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only a moderate excess above $100,000. To so hold would be to reverse the rule laid down by Judge Cooley, and universally received as correct, and to give a highly liberal, and even very loose, construction against every interest of the taxpayers. We must therefore hold that the resolution here involved, being the basis of the grant of power to exact taxes in excess of the constitutional limitation, cannot be construed to authorize the further exercise of such taxing power after levies made under it had resulted in the payment by the taxpayers of the sum of $15,000 and more in excess of the said sum of $100,000 specified in the resolution. The interest and safety of the taxpayers demand this construction should be adopted as a necessary protection against the abuse of the power of taxation.

In the notice given by the county clerk calling the election under the resolution of the board, and in the ballots prepared and printed by the county clerk for the use of the voters at the election, it is contended the voters were notified that the proposition to be voted upon was that the additional tax should be levied "until a sufficient amount is raised to meet the indebtedness of the county." Counsel for the appellee contend it appeared from the evidence that the actual indebtedness of the county at the time of the adoption of the resolution exceeded $132,000, and that the ballots cast by the voters should be construed to authorize the levy of the additional rate until that amount should be raised. The authority to levy taxes in excess of the rate permitted by the constitution cannot be conferred by the act of the county clerk in framing the notice calling the election or preparing the form of the proposition to be printed upon the ballots. The statute indicated that the voters should by the ballots be called upon to vote "For additional tax" or "Against additional tax,"-that is, for or against the additional tax as proposed in the order adopted by the county board. The printing of additional words upon the ballots could have no effect to thus change and enlarge the resolution of the county board. Aside from this, we think the voters would understand the proposition printed on the ballot to mean that the county board should be authorized to levy the proposed excess rate of taxation until a sufficient amount should thus be produced to meet indebtedness of the county to the amount specified in the resolution of the county board authorizing the election to be held, viz., $100,000.

We hold the power conferred upon the county board of Peoria county by the resolution of the board, and the adoption by the people, at the election, of the proposition contained in the resolution to levy 21⁄2 mills upon each dollar in excess of the 71⁄2 mills allowed to be levied by the provisions of the constitution to meet the indebtedness of the county In about the sum of $100,000, was exercised and exhausted by the levy of such excess rate In the years 1897, 1898, and 1899, and the pro

duction by the levies for those years of a sum in the aggregate exceeding $115,000, and that therefore the levy of such excess rate in the year 1900 was without authority of law. It follows that the county court erred in overruling the objection presented by the appellant company, and in rendering judgment against its property. The judgment must therefore be reversed.

Judgment reversed.

(199 III. 20)

PEOPLE, to Use of STATE BOARD OF HEALTH, v. SMITH.

(Supreme Court of Illinois. Oct. 25, 1902.) APPEAL-REVERSAL-JUDGMENT-FINDINGS BY APPELLATE COURT.

1. Under Practice Act, § 88, requiring that the appellate court, in reversing a judgment and rendering one of its own as a result of finding the facts different from those found by the trial court, shall incorporate its findings in the judgment, there must be in the judgment a recital or statement of the facts as found, and a finding by the appellate court that "defendant did not treat, or profess to treat, operate on, or prescribe for any physical ailment, or any physical injury to or deformity of another, within the meaning of Act April 24. 1899, to regulate the practice of medicine,' was insufficient, furnishing no basis for action by the supreme court on appeal to it.

Error to appellate court, Second district.

Action by the people, for the use of the state board of health, against Charles L. Smith. Judgment by the appellate court (92 Ill. App. 22) reversing a judgment for plain tiff, and plaintiff brings error. Reversed.

An action in debt was brought by the people, for the use of the state board of health. against Smith, the defendant in error, before a justice of the peace in Peoria county, to recover the statutory penalty prescribed by the act entitled "An act to regulate the practice of medicine in the state of Illinois, and to repeal an act therein named," in force July 1, 1899 (Hurd's Rev. St. 1899, p. 1143). The justice found for the defendant, and entered judgment accordingly. On appeal to the circuit court the case was tried de novo by the court, trial by jury having been waiv ed, and Smith was adjudged guilty of violating the statute, and judgment against him was rendered for the prescribed penalty of $100 and costs of suit, and it was also adjudged that in default of immediate payment of said fine and costs the defendant be com mitted to jail for 30 days, or until payment of fine and costs should be made. Smith appealed to the appellate court for the Second district, and that court reversed the judg ment on the facts, and made and included in the judgment the following finding: "We find that the defendant did not treat or profess to treat, operate on, or prescribe for any physical ailment or any physical injury to or deformity of another, within the meaning of the act of the legislature of the state of Illi.

nois approved April 24, 1899, in force July 1, 1899, entitled 'An act to regulate the practice of medicine in the state of Illinois, and to repeal an act therein named.'" This writ of error was then prosecuted to this court.

Whitmore, Barnes & Boulware, for plaintiff in error. I. C. Pinkney, for defendant in error

CARTER, J. (after stating the facts). While the parties have not pointed out, and we have been unable to find in the record, what the charge or complaint against the defendant in error was, we will assume, under rule 15 of this court, that the cause of action as stated by plaintiff in error and not denied by defendant in error was that Smith professed to treat, treated, operated upon, and prescribed for the physical ailments, physical injuries to, and deformities of others, and also was an itinerant vendor of an appliance, to wit, prescription glasses, intended and by him recommended for the treatment of diseases or injuries, and that he, as such itinerant vendor, "by writing and printing and divers other methods, professed to the public to cure and treat diseases and deformities by a certain appliance (his so-called prescription glasses) without first having obtained a license for that purpose from the Illinois state board of health," contrary to the statute. The evidence tended to prove that the defendant in error was a traveling optician, giving to his business the name of "Optometry." He went from city to city, fitting spectacles to persons having defective eyesight. In fitting glasses for a customer he placed cards on the wall, with letters of different sizes, and determined from the ability of the person to read such letters with ease at the required distance the kind of lens he required. These measurements were sent by him to a firm in Chicago, with which he had business connections, where glasses were ground, in accordance with directions, suited to the eyes of his customers. These glasses were fitted in frames as ordered, and then returned to and delivered by him to such customers. If his customer had any disease requiring medical or surgical treatment, he did not treat it himself, but sent or recommended him to some regular practitioner of medicine or surgery. He advertised himself extensively in the public press as "the famous Chicago eye expert." These advertisements were laudatory of his work, and contained in some instances statements such as the following: "If you have blurring, dizziness, neuralgia, headaches, spots before the eyes, inflammation, granulation, winking, trembling spells, cataract, burning and smarting of the eyes, various nervous brain affections, entailing not only positive injury to the sight but untold misery, call immediately." They further stated that he "does not give medical or surgical treatment"; that during his previous visits to the city he had fitted hundreds of people

with his celebrated prescription glasses, and had given entire satisfaction to his many patrons, and would again prove a boon to the community. It also appeared from the evidence that his afflicted customers were not cured by his appliance or eyeglasses, but were only relieved while using them.

The appellate court, having reversed the judgment and rendered a different judgment of its own as a result of finding the facts different from the facts as found by the trial court, sought to make a finding of facts and incorporate the same in its judgment, in compliance with section 88 of the practice act. But in doing so it has made a finding from which it is impossible for this court to determine whether it correctly applied the law to the facts or not. The meaning of such finding is made altogether dependent upon the view which the appellate court entertained of the law. So, also, its view of the law is made to depend on its conclusions of fact, so that this court, from a consideration of the statute and of this finding of fact, cannot, by any possibility, determine the legal questions which it is its duty to determine. We are not authorized to look into and consider the evidence, and determine therefrom whether the appellate court has found the facts correctly or not, but we must take the finding of facts made by the appellate court as conclusive, and from such finding determine whether the law has been correctly applied. It is manifest, therefore, that there must be a recital or statement in the judg ment of the facts as found,, not of the mere evidentiary facts, but of the substantive and ultimate facts of the case, from which this court can perform the duty required of it to determine whether the law has been correctly applied to such facts. Such a finding as shown by this record does not amount to anything more than would a finding that "the defendant is not guilty of violating the statute." The case, on this point, is much like Purcell Co. v. Sage, 192 Ill. 197, 61 N. E. 486, where we held that a finding of fact that one of the parties was in default and the other was "not in default under the terms of the contract," was not sufficient, and it was there said (page 200, 192 Ill., page 487, 61 N. E.): "What the contract required them to do is a question of law, which we have authority to determine when properly presented to us. What the parties did or omitted to do are questions of fact, which it was the province of the appellate court to determine and the duty of that court to recite in its findings,"-citing Pease v. Ditto, 185 Ill. 317, 56 N. E. 1072, and quoting: "The decision of the appellate court as to the law arising out of the facts so recited in its judg ment is not final. It may be reviewed in this court by appeal or on error." See, also, Seeberger v. McCormick, 178 Ill. 404, 53 N. E. 340. Our conclusion is that the finding of facts as made by the appellate court is not a compliance with the statute and the decisions

of this court. The judgment of the appellate court will therefore be reversed, and the cause remanded to that court, with directions to make and recite in its judgment a sufficient finding of facts upon which it bases its judgment.

Reversed and remanded, with directions.

(198 Ill. 544)

LYMAN v. PEOPLE.

(Supreme Court of Illinois. Oct. 25, 1902.) ADULTERY-INDICTMENT-AVERMENT OF MARRIAGE-CONTINUENDO - EVIDENCE SUFFICIENCY DEFINITION - HARMLESS ERROR

INSTRUCTIONS.

1. Where defendant and a woman were jointly indicted for adultery, on trial of defendant it was immaterial that the indictment did not state whether the woman was married, there being an averment that they were not married to each other.

2. An indictment against defendant and A. for adultery, alleging that defendant was "a married man, having a lawful wife other than the said A.," was not defective as alleging that A. was also defendant's wife, there being an averment that they were not married to each other.

3. An indictment for living in open adultery may charge the offense as committed on a certain day, without a continuendo.

4. Evidence in a prosecution for adultery held sufficient to prove defendant's marriage.

5. Evidence held sufficient to establish that defendant was guilty of living in open adultery.

6. On prosecution for adultery it was not necessary that the instructions define that word.

7. Instructions not predicated on evidence were properly refused.

8. Where, on prosecution for adultery, the uncontradicted evidence was such that the jury could have returned no other verdict than that of "Guilty," error in refusing requested instructions was harmless.

Appeal from appellate court, Second district. Elias Lyman was convicted of adultery, and from a judgment of the appellate court (98 Ill. App. 386) affirming the conviction he appeals. Affirmed.

Nels. F. Anderson and Wilson & Moore, for appellant. Emery C. Graves, State's Atty. for Henry County, and H. J. Hamlin, Atty. Gen. (E. S. Smith, of counsel), for the People.

PER CURIAM. In deciding this case the appellate court delivered the following opinion:

"Elias Lyman and a woman whose first name was Alice and whose last name was unknown to the grand jury were jointly indicted for living together in an open state of adultery. Apparently Alice was not apprehended. The proof was, she returned to Chicago when she ceased to live with Lyman. Lyman alone was placed on trial. His motion to quash was overruled as to the first four counts. He pleaded not guilty. A jury found him guilty under the second count. He interposed motions for a new trial and in arrest, which were denied. He was

1. See Adultery, vol. 1, Cent. Dig. § 15.

sen

tenced to imprisonment in the county jail for forty days and to pay the costs. He has sued out this writ of error to review said judgment.

"The second count, after laying the venue, charged that said Elias Lyman and the woman named Alice, on September 15, 1899, 'not then and there being married to each other, unlawfully, wrongfully, and willfully did live, cohabit, and have carnal intercourse together in an open state of adultery, he, the said Elias Lyman, then and there being a married man having a lawful wife, other than the said Alice, living, as he, the said Elias Lyman, and she, the said Alice, then and there well knew; contrary to the form of the statute,' etc. It is argued this does not charge Lyman with the crime of living in an open state of adultery, for three reasons: First, because it does not charge that Alice was a married woman; second, because it charges that he had as wife both the other woman and also Alice, and hence it is either uncertain, or charges bigamy; and, third, because the offense is charged to have been committed on a single day, only, without a continuendo, and that is legally impossible.

"Adultery is the voluntary sexual intercourse of a married person with a person other than the offender's husband or wife, whether the latter is married or single. Miner v. People, 58 Ill. 59; Bouv. Law Dict. and And. Law Dict. tit. 'Adultery.' The offense of the married person is adultery, and of the unmarried person fornication. The second count does not in express terms aver whether Alice was married or single. It does aver that Lyman and Alice were not married to each other, that Lyman had a lawful wife then living, and that Lyman and Alice lived together in an open state of adultery. Alice I could not have committed the offense of living in an open state of adultery with Lyman unless she had a lawful husband then living. In Crane v. People, 168 Ill. 395, 48 N. E. 54, the court said, on page 397, 168 Ill., and page 55, 48 N. E., that the word 'adultery' has a well-known meaning, which could not be misunderstood by a jury; and it is there implied that it was not necessary to explain in the indictment why the offense was adultery, instead of fornication. This indictment charges the offense against Alice in the language of the statute, and it is usually sufficient to state any criminal charge in the language of the statute. But Alice is not on trial, and we need not now determine whether she is sufficiently charged with a crime. It is not essential both guilty parties shall be indicted, and, if they are jointly indicted, it is not necessary both shall be tried. Bish. St. Crimes, § 708. If Lyman committed the crime, he could be indicted and punished, even if his paramour were dead, so that the indictment could not run against her. It might readily happen that the grand jury could not ascertain, nor the prosecution prove, whether the guilty woman was married or single. If the

indictment averred in one count that she was married and in another that she was single, the prosecutor might be unable to prove which allegation was true; and, if the allegation was material as against the married man, the jury could not, in such a case, convict him under either count. Lyman was guilty of adultery if he had a lawful wife then living, if Alice was not that lawful wife, if Alice and he were not married to each other, and if he and Alice lived, cohabited, and had carnal intercourse together in an open state of adultery. All this the indictment charged against him. In 2 McClain, Cr. Law, § 1094, it is said: 'Where the offense may consist in connection between a married man and a woman not his wife, whether married or single, it is unnecessary to allege the state of the woman in this respect.' We are of opinion the second count was sufficient in this particular as against Lyman.

"The argument that the words 'he, the said Elias Lyman, then and there being a married man having a lawful wife, other than the said Alice, living,' mean that Alice also was his wife, is not based on what we conceive to be the natural meaning of the words employed, and we think it especially clear such is not their meaning here, when considered in connection with the other words in the same sentence charging said Lyman and said Alice with 'not then and there being married to each other.'

"The offense is laid on a single day in the second count. If Lyman lived with Alice in an open state of adultery for four weeks or longer, as the evidence tends to prove, he was guilty of that offense on each day of the time. As to the allegation of time this count follows the precedent given in Cameron on Criminal Law, on page 19. In 2 McClain, Cr. Law (section 1087), speaking of living in a state of adultery, it is said it is not necessary the relation continue for any definite length of time; that it may be sufficient that it is for a day, only, if it is with an intention of -continuance. We are of the opinion the court did not err in overruling the motion to quash the second count.

"It is argued there is no sufficient proof that Lyman was legally married. There is proof by an eyewitness that on December 14, 1858, at Rochester, Vt., a marriage ceremony between Lyman and a woman was performed by Rev. Mr. Tracy, a Congregationalist minister of that place; that Lyman and the woman stood up; that the minister stood in front of them; that they joined hands when the minister requested them to do so; that the minister employed the marriage service used by the Congregationalists; that the minister asked Lyman if he took her to be his lawful wife, to love, protect, and cherish her, and care for her in health and sickness; that Lyman responded in the affirmative; that the minister put like questions to the woman, and she made like re

sponses; that when the minister came to the close of the ceremony he pronounced them man and wife; that thereafter Lyman lived with said woman as his wife in Kewanee many years, and they raised a family of children, and that she still lives there in the same house where they formerly lived together. We think this was sufficient proof of a marriage contract per verba de præsenti between those parties (Hiler v. People, 156 Ill. 511, 41 N. E. 181, 47 Am. St. Rep. 221), and that it was not necessary to prove that the clergyman had been ordained, or that the laws of Vermont authorize a clergyman to solemnize marriage. There was other proof having some bearing on the question. Several witnesses testified that they knew Lyman's wife. She was repeatedly spoken of in the testimony as Mrs. Elias Lyman and Mrs. Lyman. Defendant's counsel asked a witness if she had not frequently talked over the marriage ceremony with Mrs. Lyman. Several witnesses had heard defendant speak of and to her as his wife. Adelaide Lyman was sworn as a witness for the prosecution. Defendant's counsel objected, and said to the court, "The objection is that she is the defendant's wife. The objection was afterwards withdrawn. Several of these matters do not appear in the abstract. We think the proof in this respect sufficient.

"It is argued the proof does not establish that Lyman and Alice lived in an open state of adultery together. At this time Lyman had left the home in Kewanee, where he and his wife had lived together, and where she still lived, and was now living on one of his farms. Alice lived with him a total of four weeks or longer, going away once and returning. She went upstairs to bed at night with Lyman. The only places where she could sleep were two bedrooms. One had only a cot in it, and was occupied by a colored woman alone. The other was Lyman's bedroom. Lyman and Alice were seen going into it together at bedtime, and were frequently heard talking in it after retiring for the night. At one time they were seen in bed together in their night clothing. At another time they were seen by another witness in the act of sexual intercourse in the same bed. Articles of woman's clothing were seen in his room, which she afterwards wore. He was seen to embrace her upon the porch of his farmhouse. He drove into town nearly every day, and always took her with him. They attended the county fair together. He bought clothing and a diamond ring for her, and had them charged to him, and put the ring upon her finger. When she had a dress skirt fitted, she went into the parlor of the dressmaker's establishment, and showed it to Lyman, to see if it pleased him. He said it did, and that she had nice hips. He had the skirt charged to him. He introduced her as Mrs. Lyman and as his wife to several people. The only proof introduced for defendant was to the effect that

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he was insane, and that his insanity took the direction of lewdness and sexual extravagance. After this had all been heard, and evidence in rebuttal on that subject, defendant withdrew the evidence offered as to his insanity. The proof for the prosecution was made up of many details testified to by numerous witnesses. None of this testimony was contradicted by any witness. clusion from all the facts is irresistible that Lyman and Alice lived together openly as husband and wife live together, occupied the same room and bed at night, rode about the country together, and generally followed the course of conduct toward each other which husband and wife are accustomed to, for about four weeks. No one was deceived into thinking they were husband and wife, for those whom they met knew Lyman had a wife, the mother of his children, living in Kewanee. But it was not necessary to the crime that the public should believe they were husband and wife. In our judgment, the evidence required the jury to find that they lived together in an open state of adultery.

"Complaint is made that the instructions given at the request of the prosecution did not define the word 'adultery.' This is answered by what is said in Crane v. People, supra.

Some of defendant's refused instructions wholly misstated the law. Others were not based upon any evidence,-such as those which referred to 'occasional visits' between Lyman and Alice. There was no proof of occasional visits. If any of the refused instructions might have been given, still their refusal did the defendant no harm. The fact of his guilt was clearly proven, and the only defense he attempted he afterwards withdrew. No fact testified to by any witness for the people was controverted by any other witness. The jury could not have returned any other verdict. The judgment is affirmed."

We concur in the foregoing views expressed by the appellate court, and in the conclusion above announced by that court. Accordingly, the judgment of the appellate court, affirming the judgment of the circuit court of Henry county, is affirmed. Judgment affirmed.

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fendant, without excepting, filed a general demurrer. Plaintiff gave notice that it would call up the demurrer for argument on a certain date, and on that date defendant appeared, and refused to argue the demurrer, insisting that it be placed on the contested motion calendar, whereupon the court overruled the demurrer. Held, that its action in so doing was proper.

4. The setting of the cause for trial one week thereafter was proper.

5. The admission of evidence not objected to cannot be urged as error on appeal.

6. Where defendant defaults, every material and traversable fact alleged in the declaration is admitted.

7. In an action against a city for rent of a building occupied by the city on default, it is not necessary to show for what years the rent testified to accrued.

Appeal from appellate court, First district. Action by William J. English against the city of Chicago. From a judgment of the appellate court (97 Ill. App. 594) affirming a judgment for plaintiff, defendant appeals. Affirmed.

This was an action for breach of covenant. The declaration sets out that a certain lease was executed by and between the city of Chicago, appellant, and William J. English, appellee, on the 4th day of June, 1892, by which said English leased to the city of Chicago a portion of the second floor of a certain building owned by him in the said city, to be used as an office for the waterworks of said city at a rental of $1,000 per annum. It was provided that the term of said lease should commence on the 15th day of July, 1892, and continue for one year, with the privilege to the city to extend the same on the same terms, and it was provided that said lease should be so extended from year to year, unless the city should notify said English in writing, by April 1, 1893, that the lease would not be so extended; and, further, that the said lease should be similarly extended from year to year unless notice to the contrary should be similarly given from year to year, as in the lease provided,— that is, on or before April 1st of each succeeding year. The declaration also alleges that no notice was ever served or given to the said English, as provided for in the lease, for terminating the same, and that on, to wit, the 1st day of April, 1900, the sum of $2,583.33 was due and unpaid to said English under the terms of said lease, to the damage of said plaintiff, etc. A copy of the lease was attached to the declaration.

The city had prepared a demurrer to the declaration in said cause, which by inadvertence was filed in the circuit court. The result was that the plaintiff took a default in the superior court against the city. The city then, June 9th, moved the superior court to set aside the default and for leave to plead. The plaintiff opposed the setting aside of the default, and the following took place: "Judge Shope: Rule 7 of the common-law rules of the superior court of Cook county provides that on setting aside default the

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