ting owners, those owners cannot, in a proceed- | firmation of a special assessment for the paving ing to enjoin the collection of the assessments, of a street. urge in support of their suit that the other city is not a party, as Hurd's Rev. St. 1911, p. 417, & 47 (c. 24, § 553), authorizes the raising of such objections in the county court before confirmation.

In a proceeding to enjoin the collection of a special assessment for the improvement of a street, property owners cannot object that another municipality owns the fee of the street, as such objections should, under Local Improvement Act of 1897 (Laws 1897, p. 120) § 53, be made on application to confirm the assessment and cannot be raised collaterally. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 516.*]

6. MUNICIPAL CORPORATIONS (§ 536*)-SPECIAL ASSESSMENTS-ATTACK.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1145, 1153-1155; Dec. Dig. § 491.*]

11. JUDGMENT (§ 429*)-EQUITABLE RELIEFGROUNDS-ERRONEOUS JUDGMENT.

That a judgment is wrong in law or fact is no ground for an injunction to restrain its enforcement where the objecting party had an opportunity to make a defense at law and failed to do so.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 808, 810-815; Dec. Dig. § 429.*1

Appeal from Circuit Court, Tazewell County; T. N. Green, Judge.

Bill by Jacob Mushbaugh and others against the Village of East Peoria and others. From a decree dismissing the bill, complainants appeal. Affirmed.

Sheen & Galbraith, of Peoria, for appellants. J. P. St. Cerny, Village Atty., of Pekin (W. B. Cooney, of Pekin, of counsel), for appellees.

Where it was conceded that complainants, seeking to enjoin the collection of a special assessment, were notified of the proceedings in the county court before confirmation and conferred with the board of local improvement, CARTER, J. The village of East Peoria they cannot enjoin the collection of the as-passed an ordinance for the paving of West

sessment as fraudulent.

[Ed. Note. For other cases, see Municipal Washington street a width of 174 feet on Corporations, Cent. Dig. § 1253; Dec. Dig. § each side of the right of way of the Peoria 536.*] Railway Company, for a distance of 400 feet 7. MUNICIPAL CORPORATIONS (§ 304*)-SPE- on the east end of said street, and for paving CIAL ASSESSMENTS-VALIDITY-ORDINANCE. North and South Main street, and providing A special assessment for the paving of a for a special tax upon adjacent property to street, part of which was occupied by railway tracks, is not invalid because the ordinance or- pay for said improvement. After the assessdering the improvement provided only for the ment had been confirmed in the county court, paving of the sides and did not include the por- Jacob Mushbaugh and other taxpayers and tion occupied by the street railway company; property owners in the village of East Peit not being necessary to make that company a oria filed a bill, on behalf of themselves and party to the proceedings where the ordinance. granting its franchise required it to pave its all other taxpayers who might see proper to right of way. become parties, to enjoin the enforcement of the ordinance and the collection of said special tax. The president of the board of trustees, the city attorney, and other officials of East Peoria were made parties. They ap

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 811-816; Dec. Dig. § 304.*]

8. MUNICIPAL CORPORATIONS (§ 304*) SPECIAL ASSESSMENTS-STREET RAILWAYS. Where its franchise required a street rail-peared and filed a demurrer, which was susway company to pave the part of the street it tained and the bill dismissed for want of occupied, the fact that the grade of a proposed equity. This appeal followed. pavement ordered by ordinance is higher than the railway tracks will not invalidate a special assessment therefor as the company will be obliged to pave the portion of the street occupied by it in the same manner as the rest.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 811-816; Dec. Dig. § 304.*]

[1] Whether the appeal was properly tak en directly to this court, while not raised in the briefs, was discussed on oral argument. The question of restraining, by bill for injunction, the collection of special assessments on account of the invalidity of ordinances or for certain other illegalities in the proceedings has been frequently considered by this court when the case was brought directly here by appeal or writ of error. Lyman v. City of Chicago, 211 Ill. 209, 71 N. E. [Ed. Note.-For other cases, see Municipal 832; Sumner v. Village of Milford, 214 Ill. Corporations, Cent. Dig. § 1075; Dec. Dig. 388, 73 N. E. 742; Cosgrove v. City of Chica451.*]

9. MUNICIPAL CORPORATIONS (§ 451*)-PUBLIC IMPROVEMENTS-BENEFITS.

A village may by ordinance fix the amount of public benefits accruing from the pavement of a street.

10. MUNICIPAL CORPORATIONS (§ 491*)-PUBLIC IMPROVEMENTS - ASSESSMENTS - OBJECTIONS.

That misleading statements were made by the board of local improvement to complainant property owners will not excuse them from filing objections in the county court to the con

go, 235 Ill. 358, 85 N. E. 599; Loeffler v. City of Chicago, 246 Ill. 43, 92 N. E. 586, 20 Ann. Cas. 335; Martin v. McCall, 247 Ill. 484, 93 N. E. 418; Haugan v. City of Chicago, 259 Ill. 249, 102 N. E. 185. It must therefore be held the settled rule of this court that a bill by a taxpayer for an injunction

to restrain the collection of a special tax or | tue of its ownership, as well as by its covespecial assessment involves revenue directly, nant in the deed, required to forever mainas that term has been construed by this court, tain and repair said street. and authorizes a direct appeal.

In the United States, township, county, or other local authorities usually have control or supervision over ordinary public highways in the country, while the corporate authorities of cities, villages, and incorporated towns usually have such control within their respective limits. Whether such jurisdiction and power in the one are exclusive depends upon the intention of the Legislature. As a general rule, however, a grant to a city, incorporated village, or incorporated town of power to control and regulate the streets confers exclusive authority over the streets and vests in such authorities the power and jurisdiction to regulate and control highways which have heretofore been under the control of township or county organizations and transfers to such city or village the duty of maintaining and repairing them, unless the statute otherwise provides. 3 Dillon on Mun. Corp. (5th Ed.) § 1138, and cases cited. It is conceded that the village of East Peoria was incorporated under the general city and village act, which grants exclusive jurisdiction over the streets of the municipalities incorporated thereunder, unless otherwise specially provided by statute. The statute under which the city of Peoria purchased the bridge and road in question provides for the control of bridges and roads but does not in any way refer to streets. "The word

[2] The first reason urged as to the invalidity of the ordinance is that West Washington street is owned by the city of Peoria and not by the village of East Peoria, and that the city of Peoria is under contract obligation to improve said street. From the allegations of the bill it appears that a bridge across the Illinois river, and the approach thereto on the east side thereof for a distance of 17/16 miles was acquired in 1855 by the Peoria Bridge Association, a corporation, which owned and controlled the said bridge and the approaches thereto as a toll road and bridge. In 1877 the Legislature passed an act to enable cities and villages to acquire by purchase, lease, or gift, and to establish, maintain, and regulate, ferries, bridges, and the approaches thereto within the corporate limits or within five miles thereof. Laws of 1877, p. 61. This act was intended to supersede another on the same subject passed in 1874. In 1879 this law was amended (Laws 1879, p. 71), giving to the purchasing city control of the bridge, ferry, or approach located outside the city, when so purchased. In 1881 the law was amended by adding certain exceptions not here in point. The law was afterward amended in 1891 to read as it is now found in the statutes. Hurd's Stat. 1911, c. 24, pars. 194, 194a, p. 312. Assuming to act un-'road' is now commonly used as denoting a der and by authority of the statute on this subject then in force, the city of Peoria purchased of the bridge association all of its title and interest in this bridge and its approaches. The deed, dated November 3, 1886, recites a consideration of $30,367.15; a copy being attached as an exhibit to the bill. The deed purported to convey the bridge and certain approaches and strips of land and also all of the right, title, and interest of the bridge company in and to the privileges and franchises granted to the bridge company under an act of the Legislature entitled "An act to authorize the construction of a bridge across the Illinois river," approved January 26, 1864. In the habendum clause of said deed it is provided that the said city of Peoria is "to have and to hold the aforesaid premises, and each and every part thereof, to the said party of the second part, for pub- [3] The general rule is that one municipallic use as a free bridge and highway, to be ity cannot levy a tax for an improvement to maintained and kept in repair by the said be made within the limits of another municparty of the second part forever." The vil-ipal corporation. Town of Ottawa v. Walklage of East Peoria was incorporated in 1884, er, 21 Ill. 605, 71 Am. Dec. 121; People v. about two years prior to the execution of La Salle County, 111 Ill. 527; Loeffler v. City said deed. The toll road leading to the east end of the bridge is within the corporate limits of said village and is there known as West Washington street. The theory of the bill is that the title to the bridge and its approaches passed by the conveyance to the

public way in the country rather than the street of a town or city." Elliott on Roads and Streets (2d Ed.) § 7. While no satisfactory and generally accepted definition of the term "street" has been reached by the authorities, the most generally accepted definitions are those which confine a street to "a public highway within an incorporated municipality." 3 Dillon on Mun. Corp. (5th Ed.) § 1121. The most natural construction of the statute in question would be to confine it to and villages, where such roads are outside the control of bridges and roads by cities of the limits of other cities, villages, or incorporated towns. See Peoria & Pekin Union Railway Co. v. People, 144 Ill. 458, 33 N. E. 873; Snell v. City of Chicago, 133 Ill. 413, 24 N. E. 532, 8 L. R. A. 858; City of Joliet v. Drainage District, 222 Ill. 441, 78 N. E. 836.

of Chicago, supra. The statute conferring authority, in general terms, upon commissioners of highways in country districts to maintain and control roads and bridges within their respective towns will not be construed to authorize its exercise within the

proceedings in the county court were fraudulent and therefore void.

[7] Counsel for appellants argue, if the court does not agree with them in the contentions as to the point heretofore considered, that the ordinance should be held invalid in this proceeding because unreasonable in that the proposed improvement will tend to destroy West Washington street, as the ordinance only provides for paving 174 feet on each side of said street, leaving the portion occupied by the street railway company unpaved. The allegations of the bill, however, show that the railway company is required to pave that portion of the street occupied by it. The fact that the railway company is not made a party does not render the proceedings invalid. The usual practice is to make no provision for paving the street rail

villages in such towns. People v. Chicago & Northwestern Railway Co., 118 Ill. 520, 8 N. E. 824; Shields v. Ross, 158 Ill. 214, 41 N. E. 985; People v. Chicago & Alton Railroad Co., 172 Ill. 71, 49 N. E. 982. This same rule would necessarily be applied in the construction of a statute which gave, in general terms, the power to one municipality to construct and maintain roads in another municipality. In Snell v. City of Chicago, supra, it was held that, where part of a toll road formerly in the country was brought within the boundaries of an incorporated city by the annexation of territory, the authority of the toll road company would thereafter cease and the portion of the road thus taken into the city would thenceforward be under the control of the city. Applying this doctrine to this case, when the road in question was included, in 1884, within the incorporated lim-way right of way under a local improvement its of East Peoria, the authorities of that village thereafter had control over that part of the toll road within its limits, and the deed conveying the bridge and road to the city of Peoria two years thereafter would convey subject to those conditions.

[4] Appellants contend that the city of Peoria was not made a party to this proceeding and therefore cannot be bound by any decision here as to its rights in this suit. This must be conceded, but we do not see how appellants can take advantage of that question in this proceeding. If property not assessed should have been assessed for this improvement, appellants should have raised that question in the county court before confirmation. Hurd's Stat. 1911, § 47, p. 417; Jones v. Town of Lake View, 151 Ill. 663, 38 N. E. 688; Doran v. City of Murphysboro, 225 Ill. 514, 80 N. E. 323.

ordinance of this kind where the ordinance granting the franchise to the street railway company provides that it shall pave its right of way. City of Lincoln v. Harts, 250 Ill. 273, 95 N. E. 200, and cases cited.

[8] The objection that the present grade of the pavement on the right of way of the street railway company is a foot or more lower than the grade established for this new pavement is also without force, as the bill shows that the street railway company is required to pave, at its sole expense, its right of way in like manner and with the same kind of material and at the same time as the village of East Peoria paves other parts of West Washington and other streets involved in said franchise.

[9] The objection that the village was without authority to fix the amount of public benefits by ordinance cannot be sustained. Birket v. City of Peoria, 185 Ill. 369, 57 N. E. 30; City of East St. Louis v. Illinois Central Railroad Co., 238 Ill. 296, 87 N. E, 407.

[5] Furthermore, if it be urged that the city of Peoria owns the fee to the street in question, that is no objection in this collateral proceeding to the levying of an assessment [10] The argument that misleading stateto pay for a local improvement constructed ments were made by the board of local imthereon. People v. Sass, 171 Ill. 357, 49 N. E. provements to complainants affords no ex501. Such an objection, under section 53 of the cuse for the latter not filing objections in Local Improvement Act of 1897, should be the county court. Cosgrove v. City of Chicamade on application to confirm the assess-go, supra; Haugan v. City of Chicago, supra. ment and cannot be raised collaterally. Peo- [11] Other objections raised, as well as ple v. Talmadge, 194 Ill. 67, 61 N. E. 1049. Had the objection that the city of Peoria should be a party been made before confirmation and insisted on in the county court on that hearing, an entirely different question would then have been presented from that now before the court.

[6] It is conceded by the allegations of the bill that appellants were notified of the proceedings in the county court before confirmation and conferred with the members of the board of local improvements as to certain changes. They do not, and cannot on the showing made by their bill, charge that the

those already considered, could have been urged in the county court. The power of courts of equity to set aside and invalidate judgments of law should be exercised according to fixed rules. It is no ground for relief in equity that a judgment is wrong in fact or in law, if the complaining party had an opportunity to make a defense at law and failed to do so. Martin v. McCall, supra; Haugan v. City of Chicago, supra.

The demurrer to the bill was properly sustained, and the decree of the circuit court will be affirmed.

Decree affirmed.

(259 Ill. 544)

PEOPLE v. SHAW.

(Supreme Court of Illinois. Oct. 28, 1913.) 1. BIGAMY (§ 2*) - DEFENSES VALIDITY OF MARRIAGE.

Where accused, in the state of New York, married a woman whose first husband had secured a divorce from her while in a foreign state, she not being personally served with process in that state, the marriage was null and void, and would not support a conviction for bigamy; the courts of New York not recognizing the foreign divorce.

[Ed. Note. For other cases, see Bigamy, Cent. Dig. §§ 3, 16-18; Dec. Dig. § 2.*] 2. BIGAMY (§ 2*)-FORMER MARRIAGE-VALIDITY-COMMON-LAW MARRIAGE.

In a prosecution for bigamy, where accused's first marriage was invalid because the woman had a husband then living, and the law of the state where it was celebrated did not recognize the divorce obtained by the husband, subsequent cohabitation by the parties within a second state which might recognize such divorce will not create a common-law marriage; it not appearing that the parties desired a commonlaw marriage, but that they cohabited by virtue of the former ceremonial marriage.

[Ed. Note. For other cases, see Bigamy, Cent. Dig. §§ 3, 16-18; Dec. Dig. § 2.*] Dunn and Farmer, JJ., dissenting.

Error to Criminal Court, Cook County; Richard E. Burke, Judge.

John L. Shaw was convicted of bigamy, and he brings error. Reversed and re

manded.

A. L. Hougen, of Manitowoc, Wis., O. J. Taylor, Jr., and Hall & Holly, all of Chicago, for plaintiff in error. P. J. Lucey, Atty. Gen., Maclay Hoyne, State's Atty., of Chicago, and George P. Ramsey, of Springfield (Edward Day, of Chicago, of counsel), for the People.

COOKE, J. John L. Shaw, the plaintiff in error, was, by the verdict of a jury in the criminal court of Cook county, found guilty of bigamy, and was sentenced to the penitentiary for an indeterminate period. He has sued out this writ of error to reverse the judgment of the criminal court.

The principal ground relied upon for reversal is that the evidence failed to show that the plaintiff in error was guilty of bigamy. The evidence shows that on September 19, 1900, plaintiff in error and Helen Olson went through the ceremony of marriage in New York City, and that thereafter, on November 28, 1910, without having obtained a divorce from Helen, and while she was still living, plaintiff in error married Lenore Smith in the city of Chicago. The defense was that the alleged marriage of plaintiff in error to Helen Olson was null and void because she then had a husband living, from whom she had not been divorced.

in Chicago as his wife until April 27, 1889, when she left him. On January 30, 1890, she brought a suit against him in the circuit Court of Cook county for separate maintenance, alleging that she was obliged to leave him on account of his extreme and repeated cruelty towards her. Olson appeared and filed an answer denying the charges contained in her bill, and an order was entered by the court requiring him to pay temporary alimony. Shortly after the entry of this order Helen Olson applied to the court for a writ of ne exeat, which was issued, but Olson left the state of Illinois and went to California before the writ could be served upon him. Nothing further was done in that suit until June, 1892, when it was dismissed for want of prosecution. In the summer of 1890 Helen Olson left Chicago and took up her residence in New York City, where she resided until after her alleged marriage to While she was living in plaintiff in error.

New York City, and on November 23, 1892, Edward Olson obtained a decree of divorce in the superior court of the city and county of San Francisco, in the state of California, on the ground that Helen Olson had deserted and abandoned him. The service upon the

defendant in that proceeding was had by publication, and she did not appear in the

suit.

Plaintiff in error offered in evidence decisions rendered by the Court of Appeals of the state of New York, which hold that where the defendant in a suit for divorce in a foreign state is not a resident of such state, and is not personally served with process in the state where the court is sitting, and does not appear in the suit, a decree in such suit granting a divorce is null and void for all purposes within the state of New York so far as the defendant is concerned, and the defendant, notwithstanding such decree, remains a married person.

[1] Plaintiff in error contends that by reason of the foregoing facts his alleged marriage to Helen Olson in New York City on September 19, 1900, was null and void, and that he therefore did not commit the crime of bigamy by marrying Lenore Smith on November 28, 1910. Counsel for the state contend that Helen Olson and plaintiff in error were residents of Illinois at the time of their marriage, and were in the state of New York temporarily at that time. It is not necessary to determine what effect, if any, that would have on the validity of that marriage, as it conclusively appears from the evidence that Helen Olson was at that time. and had been for several years, a resident of the state of New York. Under the laws of New York this marriage was void (People It appears from the evidence that Helen v. Baker, 76 N. Y. 78, 32 Am. Rep. 274; O'Dea Olson, whose maiden name was Helen Schnei- v. O'Dea, 101 N. Y. 23, 4 N. E. 110; Williams der, was on September 4, 1888, married to v. Williams, 130 N. Y. 193, 29 N. E. 98, 14 Edward Olson, and thereafter lived with him L. R. A. 220, 27 Am. St. Rep. 517), and as

the law of New York must control as to the sufficient proof of a marriage." Manning v. validity of the marriage (McDeed v. McDeed, Spurck, 199 Ill. 447, 65 N. E. 342; Robinson 67 Ill. 545; Canale v. People, 177 Ill. 219, v. Ruprecht, 191 Ill. 424, 61 N. E. 631; Land 52 N. E. 310; Reifschneider v. Reifschneider, v. Land, 206 Ill. 288, 68 N. E. 1109, 99 Am. 241 Ill. 92, 89 N. E. 255), it must be held St. Rep. 171. In the case last cited the parto be void in this state. His marriage with ties were married during the pendency of a Helen Olson being invalid because of her in-divorce suit by the woman, after the hearability to enter into the contract, plaintiff in error did not commit bigamy by his later marriage with Lenore Smith.

[2] Some months after the marriage of plaintiff in error and Helen Olson they removed from New York to this state and cohabited together here for almost 10 years, and it is contended on the part of the people that this ratification of the ceremony of marriage performed in the state of New York constituted a common-law marriage. There is nothing in the record which indicates that these parties contemplated or desired a common-law marriage, or that they entered into such a contract. Their cohabitation was pursuant to the ceremony of marriage performed in New York, and it does not appear that either of them doubted the validity of that marriage until after their separation.

ing but before the decree was entered, believing that the decree had been rendered, and that their marriage was lawful. A decree was subsequently entered, the parties continued to cohabit with matrimonial intent, and the marriage was held valid. Had Helen Olson died on November 28, 1910, the day the plaintiff in error married Lenore Smith, he would have been entitled, under the decisions cited, to the surviving husband's interest in her estate. Being the husband of one woman, it was bigamy for him to marry another, and in our judgment he was properly convicted.

(259 III. 604)

CITY OF ROCKFORD v. MOWER. (Supreme Court of Illinois. Oct. 28, 1913.)

The judgment of the criminal court is re- 1. EMINENT DOMAIN (§ 9*)-EXTENT OF Pow

versed.

Judgment reversed.

ER-PURPOSES-SEWERS.

main, Cent. Dig. 88 27-34; Dec. Dig. § 9.*]
[Ed. Note.-For other cases, see Eminent Do-
2. EMINENT DOMAIN (§ 167*)-PROCEEDINGS

Under Local Improvement Act (Hurd's Rev. St. 1911, c. 24, § 520) § 13, providing that whenever an ordinance shall be passed by any DUNN and FARMER, JJ. (dissenting). city for making any local improvement that it The marriage of Helen Olson and the plain- is authorized to make, the making of which will tiff in error in 1900 was entered into in per-aged for public use, it shall designate some ofrequire that private property be taken or damfect good faith by both parties. The relation ficer to file a petition in some court of record they assumed was not meretricious, but praying that steps be taken to ascertain the was intended to be matrimonial. She had just compensation to be made for private property to be taken or damaged for the improvebeen divorced from her former husband for ment, power to condemn land outside the limits nearly eight years. The decree of divorce of a city upon which to construct an outlet was not recognized by the courts of New sewer is implied. York, but it was valid in Illinois and many other states. Knowlton v. Knowlton, 155 Ill. 158, 39 N. E. 595; Dunham v. Dunham, 162 Ill. 589, 44 N. E. 841, 35 L. R. A. 70; Harding v. Alden, 9 Me. 140, 23 Am. Dec. 549; Loker v. Gerald, 157 Mass. 42, 31 N. E. 709, 16 L. R. A. 497, 34 Am. St. Rep. 252; Van Orsdal v. Van Orsdal, 67 Iowa, 35, 24 N. W. 579; Gould v. Crow, 57 Mo. 200; Thurston v. Thurston, 58 Minn. 279, 59 N. W. 1017; Douglas v. Teller, 53 Wash. 695, 102 Pac. 761. In this state she was competent to contract a marriage. When she and the plaintiff in error came to Illinois, a few months after their marriage, neither was under any disability here to marry, and a common-law marriage was lawful. It was the law of this state prior to the amendment of the marriage act, in 1905, which declared common-law marriages void, that "if parties to a marriage, in the beginning, desire and intend marriage in good faith, as a matter of fact, but an impediment exists, and the desire and intention continue after the impediment is removed, and the parties continue in the relation of husband and wife and cohabit as such, it is

TO TAKE LAND-STATUTORY PROVISIONS. A proceeding by a city to condemn land outside of its limits upon which to construct an outlet sewer as a part of a system of sewers to be constructed was properly instituted and prosecuted pursuant to the provisions of Local Improvement Act (Hurd's Rev. St. 1911, c. 24, §§ 507-605), notwithstanding Hurd's Rev. St. 1911, c. 24, § 336a, authorizing cities and villages to construct, maintain, and keep in repair drains, ditches, etc., and Laws 1910, p. 41, expressly authorizing cities, villages, and incorporated towns of 100,000 population and over to construct outlet sewers, since section 336a has no application to the construction of sewers, but applies only to the construction of drains for the purpose of draining lands within the corporate limits of a city, village, or town, and the act of 1910 by its express terms applies only to the construction of an outlet sewer by a city which has a sewerage system, and therefore does not apply to the construction of such sewer at the same time and as part of the system of sewerage within the limits of the city, and, moreover, that act expressly provides that proceedings to condemn land for an outlet visions of the Local Improvement Act. sewer thereunder shall be governed by the pro

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 451-456; Dec. Dig. § 167.*]