was sustained and affirmed, and said companies have prosecuted an appeal to this court, |