the amount of the proportion of the author- Hairpin Manf. Co. v. Emmerson, 293 Ill. 387,, could be ascertained, beyond the total 127 N. E. 746, the entire capital stock of the amount of the tax. The Legislature had a West Virginia corporation was represented right to establish a standard for ascertaining by business transacted and property located in this state, and the decision was that the tax based on such capital stock was not a tax on interstate commerce. The judgment of this court was affirmed in Hump Hairpin Manf. Co. v. Emmerson, 258 U. S. 290, 42 Sup. Ct. 305, 66 L. Ed. 622, where it was held that, while the state may not use its taxing power to regulate or burden interstate commerce. a tax which affects such commerce, not directly, but only incidentally and remotely, may be entirely valid, and that the tax in that case, based on the entire authorized capital stock represented by the property located and business transacted in this state, was not a violation of any constitutional right. et al. (311 Ill. 584) HARDING et al. v. RANKIN-WHITHAM (No. 15820.) (Supreme Court of Illinois. April 14, 1924.) 1. Mechanics' liens 47-Statute giving lien for material and machinery used in construction of private improvement construed. Under Lien Act, § 1, giving a lien for furnising materials, fixtures, or machinery, etc., that no lien shall be defeated for lack of proof for improving private property, and providing that the material actually entered into the construction of such improvement, no lien attaches for material or machinery which has not become nor is intended to become the property of the owner of the improvement but belongs to the contractor or subcontractor. 2. Mechanics' liens 47-Furnishing material and machinery which does not become constituent part of public improvement does not give lien. [4] The act in relation to corporations MCMILLAN et al. v. JOSEPH P. CASEY CO. does not authorize a franchise tax upon the total authorized capital stock of a foreign corporation without limitation, but only on the proportion thereof represented by property and business transacted in this state, and the only questions are whether, if a corporation does not comply with the law and furnish the evidence upon which the assessment can be made and the tax computed, the secretary of state may lawfully take the authorized capital stock as representing the amount of property and business transacted in this state, and whether a court of equity will intervene to relieve a corporation from its neglect or refusal to comply with the law upon its making proof, as proposed in this case by the bill, that the tax was in excess of the property and business transacted in this state. The complainant by its bill took the position that it could disregard the law by not making its report, either when required by the statute, or before June 15, 1922, and require the defendant to ascertain the proportion of its capital stock represented by business in this state as best he could, and any excess of tax above the proportion of such property in this state would be void. The argument is that section 110, as amended in 1921, being unconstitutional and void, that section as it existed before the amend ment is in force, and provides the method for assessing the tax. The section before the amendment provided that, if any corporation failed or refused to file its annual report, the secretary of state should assess a franchise tax against the corporation based upon the best possible available information. That method was plainly and clearly inadequate. In the case of the complainant it would require investigation of the business of the complainant in other states, and was unreasonable and impracticable. In general it would require a personal investigation in other states of figures available only to the corporation itself, at an expense, if the facts Under Lien Act, § 23, giving a lien for furnishing material, fixtures, machinery, or labor to any contractor having a contract for public improvements for a county, a subcontractor who furnishes to such a contractor material and machinery does not thereby acquire a lien unless the materials or machinery enter into or were furnished for the permanent use of the improvement. Appeal from Appellate Court, Fourth District, on appeal from Circuit Court, Vermilion County; Walter Brewer, Judge. Suit by E. S. McMillan and others against the Joseph P. Casey Company, the RankinWhitham State Bank, assignee, and others, in which Chase Harding and the MidWestern Company and others file crosscomplaints. From decrees named, crosscomplainants appeal on certificate of importance granted by the Appellate Court. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (143 N.E.) Acton, Acton & Snyder, of Danville, for for finishing the construction of the road, appellants. which he did at a cost of $2,602.90. On the Rearick & Meeks, of Danville, for appel- same day the work was abandoned, the Mid lee. Western Company gave the county notice of its claim for lien. Harding & Slattery served notice on September 25, 1919. When the county finally accepted the road, there was a balance due the Casey Company of $16,174.99. Notice of the assignment by the Casey Company to the Rankin-Whitham State Bank was given to the county before the claims for lien had been filed. All claims were apparently settled some time after the original and cross-bills were filed, except those of the two claimants above mentioned, the Mid-Western Company, and Harding & Slattery. As heretofore stated, they furnished the contractor certain machinery, materials, and tools, and this is the basis of their claims for a lien. None of the material of the Mid-Western Company was con the construction of the improvement, and the only part of the material furnished by Harding & Slattery which became a part of the improvement was 4,500 feet of expansion joints. CARTER, J. A bill of complaint was filed by E. S. and R. E. McMillan, as copartners, the purpose of which was the enforcing of a mechanic's lien by them, as subcontractors, for a claimed balance of $2,876.65 for grading and excavating on a public highway in Vermilion county being constructed by the Joseph P. Casey Company, Incorporated, under contract with the county. Answers were filed by several defendants, and certain other claimants filed cross-bills. The MidWestern Company, one of the cross-complainants, in its cross-bill claimed a lien as subcontractor for furnishing the contractor certain machinery, material and tools, amounting to $1,360. Chase Harding, assignee of Harding & Slattery, another cross-sumed in or became a constituent part of complainant, claimed a lien for a traction engine, small tools, pumps, well casings, water pipes, expansion joints, and other items, the amount of the claim being $2,350.72, which claims the trial court in its decree ordered paid by the county. The county of Vermilion and the Rankin-Whitham State Bank, which bank had become an interested party by virtue of an assignment to it by the Casey Company of $10,000 due it under its contract, the bank agreeing to indemnify the county upon the abandonment of the contract by the Casey Company, appealed to the Appellate Court, which reversed the decree of the trial court and remanded the cause. On a petition for rehearing in the Appellate Court it was ordered that a decree be entered on the cross-bill filed by the Mid-paratus, fixtures, machinery or labor to any "Any person who shall furnish material, apWestern Company, reversing the decree of contractor having a contract for public imthe trial court as to such cross-bill and dis-provement for any county, * * *. in this missing the same for want of equity. It was further ordered that the decree of the lower court as to the cross-bill of Harding & Slattery be reversed, and a judgment was entered in the Appellate Court holding that the county of Vermilion was indebted to said cross-complainant in the sum of $450 for expansion joints which had been used in the improvement. Each cross-complainant, the appellants here, was decreed to pay one-half the costs of the appeal. A certificate of importance was granted by the Appellate Court, and the case is now here for further review. The facts in this record are not in dispute. The case arises out of a contract made by the county of Vermilion on May 14, 1919, with the Casey Company for the construction of hard roads in that county at a price of $36,902.79, the county to furnish the cement. The Casey Company started work and continued until September 17, 1919, when it abandoned the work and the county declared the contract forfeited. W. M. Cutler was shortly afterwards awarded a contract The question for decision here is whether the statute gives a subcontractor who furnishes material, apparatus, or machinery to a contractor having a contract for public improvement a lien for its purchase price, or whether the lien may attach only for whatever becomes a constituent part of the im provement. Section 23 of the Lien Act, under which this proceeding was brought, reads in part as follows: state, shall have a lien on the money, bonds or at the [1] It is against public policy to hold that an improvement in which the public is interested should be subject to a mechanic's lien, or, "in the absence of express provisions to the contrary, that the instrumentalities for carrying on the government should be the subject of seizure and sale for debt." 18 R. C. L. § 9, p. 881. By section 23 of the | person, the funds due the contractor are subLien Law as quoted, no lien attaches to the stituted as security. The fact that an imimprovement, and it furnishes no security to provement is public rather than private can the parties, but the lien is on the fund due afford no reason for holding that the maor to become due the contractor. Under sec- chinery, equipment, and tools are to be retion 1 of the Lien Act, applicable to private garded in a different manner, unless there is property which is being improved or re- some clear wording in the statute to indicate paired, the lien is given for furnishing "ma- it. A reference to the first part of section 23 terial, fixtures, apparatus or machinery, shows that the act entitling a person to a forms or formwork used in the process of lien is the act of furnishing to the contractor construction where cement, concrete or like having a contract the items mentioned, withmaterial is used for the purpose of or in the out a direct statement that they must be building," etc., and the lien shall not be de- used in the improvement or are furnished feated because of lack of proof that the ma- for the improvement, as is the case under terial, after the delivery thereof, actually section 1. In the privatė improvement the entered into the construction of such build-lien is upon the improvement; in the public ing or improvement. As to such improve-improvement it is against a fund existing by ments of private property the lien is given | virtue of a contract, for the compensation of upon the basis that the labor or material has entered into or contributed to the production or was permanently furnished for the improvement upon which the lien is impressed, but is not given for material or machinery which has not become nor is intended to become the property of the owner of the improvement but belongs to the contractor or subcontractor who furnished it. Rittenhouse & Embree Co. v. Brown & Co., 254 Ill. 549, 98 N. E. 971; Haas Electric Co. v. Amusement Co., 236 Ill. 452, 86 N. E. 248, 23 L. R. A. (N. S.) 620, 127 Am. St. Rep. 297. [2] It is contended, however, by appellants that it is the plain wording of section 23, as considered by this court in Alexander Lumber Co. v. Farmer City, 272 Ill. 264, 111 N. E. 1012, that as to a public improvement all that is required is that such material, machinery and the like be furnished the contractor, and that in itself is sufficient to give rise to a right for lien for the purchase price, whether it enters into or was furnished for the permanent use of the improvement. We cannot agree with this interpretation of the above decision. In our judgment there was no intention of holding in that opinion that machinery and apparatus, simply because furnished a contractor for public work, could be made the basis of a mechanic's lien regardless of whether it became a constituent part of the improvement. In that case there was a discussion of the purposes for which different materials were put in the improvement there made, and the statement was made that sections 1 and 23 differ as to their purpose. Even if it be conceded, as argued by counsel for appellants, that one or two small items were allowed in that case which may not have actually entered into the structure, the opinion does not justify the interpretation that, regardless of how the machinery, apparatus or material is used, a lien may be had for the purchase price of the same. The only reason, in our judgment, for a difference in the construction of sections 1 and 23, is that as under the latter section a public improvement cannot be permitted to be security to a private the contractor making the improvement. In the last part of section 23, which provides how the payment from such fund shall be made to the respective lienors, it is expressly provided that the same shall be pro rata, in proportion to the amount due under their respective contracts. The section presupposes a contract, express or implied. An express contract would speak for itself and would govern in the pro rata distribution of the fund among the persons serving notice. An implied contract would not, under ordinary circumstances, be enlarged to include the purchase price of machinery, equipment, and materials the ownership of which the purchaser or contractor intended to retain. It would seem that generally it would be presumed that a contractor is prepared with machinery and necessary appliances to do his work, and that such items are furnished upon his own credit and as a part of his working equipment and business and are not furnished upon the implied credit of the public. This, we think, is the fair construction of the statute, and seems to be the rule in other jurisdictions where somewhat similar statutes were construed. Standard Boiler Works v. National Surety Co., 71 Wash. 28, 127 Pac. 573, 43 L. R. A. (N. S.) 162; United States Rubber Co. v. Washington Engineering Co., 86 Wash, 180, 149 Pac. 706, L. R. A. 1915F, 951. See, also, Nye-Schneider-Fowler Co. v. Bridges, Hoye & Co., 98 Neb. 27, 151 N. W. 942; Kansas City v. Youmans, 213 Mo. 151, 112 S. W. 225. The fact that in section 23 of the Lien Act the words used are, "shall furnish to any contractor having a contract for public improvement," while in section 1 the wording is, "used for the purpose of or in the building," is in our judgment of no special significance. We do not think it was intended by the Legislature that the fund referred to in section 23 was intended to be the source of indemnity to a contractor or subcontractor for his working equipment, unless there was a provision in the contract for the public improvement to that effect. There was no such showing here as to the purpose (143 N.E.) of the contract. There was no attempt to show the value of the use of or injury to the machinery, equipment, appliances, or material by the two appellants, except the 4,500 feet of expansion joints which became a part of the improvement, and the claim therefor was properly allowed. Counsel for appellee have raised several other questions in their briefs, but they are satisfied with the decision of the Appellate Court, which is here affirmed. The sole question raised and argued by appellants' counsel is the one that we have here decided. The judgment of the Appellate Court will be affirmed. Judgment affirmed. (312 III. 34) PEOPLE v. BORELLA. (No. 15920.) (Supreme Court of Illinois. April 14, 1924.) 1. Homicide 200-"Dying declarations" defined. "Dying declarations" are statements of fact concerning the cause and the circumstances of the homicide, made by the victim under the solemn belief that his death is inevitable and near at hand. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Dying Declarations.] 2. Homicide 203 (7)-Belief of Imminence of death may be induced by statements of phy sician or nurse. Belief in inevitable and imminent death may be induced by statements of a physician or nurse, and it is not necessary that the approaching death be presaged by the personal feelings of the deceased. 3. Homicide 203(5)-Sufficient ground held laid for introduction of dying declaration. Evidence that physician and nurse told deceased that he could not live, and that he was sinking very rapidly at the time a statement was taken from him, and that deceased said he did not believe he was going to get well, held sufficient ground for introduction of his statement in evidence, though he at first stated, in answer to a question whether or not he knew he was going to die, "I will make a fight for it." 4. Homicide 200-Dying declaration admissible as to matters not part of res gestæ. Dying declarations are admissible, not as a part of res gestæ, or of declarations made in the presence of the accused, but by reason of the likelihood that the declarant will speak the truth; a dying declaration being admissible as to any matter material to the issue on trial, even though not admissible as a part of the res gestæ. 5. Homicide 116(4) Danger warranting taking life need not be real, but accused must have been justified in believing danger. As regards self-defense, the question is not whether the evidence shows the danger to be real or otherwise, but whether the circumstances are such that the defendant as a reasonable man believed, or was justified in believing, that he was in great danger. 6. Criminal law 823 (6)—Instruction on selfdefense held not prejudicially erroneous, when considered with other instructions. A part of an instruction on self-defense stating that the danger must be real or apparent, imminent and pressing, held not prejudicial, when considered with the remainder of the in struction and other instructions. 7. Homicide 300 (6)-Instruction held erroneous, as calling attention to particular evidence, but not prejudicial. Part of an instruction, stating that it would not be any complete defense for the defendant that the deceased had knocked him down some two or three hours before the shooting, held erroneous, as calling attention to particular evidence, but not prejudicial, in view of the nature of such previous altercation. 8. Homicide 244(1)—Evidence held to justify conviction as against claim of self-defense. Evidence held to warrant conviction of murder as against claim of self-defense. Error to Circuit Court, Perry County; Louis Bernreuter, Judge. Charles Borella was convicted of murder, and brings error. Affirmed. M. C. Cook and Judson E. Harriss, both of Du Quoin (L. A. Cranston, of Du Quoin, of counsel), for plaintiff in error. Edward J. Brundage, Atty. Gen., Judson E. Harriss, State's Atty., of Du Quoin, and George C. Dixon, of Dixon, for the People. STONE, J. Plaintiff in error was tried and convicted in the circuit court of Perry county of the crime of murder of John Giles. His punishment was fixed at imprisonment in the penitentiary for the term of his natural life. He brings the cause here for review, assigning as error the admission of the dying declaration of the deceased and certain instructions given by the court on behalf of the people. The defense was self-defense. Both plaintiff in error and the deceased were coal miners, residing in the city of Du Quoin. On the afternoon of April 14, 1923, they met in what was known as Eagle's Hall, on West Main street, in the city of Du Quoin; both being members of the lodge that met there. Some discussion arose among the members concerning two candidates for mayor of the city, and Giles struck plaintiff in error and knocked him down over some empty boxes, and while he was sitting on the boxes struck him again. None of the witnesses, aside from plaintiff in error, state what was said between him and Giles at the time the blows were struck. Plaintiff in error testified that Giles called him a liar, to which he replied, "No, I ain't no liar," and that Giles struck For other cases seo same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes him. It appears that thereupon Giles left, ed to be from 3% to 4 feet in width, on which the building. Plaintiff in error left soon aft- a screen door was hung in the summer, er and went to the home of his sister, where though no screen door was in place there at he was living, and washed the blood off his that time. Borella was standing leaning face, took his revolver from a dresser against the west door post of the screen doordrawer, and went down town to the pool room way, with his arm extended across the doorof one Lewis, situated across the street from way, his hand resting on the east door post. Eagle's Hall. He purchased a cigar there and went to the front of the pool hall and stood in the doorway until Giles returned, some 25 or 30 minutes later. It appears that, after the difficulty between these men in Eagle's Hall, Giles, with some friends, went in an automobile to a dance hall and soft drink parlor known as the White House, northwest of the city, and, after being there about three-quarters of an hour, five men, including Giles, returned to town in the automobile of the witness James Martin. Two of the men got out of the automobile and went to their homes before the party reached the business part of the city, and Martin, with the witness Howard Wheatley and Giles, drove on to the pool hall. The car was parked in front of the pool hall, and the occupants all left it and started to cross the sidewalk to the pool room. Borella was standing in the doorway and in the manner detailed by eyewitnesses shot Giles. The testimony of the attending physician is that deceased received one wound through the right elbow, just above the joint, a wound in the right chest one inch below the right nipple, penetrating the chest cavity, and two bullet wounds in the right side; that he found five bullet wounds on the body of the deceased; that he died April 17, 1923, three days after the shooting. In order to understand clearly the testimony of the witnesses concerning the shooting it is necessary to describe the location. Lewis' pool hall is located on West Main street, about the middle of the block, west of the cross-street known as Chestnut street. Main street extends east and west in the city of Du Quoin and Chestnut street north and south. The street to the west of Lewis' pool room extends north and south and is know as Walnut street. In approaching the pool room, the deceased, with his two companions, traveled east on Main street from Walnut street. The pool room is on the north side of Main street, and, in order to park the car in front of it, it was necessary, according to the testimony of the witnesses, to drive east to a traffic post at the intersection of Main and Chestnut streets and turn around that post. After doing so, Martin drove back and parked his car in front of the pool room, on the north side of Main street. The width of the sidewalk at this point is variously estimated by witnesses to be from 16 to 20 feet. The front door of the pool room is in a recess in the building 4 or 5 feet in depth, across the front of which had been constructed a frame as a screen, even with the sidewalk, In the middle of this was a doorway, estimat Upon parking the car, Martin, Wheatley, and Giles alighted, and Giles started into the building. Up to this point there appears to be no dispute as to what occurred. According to the testimony of Wheatley, when Giles started into the pool room, he (Wheatley) was on the pavement opposite the pool room door. Borella was leaning against the door post, with his left hand against the other side, and Giles started to go under his arm, when some words were spoken which the witness could not understand; that Giles backed off toward the east, and Borella pulled his gun from his shirt or belt and began firing, Giles backing away from him; that Borella fired five shots; that when the shooting began Giles backed up as far to the east as Geiger's bakery shop which was the second door, a bank being between the pool room and the bakery; that after the last shot Giles got off the sidewalk and went around a car standing on Main street. Witness stated that he did not notice what Borella did after that; that Giles had nothing in his hand at the time of the shooting. This witness testified that Giles weighed about 170 pounds and was smaller man than Borella. Martin testified that when they alighted from the car he followed Giles and Wheatley toward the pool room door. Borella was standing with his arm across the door and said something which witness could not hear clearly; that Giles also spoke, but witness did not understand what was said; that Giles started into the pool room, under Borella's arm; that the witness was at that time standing in front of Borella on the sidewalk; that Borella ran his hand down inside his shirt; that Giles had not done anything or made any motion that the witness saw before Borella reached down into his shirt; that at that time the witness was within 6 feet of them; that he, upon seeing Borella reach into his shirt, turned and went into Schleper's store, next door west; that as soon as he got into the store he heard five shots, and came out and saw Borella standing just a little east of the pool room door, toward the bank; that Giles at that time was just coming up onto the sidewalk from around an automobile; that Giles went into the pool room, as did witness; that Giles stayed about two minutes, and then came out with Wheatley and witness, and was put into witness' car and taken away; that as Giles went into the pool room Borella was standing in front of the pool room door, with his pistol in his hand. This witness stated that Giles had no weapon that he knew of. Pete Neira testified that he was standing |