victions have no doubt been had in cases | sideration, that distinction between felonies prosecuted by information, the persons so convicted have not incurred any loss of civil rights, because the judgments so rendered have been without jurisdiction. The judgment is reversed. Judgment reversed. HAND and CARTER, JJ. (dissenting). The question presented in this case for decision is: Can the crime of petit larceny be prosecuted in this state by information or must it be prosecuted by indictment? The Constitution of 1870 provides that all criminal offenses must be prosecuted by indictment, "ex- | cept in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary”—that is, that all crimes punishable by fine or imprisonment in the county jail may be prosecuted by information. Article 2, § 8. Section 95 of the county court act (Hurd's Rev. St. 1908, c. 37, § 7) provides that the county courts of this state shall have jurisdiction “in all criminal offenses and misdemeanors where the punishment is not imprisonment in the penitentiary or death"; and section 207 (chapter 37, § 117), that “all offenses cognizable in county courts shall be prosecuted by information"; and section 210, that "when the grand jury of the circuit court shall indict for offenses cognizable in the county court, such indictments may be certified to the county court for process and trial"; and section 277 of the Criminal Code defines felony as "an offense punishable with death or by imprisonment in the penitentiary"; and section 278 declares "every other offense [than a felony] is a misdemeanor." Since the year 1870 (the date of the adoption of our present Constitution) it has been the practice in this state to prosecute the crime of petit larceny in the county courts upon indictments certified from the circuit courts or by information filed in the county courts by the state's attorney. In other words, for 40 years the county courts in this state have assumed jurisdiction of the offense of petit larceny upon indictments so certified, or by informations filed in these courts. The jurisdiction of the municipal court of Chicago over the crime of petit larceny rests upon the same basis as that of the county courts. The majority opinion holds, however, that the crime of petit larceny cannot be prosecuted otherwise than upon an indictment by a grand jury, the effect of which is to deprive county courts and the municipal court of Chicago of the jurisdiction to try the crime of petit larceny, and to require every petit larceny to be tried upon indictment in the circuit court outside of Cook county and in the criminal court of Cook county. In order to reach this conclusion the majority opinion ignores the provision of section 8 of article 2 of the Constitution, which provides that all offenses punishable by fine or imprisonment otherwise than in a penitentiary may be prosecuted by and misdemeanors contained in the several sections of the statutes heretofore referred to. The decision rests, as the majority opinion states, upon a statute passed in the year 1827, at a time when there was no such crime in this state as petit larceny. This we think too narrow a view of the subject. While it may be conceded that the word "larceny," found in section 279 of the Criminal Code, which section enumerates the crimes which are infamous in this state, is broad enough to include petit larceny, and while all larcenies may have been included within the terms of that section of the statute at one time, still it is a well-settled doctrine that statutes are repealed, modified, or limited in their operation by subsequent statutes, although the statute repealed, modified, or limited is not mentioned in the later statute. Such changes are said to be accomplished by implication. The question, therefore, is limited to this: Does a fair construction of said section 279, when considered in connection with the constitutional provision found in section 8 of article 2, which points out the crimes which must be prosecuted by indictment and those which may be prosecuted by information, and the numerous statutes which have been passed since the adoption of that constitutional enactment to carry it into effect, require this court to hold that petit larceny is an infamous crime in this state at the present time? That the infamy which follows a conviction of the offense of petit larceny raises that crime to the grade of crime which must be prosecuted by indictment and cannot be prosecuted by information? We think not. One of the consequences of the holding of the majority opinion is to deprive the county courts of the state and the municipal court of Chicago of jurisdiction over the offense of petit larceny-an offense punishable by fine, or by imprisonment in the county jail, workhouse, etc.-while those courts have jurisdiction of all other offenses similarly punishable. To require petit larceny to be prosecuted by indictment while all other crimes of the same grade may be prosecuted by information places the defendant who steals one dollar, as was the charge in this case, in the same position, with reference to infamy, before the law as the man who commits murder, rape, or burglary; that is, to render him infamous for all time unless he is restored (if he can be restored) to his rights of citizenship. Under section 279 of the Criminal Code, in all the crimes designated as infamous in that section which are made punishable by imprisonment in the state reformatory at Pontiac, the conviction does not render the defendant infamous. If, therefore, a boy should steal $100 and should be convicted therefor and be sentenced to the reformatory, he would not thereby be rendered infamous; if, however, he steals a crust of bread to satisfy his hunger and is convicted and sentenc rection and fined one cent, he would be ren- regarded as within the statute, though not dered infamous. within the letter, and a thing within the letter is not within the statute unless within the intention. Perry County v. Jefferson County, 94 Ill. 214; People v. Hoffman, 97 Ill. 234; Anderson v. Chicago, Burlington & Quin One object of the provision of section 8 of article 2 of the Constitution, and legislation based thereon, was to provide a means whereby petty offenders could have a speedy trial. The municipal court is in session continuous-cy Railroad Co., 117 Ill. 26 [7 N. E. 129]. ly and county courts have frequent sessions. Under the law as heretofore administered, persons charged with petit larceny could be speedily tried in those courts. If such persons must be hereafter prosecuted by indictment and tried in the circuit court or criminal court of Cook county, in many instances they will remain in jail for months before they can have a hearing, which situation to all offenders, especially to young offenders, is most deplorable. The several provisions of the statute should be construed together in the light of the general objects and purposes of the enactment, and so as to give effect to the main intent, although particular provisions are thus construed not according to their literal reading. Hill v. Harding, 93 Ill. 77; Wabash, St. Louis & Pacific Railway Co. v. Binkert, 106 Ill. 298. The intention is to be gathered from the necessity or reason of the enactment, and the meaning of words enlarged or restricted according to the true intent. Castner v. Walrod, 83 Ill. 171 [25 Am. Rep. 369]; Cruse v. Aden, 127 Ill. 231 [20 N. E. 73, 3 L. R. A. 327]. That which is implied is as much a part of the statute as that which is expressed. The statute in this state provides (chapter 131, § 1, par. 1) that "all general provisions, terms, phrases and expressions shall be liberally construed in order that the true intent and meaning of the Legislature may be fully carried out." If we approach the question| Potter's Dwarris, 145; United States v. Babunder consideration with a view to ascertain the true legislative intent as expressed in all the statutes passed by the Legislature on the subject, we think the conclusion must necessarily be reached that it was the legislative will that the crime of petit larceny should not be considered an infamous crime, but that it falls within that class of cases which may be prosecuted by information. While the offense of petit larceny may fall within the letter of said section 279, we do not think it falls within its spirit. We think it obvious that the consequences of holding the crime of petit larceny to be an infamous one, which must be prosecuted by indictment, leads to such results that it is clear the Legislature could not have intended, by the enactments which it has passed since the adoption of the Constitution of 1870, that the crime of petit larceny is an infamous offense, which must be prosecuted by indictment. bit, 1 Black, 55 [17 L. Ed. 94]. When the literal enforcement of a statute would result in great inconvenience and cause great injustice, and lead to consequences which are absurd and which the Legislature could not have contemplated, the courts are bound to presume that such consequences were not intended, and adopt a construction which will promote the ends of justice and avoid the absurdity. Bryan v. Buckmaster, Breese, 408; People v. Marshall, 1 Gilman, 672.' In People v. Kipley, 171 Ill. 44, at page 77 [49 N. E. 229, at page 240 (41 L. R. A. 775)], the court says: 'In determining the meaning of a statute the court will have regard to existing circumstances or contemporaneous conditions, and also to the objects sought to be obtained by the statute and the necessity or want of necessity for its adoption.' The late expression of the Supreme Court in Hogan v. Akin, 181 Ill. 448 [55 N. E. 137], by Chief Justice Cartwright, is: 'It is true, we cannot disregard a provision of that kind appearing to be within the intention of the lawmakers; but the purpose of construction is to find and give effect to such intention. * ** In seeking for such intention we are to consider not only the language used by the Legislature, but also the evil to be remedied and the object to be obtained." Our conclusion is that petit larceny is not an "infamous" crime in this state. In People v. Harrison, 191 Ill. 257, on page 266, 61 N. E. 99, on page 102, this court said: "It is said in People v. Wren, 4 Scam. 269, at page 277: 'It is a well-established rule in the construction of statutes that where great inconvenience or absurd consequences are to result from a particular construction that construction should be avoided, unless the meaning of the Legislature be plain and manifest.' In People v. City of Chicago, 152 Ill. 546 [38 N. E. 744], the rule is stated as follows: 'It may be well to here call attention to some of The opinion of the majority is wrong, we the rules which should influence the court in think, for the further reason that the true interpreting the statute now in question. The line of demarcation between crimes which General Assembly, in the act revising the must be prosecuted by indictment and those law in relation to the construction of the which may be prosecuted by information has statutes, lays down as the first rule to be been misstated therein. It has been estabobserved the following: "All general provi- lished by this court in a long line of decisions sions, terms, phrases and expressions shall that all crimes which are punishable by imbe liberally construed, in order that the true prisonment in the penitentiary (that is, felointent and meaning of the Legislature may nies) must be prosecuted by indictment, while be fully carried out." 2 Starr & C. St. c. all other offenses which are punishable by 131, § 1. A thing within the intention is fine and imprisonment (that is, misdemean show that there was a lengthy discussion as to whether the grand jury system should be absolutely abolished. In the midst of the discussion on this question the committee on the Bill of Rights made its report. That report included, among its other provisions, section 9, which read: "No person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases of petit larceny and offenses less than felony, in which the punishment is by fine, and imprisonment otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army and navy, or in the militia when in actual service in time of war or public danger." 2 Const. Debates of 1870, p. 1440. At that time there was no discussion as to the provision in the Bill of Rights. Later, the various sections of the Bill of Rights were considered by the convention, ors) may be prosecuted by information. Such has been the settled doctrine of this court since the adoption of the Constitution of 1870. See Brewster v. People, 183 Ill. 143, 55 N. E. 640; Paulsen v. People, 195 Ill. 507, 63 N. E. 144; People v. Glowacki, 236 Ill. 612, 86 N. E. 368, and cases referred to therein. The principles announced in those decisions on the subject in hand are not only well settled, but are clearly enunciated, and the line between crimes punishable by imprisonment in the penitentiary and those punishable by fine, and imprisonment otherwise than in the penitentiary-that is, between felonies and misdemeanors-is specifically indicated therein, and it is held that those crimes which are punishable by imprisonment in the penitentiary must be prosecuted by indictment, while all other crimes which are punishable by fine, and imprisonment otherwise than in the penitentiary, may be prosecuted by information. | when again there was a sharp debate as to This being true, we do not think this court abolishing the grand jury. April 29, 1870, ought to unsettle that doctrine by holding that a substitute was adopted by the convention there is a class of crimes punishable by fine, for said section 9, which provided that no and imprisonment otherwise than in the peni- grand jury should be impaneled in the cirtentiary, which must be prosecuted by indict-cuit or county court, but that offenses should ment and cannot be prosecuted by informa- be prosecuted by information, with the furtion. Further, if said section as to infamous ther provision that grand juries might be recrimes was intended to include petit larceny, established after 1874. 2 Const. Debates of the section to that extent should be held un- 1870, p. 1769. A motion to reconsider was constitutional under the provision of the Bill passed the same day, and section 8 as heretoof Rights which provides, "all penalties shall fore set out was adopted by the convention be proportioned to the nature of the offense." after the following amendment had been addThe majority opinion holds that the smallest ed to the close of the section: "Provided, part of the punishment provided for petit that the General Assembly may provide for larceny is the fine and imprisonment; that the abolition of the grand jury in all cases.” the infamy which follows the conviction for 2 Const. Debates of 1870, p. 1573. After all such offense is the far greater part of the the sections in the Bill of Rights had been punishment. The holding that petit larceny considered and adopted by the convention, it is an infamous crime surely brings this re- was referred April 30th to the committee on sult. Is it not evident that the Legislature revision and adjustment; no other changes never had any such intention? having been made in said section 9 by the convention before it was so referred. The province of that committee was clearly shown by its title, viz.: "To adjust" that is, "to re-arrange; to bring into proper position.” And "to revise"-that is, "to re-examine; to carefully read over for correction and improvement, as revision of statutes." Webster's Dict. That this was the province of this committee-that is, to re-arrange and make verbal changes, and not to change, in substance or meaning, the various provisions of the Constitution referred to it by the convention--is clear by its proceedings. The convention took no further action with reference to the Bill of Rights until the chairman of the committee on revision and adjustment (Mr. Cody) submitted a report, in which he said that the committee to whom had been referred the Bill of Rights having had the same under consideration, "as amended and concurred in by the convention, have revised and adjusted the various sections thereof and have directed me to report the same back in the words following." 2 Const. Debates of 1870, p. 1776. As then reported to the con The proceedings in the constitutional convention of 1870 strongly support the conten- | tion that under section 8 of article 2 of the Bill of Rights it was intended that petit larceny could be prosecuted by information. If there be any doubt as to the meaning of the constitutional provision, the proceedings of the constitutional convention may be resorted to in order to ascertain the object that the convention had in mind in adopting any given provision. "When the inquiry is directed to ascertaining the mischief designed to be remedied or the purpose sought to be accomplished by a particular provision, it may be proper to examine the proceedings of the convention which framed the instrument. Where the proceedings clearly point out the purpose of the provision, the aid will be valuable and satisfactory." Cooley's Const. Lim. (7th Ed.) 101; Starne v. People, 222 Ill. 189, 78 N. E. 61, 113 Am. St. Rep. 389; Halsey & Co. v. City of Belle Plaine, 128 Iowa, 467, 104 N. W. 494; Epping v. City of Columbus, 117 Ga. 263, 43 S. E. 803; Potter's Dwarris on Statutes & Constitutions, p. 657. referred to said committee was changed to section 8 as it is now found in the Constitu tion. dered a contracting company doing work for defendant, and that the latter agreed to settle the claim and requested that no lien be filed, writing, with full knowledge of the circumstances, a letter to that effect, and that plaintiff in reliance thereon notified defendant that he would file no lien and would not take judgment, was sufficient to withstand an attack for the first time on appeal, though plaintiff was not as a matter of law entitled to take or enforce a lien. the offer. [Ed. Note.-For other cases, see Contracts, Cent. Dig. 88 67-108; Dec. Dig. § 22.*] 3. CONTRACTS (§ 71*)-CONSIDERATION. It will be noted that section 8 reads exactly the same as former section 9, excepting that the words "of petit larceny and offenses less than felonies" were stricken out. No comment was made as to this change at the time the report was adopted. Had these words not been stricken from the section, there [Ed. Note.-For other cases, see Appeal and could be no question that petit larceny could 193;* Pleading, Cent. Dig. §§ 1355-1374.] Error, Cent. Dig. §§ 1226-1240; Dec. Dig. § be prosecuted by information. Manifestly, 2. CONTRACTS (§ 22*)—OFFERS-ACCEPTANCEthe committee in reporting, and the convenCOMMUNICATION. tion in adopting, section 8 as it now reads, The acceptance of a distinct proposal must understood that by its wording petit larceny be put. by the party accepting in a proper chancould be prosecuted by information. Sectionnel to be communicated to the party making 8 as adopted was intended to have the same meaning as former section 9 but in more concise language. The Constitution was presented to the people with an address from the convention that conveyed this idea. Among other things, that address stated: "Grand juries may be dispensed with. Our jails are crowded with criminals during the interval of circuit courts, at great expense to the counties. County courts may be authorized to try, in a summary manner, many criminal cases, and thus save the counties the large expenditure of keeping prisoners for trial from term to term of the circuit courts, and persons not guilty may be promptly discharg-4. ed or acquitted." 2 Const. Debates of 1870, p. 1863. Defendant railroad, on receiving a letter from plaintiff that, if defendant would not pay plaintiff's claim against defendant's contractor, plaintiff would proceed to collect the same, was not bound to presume that plaintiff would collect the claim by filing an unauthorized lien on defendant's property, so as to furclaim if a lien was not filed, but might prenish a consideration for a promise to pay the sume that plaintiff would proceed against the contractor by such process as he might lawfully pursue. Cent. Dig. §8 295-327; Dec. Dig. § 71.*] CONTRACTS (§ 16*)-OFFER AND ACCEPT ANCE "EXPECTS TO SETTLE ALL BILLS." Where plaintiff wrote defendant railroad that he had a claim against defendant's conthe same if defendant did not settle the actractor, and that he would proceed to collect count, the words "expects to settle all bills," in a letter from defendant that the railroad company "expects to settle all bills" of the contractor, did not necessarily mean payment. [Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 71-93; Dec. Dig. § 16.*] PRINCIPAL AND AGENT (§ 110*)-AUTHOR From this review of the history of the adoption of said section 8 of the Bill of Rights, how can there be any doubt that the convention intended that petit larceny could be prosecuted by information? A large percentage of the offenders found in the county jails are charged with petit larceny. This was a part of the mischief to be remedied by per-5. mitting certain offenses to be prosecuted by information. If the construction of the vari ous statutes in connection with this provision of the Bill of Rights is as contended for by the majority opinion, surely it seems to us in the many cases that they have been before the court during all these years that construction would have attracted the attention of counsel or the courts. People v. Glowacki, supra. In our judgment a reasonable construction of these statutes and this provision of the Bill of Rights in accordance with their plain intent would require the affirmance of the judgment of the lower court. (174 Ind. 303) A complaint, alleging that plaintiff advised defendant railroad that he was about to file a lien on certain property and on defendant's right of way to secure a claim for services ren ITY OF AGENT. That a railroad's agent had authority to settle all matters growing out of a contract with a construction company did not authorize him to agree on the part of the railroad to pay the claim of a third party against the construction company. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 323-325; Dec. Dig. § 110.*] Appeal from Superior Court, Marion County; Vinson Carter, Judge. Action by Michael J. Shea against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, with instructions. See, also, 90 N. E. 339. Frank L. Littleton and John J. Kelly, for appellant. Henry Warrum, for appellee. MONKS, C. J. Transferred from the Appellate Court under section 1399, Burns' Ann. St. 1908. Appellee brought this action on an alleged written contract of appellant to pay an account held by appellee against a con For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes tracting company engaged in constructing a roadway and tracks for appellant. A trial of said cause resulted in a finding, and, over a motion for a new trial, a judgment in favor of appellee. Each paragraph of the complaint is challenged in this court for the first time on the ground that it does not state facts sufficient to constitute a cause of action. It is also assigned as error that the court erred in overruling appellant's motion for a new trial. It is alleged in the first paragraph of the complaint that appellee, at the special instance and request of the contracting company, "furnished certain material and rendered certain work in the repair of certain locomotive boilers used in constructing a new railway and line of railroad tracks for appellant in said county, a correct and detailed account of which is attached hereto as 'Exhibit A.' That on the The writing upon which this action is based, and which was made a part of each paragraph of the complaint, reads as follows: "Big Four Route. The Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. Cincinnati, Ohio, Feb. 17, 1906-Gentlemen: Your letter Feb. 14th. this company expects to settle all bills of the Ohio Contracting Company, not later than Wednesday February 21st. We do not desire any judgments or liens upon the work. Yours truly, H. H. Knowlton, Asst. Engr.” The second paragraph of the complaint is substantially the same as the first. The facts stated in the complaint show that appellee performed work and labor and furnished material in repairing the boilers in certain locomotive engines belonging to a certain contractor who was constructing a new roadbed and tracks for appellant; that this was done at the request of said contractday of Feb-or; and that the same was the debt of the ruary, 1906, the said contracting company said contractor, and not the debt of appelhaving failed to pay said claim, the plain- lant. It is clear that appellee was not entiff announced and advised the defendant titled to take or enforce any mechanic's lien company that he would file a lien upon said on appellant's property for said work and property and upon the right of way of the de- materials under any law of this state in force fendant company and take such other steps in 1905 and 1906, when said work was done by way of attachment of the property of said and said materials furnished. Potter Mfg. Co. contracting company as was necessary to se- v. A. B. Meyer & Co., 171 Ind. 513, 86 N. E. cure and enforce the plaintiff's said claim 837, and cases cited; Cincinnati, etc., R. Co. and employed counsel for such purpose. v. Shera, 36 Ind. App. 315, 73 N. E. 293; MossThat the defendant company being fully in- burg v. United, etc., Co., 43 Ind. App. 465, 87 formed and advised of the aforesaid purpose N. E. 992; Ferguson v. Despo, 8 Ind. App. of the plaintiff, on the 17th day of February, 526, 34 N. E. 575. See, also, Fleming v. 1906, in writing, a copy of which is made a Greener, 90 N. E. 73; Indianapolis, etc., Tr. part hereof as 'Exhibit B,' notified and agreed Co. v. Brennan, 87 N. E. 215; Cleveland, etc., with the plaintiff that the defendant com- R. Co. v. De Frees, 87 N. E. 722. pany would settle the bills and accounts of Placing a liberal construction upon the the said contracting company, including the complaint in question, it may be interpreted plaintiff's said account, and requested of to mean that the letter of appellant, upon plaintiff that no lien or judgments be taken which the action is based, was written with against said work. 'That the plaintiff accept- the full knowledge on the part of appellant ed said proposal and at once advised the de- that appellee was making a bona fide claim fendant company thereof, relying upon the to a mechanic's lien upon its property for the defendant's promise, agreement, and stipula- payment of his claim, and intended to file tion, aforesaid, and in consideration thereof notice of his intention to hold such lien, but the plaintiff waived the filing of any notice that the same had not been filed, and, in of mechanic's lien to secure his said claim addition to what is contained in the letter, and the bringing of any suit in attachment or that appellant also requested appellee to file otherwise for the enforcement thereof, and, no lien and to take no judgment against the in lieu of his said rights, accepted and re- work, and that appellee, construing this relied upon the aforesaid promise and agree- quest, in connection with the letter, into a ment of the defendant company. That short- promise on the part of appellant that, if he ly thereafter the property of said contract- would refrain from taking these steps, appeling company, subject to lien, levy, or attach-lant would pay the claim, he at once informment, was removed from said county and ed appellant that he would file no lien and state, and the property and affairs of said take no judgment against the work. So incompany was taken charge of by a receiver terpreted the pleading, it is sufficient to in bankruptcy in the United States courts for withstand an attack for the first time in this the Northern district of Ohio. That there- court. Parker v. Dillingham, 129 Ind. 542, after, and after the plaintiff could no longer 29 N. E. 23; Lowe v. Turpie, 147 Ind. 652, secure a lien for his said labor and material 683-685, 44 N. E. 25, 47 N. E. 150, 37 L. R. or levy upon or attach the property of said A. 233, and cases cited; Thompson v. Nelson, contracting company, and after the failure 28 Ind. 431; Sweitzer v. Heasley, 13 Ind. and insolvency of said company, as aforesaid, App. 567, 41 N. E. 1064, and cases cited; Colthe defendant corporation notified the plain- chen v. Ninde, 120 Ind. 88, 22 N. E. 94, and tiff that it declined and refused to pay said cases cited; Peters v. Banta, 120 Ind. 416, 22 |