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The decree is reversed, and the cause remanded to the circuit court of St. Clair county for further proceedings. Reversed and remanded.

(274 Ill. 568)

Am. St. Rep. 264. The widow's interest in a party to the suit whose rights could be the undivided half owned by her daughters determined now, the right to future litigawas therefore an estate of homestead in the tion with the purchaser. The appellants land to the extent of $500 and dower. The were not entitled to have a decree entered in dower could not be sold without her written, accordance with their motion, but they were consent. The homestead could not be sold entitled to have a decree finally determining so as to require her to surrender the posses- the issues involved, so far as possible. A sale sion without the payment of the full amount would necessarily be subject to the estate of of $500 (Powell v. Powell, 247 Ill. 432, 93 N. dower as well as homestead, but the amount E. 432; Goddard v. Landes, 250 Ill. 457, 95 of the dower interest should have been setN. E. 477; Richardson v. Trubey, 250 Ill. 577, tled by the decree. 95 N. E. 971); but it is not true that the value of the homestead must be tendered to the owner of the homestead right, where the property is indivisible and of greater value than $1,000, before a sale can be made. It is sufficient if the payment is secured to be made from the proceeds of the sale before the surrender of possession. The heirs cannot, however, be compelled to pay the full amount of $500. They may choose to await the expiration of the homestead estate. If some of the heirs desire to extinguish the homestead estate, against the will of the owner of that estate, by payment of the amount required, they cannot compel the others who do not wish to do so to contribute. Such payment is not compulsory, but voluntary, on the part of those who desire to extinguish the estate. It does not appear that there was any offer on the part of the heirs, or any of them, to pay the required amount to the widow or permit it to be deducted from the proceeds of the sale. Therefore the court could only decree a sale subject to the homestead estate, leaving to the purchaser to extinguish the estate, if he desired, by the payment of the amount required for that pur

pose.

[6, 7] Since dower could not be assigned by metes and bounds, it was the duty of the court, under section 39 of the Dower Act, to decree that dower be assigned out of the rents and profits of the premises or to impanel a jury to fix the yearly value of the dower. Ellguth v. Ellguth, 250 Ill. 214, 95 N. E. 169. The object of the proceeding was to have the interest of all the parties determined. All the parties, whether complainants or defendants, were equally interested in this adjudication, and each had a right to have all questions correctly determined. To make the decree of sale subject to dower without determining its value was to leave a large part of the litigation undetermined. The expense of this suit would have been to a large extent wasted, and the purchaser would be left to contest in another suit the amount of the widow's dower if he did not settle with her. This would necessarily affect unfavorably to the heirs the price which the property might be expected to bring at the sale. The parties had a right to have this question settled in this litigation, and it was error prejudicial to the appellants to decree, against their objection, a sale reserving to the widow,

CITY OF PEORIA v. POSTAL TELEGRAPH-CABLE CO. (No. 10811.) (Supreme Court of Illinois. Oct. 24, 1916.) 1. LICENSES 1-NATURE.

nual fee charged on the maintenance of each Where a city ordinance designated an antelegraph pole in any public street, etc., as a license fee, without further explanation, it must be treated as a license fee.

see Licenses,

[Ed. Note.-For other cases, Cent. Dig. § 1; Dec. Dig. 1.] 2. TELEGRAPHS AND TELEPHONES RIGHTS IN STREET LICENSE FEE POST ROADS.

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10(9)—

Post Road Act (Act Cong. July 24, 1866, c. 230, 14 Stat. 221 [U. S. Comp. St. 1913, §§ 10072-10076]), gives any telegraph company the right to construct and maintain lines of telegraph over and along post roads, but provides that they shall be so constructed and maintained as not to interfere with the ordinary travel on such roads. Rev. St. U. S. § 3964 (U. S. Comp. routes established in any city or town to be post St. 1913, § 7456), declares all letter carrier roads, and section 5263 (U. S. Comp. St. 1913, 8 10072) declares all public roads kept up and lines of a telegraph company in the streets of a maintained as such to be post roads. Held, that city, though post routes, were subject to regulation by the municipal authorities, and an annual license fee of $1 for each post used to street, etc., was reasonable. support wires occupying any part of a public

[Ed. Note.-For other cases, see Telegraphs
and Telephones, Cent. Dig. § 6; Dec. Dig.
10(9).]

3. LICENSES 7(9)-VALIDITY OF ORDINANCE
-PRESUMPTION AND BURDEN OF PROOF..
City ordinance imposing an annual license
fee of $1 for each pole used for the support of
telegraph wires occupying any part of a public
street, would be presumed to be valid, and the
burden was upon a telegraph company to allege
and prove that it was unreasonable as providing
for an excessive fee, unless it was so grossly ex-
cessive that the court could pronounce it un-
will not readily interfere if the tax be excessive
reasonable as a matter of law, and since courts
because of the presumption that the city will it
self reduce the fees to a proper amount.
Cent. Dig. §§ 15, 19; Dec. Dig. 7(9).]

[Ed. Note.-For other cases, see Licenses,

4. LICENSES 7(9)-FEE-REASONABLENESS. An annual license fee of $1 for each pole used for the support of telegraph wires occupying any part of public streets, as to a company

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

maintaining 242 poles in the streets, making the several owners of the wires on such poles jointly and severally liable for the fee on each pole, was not unreasonably excessive.

[Ed. Note. For other cases, see Licenses, Cent. Dig. §§ 15, 19; Dec. Dig. 7(9).]

5. LICENSES 32(2) TELEGRAPH LICENSE FEES-ACTION-ISSUES AND EVIDENCE. In an action of debt by a city to recover an annual license fee of $1 on each telegraph pole in its streets, the court did not err in refusing to admit evidence for the defendant tending to prove the fee excessive, where there was no plea to support such proof.

[Ed. Note.-For other cases, see Licenses, Cent. Dig. § 66; Dec. Dig. 32(2).]

6. LICENSES 7(9) TELEGRAPH LICENSE FEES-EXCESSIVE TAX-EVIDENCE.

In such action proof that the defendant telegraph company had paid its taxes locally and proof of the amount of its income and receipts from intrastate and interstate business and its expenses at its city office, together with proof that the city had not spent any money for inspection of the poles and lines, and that no inspection had been made for the year, would not be sufficient to show that the license tax was unreasonably excessive, since the city might have arranged for such inspection for that year and have failed to make the inspection because the license fees were not paid.

[Ed. Note. For other cases, see Licenses, Cent. Dig. §§ 15, 19; Dec. Dig. 7(9).] 7. APPEAL AND ERROR 170(2) — - REVIEW SCOPE.

On an appeal by the defendant telegraph company in a city's action to recover the amount of an annual license fee of $1 on each of its poles, imposed by ordinance, where the question of the guaranty of the equal protection of the laws was neither suggested by the pleas or the proofs, the court could not consider the contention that the ordinance was void because imposing a license fee upon telegraph companies and none upon telephone companies.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1037, 1038; Dec. Dig. 170(2).]

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Peoria County; J. M. Niehaus, Judge.

Action by the City of Peoria against the Postal Telegraph-Cable Company. From a judgment of the Appellate Court affirming a judgment for plaintiff, the defendant, on a certificate of importance, appeals. Affirmed. Frank T. Miller and John M. Elliott, both of Peoria (William W. Cook, of New York City, and Stevens, Miller & Elliott, of Peoria, of counsel), for appellant. Richard H. Radley, of Peoria, for appellee.

ment against the company for $242, which was affirmed by the Appellate Court for the Second District. That court granted a certificate of importance, and this appeal fol

lowed.

Appellee on May 7, 1912, passed an ordinance providing that there shall be paid annually into the city treasury a license fee of $1 for each post used for the support of telegraph wires which occupied any portion of any public street, alley, or sidewalk in said city. It further provided that said fee should be paid by the person or persons, corporation or corporations, owning, using, or occupying such poles for such wires, and that all such persons or corporations owning, using, or occupying poles for such wires should be jointly and severally liable to appellee for such fees and pay the same before the 1st day of July of each year for the period of one year following. To appellee's declaration on said ordinance appellant filed a plea of nil debet and two special pleas of like import, in which appellant averred, in substance, that it is a corporation engaged in the telegraph business, is engaged in interstate commerce and is acting as the agent for the United States government for postal, military and other purposes under the acts of Congress; that said license fee is a tax on interstate commerce, and said ordinance is therefore in violation of the Constitution and laws of the United States; that appellant has accepted and complied with the provisions of an act of Congress approved July 24, 1866 (Act July 24, 1866, c. 230, 14 Stat. 221 [U. S. Comp. St. 1913, §§ 10072-10076]), and acts amendatory and supplementary thereto, and is carrying on its said business in compliance therewith, and has placed its poles, wires, and appliances at the disposal of the government for postal, military, and other purposes, and they are now, and were before and during the year beginning July 1, 1912, used for the transmission of telegraph messages for the government and its various departments at prices fixed by the Postmaster General in accordance with said act of Congress; that the highways upon which its poles are erected in the city of Peoria and along which its wires are strung are post roads and post routes within the meaning of said acts of Congress and the regulations of the Post Office Department, and appellant maintains an office in the city of Peoria for the receipt and delivery of messages to and from the government of the United States; that any attempt by appellee to control or interfere with such office or business, by a license fee or otherwise, is in violation of said Constitution and laws of the United States, and void as an attempt to tax interstate commerce.

DUNCAN, J. This action of debt was begun in the circuit court of Peoria county July 25, 1913, by the city of Peoria against the Postal Telegraph-Cable Company to recover a tax or license on all poles on the streets, alleys, or sidewalks of said city and owned, used, and occupied by said company [1] The language of the ordinance desigfor the support of telegraph wires, for the nates the fee charged as a license fee, withyear beginning July 1, 1912. A trial before out further explanation, and it must therefore the court without a jury resulted in a judg- be treated as a license fee, as contended by

appellant. City of St. Union Tel. Co., 148 U. S. 37 L. Ed. 380.

Louis v. Western | such cities, and it is their duty to keep such 92, 13 Sup. Ct. 485, streets and alleys in reasonably safe condition for travel. Those duties require inspection by the city authorities, and if they do not exercise reasonable care in the performance of those duties, they are liable to persons that may be injured by reason of such failure. It has been frequently held that a telegraph company, though engaged in inter

[2] But it is argued by appellant that, it having made proof by its special pleas that it had accepted and complied with said act of Congress of July 24, 1866, it has a right to occupy the streets of appellee without permission or interference, and that appellee's ordinance is void, as an attempt to tax inter-state commerce, may be compelled by a mustate commerce.

The material provisions of the Post Road Act are (Rev. St. U. S. § 5263 [U. S. Comp. St. 1913, § 10072]):

"Any telegraph company now organized, or which may hereafter be organized, under the laws of any state, shall have the right to construct, maintain, and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States which have been or may hereafter be declared such by law, and over, under, or across the navigable streams or waters of the United States; but such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on such military or post roads."

Section 3964 of the Revised Statutes of the United States (U. S. Comp. St. 1913, § 7456) provides:

"The following are established post roads: All letter carrier routes established in any city or town for the collection and delivery of mail

matters."

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It is not questioned by appellee that the streets of Peoria on which were located 242 poles containing telegraph wires of appellant are post roads, although proof of such fact does not appear in the record. Some of them are admitted to be public streets; but, treating them all as post routes, the act of Congress upon which appellant relies for its defense expressly provides that such telegraph lines must not interfere with ordinary travel, which is the primary object of such roads. That very provision suggests that the local authorities are recognized by the act as having control of such roads and streets, and have the power to regulate and locate and relocate such poles and wires so that they will not interfere with ordinary travel. The Supreme Court of the United States has recognized that right in many decisions, and in one of the latest (Essex v. New England Tel. Co., 239 U. S. 313, 36 Sup. Ct. 102, 60 L. Ed. 301) it was held that, while a state or a city may not arbitrarily exclude the wires and poles of a telegraph company constructed over postal routes within its limits, yet it may impose reasonable restrictions and regulations. All city authorities in this state have control over the streets and alleys of

nicipality to pay a reasonable charge to defray the cost of local governmental supervision and inspection of its poles and wires. In some instances such charge has been imposed and upheld as a rental where the municipality has such an interest in its streets as entitles it to make a rental charge and such rental is not shown to be unreasonable. City of Springfield v. Postal Tel. Co., 253 Ill. 346, 97 N. E. 672; City of St. Louis v. Western Union Tel. Co., supra. A municipality may also require such a telegraph company to pay a license fee not to exceed the probable expenses incident to the issuing of the license and to such supervision, regulation, and inspection. Atlantic & Pacific Tel. Co. v. Philadelphia, 190 U. S. 160, 23 Sup. Ct. 817, 47 L. Ed. 995; Western Union Tel. Co. v. New Hope, 187 U. S. 419, 23 Sup. Ct. 204, 47 L. Ed. 240; Postal Tel. Co. v. Taylor, 192 U. S. 64, 24 Sup. Ct. 208, 48 L. Ed. 342.

had the right to provide by an ordinance for [3, 4] It is also insisted that, if appellee the payment of such a license fee, the ordinance was void because the fee provided was so excessive as to exceed any and all probable cost incident to the issuing of such license and inspection, etc. Appellant did not in any plea make the averment that the ordinance was invalid because the license fee was in excess of the cost of issuing the license and of supervision and inspection of its poles and lines. The ordinance is presumed to be a valid ordinance, and the burden was upon appellant to allege and prove that the ordinance was unreasonable by reason of its providing for an excessive license fee, unless it is so grossly excessive that the court can pronounce it unreasonable as a matter of law. City of Springfield v. Postal Tel. Co., supra; City of St. Louis v. Western Union Tel. Co., supra. The Legislature must necessarily exercise discretion in determining the amount to be charged, as it is impossible to tell exactly how much will be realized every time or what the exact expense will be. If, therefore, the fees exceed the cost by a sum not unreasonable, no question can arise as to the validity of the tax on account of the amount collected. Courts will not readily interfere if the tax be excessive, because of the presumption that the municipality will itself reduce the fees to the proper sum. Foote v. Stanley, 232 U. S. 494, 34 Sup. Ct. 377, 58 L. Ed. 698. The fee of $1 per pole cannot be said to be unreasonably excessive in the absence of proof, and by the ordinance the several owners of telegraph wires on the 242

poles proved to be used by appellant for telegraph wires in said city were only jointly and severally liable for the fee on every pole on which they owned such wires; consequently the joint owners and users of said poles were not each required to pay $1 per pole, as contended by appellant. Only $242 a year was collectible by appellee off all owners and users of the poles, but each one was liable for the whole fee on the poles he or it used. [5, 6] The court did not err in refusing to admit the evidence offered by appellant which it contends would have tended to prove the license fee excessive, for two reasons: (1) For want of a plea to support such proof; and (2) had the answers of the witnesses been the most favorable to it possible on every question asked, the evidence would not have proved the ordinance fee to be excessive. It is true that appellant is not subject to double taxation locally, but it is taxable locally on the value of its property. No tax, by way of license or otherwise, can be imposed upon its interstate commerce, except for the purposes of inspection, etc., as aforesaid. Proof that appellant had paid its taxes locally and proof of the amount of its income and receipts from intrastate and interstate business and its expenses at its Peoria office, together with proof that appellee had not spent any money or been out any money for inspection of appellant's poles and lines, and that no inspection had been made for the year ending June 30, 1913, would not be sufficient, in any event, to show that the license tax in question was unreasonably excessive. Appellee may have made arrangements for such inspection for the year in question, and have omitted to have inspection made for the very reason that the license fees were not paid.

[7] For the same reasons we cannot consider the contention that the ordinance was void because it imposes a tax or license fee upon telegraph companies, and none upon telephone companies. The question of the federal Constitution being violated, which guarantees the equal protection of the laws, is neither suggested by the pleas nor by the proofs.

By agreement of the parties this suit was to be taken only as a suit to recover the license fee for one year, beginning with July 1, 1912, or for $242 for the 242 poles upon which appellant was using wires. Prima facie the ordinance is reasonable, and is presumed to be valid, and, appellant having failed to allege and prove that the license fee was so excessive that it rendered the ordinance invalid because of its necessarily being a regulation or tax on interstate commerce, the judgment of the Appellate Court ought to be, and it is, affirmed. Judgment affirmed.

(275 Ill. 194) CITY OF PEORIA v. WESTERN UNION TELEGRAPH CC. (No. 10812.)

(Supreme Court of Illinois. Oct. 24, 1916.)

Appeal from Appellate Court, Second DisCounty; John M. Niehaus, Judge. trict, on Appeal from Circuit Court, Peoria

Action by the City of Peoria against the Western Union Telegraph Company. From a judgment of the Appellate Court affirming a judgment for the plaintiff, the defendant appeals. Affirmed.

Frank T. Miller and John M. Elliott, both of Peoria (Francis N. Whitney, of New York City, and Stevens, Miller & Elliott, of Peoria, of counsel), for appellant. Richard H. Radley, of Peoria, for appellee.

PER CURIAM. This case involves the same ordinance and the same questions that were considered by the court in City of Peoria v. Postal Telegraph-Cable Co. (No. 10811) 113 N. E. 968, and is governed by the decision in that case.

The judgment is affirmed.
Judgment affirmed.

(274 Ill. 616)

PEOPLE v. MELNICK. (No. 10752.) (Supreme Court of Illinois. Oct. 24, 1916.) 1. PERJURY 33(8)-FALSITY OF TESTIMONY

-SUFFICIENCY OF EVIDENCE.

Evidence in perjury held sufficient to show that the testimony on which indictment was based was willfully and corruptly false. Cent. Dig. § 123; Dec. Dig. 33(8).] [Ed. Note. For other cases, see Perjury,

2. PERJURY 33(6)-MATERIALITY OF TESTIMONY EVIDENCE.

Evidence in perjury held to show materiality of testimony complained of, given on a prosecution for receiving stolen goods.

[Ed. Note.-For other cases, see Perjury, Cent. Dig. § 122; Dec. Dig. 33(6).] 3. PERJURY 29(2) — EVIDENCE - PROOF OF

PART OF ASSIGNMENTS.

For a conviction of perjury, it is not necessary to prove all the assignments of perjury. Cent. Dig. §§ 98, 99; Dec. Dig. 29(2).] [Ed. Note.-For other cases, see Perjury, 4. PERJURY 36,- MATERIALITY OF FALSE TESTIMONY-QUESTION FOR COURT.

It is for the court in perjury to settle and state whether alleged false testimony was material to issues in the case in which given. Cent. Dig. § 133; Dec. Dig. 36.] [Ed. Note.-For other cases, see Perjury, 5. PERJURY

RIAL MATTERS.

37(1)-INSTRUCTIONS-MATE

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see Criminal

affecting the merits, defendant will be deemed fully, corruptly, and feloniously swore lie to have waived right to contend therefor on ap- did not do. peal. On his trial he was convicted [Ed. Note.-For other cases, and sentenced to the penitentiary, after moLaw, Cent. Dig. § 2642; Dec. Dig. 1032(7).]tions for new trial and in arrest of judgment were overruled. This writ of error is prosecuted by Melnick to reverse the judgment.

Barney Melnick was convicted, and brings error. Affirmed.

Roman G. Lewis, of Chicago, for plaintiff in error. P. J. Lucey, Atty. Gen., Maclay Hoyne, State's Atty., of Chicago, and A. R. Roy, Asst. Atty. Gen. (Edward E. Wilson and Edwin J. Raber, both of Chicago, of

counsel), for the People.

7. WITNESSES 342-IMPEACHMENT-GENERAL REPUTATION. A witness, whether or not a party, may be [1] It is first argued by plaintiff in error impeached by showing his general reputation that there is no evidence in the record tendfor truth and veracity in the neighborhood in ing to prove any assignment of perjury in which he lived to be bad, though evidence has not been given to sustain his reputation. said indictment, and a reversal of the judg [Ed. Note.-For other cases, see Witnesses, ment is asked on that ground. It was by Cent. Dig. § 1123; Dec. Dig. 342.] the people's evidence proved that plaintiff in Error to Criminal Court, Cook County; error did testify, on oath administered by George F. Barrett, Judge. the clerk of said court in the former trial, to the very matters and things which are charged to be false, etc., and the giving of his part. It is not denied by his counsel that which testimony is charged to be perjury on he so testified, but their contention is that the testimony was not shown to be willfully and corruptly false. All of the assignments of perjury were proved if the testimony of Morris Cohen is to be believed, who pleaded DUNCAN, J. At the May term of the guilty to the former indictment and afterAt the May term of the wards withdrew his plea and the indictment criminal court of Cook county, 1913, the plaintiff in error and Israel Tecotczky and was dismissed as to him. The third and Morris Cohen were jointly indicted in a count last assignments of perjury are proved elear for larceny, and also in a count for receiving doubt by the people's evidence when considly, conclusively, and beyond all reasonable stolen property knowing it to be stolen. The ered alone, for it is abundantly shown by indictment charged that the property stolen the evidence of the people that plaintiff in or unlawfully received by the defendants was one lot of furs, consisting of muffs, col- Christmas in 1912, and sold some or all of was one lot of furs, consisting of muffs, col- error went to Kansas City, Mo., just before lars, scarfs, coats, and skins, the property the very same furs that were stolen to one of Hyman Kinzelberg, each article being spe- Joseph L. Greenstone, manager of a cloak cifically described and valued in the indict- and suit store in that eity, and that plaintiff ment, the aggregate value therein amounting to $6,122. The instant case grew out of the in error knew that they had been stolen from trial of the case for larceny and receiving he had known plaintiff in error 16 or 17 Hyman Kinzelberg. Greenstone testified that stolen property, and the indictment was returned at the March term, 1915. It charged years, and that he saw him at Chicago in the in one count, in substance, that plaintiff place of Michael Tauber & Co., auctioneers, in December, 1912; that he there approached in error, while upon trial upon said former indictment, was himself duly sworn in that witness and said to him that he used to sell case by the clerk of that court, and falsely, he was doing in Tauber's, and on replying witness merchandise, and asked him what knowingly, corruptly, wickedly, unlawfully, and feloniously testified that he had not pur- that he was buying merchandise at the sale, chased nor had any dealings with the said plaintiff in error told him he bought and sold Tecotczky and Cohen with reference to the merchandise, and asked if witness would be purchase of any furs set forth in said former interested in a job of furs. Receiving a indictment, in the month of November or De- favorable reply, plaintiff in error told him cember, 1912; that he did not go to Kansas he had shipped a case of furs to M. Goldberg, City, Mo., in December, 1912, with said Mor- Denver, Colorado, C. O. D., and had the bill ris Cohen; that he did not go to Kansas of lading, but the man had not produced the City, Mo., in December, 1912; that he did money, and asked witness to remain over in not write his name on the register of the Chicago until he could get the furs back. Hotel De More, in Kansas City, Mo., in 1912; Witness told him he could not wait. Plainthat he had not stopped at the Hotel De tiff in error then suggested that witness give More in 1912; that he never gave said Mor- him a check for $500 for the furs, and that ris Cohen any money on the train while he would have them shipped to him at Kansaid Cohen accompanied him, and that he sas City, and if they were satisfactory he (Barney Melnick) did not have any knowl- would cash the check, and if not he would edge about the furs of said Hyman Kinzel- return it to witness, or witness could stop berg; that it then and there became material payment on it; that the trade was so made, to the issues in said former case whether or and that witness left that night for Kansas not plaintiff in error did do the several City, and arrived there the next morning, things aforesaid which he so falsely, will- and wired plaintiff in error not to deposit

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

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