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3. APPEAL AND ERROR

(125 N.E.)

183-PARTY CLAIMING DECREE NOT SUPPORT

ED BY EVIDENCE MUST PRESERVE IT.

Since the passage of the act allowing oral testimony in chancery cases, it is the settled practice to allow a recital of the ultimate facts proved in the decree, and, if that is done, the evidence need not otherwise be preserved, but one asserting that the findings of fact were not justified by the evidence must preserve the same by certificate and this is the practice in divorce proceedings heard by chancellor.

4. HUSBAND AND WIFE 492 (7)-PRESUMPTION ARISES OF GIFT TO WIFE OF PROPERTY PURCHASED BY HUSBAND IN WIFE'S NAME. Where property was purchased by husband and paid for out of his earnings; title being taken in the wife's name, it will be presumed, in the absence of rebutting evidence, that the purchase was intended as a gift to the wife.

515(2)-DIVORCE | son to have the care, custody, and control of their children, and praying for a divorce. The cross-bill was answered by the appellee with a denial of the charges against her. The cause was heard by the chancellor, and a decree was entered finding that the apa decree was entered finding that the appellant was not guilty of the charges against him; that the appellee had been an habitual drunkard for five years; that there were three children of the marriage, Cassie, a girl seventeen years of age, Jennie, a girl ten years of age, and Marion, a boy seven years of age; that the appellee had been in the habit of sending the daughter Cassie to a wholesale liquor house on Milwaukee avenue for whisky and gin three or four times each week; that on various occasions the appellee had engaged in drunken carousals in the home with other women and men and had visited saloons and returned home in a drunken state at 1 or 2 o'clock in the morning; and that she was not a fit person to have the care or custody of the children or to rear and educate them. The appellee's bill was dismissed for want of equity, and a divorce dismissed for want of equity, and a divorce was granted to the appellant on his crossbill, and it was ordered that he should have the care, custody, and education of the children. The court retained jurisdiction to determine the question of alimony and property rights, and with that decree the parties were

5. DIVORCE 238-ALLOWANCE OF ALIMONY THOUGH DECREE BE GRANTED HUSBAND FOR FAULT OF WIFE.

Where the decree of divorce is granted the husband because of the misconduct of his wife, she ordinarily will not be entitled to alimony, but a court of equity may under proper circumstances grant the wife alimony, though divorce be granted the husband for her fault.

6. DIVORCE 249(1) DECREE REQUIRING HUSBAND TO SURRENDER HOMESTEAD AND

DOWER IN LAND IN WIFE'S NAME proper.

Where parties prior to divorce had occupied

premises title to which stood in the name of the wife, held that, though the decree was granted the husband for the fault of the wife, and though the husband had paid for the premises, a supplemental decree divesting the husband of his dower and homestead rights in the property and giving the wife the family furniture

was not erroneous.

content.

In appellee's bill she alleged that she was the owner in fee simple of two lots in Chicago improved by a brick and stone two-story building containing two flats or apartments, one of which was occupied by her tenants and the other by herself and family; that the premises were incumbered by a mort

Appeal from Superior Court, Cook County; gage for $2,300; and that she derived a rent Denis E. Sullivan, Judge.

Bill by Emilia Rybakowicz against Stanislaw Rybakowicz. From a supplemental decree fixing property rights of the parties after defendant had been granted a divorce on his cross-bill, defendant appeals. firmed.

al of $18 per month from her tenants, which was not sufficient to cover the interest on

the mortgage, the taxes, water taxes, repairs, and upkeep. She prayed that she might be decreed to hold the real estate free and clear of the homestead estate, dower interest, or Afother right, title, or interest of the appellant. The court having retained jurisdiction to deThomas E. Swanson and Rush B. Johnson, termine the question of alimony and properboth of Chicago, for appellant.

ty rights, the appellant moved for leave to

William Slack, of Chicago, for appellee. file a supplemental cross-bill, but the chancel

CARTWRIGHT, J. By her bill of complaint in the superior court of Cook county the appellee, Emilia Rybakowicz, charged her husband, the appellant, Stanislaw Rybakowicz, with extreme and repeated cruelty and habitual drunkenness for a space of more than two years and prayed for a divorce and the custody of their three children. The appellant answered the bill denying her charges and filed his cross-bill charging her with habitual drunkenness for the space of five years, alleging that she was not a fit per

lor denied the motion, and upon a hearing entered a decree finding that the appellee was the owner in fee simple of the lots in question, which were worth $4,500; that they were subject to a mortgage of $2,579, including accrued interest; that the general taxes for the year 1918 were due and unpaid; that the premises had been sold for the general taxes of 1917, and the sum necessary to redeem from the sale was $171; that the appellee and appellant occupied one flat or apartment until about the middle of June, 1917, when the appellee left or was

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

forced to leave the premises and the appel- [quired him to preserve the evidence by a lant remained in possession; that the reason- certificate. able rental for the apartment occupied by ap- [4] The supplemental cross-bill which the pellant, including the use of the garage or appellant asked leave to file alleged that the barn in the rear, up to the day of the decree title to the property in question at the time was $550; that there was personal property, of his answer and cross-bill apparently was consisting of household furniture jointly in Peter Stermer, but since that time, as a owned by the parties and reasonably worth result of litigation, an apparent convey$300, which was in the possession of the ap-ance of the property by the appellee and appellant; that it was equitable and just that the appellant should retain the household furniture free and clear of any claim of the appellee; that the appellee had no money or other property, real or personal, than said premises and no other means of support; that the appellant was reasonably worth $5,000; and that it was just and equitable that the estate of homestead and the right of dower of the appellant in the premises should be cut off, barred, and divested. Therefore the court decreed that all the rights and interests of the appellant in the premises, whether of dower, homestead estate, or other interest, should be barred, divested and cut off, and the appellee should hold the premises in her own right in fee simple, free from any claim of the appellant, who was ordered to execute a quitclaim deed to the premises, and in case of his failure to execute the same a master in chancery should execute such quitclaim deed. From this supplemental decree this appeal was prosecuted.

[1-3] There is no presumption that evidence sufficient to sustain a decree in chancery not appearing in the record was heard, and in order to support such a decree the specific facts proved on the hearing must be found in the decree or preserved by a certificate of evidence. Marvin v. Collins, 98 Ill. 510; Village of Harlem v. Suburban Railroad Co., 202 Ill. 301, 66 N. E. 1050; Berg v. Berg, 223 Ill. 209, 79 N. E. 13; Trustees of Grays Lake & Warren M. E. Church v. Metcalf, 245 Ill. 54, 91 N. E. 664. While this rule did not apply to the divorce case, where a jury trial was a matter of right, it applied to the hearing by the chancellor and the supplemental decree adjusting property rights, and it is contended that the supplemental decree cannot be sustained for a failure to comply with that rule. The evidence was not preserved, but since the passage of the act allowing oral testimony in chancery cases it has been the settled practice to permit a recital of the ultimate facts proved in the decree, and, if that is done, the evidence need not be otherwise preserved. Cooley v. Scarlett, 38 Ill. 316, 87 Am. Dec. 298; Walker v. Carey, 53 Ill. 470; Gorman v. Mullins, 172 Ill. 349, 50 N. E. 222. The above recital of facts found in the decree was a sufficient compliance with the rule, and if the appellant questioned such findings of fact and desired to show that they were not justified by the evidence, the settled practice re

pellant to Stermer had been set aside, and a
decree entered finding that as between Ster-
mer and appellee she was the holder of the
legal title to the property. As ground for
relief appellant alleged that he purchased
the property and paid for it, subject to the
mortgage, out of his earnings, and took title
in the name of the appellee; that he paid
$200 on the mortgage and then occupied the
premises with his three minor children as a
home; and that the legal title was in the
name of the appellee but the property equi-
tably belonged to him. He prayed that upon
a hearing the appellee should be required to
convey the property to him, and his home-
stead and other rights should be adjusted.
The supplemental cross-bill alleged the ex-
istence of matters long prior to the answer or
cross-bill of the appellant, and there was no
allegation of any matter having arisen or
come to his knowledge since the time of fil-
ing his answer to the bill in which the
appellee claimed title and prayed to have her
title confirmed, but a fatal objection to the
supplemental cross-bill was that it did not
show any ground for relief. The fact al-
leged was that the appellant paid for the
property from his earnings while he was liv-
ing with his wife. In such a case the law
presumes that the purchase was intended as
a gift to the wife. Fizette v. Fizette, 146 Ill.
328, 34 N. E. 799; Lewis v. McGrath, 191 ·
Ill. 401, 61 N. E. 135. No fact was alleged
to rebut or overcome such a presumption,
and the court did not err in refusing leave to
file the supplemental cross-bill.

[5, 6] The general rule is that, where a decree of divorce is granted to a husband because of the misconduct of his wife, she will not be entitled to alimony. Spitler v. Spitler, 108 Ill. 120. A court of equity, however, has power to award alimony to the wife, under proper circumstances, even though the decree of divorce be given to the husband for the fault of the wife. Deenis v. Deenis, 79 Ill. 74. In this case the chancellor, in fact, did not give alimony to the appellee, but found that the household furniture jointly owned by the parties should be retained by the appellant. The reason for the recital in the decree that the rental value of the premises while occupied by the appellant was $550 is problematical, since the court made no decree for the payment of such rent. The premises at that time were occupied by the appellant as a homestead with the minor children, and he was not liable

(125 N.E.)

Tichenor, Todd, Wilson & Barnett, of Peoria, for appellee.

THOMPSON, J. This is an appeal from a judgment of the circuit court of Sangamon county setting aside a decision of the Public Utilities Commission.

for rent nor required to pay rent. All that | Mills and Morton T. Culver, both of Chicago, was, in fact, done was to divest the appel- for appellant. lant of his right of occupancy of the premises owned by the appellee under his homestead right and his inchoate right of dower. Manifestly after the divorce the parties could not occupy the premises together, and it was not inequitable or improper to exclude the appellant from the possession and divest him of his homestead and dower rights. The fact that the appellee had been guilty of such conduct as justified a divorce would not require that she should be turned out of her property and substantially deprived of it by giving the appellant possession, which would be imposing a penalty not contemplated by the law.

The decree is affirmed.
Decree affirmed.

(290 Ill. 574)

STATE PUBLIC UTILITIES COMMISSION
v. BARTONVILLE BUS LINE.
(No. 13003.)

(Supreme Court of Illinois. Dec. 17, 1919.) 1. CARRIERS 10-ARBITRARY

DENIAL OF CERTIFICATE TO MOTOR BUS LINE ERRONEOUS.

When a public utility, as a proposed motor bus line, files with the Public Utilities Commission a petition for certificate of convenience and necessity, it is the plain duty of the commission to consider the petition on its merits, and if it is so supported by evidence as to enable the commission to find that the operation proposed will serve public convenience and is necessary thereto, the only lawful thing the commission may do is to grant the certificate, which may not arbitrarily be denied because a portion of the route over which the bus line proposes to operate is a highway outside the corporate limits of any city or village.

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Appellee, the Bartonville Bus Line, filed its application with the Public Utilities Commission for a certificate of convenience and necessity. It sought to operate a motorbus line upon and along certain public streets and highways between a point in the village of Bartonville and a point in the city of Peoria. The commission refused the certificate on the ground that the granting of the certificate carried with it a certain implied right of monopoly, and that the character and features of the business of appellee are such that to grant it the certificate would be, in effect, authorizing a monopoly where the plant used was largely the property of the public itself. This decision of the commission is based upon its conclusion that no certificate of convenience and necessity ought to be granted to a public utility where it is proposed to operate motor vehicles over the public highways of the state outside the corporate limits of a city or village.

includes every corporation that now or here[1, 2] The term "public utility" means and after may own, control, operate, or manage within the state, directly or indirectly for public use, any plant, equipment, or property used or to be used for or in connection with the transportation of persons between points within this state. Public Utilities Act, § 10 (Laws 1913, p. 459). No public utility can now begin business in this state until it has obtained a certificate from the Public Utili ties Commission that public convenience and necessity require the transaction of such business. Public Utilities Act, § 55. When a public utility files with the commission a petition for such a certificate, it is the plain duty of the commission to consider the peti tion on its merits, and if said petition is so supported by evidence as to enable the com

Appeal from Circuit Court, Sangamon mission to find that the operation proposed County; E. S. Smith, Judge.

will serve the public convenience and is necPetition by the Bartonville Bus Line to the essary thereto, there is nothing the commisPublic Utilities Commission for certificate sion may lawfully do but grant the certifiof convenience and necessity. Certificate was cate. There is nothing in the act which aurefused by the commission, and petitioner ap- thorizes the commission to arbitrarily deny pealed to the circuit court, which directed the certificate because a portion of the route that the Commission consider and pass on the over which the utility proposes to operate merits of the application, and the Commis-is a highway outside the corporate limits of sion appeals. Judgment of the circuit court a city or village. If that is to be the public affirmed. policy of the state, that policy must be deEdward J. Brundage, Atty. Gen., Albert clared by the Legislature. The Public UtilD. Rodenberg, of Springfield, William E. ities Commission is given no arbitrary powers Trautmann, of E. St. Louis, and Matthew by statute, and its orders and decisions are

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

subject to review and must be reasonable and I and do not by reason of the contract clause lawful. Chicago Bus Co. v. Chicago Stage of the federal Constitution enjoy any immunity Co., 287 Ill. 320, 122 N. E. 477; Public Utili- from such legislation. ties Com. v. Chicago, Milwaukee & St. Paul Railway Co., 287 Ill. 412, 122 N. E. 803.

Judging from the conclusion reached by the commission and the reasoning used by it in reaching the conclusion, we must hold that its decision is unreasonable, and therefore unlawful.

6. CONSTITUTIONAL LAW 81-LEGISLATURE

CANNOT PART WITH RIGHT TO USE POLICE
POWER.

In matters relating to the police power, each successive Legislature is of equal authority, and a legislative body cannot part with its right to exercise such power, but has authority to use it again and again, as often as the pub

lic interests require.

The judgment of the circuit court directing that the commission consider and pass upon the merits of the application of the Barton-7. CARRIERS 12(9)—BINDING contract for ville Bus Line for a certificate of convenience and necessity and for authority to issue its capital stock is therefore affirmed. Judgment affirmed.

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1. CARRIERS 12(9) -FIXING STREET RAIL-
WAY FARES IN EXCESS OF FRANCHISE RATES.
Public Utilities Commission, under police
power of state, held to have right and author-
ity to approve and authorize street railway
fares in the city of Quincy, which are in ex-
cess of fares prescribed by franchise ordinance,
despite Const. art. 11, § 4.
2. CORPORATIONS

STREET RAILWAY FARES.

The municipal authorities in the state of Illinois have never been clothed with power to fix by binding contract street car fares for any definite term of years.

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Appeal from Circuit Court, Sangamon County; E. S. Smith, Judge.

Commission, on the relation of the Quincy Proceeding by the State Public Utilities Railway Company, against the City of Quin391-LEGISLATIVE POW-cy. From an order affirming an order of the

ER TO FIX RATES FOR PUBLIC UTILITIES.

The power to fix and regulate rates as to public utilities was at common law inherent in the state, and no express grant was necessary to vest it in the Legislature.

3. MUNICIPAL CORPORATIONS

64-POWER

MUST EMANATE FROM STATE CREATING IT.

A municipality can do nothing which the state cannot authorize it to do, and all the power a municipality has is created by and must emanate from the state creating it.

Public Utilities Commission, establishing and making effective advanced rates for street car service by the Quincy Railway Company in the City of Quincy, the City appeals. Af

firmed.

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Edward J. Brundage, Atty. Gen., William E. Trautmann, of East St. Louis, Albert D.

4. CONSTITUTIONAL LAW 133, 297-OBLI- Rodenberg, of Springfield, and Matthew Mills,

GATION OF CONTRACTS; DUE PROCESS; RE-
TENTION OF POLICE POWER BY STATE.

The state, after granting to a municipality the right to regulate and control by ordinance the operation of street railways, still retains all power necessary for the protection of the property, health, and comfort of the public, and neither contract clause nor due process clause of federal Constitution has the effect of overriding said power, which cannot be abdicated or bargained away.

5. CONSTITUTIONAL LAW 117-CONTRACTS AFFECTED BY SUBSEQUENT STATUTE IN EX

of Chicago, for State Public Utilities Commission.

Green & Palmer, of Urbana (Henry I. Green and M. E. Pemberton, both of Urbana, of counsel), for appellee.

PER CURIAM. This is an appeal by the city of Quincy from the order of the Sangamon county circuit court, affirming an order of the Public Utilities Commission establishing and making effective, among other things, advanced rates for street car service by the Quincy Railway Company, in that city. The hearing before the commission involved All contracts, whether made by the state itself, by municipal corporations, or by individ- many issues concerning the operation of pubuals, are subject to be interfered with or oth-lic utilities in cities other than Quincy and erwise affected by subsequent statutes enacted as to companies other than appellee. With in the bona fide exercise of the police power, these other issues the city of Quincy was in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ERCISE OF POLICE POWER.

(125 N.E.)

no way concerned, and counsel have, there- not necessary to restate it. Its power, in fore, for the purpose of this appeal, stipu- this respect, the state may delegate to local lated the facts upon which the appeal was municipalities, and in such measure as may taken, eliminating immaterial and imperti- he deemed desirable for the best interests of nent questions not here involved. the public, and the state may resume it again when deemed expedient." Harmon v. City of Chicago, 110 Ill. 400, 51 Am. Rep. 698.

In discussing this question the United States
Supreme Court has recently stated:

[1] Among other questions was one as to the necessity for increasing street railway fares above those provided by the city ordi- [4] The chief contention here, however, is It is conceded in the record that the whether the state still retains this power findings of the Public Utilities Commission after having granted to the municipality the are correct that the Quincy Railway Com- right to regulate and control by ordinance the pany must charge and collect fares in excess operation of street railways in the city. of those prescribed by said ordinance in or- After an ordinance has been passed by the der to meet its increased operating expenses. city under this power and accepted by the During the year 1912 the Quincy Railway railway company, can the state thereafter Company accepted a so-called franchise or- override or change any of the provisions of dinance from said city, which fixed the rates said ordinance? It is strenuously insisted by for street railway service for a period of 20 counsel for appellant that to permit this is years. The only change made by the Public contrary to the provisions of the federal and Utilities Commission in the rates was to abol-state Constitutions as to due process of law. ish the sale of six tickets for 25 cents and the sale of reduced fare tickets to school children and to establish a flat five-cent fare. The only question involved on this hearing is this court that neither of these provisions of "It is established by repeated decisions of whether the Public Utilities Commission has the federal Constitution [the contract clause authority, power, and jurisdiction to approve and due process clause] has the effect of overand authorize street railway fares in said riding the power of the state to establish all city which are in excess of the fares pre-regulations reasonably necessary to secure the scribed in the ordinance passed in 1912, un- health, safety, or general welfare of the comder which said city granted the Quincy Rail-munity; that this power can neither be abdiway Company the right to operate its railroad upon the public streets of that city. [2] The power to fix and regulate rates as to public utilities was at common law one inherent in the state. Munn v. People, 69 Ill. So. No express grant was necessary to vest it in the Legislature. "No proposition is better settled than that a state Constitution is a limitation upon the powers of the Legislature, and that the Legislature possesses every power not delegated to some other department, or expressly denied to it by the Constitution." Field v. People, 2 Scam. 79. This doctrine has been repeatedly approved by this court since that early decision. Cities, villages, and other municipalities and quasi municipal corporations are created under the authority of the Legislature, to better accomplish the purposes of local government. These and all other local municipalities which are authorized by the Legislature derive their existence and all their powers from the Legislature creating them. "There is therefore no such thing as an inherent power in any mu-preme Court. That court dismissed the cause nicipality which is created by legislative enactment." City of Chicago v. M. & M. Hotel Co., 248 Ill. 264, 93 N. E. 753.

cated nor bargained away, and is inalienable even by express grant; and that all contract and property rights are held subject to its fair exercise." Chicago & Alton Railroad Co. v. Tranbarger, 238 U. S. 67, 35 Sup. Ct. 678, 59 L. Ed. 1204.

The regulation of public utilities is within the exercise of the police power of the state. This power may be exercised directly by the Legislature or indirectly by conferring the power upon the municipalities created by the Legislature. "The power is an attribute of sovereignty and is primarily vested in the Legislature, which has the right to recall it at any time from the agency to which it has been delegated." City of Chicago v. O'Connell, 278 Ill. 591, 116 N. E. 210. This last case was again brought to this court on substantially the same record, where the former opinion was held binding on this court. City of Chicago v. Dempcy, 281 Ill. 257, 117 N. E. 1010. From this last judgment a writ of error was sued out of the United States Su

for want of jurisdiction. Chicago v. Dempcy, 250 U. S. 651, 40 Sup. Ct. 53, 64 L. Ed. —. The police power of the state has never been exactly defined or circumscribed by fixed limits. It is considered as being capable of

[3] It must be conceded that the municipality can do nothing the state cannot authorize it to do; that all the power a municipality development and modification within certain has is created by and must emanate from the state creating it. "What powers, then, reside in the state? It has all power necessary for the protection of the property, health and comfort of the public, and that power has been so frequently defined by this court it is

limits, so that the powers of governmental
control may be adequate to meet changing
social, economic, and political conditions. In
a general way it may be defined—
"as comprehending the making and enforce-
ment of all such laws, ordinances and regula-

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