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(158 N.E.)

2. Courts 219(10)-Decisions Involving validity of ordinances of park commissioners, constituting municipal corporation, may be reviewed directly by Supreme Court (Practice Act, § 118).

Judgments and decrees in cases involving the validity of ordinances, adopted by park commissioners constituting a municipal corporation, may be reviewed by the Supreme Court direct(Smith-Hurd Rev. St. 1925, c. 110), § 118. ly in the manner provided for by Practice Act

3. Quo warranto-Writ of quo warranto has been succeeded by information in nature of quo warranto available to enforce private as well as public rights (Quo Warranto Act).

succeeded by the information in the nature of quo warranto which is used to enforce rights of private individuals as well as those of the public.

N. E. 730. Under an indictment charging | from city or town to park commissioners as done the obtaining of money or property by the by Laws 1879, p. 216; Laws 1895, p. 290, and confidence game, proof merely that the de- Laws 1917, p. 621. fendant is guilty of obtaining money by false pretenses does not sustain the charge. It must further appear that as an element of the transaction the defendant obtained the confidence of his victim or victims by some false representation or device and swindled him. People v. Peers, 307 Ill. 539, 139 N. E. 13. The statute does not cover business transactions between parties on an equal footing, even though there is such fraud or misrepresentation as will subject one of the parties to a civil or criminal action. People v. Turpin, 233 Ill. 452, 84 N. E. 679, 17 L. R. A. (N. S.) 276; People v. Santow, 293 Ill. 430, 127 N. E. 671, 9 A. L. R. 1524. Murray, Bigler, and Haag were cautious business men, of long Rev. St. 1925, c. 112), the writ of quo warranto, Under Quo Warranto Statute (Smith-Hurd standing in their particular occupations or which at common law was prerogative remedy, professions. They investigated the defend-used only to correct public wrongs, has been ant's formulas fully. They found that there was merit in them, and they so testified. They did not rely upon the judgment or statements of the defendant as to the merits of his product. There was just one thing lacking in the product to make it very valuable, according to the testimony of the state's witnesses, and that was a dryer that would dry it in proper time. They hoped and believed -and so did the defendant believe-that they could find a dryer that would make the product practical and valuable. The parties who dealt with the defendant in this case did rely on the truthfulness of the defendant's statement that he owned the formulas and had not sold them to others, but such proof is not sufficient in this case to establish the confidence game. "The confidence game statute was designed to reach that class of offenders known as 'confidence men,' who practice swindling schemes as various as the mind of man is suggestive, upon unwary victims. The gist of the crime is the obtaining of the confidence of the victim by some false representation or device." People v. Peers, supra. The evidence in this case fails for want of a showing that the confidence of the victims was obtained by some such representation or device.

The judgment of the criminal court is reversed.

Judgment reversed.

(327 I11. 106)

PEOPLE ex rel. KINSELLA et al. v. CROWE,
State's Atty. (No. 18317.)

Supreme Court of Illinois. Oct. 22, 1927.

1. Municipal corporations 68-Legislature may transfer control of streets from city or village to park commissioners (Laws 1879, p. 216; Laws 1895, p. 290; Laws 1917, p. 621).

The manner of use of streets of a city or village is within the control of the Legislature which may provide for the transfer of control

4. Mandamus 60-Quo warranto 44—On proper petition, state's attorney should file petition in nature of quo warranto, and may be compelled to do so by mandamus.

When an individual, having a private right which may be enforced under quo warranto statute, presents a petition for a leave to file an information in the nature of quo warranto to duty, if the petition is proper form and the the state's attorney for his signature, it is his accompanying affidavit of facts is prima facie sufficient, to sign the petition and present it to the court, and he may be compelled to do so by mandamus.

5. Municipal corporations 266-Statute authorizing park commissioners to take street extending beyond boundaries of district did not repeal acts authorizing selection of streets within district (Laws 1879, p. 216; Laws 1895, p. 290; Laws 1917, p. 621).

Laws 1917, p. 621, providing for the selection and taking of the street or part of a street by park commissioners, even though extending not repeal Laws 1879, p. 216, or Laws 1895, p. beyond the boundaries of the park district, did 290, which authorized selection and taking of streets only within the district. 6. Municipal corporations 303 (4)-Park commissioners' ordinance selecting streets held ineffective to extent that street was outside of district (Laws 1895, p. 290).

Ordinance adopted by South Park Commissioners, under Laws 1895, p. 290, purporting to select and taking particular street, held ineffective to the extent that the street lay outside of the park district. 7. Municipal corporations 303(4)-Park commissioners' ordinance, selecting street, held not wholly void, though ineffective as to portion of street outside district (Laws 1895, p. 290).

Ordinance of South Park Commissioners under Laws 1895, p. 290, purporting to select and

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

take street lying in part outside of district, held | amend the petition, petitioners appeal. Afnot wholly void, though ineffective as applied to firmed. portion of street lying outside of district.

8. Municipal corporations 120-Rules of statutory construction apply to ordinances. The rules for the construction of ordinances are the same as those for the construction of

statutes.

9. Statutes 64 (1)—Statute, void in part, is wholly void, if provisions are so mutually dependent as to warrant belief that Legislature intended them as whole and would not have enacted part only.

William E. Furlong, of Chicago, for appellants.

Schnackenberg & Hansen, William B. Walrath, and William H. Gruver, all of Chicago (Elmer J. Schnackenberg, of Chicago, of counsel), for appellee.

DUNN, J. The superior court of Cook county sustained a demurrer of Robert E. Crowe, state's attorney of that county, to a petition of the people of the state of Illinois, on the relation of John J. Kinsella, Nora Kinsella, Lydia B. Helwig, John E. Lynch, and Frances Lynch, praying for a writ of mandamus commanding the state's attorney to sign and file a petition for leave to file an information in the nature of quo warranto on behalf of the people, and on the relation of the pe

A statute, invalid in part, is invalid as a whole if its provisions are so mutually connected and dependent on each other as to warrant the belief that the Legislature intended them as a whole and would not have enacted a part alone. 10. Statutes 64(1)-Statute may be part void and part valid. A statute may be void in part and valid in titioners against the South Park Commissionpart.

11. Statutes 64(1)—If law constitutional under certain limitations exceeds such limitations, it may still be operative within its legitimate sphere and void as to excess only.

If a law which is constitutional under certain limitations exceeds those limitations, it may still be operative within its legitimate sphere, and void only as to the excess. 12. Municipal corporations

ers, a municipal corporation for park purposes, requiring it to show by what warrant it claimed and exercised the power of control, regulation, improvement, and government of Loomis street, in the city of Chicago, between West Sixty-Seventh street and the south line of West Eighty-Seventh street, and by what warrant it claims and exercises the power to initiate and levy a special assessment for the improvement of that part of such street as a boulevard. The petitioners asked leave to file certain amendments to the petition, which were at the same time pre

280(1)—Property owners' consent to park commissioners taking of street held valid, though not acted upon until after five years (Laws 1895, p. 290). Where majority of owners of property abut-sented to the court, but the court overruled ting on street in 1918 gave their consent, necessary under Laws 1895, p. 290, to the taking of such street by the South Park Commissioners, but where commissioners did not take street until more than five years later, held the property owners' consent so given was still effective, though most of the property on the street had changed hands after the giving of such consent, and less than 30 per cent. of the total frontage remained in the ownership of those who had joined in giving the consent.

13. Mandamus 154(10)-Denial of leave to amend petition held not error, where amendments would not have cured defects.

In mandamus proceeding to compel state's attorney to sign and file petition for leave to file information in the nature of quo warranto, denial of leave to amend petition for mandamus held not error where amendments, if made, would not have obviated fatal objections to such petition.

the motion, entered a judgment that the petitioners take nothing by their writ, and that the respondent go without day and recover his costs. The petitioners have appealed directly to this court; the trial judge having certified that the validity of a municipal ordinance is involved, and that in his opinion the public interest requires the allowance of a direct appeal to this court.

The South Park Commissioners is a municipal corporation created by a special act of the General Assembly in 1869 (1 Private Laws of 1869, p. 358) having the management and control for park purposes of the South Park district, whose territory consists of the three towns of Lake, South Chicago, and Hyde Park, all lying within the city of Chicago. Loomis street is a north and south street of the city of Chicago, and part of it, extending from West Sixty-Seventh street to West Eighty-Seventh street, is within the town of

Appeal from Superior Court, Cook County; Lake and the South Park district. The center Hosea W. Wells, Judge.

Mandamus proceeding by the People, on the relation of John J. Kinsella and others, to compel Robert E. Crowe, State's Attorney for Cook County, to sign and file a petition for leave to file an information in the nature of quo warranto. From a judgment denying the writ and overruling the motion for leave to

line of West Eighty-Seventh street is the south line of the South Park district, and Loomis street extends south beyond Eighty-Seventh street to West Ninety-Ninth street; that part of the street south of the center line of West Eighty-Seventh street being in the town of Calumet, outside of the South Park district. The petitioners are owners of real estate in

(158 N.E.)

the South Park district abutting upon that, Loomis street so selected and taken; that part of Loomis street lying between West Loomis street is, and has been for more than Sixty-Seventh street and West Eighty-Seventh | ten years, a public street; that the frontage street.

of all lots and lands abutting upon Loomis street from West Sixty-Seventh street to West Eighty-Seventh street is 23,202.95 feet; that the street from West Sixty-Seventh street to Seventy-First street is an old macadam pavement, pitted, rutted, and well worn, with a driveway 30 feet wide, from Seventy-First to Seventy-Seventh street is unpaved, from Seventy-Seventh to Eighty-Third street is an excellent asphalt pavement, with a 28-foot driveway and all other usual city improvements, and from Eighty-Third street to the north line of Eighty-Seventh street is unpaved. West Eighty-Seventh street, at its intersection with Loomis street, is 100 feet wide from the north to the south line, and its center line at Loomis street, and for more than a mile each way east and west, is the bound

On February 2, 1923, the South Park Commissioners passed an ordinance selecting the part of Loomis street which has been described, between West Sixty-Seventh street and the south line of West Eighty-Seventh street, for boulevard purposes, and assuming power and authority to regulate, control, improve, and maintain such part of Loomis street for those purposes. The park commissioners intend to widen Loomis street, which is now 66 feet wide, and pave and improve it as a boulevard, and are about to pass an ordinance providing for so doing and for paying the cost, estimated at $500,000, by a special assessment on the property of the petitioners and other property abutting on the street and for three blocks east and west thereof, and are about to file in court a peti-ary line between the town of Lake and the tion for making such assessment, and each lot town of Calumet. West Sixty-Seventh street of the petitioners will, under the plan of the (an east and west street), which is also called commissioners, be specially assessed $300 if Marquette road, and the extension of Loomis the plan is carried into effect. The petition- street north of it for a distance of more than ers object to the improvement and assessment a mile, which is called Loomis boulevard, on the ground that the control of the street is have been public boulevards under the jurislegally vested in the city of Chicago, and that diction and control of the South Park Comthe South Park Commissioners has never ac- missioners since 1907. At the northeast corquired the right to regulate, control, improve, ner of Marquette road and Loomis boulevard and maintain it, but that the petitioners can- there has been continuously since 1904 a pubnot have this objection heard in the proceed-lic park of 60 acres, called Ogden Park, under ing for confirmation of the special assessment the jurisdiction and control of the South Park (Aldis v. South Park Comrs., 171 Ill. 424, 49 N. E. 565), and they are seeking to have the legality of the acquisition of the street determined by proceedings in the nature of quo warranto.

The petition for the writ of mandamus was verified by the affidavit of the petitioners as to its truth, and there was attached to it and filed with it the petition for leave to file an information in the nature of quo warranto, which it was sought to compel the state's attorney to sign. This petition represented that the South Park Commissioners, for seven months past and more, exercised, and still does exercise, powers not conferred by lawthat is, the power of control, regulation, improvement, and government of Loomis street between West Sixty-Seventh street and the south line of West Eighty-Seventh street, by taking steps to widen and pave the driveway and otherwise improve that part of the street as a boulevard and to levy a special assessment on abutting property and other property in the South Park district to pay the cost of such improvement; that the commissioners claim the right of control, regulate, improve, and maintain such part of Loomis street by virtue of the ordinance passed by the commissioners on February 2, 1923, pretending to select and take that part of the street for boulevard purposes and assuming to the commissioners full power and authority to regulate. control, improve, and maintain the part of

Commissioners. The territory of the city of Chicago touches, bounds, and is continguous to the public boulevards called Marquette road and Loomis boulevard and the public park called Ogden Park, and has done so at all times since 1907. Loomis street between West Sixty-Seventh street (or Marquette road) and the south line of West EightySeventh street has been at all times since 1907 a connecting street leading to Marquette road, Loomis boulevard, and Ogden Park from the town of Calumet in the city of Chicago, and from that part of the town of Lake in the city of Chicago which lies south of Marquette road and Ogden Park. Loomis street between West Sixty-Seventh street and West Eighty-Seventh street, before February 2, 1923, was a public street under the jurisdiction and control of the city of Chicago, and no part of it had been restricted to the purposes of a boulevard, but, since the passage of the ordinance of that date, the South Park Commissioners claim to have the right of control over that part of Loomis street for the purpose of making it a boulevard.

On March 28, 1917, the city council passed an ordinance giving consent to the South Park Commissioners to take, regulate, improve, control, and govern Loomis street between West Sixty-Seventh street and the south line of West Eighty-Seventh street, with the condition that the commissioners should within three months select and take the street and

otherwise the ordinance should cease to be of spots in the roadway between Sixty-Seventh any force. The commissioners failed to select and Sixty-Ninth streets. The street has conand take the street within the time fixed by tinued by the name of Loomis street, and not the ordinance, and the authority to do so as Loomis boulevard. It has been permitted therefore ceased. Afterward, on November to remain in the same physical condition as 26, 1917, an identical ordinance was passed by it was on February 2, 1923; the then unthe city council, except that the time limita- paved section of one-half of the total length of tion for the exercise of the authority confer- 21⁄2 miles being still unpaved. The lighting red was fixed at six months. On January 16, has continued to be done by and at the ex1918, a petition was filed with the commis- pense of the city of Chicago, which has consioners purporting to be the consent of the tinued to exercise the functions of street owners of 13,975.73 feet of the total frontage cleaning, the repairing of the paved portions, of 23,202.95 feet of property abutting on and the sprinkling and flushing thereof in Loomis street from Marquette road to Eighty- | summer seasons, and the individual property Seventh street to the selecting and taking by owners have continued to sprinkle, seed, and the South Park Commissioners of jurisdiction | clip the lawns on the parkway between the and control over that portion of Loomis sidewalks and the driveway the same as when street. The commissioners did not select and the city of Chicago had control, contrary to take the street before the expiration of the the custom of the South Park Commissioners six months' limitation in the ordinance, and to have such work done by park board emthe consent given by the ordinance therefore ployees on streets and boulevards under its ceased to be operative. On May 13, 1918, the control and to prohibit property owners from city council passed another ordinance identi- doing such work. The police officers of the cal with that of November 26, 1917, and the city of Chicago have continued to patrol the South Park Commissioners on November 20, street and to enforce the lawn-sprinkling and 1918, by a motion duly passed at a regular other ordinances of the city of Chicago, and session and entered in the official journal of no park police have been regularly assigned its proceedings, decided to take no action at to said street by the commissioners. The pethat time in regard to selecting and taking the tition further shows that, prior to the passage portion of Loomis street in question because of of the ordinance of February 2, 1923, the litigation then pending relative to the wideň- South Park Commissioners did not obtain ing of Loomis street for a distance of 980 feet consent to such selecting and taking from the within the portion proposed to be taken, but owners of two-thirds of the frontage of all the commissioners expressed no intention to property abutting upon the part of Loomis select and take the part of the street when the street so pretended to be selected and taken, litigation should be completed. Four other and the street, so far as it was pretended to ordinances identical in terms with the or- be selected and taken by virtue of the ordidinance of March 28, 1917, except for the nance, did not lie entirely within the district time limitation, were passed by the city coun- and territory the property of which was taxcil on November 18, 1918, May 19, 1919, No- able for maintenance of the park boulevard vember 17, 1919, and November 24, 1920, re- and driveway to which Loomis street as a spectively, the last ordinance containing a connecting street leads-that is to say, it did limitation of one year from its approval for not lie entirely within the South Park disits acceptance by the commissioners. Each of trict, but that part of the street between the the ordinances ceased to be in effect, and the center line of West Eighty-Seventh street and consent given by them was withdrawn by the its south line, being a distance of 50 feet, is failure of the South Park Commissioners to in the town of Calumet and is not included exercise the power within the time limited. within the South Park district. It was furAfterward, by an ordinance passed on Decem-ther alleged that the majority consent of ber 22, 1922, the city of Chicago again gave property owners upon which the ordinance of its consent as it had done by the previous or- | dinances, and on February 22, 1923, the South Park Commissioners passed an ordinance selecting and taking for boulevard purposes Loomis street between West Sixty-Seventh street and the south line of West EightySeventh street, in the city of Chicago. This ordinance is set out in full in the petition for leave to file an information.

Since the passage of the ordinance, the South Park Commissioners has not exercised physical acts of control over the part of Loomis street so selected and taken, except that at very small cost the commissioners in the summer of 1925 repaired three patches of the roadway between Seventy-Ninth and Eighty

February 2, 1923, relied, was the same which was filed with the commissioners on January 16, 1918, and at no time subsequent to that date did the commissioners obtain the consent in writing to their selecting and taking part of Loomis street from the owners of a majority or any other portion of the frontage of the lots and lands abutting on the street so far as taken.

The period of over five years between January 16, 1918, and February 2, 1923, was a period of great activity in the sale of real estate in Chicago, and especially of lots and lands abutting on Loomis street between West Sixty-Seventh and West Eighty-Seventh streets. The consents filed January 16, 1918,

(158 N.E.)

act of 1917 omits these last two provisos in regard to the consent of abutting owners and authorized the park commissioners to accept and add to any park or parks under their control any street in its entirety, or parts thereof, which adjoins or runs parallel with any boundary line of the same. This act contains the further proviso that, unless such street or streets, or part or parts thereof, shall have been previously restricted to boulevard or pleasure driveway purposes pursuant to law, the consent of the owners of two-thirds of the frontage of all property abutting upon said street or streets, or part or parts thereof. shall also first be obtained. Since the part of Loomis street sought to be taken had not previously been restricted to boulevard or pleasure driveway purposes pursuant to law, and there was no consent of the owners of twothirds of the frontage of all property abutting upon that part of the street, the act of 1917 gave no authority to select and take the street, and the appellee does not contend that authority was given by that act. He bases the right of the park commissioners on the act of 1895, and the appellants contend that this act was insufficient to confer power on the commissioners to pass the ordinance of February 2, 1923, both because the part of the street sought to be taken did not lie within the district or territory the property of which was taxable for the maintenance of the park

sents, in some instances, whole blocks of va-, so far as taken, shall be first obtained. The cant property were signed for by the Chicago Title & Trust Company, a corporation, as trustee, and by other owners of large frontages, and in some instances the land was subdivided into lots at or about the same time and the lots were sold individually to purchasers who erected their homes thereon, but who had no notice or knowledge, when purchasing, that consent had been executed and filed. Within the period between the filing of the consents and the passage of the ordinance more than a majority of the total frontage on Loomis street between West Sixty-Seventh and West Eighty-Seventh streets changed ownership. Out of the majority frontage of 13,975.73 feet for which consent was given on January 16, 1918, as hereinbefore described, 7,125 feet (more than a majority of the same frontage) changed ownership by sale or otherwise, and in many instances lots, were sold from two to four times. At the time of the passage of the ordinance of February 2, 1923, and for two months prior thereto, the frontage represented in the consent of January 16, 1918, which still remained in the hands of the same owners who had signed the consents was less than 30 per cent. of the aforesaid total abutting frontage on said part of Loomis street-that is to say 23,202.95 feet. Of the consenting frontage of 7,125 feet which was sold or transferred within said period of over five years, the purchasers or new owners of 3,000 feet and more of said frontages had no notice or knowledge of the consent filed January 16, 1918, for their respective properties, and would not have given their consent at any time for such selecting and taking for boulevard purposes.

[1, 2] The manner of use of streets of a city or village is within the control of the Legislature, which may provide for the transfer of the control of them from the city or village to park commissioners. People v. Walsh, 96 Ill. 232, 36 Am. Rep. 135. Acts for this purpose were passed by the Legislature in 1879, 1895, and 1917. Laws of 1879, p. 216; Laws of 1895, p. 290; Laws of 1917, p. 621. These acts authorized every board of park commissioners or park authorities to connect any public park, boulevard, or driveway under its control with any incorporated city, town, or village by selecting and taking any connecting street or streets thereof leading to such park, boulevard, or driveway, provided that the consent of the corporate authorities having control of any such street or streets or part thereof, so far as selected and taken, shall first be obtained. The first two of these acts contained further provisos that the streets so selected and taken, so far as taken, shall lie within the district or territory the property of which shall be taxable for the maintenance of such parks, and that the consent in writing of the owners of the majority of the frontage of the lots and lands abutting on such streets,

that is, the South Park district--and because at the date of the passage of the ordinance there was no consent in writing of the owners of a majority of the frontage of the lots and lands abutting on the part of the street to be taken. It is the question of the validity of this ordinance certified by the judge of the superior court which gives the right of a direct appeal to this court. South Park Commissioners is a public municipal corporation vested with certain governmental powers of a political character. People v. Walsh, supra. Judgments and decrees in cases involving the validity of its ordinances may be reviewed by this court directly in the manner provided by section 118 of the Practice Act (Smith-Hurd Rev. St. 1925, c. 110).

[3, 4] The Quo Warranto Statute (chapter 112 of the Revised Statutes) has greatly extended the jurisdiction of the circuit and superior courts which is inherent in them by virtue of the Constitution. The writ of quo warranto, which at common law was a prerogative remedy used only for the correction of public wrongs, has been succeeded by the information in the nature of quo warranto, which is used to enforce the rights of private individuals as well as those of the public. Where an individual who has a private right which may be enforced under the Quo Warranto Statute presents a petition for leave to file an information in the nature of quo warranto to the state's attorney for his signa

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