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representation, and the decree is binding upon him. Harmon v. Auditor of Public Accounts, 123 Ill. 122, 13 N. E. 161, 5 Am. St. Rep. 502; Hale v. Hale, 146 Ill. 227, 33 N. E. 858, 20 L. R. A. 247; McCampbell v. Mason, 151 Ill. 500, 38 N. E. 672; County of De Witt v. Leeper, 209 Ill. 133, 70 N. E. 760; Healy v. Deering, 231 Ill. 423, 83 N. E. 226, 121 Am. St. Rep. 331; Ward v. Field Museum, 241 Ill. 496, 89 N. E. 731; People v. Harrison, 253 Ill. 625, 97 N. E. 1092, Ann. Cas. 1913A, 539.

As this conclusion renders necessary an affirmance of the decree, the other questions raised will not be discussed.

The decree is affirmed.
Decree affirmed.

(274 I11. 196)

FARMER, J. Defendant in error is a fraternal benefit association. December 29, 1894, it issued a benefit certificate to August F. Apitz in which plaintiff in error was named as beneficiary. Apitz disappeared from his home November 7, 1905, and has not since been heard from. Plaintiff in error, as beneficiary, brought an action in assumpsit in the circuit court of Winnebago county on the certificate September 23, 1913. By one count of the declaration Apitz's death was alleged to have occurred on the day of his disappearance; by another that his death occurred within one year from the time of his disappearance; and by a third count that it occurred at the end of seven years from the date of his disappearance. Defendant in error filed the general issue, and also gave notice it would rely upon two by-laws, sec

APITZ v. SUPREME LODGE KNIGHTS & tions 3 and 9, known as the "Limitation" and LADIES OF HONOR. (No. 10598.) (Supreme Court of Illinois. June 22, 1916.) 1. DEATH 2(2)-PRESUMPTION-ABSENCE.

Death is established only as of the end of the seven years where resting only on the presumption from absence for seven years. [Ed. Note.-For other cases, see Death, Cent. Dig. § 3; Dec. Dig. 2(2).]

2. APPEAL AND ERROR 1090(2)-NECESSITY OF CROSS-ASSIGNMENT OF ERRORS.

"Disappearance" by-laws. Section 3 (the limitation by-law), which limited the time within which a beneficiary might bring suit to one year from the date of the member's death, in the view we take of the case, need not be set out or discussed. The trial court instructed the jury that, if Apitz did not die within one year from the date of his disappearance, the verdict should be for defendant, and submitted an interrogatory for the jury to find specially whether he died within one year from November 7, 1905 (the date of his disappearance), which the jury answered affirm

Plaintiff having assigned no cross-error to a ruling holding defendant's by-law valid, the Supreme Court on error to the Appellate Court, which approved such ruling and reversed the judgment for plaintiff, might decline to consideratively, and by their general verdict found the question of its invalidity.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4285; Dec. Dig. 1090(2).] 3. INSURANCE 719(1) FRATERNAL By

LAWS-CHANGE.

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for plaintiff in the sum of $1,480. The court, after requiring a remittitur of $355, overruled a motion for a new trial and rendered judgment on the verdict for $1,045. On appeal to the Appellate Court for the Second District that court reversed the judgment, with a finding of fact that Apitz died November 7, 1912, and that under the by-laws of defendant, to which the certificate sued on was subject, he stood suspended after November 7, 1906, and that the plaintiff had no cause of action upon the certificate. The case comes to this court by writ of certiorari.

[1] We agree with the Appellate Court that there was no evidence introduced on the trial to justify the finding of the jury that the death of Apitz occurred within a year from the date of his disappearance, nor, in fact, that his death occurred at any particular time. Apitz was never seen or heard of after November 7, 1905. No reasons for nor

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Winne-explanation of his disappearance were proven bago County; Arthur H. Frost, Judge.

on the trial, and the fact of his death rests upon the presumption of law from seven years' absence. The finding of fact by the Appellate Court may be treated as a finding that Apitz did not die within a year from

Action by Lizzie Apitz against the Supreme Lodge Knights and Ladies of Honor. Judg ment for plaintiff was reversed by the Appellate Court, and she brings certiorari. Affirmed. Roy F. Hall, of Rockford, for plaintiff in the date of his disappearance. The plaintiff error. Carpenter & St. John, of Rockford, and Ashcraft & Ashcraft, of Chicago (Edwin M. Ashcraft, of Chicago, of counsel), for defendant in error.

in error paid the benefit assessments for one year after her husband's disappearance, including November, 1906, when she was notified by defendant in error that the payments

of assessments would no longer be received. | the order he should forfeit the right of his The legal presumption from his continued beneficiaries to all benefits and privileges unabsence for seven years establishes the fact der the contract. Section 9 was adopted of Apitz's death, and the time he is first to after Apitz had joined the society. We have be accounted as dead is the end of the period held that the beneficiary has no vested inof seven years. In the absence of evidence to terest in the certificate, and, where the conthe contrary there is no presumption that tract between the member and the society redeath occurred at any particular time, but at serves the right to the society to amend or the end of the period of seven years' ab- change the by-laws, and the member agrees sence, on grounds of public policy, the law to be bound thereby and accepts the cerpresumes him to be dead. Whiting v. Nicholl, tificate under those conditions, subsequently 46 Ill. 230, 92 Am. Dec. 248; Johnson v. enacted by-laws are binding upon him. Johnson, 114 Ill. 611, 3 N. E. 232, 55 Am. al Arcanum v. McKnight, 238 Ill. 349, 87 N. Rep. 883; Donovan v. Major, 253 Ill. 179, E. 299, and cases there cited. 97 N. E. 231. The main question therefore for our consideration is whether section 9 of the by-laws of defendant in error is valid and was binding on Apitz. Said section 9

is as follows:

"Sec. 9. It shall be the duty of a relief fund member of the order to notify the secretary of his lodge of any permanent change of residence, and, as far as practicable, to keep the secretary advised of his post office address. If any such member shall so fail and shall change his residence or usual place of abode, or shall disappear from the place or neighborhood in which he shall have usually resided, and his residence shall not be known to his family or the secretary of his lodge and cannot be ascertained after reasonably diligent inquiry, and such disappearance shall be continued for one year, such member shall stand suspended as in case of suspension for the nonpayment of assessments or dues, and the financial secretary of his lodge shall not receive the assessment or dues from any person. If such member shall reappear and shall make known his place of abode and shall desire to become reinstated, he may avail himself of the privilege of the reinstatement law of the order by complying with the requirements of the same within the time required, as in case of reinstatement of members suspended for nonpayment of assessments or dues."

[2-4] Plaintiff in error contends said by-law is unreasonable and does not apply to the contract between Apitz and defendant in error. The trial court held the by-law to be binding and valid when it instructed the jury that, if Apitz did not die within one year from the date of his disappearance, the verdict should be for the defendant, and plaintiff in error assigned no cross-error upon that ruling. The Appellate Court approved that ruling, and under the condition of the record as presented to us we might decline to consider the question now raised as to the effect of said by-law upon the contract. However, we have considered the question, and are of opinion the by-law is valid and applicable to the contract between Apitz and defendant in error. The contract was not materially different from many other fraternal insurance contracts passed upon by this court. It was conditioned upon the member conforming in all respects to the laws, rules, and usages of the society "now in force or which may hereafter be adopted by the same," and it was agreed that in case of Apitz's suspension from

Roy

"A party cannot claim the right to have a contract remain unaltered when the contract itself provides that it may be changed." Baldwin v. Begley, 185 Ill. 180, 56 N. E. 1065.

We are of opinion the by-law (section 9) was not invalid as being unreasonable. Bylaws of a similar nature have been sustained in Kelly v. Catholic Mutual Benefit Ass'n, 46 App. Div. 79, 61 N. Y. Supp. 394, and in McGovern v. Brotherhood of Firemen and Engineers, 21 O. C. D. 243, affirmed without an opinion in 85 Ohio St. 460, 98 N. E. 1128. The by-law was no more unreasonable than by-laws passed subsequent to issuing the benefit certificate forfeiting the benefit when the insured changed his employment to certain prohibited occupations or committed suicide, and such by-laws have been sustained. Supreme Lodge Knights of Pythias v. Kutscher, 179 Ill. 340, 53 N. E. 620, 70 Am. St. Rep. 115; Supreme Lodge Knights of Pythias v. Trebbe, 179 Ill. 348, 53 N. E. 730, 70 Am. St. Rep. 120; Ellerbe v. Faust, 119 Mo. 653, 25 S. W. 390, 25 L. R. A. 149; Langnecker v. Trustees of A. O. U. W. of Wisconsin, 111 Wis. 279, 87 N. W. 293, 55 L. R. A. 185, 87 Am. St. Rep. 860; Norton v. Catholic Order of Foresters, 138 Iowa, 464, 114 N. W. 893, 24 L. R. A. (N. S.) 1030.

Plaintiff in error insists proper preliminary proof was not made on the trial to justify admitting the by-law in evidence. No crosserror was assigned by plaintiff in error on the appeal to the Appellate Court upon this ruling, nor was the specific objection that it was not shown the by-law was adopted by a two-thirds vote of all the members present at a regular meeting or session of the Supreme Lodge made at the trial. A consideration of the proof, however, satisfies us that there was no error committed by the trial court in admitting the by-law in evidence as a by-law of the society. Apitz stood suspended after the expiration of a year from the date of his disappearance, and under said by-law (section 9) his contract was forfeited and all right of recovery of benefits barred. The judgment of the Appellate Court is affirmed.

Judgment affirmed.

(274 Ill. 173)
CITY OF VANDALIA v. POSTAL TELE-
GRAPH-CABLE CO. (No. 10193.)
(Supreme Court of Illinois. June 22, 1916.)
1. TELEGRAPHS AND TELEPHONES 10(16)—
CONTRACT FOR USE OF STREET.

The acceptance by a telegraph company of a grant by city ordinance of right to erect poles and wires in streets, and its performance of conditions imposed, such as opening an office in the city, create a contract which cannot be rescinded except for good cause.

[Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. 10(16).]

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"Sec. 2. That the owners of poles in the streets or parts of streets described in section 1 of this ordinance remove such poles within six months from the date of the publication of this ordinance.

"Sec. 3. Failure to comply with the provisions of this ordinance shall subject the offender to a penalty of fifteen ($15) dollars for each and every twenty-four (24) hours they shall persist in such violation, which penalty may be recovered in an action fo debt, in any court of competent jurisdiction.

"Sec. 4. This ordinance shall be in full force within ten days after legal passage and publi

cation.

"Sec. 5. All ordinances and parts of ordinances in conflict with this ordinance are hereby revoked and repealed.'

2. TELEGRAPHS AND TELEPHONES RIGHT TO USE STREETS-REGULATION. The declaration also alleged that the six Under Hurd's Rev. St. 1913, c. 134, § 4, providing for municipal regulation of location months allowed by the ordinance for the reand erection of wires and poles of telegraph moval of said poles expired December 26, companies, a city, under its police powers, may 1913; that from thence defendant has kept make reasonable regulations as to maintenance and maintained poles on said street contrary of poles and wires of telegraph companies. [Ed. Note.-For other cases, see Telegraphs to the provisions of said ordinance; and that and Telephones, Cent. Dig. § 14; Dec. Dig. the penalty of $15 per day from December *mm 26.] 27, 1913, until January 27, 1914, or a total of $465, has accrued to appellee. Defendant filed a plea of general issue with notice of special defenses: (1) That said ordinance is void as impairing the obligation of a contract ordinance between the parties enacted October 14, 1890, giving defendant permission to locate the poles where they now are, on certain conditions which have been complied [Ed. Note.-For other cases, see Telegraphs with; (2) that the poles sought to be removed and Telephones, Cent. Dig. § 6; Dec. Dig. do not interfere with traffic nor with any 10(16).]

3. TELEGRAPHS AND TELEPHONES 10(16)RIGHT TO USE OF STREETS-ORDINANCE TO REMOVE WIRES-PRIOR CONTRACT.

Ordinance 161 of the city of Vandalia, requiring removal of poles and wires from streets and not authorizing placing them underground or elsewhere, is, as against a telegraph company operating a line of poles and wires in such streets under previous accepted ordinance, invalid, because unreasonable.

public use of the street but that the remov

Appeal from Circuit Court, Fayette Coun- al of said poles is demanded merely to imty; Thomas M. Jett, Judge.

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"Special Ordinance No. 161. "Whereas, it is desired to improve the appearance of the principal business district of the city of Vandalia, Illinois, by the removal of ail telegraph, telephone and electric light poles in said district.

"Be it ordained by the city council of the city of Vandalia, Illinois:

prove the appearance of the street; (3) that before ordering the removal of said poles no notice or opportunity to be heard was given defendant, as provided by statute; (4) that defendant is engaged in interstate commerce and that a compliance with the ordinance would interfere with interstate commerce; (5) that defendant has accepted and is operating under the post-road act of Congress of July 24, 1866, and the city of Vandalia has no authority to control defendant's poles, wires, and cross-arms or to compel the removal of the same; (6) that any change in the line is impracticable and so expensive as to consume defendant's profits from the Vandalia office for thirty years; (7) that the ordinance is void because it prescribes an excessive penalty. The court heard the evidence without a jury and rendered judgment for $300 against defendant. The court having certified that the validity of a municipal ordinance is involved, an appeal was perfected to this court.

The errors relied on for reversal involve the refusal of the court to hold as law propositions submitted embracing the substance of the defenses relied on.

[1] In support of its defense that special ordinance No. 161 is void as impairing the obligation of a contract, appellant introduced

"Section 1. That all telegraph, telephone and electric light poles be removed from the streets or parts of streets of the city of Vandalia, Illinois, described as follows: Gallatin street of the city of Vandalia, beginning at the intersection of said Gallatin street with the street named and designated as Sixth street, and running thence an ordinance in evidence passed by the city in an easterly direction on said Gallatin street of Vandalia October 14, 1890, providing as to the corporate limits.

follows:

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

"Be it ordained by the common council of the city of Vandalia, that permission and authority is granted to the Postal Telegraph-Cable Company, its successors or assigns, the right to construct and maintain a line of telegraph poles and fixtures, and to string wires thereon, on and along such streets or alleys in said city of Vandalia as may be hereafter selected by said telegraph company acting in conjunction with the committee on streets and alleys: Provided, that said poles shall be located and placed along such streets or alleys in accordance with the direction of said committee on streets and alleys, so as to interfere as little as possible with the public use of such streets and alleys: And provided, that said telegraph company shall establish an office in said city of Vandalia for the benefit of the public in transmitting and receiving telegraphic

No. 161 does not require that the lines be removed from the street and that appellant may still operate them thereon with the wires underground, and has the same right under the ordinance of 1890 that it has always had to locate or relocate on other streets its lines, poles, etc., under the direction of the committee on streets and alleys. The ordinance cannot be so interpreted. The location under the old ordinance has already been made on Gallatin street, and the new ordinance, No. 161, expressly commands appellant and all other parties to remove all their telegraph, telephone, and electric light poles from the

Serages, subject to the usual charges for such street and gives no authority or permission

service."

The proof shows that appellant accepted the right granted by said ordinance and lo cated its poles and wire on and along Gallatin street, in said city, from Sixth street to the eastern city limits; that it established an office for the transmission of messages; and that it had continued for a period of from 15 to 20 years to exercise the right so granted. Appellant's acceptance of the right granted and its performance of the conditions imposed created a contractual relation between appellant and appellee. The evidence in this record does not show that appellant has ever at any time violated its contract in any way. This court has re peatedly held that when a city has granted the right to use its streets to a corporation, and the corporation accepts the privileges and enters upon the right to use the streets and has laid out large sums of money in preparation for carrying on its corporate business, said grant becomes a binding contract between the city and the company, which cannot be rescinded or revoked except for good cause. Chicago Municipal Gaslight Co. v. Town of Lake, 130 Ill. 42, 22 N. E. 616; City of Belleville v. Citizens' Horse Railway Co., 152 Ill. 171, 38 N. E. 584, 26 L. R. A. 681; Village of London Mills v. White, 208 Ill. 289, 70 N. E. 313; People v. Central Union Telephone Co., 232 Ill. 260, 83 N. E. 829.

[2] The right of the city, by virtue of its police powers, to make reasonable regulations relating to the maintenance and repair of appellant's poles and wires, is guaranteed by statute and is not open to argument. Hurd's Stat. 1913, c. 134, § 4. It must be proportionate to and commensurate with the public necessity for the protection of the public health, safety, necessity or convenience. The application of the police power cannot be extended by the authority which is intrusted with its application, to an arbitrary misuse or denial of private rights. Burlington v. Burlington Street Ry. Co., 49 Iowa, 144, 31 Am. Rep. 145; City of Plattsmouth v. Nebraska Telephone Co., 80 Neb. 460, 114 N. W. 588, 14 L. R. A. (N. S.) 654, 127 Am. St. Rep. 779.

[3] It is argued by appellee that Ordinance

to put them elsewhere. The ordinance does not even permit the owners to maintain their lines of telegraph on this street in any other manner, and the ordinance expressly repeals all other ordinances and parts of ordinances in conflict therewith; that is to say, any and all ordinances that permit the locating of such lines, poles, etc., on said street. An ordinance for a relocation of the poles should state what poles are to be removed and give the places to which they are to be removed, so that it may be ascertained whether or not such ordinance is reasonable. The ordinance in question is not one of mere regulation or one requiring and designating a relocation of the poles or requiring the wires to be placed in underground conduits. For that reason it will not be necessary to enter into a discussion of the evidence in this record bearing upon the propositions of the proper location or relocation of said poles and whether or not there are good causes shown for a relocation thereof or for a location of appellant's wires underground.

As the effect of Ordinance No. 161 is to deprive appellant of the further use of said street for its telegraph line and without authorizing the relocation of its poles or telegraph line elsewhere in the city, it is clearly invalid, and no recovery can be had thereon against appellant. We therefore deem it unnecessary to further discuss or pass upon the other questions discussed by the parties in the briefs.

For the reasons aforesaid, the judgment of the circuit court is reversed. Judgment reversed.

(273 III. 447) RICE-STIX DRY GOODS CO. v. ALBRECHT et al. (No. 10660.) (Supreme Court of Illinois. June 22, 1916.) 1. PARTNERSHIP 189 PREFERENCE BY

PARTNER.

A member of a failing partnership may in good faith convey her property to satisfy an equitable obligation arising from oral agreement and a will devising such property to her, in preference to claims of firm creditors who have not recovered judgment and who are proceeding under the attachment statute.

[Ed. Note.-For other cases, see Partnership Cent. Dig. §§ 343-345, 348; Dec. Dig. 189.]

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

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Under the attachment statute permitting any person claiming title or interest in the attached property to interplead, it is immaterial that one interpleading as owner does not have the entire equitable interest in the property, as plaintiff cannot subject the property to his debt unless it belongs to the debtor.

[Ed. Note.-For other cases, see Attachment, Cent. Dig. §§ 999-1017; Dec. Dig. 288.] Appeal from Circuit Court, St. Clair County; George A. Crow, Judge.

Attachment by the Rice-Stix Dry Goods Company against W. S. Albrecht and others, in which Alma Hoffinger interpleaded. From a judgment for interpleader, plaintiff appeals. Affirmed.

Montague Lyon and S. L. Swarts, both of St. Louis, Mo., and L. D. Turner and R. 'D. W. Holder, both of Belleville, for appellant. Barthel, Farmer & Klingel, of Belleville, for appellees.

CARTER, J. This was an attachment proceeding brought in the circuit court of St. Clair county by appellant, the Rice-Stix Dry Goods Company, concerning a debt owed by W. S. Albrecht & Co., a partnership conducting a dry goods business at Terre Haute, Ind. Appellee Alma Hoffinger interpleaded, claiming ownership of the real estate attach

ed.

After the pleadings were settled, the cause, by agreement, was heard by the court and a judgment entered in favor of the interpleader. An appeal was taken directly to this court, as a freehold is involved.

pears from her testimony that Ida had loaned her mother money from time to time, and that Mrs. Steubinger, several years before her death, had deeded the property here in question to Ida, and that later Ida deeded it back to her mother. The details of these earlier transactions between Ida and her mother, in our judgment, have no direct bearing on the question here in issue; hence we will not refer to them further. In October, 1913, Mrs. Steubinger, being then about 88 years old and somewhat feeble, desired to make a final arrangement of her business affairs. A family consultation was held at Terre Haute, all of the daughters except Mrs. Brady being present. It was agreed that Ida should give each of her sisters a note for $2,000 signed by her, payable within 10 years after the mother's death, and should also pay each sister an additional $2,000. These latter payments rested only upon Ida's verbal promise. Apparently at this time Ida owed her mother some $6,000. The mother executed a will, giving her daughter Ida substantially all her real and personal property, including the real estate here in question. The will contains a recital that:

"In view of the advancements made to my beloved daughter, Lena S. Albrecht, of Terre Haute, Indiana, Laura Brady, of Columbus, Ohio, and Alma Hoffinger, of St. Louis, Missouri, they shall take nothing by this my last will."

The testimony on behalf of appellee was to the effect that these "advancements" mentioned in the will referred to the notes and the promises by Ida, above mentioned. After Mrs. Steubinger's death, August 1, 1914, the will was probated and Ida took record title to these premises. She retired from the firm of W. S. Albrecht & Co. as a member February 1, 1914, and thereafter was connected with it as bookkeeper, only, though apparently no business announcement was made of the fact that she had so retired. In the early part of 1915 Albrecht's firm was financially embarrassed. Ida, desiring to assist her brother-in-law, started for Belleville, Ill., to make a loan of $6,000 on this real estate, intending to let Albrecht have the money to tide over his financial troubles. As Belleville is only a short distance from St. Louis and the latter city can be more readily reached by direct line from Terre Haute, she went to St. Louis to stop over night with her sister, Mrs. Hoffinger, before going to Belleville. While there Ida told her sister what she expected to do as to the loan, and Mrs. Hoffinger said:

The real estate in question consists of a tract of land in Belleville, Ill., improved by a residence. It was formerly owned by Catherine B. Steubinger, having been left her by the will of her husband. Mrs. Steubinger had four children: Mrs. Lena Albrecht, of Terre Haute, Ind.; Mrs. Laura Brady, of Columbus, Ohio; Mrs. Alma Hoffinger, of St. Louis, Mo.; and Miss Ida Steubinger, of Terre Haute, Ind. Mrs. Steubinger lived with her daughter Ida at Terre Haute at the time of her death, in August, 1914, and for a number of years prior thereto. W. S. Albrecht, the husband of Lena Albrecht and brother-in-law of the other three daughters, had been in the dry goods business since the early 80's in Terre Haute. Ida went there and was employed for several years as bookkeeper by the firm of which Albrecht was a After some further discussion Ida agreed member. About 1897 she acquired an inter- to do as requested, and the next day, Janest in the business but remained in the em- uary 30, 1915, the two sisters went to Belleployment of the firm as bookkeeper. It ap- ville, where a deed was executed by Ida

"Indeed, you don't borrow that $6,000 or that property. That property doesn't belong to you until you settle with the heirs. Turn over the property to me, and I will hold it in trust for the other two girls and myself."

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