much the court may disagree with the wis-, ted upon the pleadings and the transcript of dom of their conclusion or the correctness of the evidence, with such arguments as counsel their judgment as to the public interests, it saw fit to present, and that no, further eviwill not undertake to substitute its judg- dence or proof should be heard or presented. ment for that of the trustees. These princi- Counsel for the complainant in the hearing ples have been announced by this court in before Judge Hill asked leave to file amendmany decisions, the latest of which are Wol-ments to the bill of complaint, which were bach v. Rubens, 307 Ill. 186, 138 N. E. 521; presented to the court; but the court denied People v. Elgin, Joliet & Eastern Railway the motion, and the appellant has assigned Co., 298 Ill. 574, 132 N. E. 204; People v. error on this action of the court. The origAtkins, 295 Ill. 165, 128 N. E. 913; People v. inal bill charged that the railway company Benson, 294 Ill. 236, 128 N. E. 387; and Peo- had encroached on the street and occupied it ple v. Corn Products Co., 286 Ill. 226, 121 N. with various structures which have been E. 574. Whether a street 42 feet wide suf- mentioned; that the ordinance vacating a ficiently meets the public interest is a ques- portion of the street authorized the contintion primarily for the board of trustees to uance of such structures and the occupation determine. That question depends upon the of the street by them, and by narrowing the character of the locality and its relation to street in this way appellant's property was other parts of the village, the manner of its injured and depreciated in value. No other present or probable future use, the nature cause of action was suggested in the bill. No and amount of the established business, and complaint was made of the manner in which present and probable future requirements the structures were maintained or conductof the public. It is not a judicial questioned, no damage to the appellant's property but a legislative question and one which is entirely committed to the discretion of the trustees. There are no stores on the appellant's land; no business is conducted there. If in the judgment of the trustees the present and future requirements of the public are sufficiently accommodated by the street as it exists or as it will remain after the vacation ordinance takes effect, we would not be justified in holding that their judgement is not based upon the interest of the public but of the railway company. The village frees itself from maintaining the street to an unnecessary width and the accommodation of the public in the use of the street is not materially diminished. The fact that the railway company benefits by the vacation does not affect the power of the village to make it. The appellant is entitled to re-tained. However inoffensive they might be, cover whatever damage her property has suffered by the vacation of the street but she is not entitled to enjoin its vacation. from such cause was alleged, and no relief was asked except for the occupation of the street and the vacation of it for the purpose of such occupation. The amendments alleged improper maintenance of the toilets, the chicken house, and the operation of the coal chute in connection with the elevation of coal and the dropping of it into the chute with loud, grating noises, creating large volumes of coal dust and other dust which rise up in the air and when the wind is blowing from the east are carried over and on the lots of the complainant. The amendments made a complete change in complainant's cause of action. The original cause of action was based upon the occupation of the street and had nothing to do with the manner in which the obstructions were main they were still obstructions of the street, and for that reason. alone, were complained of in the bill. So far as the amendments are [5] During the examination of a son of the concerned, this cause of action is abandoned complainant as a witness before Judge Di- and appellant seeks relief because of the imbell, he was asked the question what effect proper manner in which the structures comthe discharge of water from the railroad plained of are used. No matter how good had on the complainant's land. The ques may be the right of the railway company to tion was objected to and the court inquired maintain them in the street, the amendif there was anything about that in the bill. ments complain of the manner in which they Counsel for the complainant stated that are conducted. The operation of the coal there was not; that he was going to ask chute in such a manner as to be a nuisance leave to amend; that he did not know of to the property of the complainant, if it is that condition when the bill was filed and actionable at all, is just as much so if lothere were two or three amendments which cated entirely on the right of way as if lohe wanted to make. Counsel for the rail- cated in the street. In fact, it is located enway company objected that the amendments tirely on the right of way, and the only obought to be submitted before proceeding fur-structions at that end of the street which ther with the case. The court stated that are, in the street are the coal-storage track counsel had a right to amend the bill even after they got all the proof in. No motion for leave to amend was made. A stipulation of counsel, made after Judge Dibell's death, for submitting the cause to Judge Hill for and the embankment. The evidence which would support the original bill would not support the amendments, and the evidence which would support the amendments would not support the original bill. (141 N.E.) The cross-bill was therefore The decree will be affirmed. (309 III. 520) WURN v. BERKSON et al. (Nos. 1454015438.) (Supreme Court of Illinois. Oct. 20, 1923.) Evidence 461 (1)-Statements made before or after execution of a written contract may be shown in determining the intention of the parties if contract is not clear. dence which tended to support the proposed the village. amendments. It was not competent under properly dismissed. the issues and the railway company objected. While it was admitted, the railway company was not required to introduce evidence to contradict that which was immaterial because not within the issues made by the pleadings. When the amendments were proposed to be made, the evidence had been closed and it was agreed that no further evidence should be presented. The amend ments raised entirely new issues of fact and questions of law, to meet which the defendants would be entitled to offer addi tional evidence. The allowance of an amendment to a bill after the issue has been Where the wife of a prospective tenant formed is a matter largely within the dis- signed a contract for a lease, though her name cretion of the court, and new matter chang-was not mentioned in the body of the contract; ing the character of the bill and making sub-evidence that she was considered one of the stantially a new case cannot generally be parties thereto is admissible, under the rule introduced after the cause is set down for hearing. A reviewing court will not reverse for a refusal to allow such an amendment unless a manifest abuse of discretion is shown. Walker v. Struthers, 273 Ill. 387, 112 N. E. 961; Foss v. People's Gas Light & Coke Co., 241 Ill. 238, 89 N. E. 351. The court did not err in refusing leave to file the amendments. [7, 8] The plat of McDougal's subdivision shows the original right of way line of the railway company 33 feet west of the track. It shows the 17-foot strip, the west line of which is marked "right of way line." It then shows a 50-foot street extending south the full length of the 17-foot strip. cross-bill relied upon this plat as a statutory dedication of the west 7 feet of the street which was not included in Front street as laid out. There is a dispute in the evidence as to where the fence on the west The side of Front street was built-whether west of this 7 feet or not-but whether the 7 feet was fenced out as part of the street or not, the evidence does not show that it was ever accepted by the village as part of the street. At the foot of the plat is written: "Accepted and approved by the village board of the village of Manhattan this 21st day of March, A. D. 1912. "Henry Eberhardt, President. "Attest, Eugene Hoerrmann, Clerk." [9] The act of approval by a village board, however, when the statutes and ordinances have been complied with in making a plat of a subdivision, is ministerial and may be enforced by mandamus. People v. Massieon, 279 Ill. 312, 116 N. E. 639. Such approval is evidence that the plat complies with the statutes and ordinances but is not an acceptance of the streets. Id. There is no evidence of any work done by the village on this 7foot strip, or of any other act indicating an acceptance of it as a part of the street by that statements made before or after the execution of a written contract may be shown in determining the true intention of the parties concerning matters wherein the contract is not clear. Error to Superior Court, Cook County; Reconsideration on court's own motion, Andalman, Kostner & Arvey, of Chicago (Maxwell N. Andalman, Samuel J. Andalman, John R. O'Connor, and Thomas E. Swanson, all of Chicago, of counsel), for plaintiffs in error. Morris K. Levinson and S. G. Grodson, both of Chicago, for defendant in error. the court's own motion, of the case of Wurn STONE, J. This is a reconsideration, on v. Berkson (No. 14540), in which an opinion was filed at the October, 1922, term. Wurn v. Berkson, 305 Ill. 231, 137 N. E. 141. The facts concerning this controversy are there set out in detail and it is unnecessary to restate them here. The original opinion filed reversed the judgment of the Appellate Court and the decree of the superior court, for the reason that Anna J. Wurn, who the opinion holds was a party to the contract, did not appear either as party complainant or defendant to the original bill. The cause was remanded to the superior court, with leave to the parties to amend their pleadings, if they be so advised, and for further proceedings not inconsistent with the views expressed in the opinion. Both parties filed petitions for rehearing, and with the petition filed by William G. Wurn, Anna J. Wurn, who was & party to the record as defendant to the crossbill filed therein, and as plaintiff in error complaining of the decree of the Appellate Court granting the prayer of the cross-bill, For other cases see same topic and KF-NUMBER in all Key-Numbered Digests and Indexes filed in this court her consent to be bound by, or made before the execution of a written the contract in question and the decree en tered by the superior court or to be entered by this court in the cause, waiving any right to be exempt from the terms of the contract or lease. The original opinion filed in this cause was at the December term, 1922, modified by directing that the decree of the superior court be modified to require Mrs. Wurn to execute and deliver in duplicate the lease in question, and, as so modified, the decree of the superior court was affirmed. On presentation of the mandate of this court the chancellor in the superior court entered a decree therein in accordance with that mandate. The Berksons, who were defendants in error in this court and original defendants in the superior court, sought an appeal, which was denied, whereupon they sued out a writ of error to review the decree of the superior court, which cause is numbered 15438 on the docket of this court and has been consolidated with the original cause. On the record of the writ of error last sued out, it for the first time appears that Mrs. Wurn by her answer to the Berksons' cross-bill disavowed any interest in the contract in question, and in substance denied any liability on her part under such contract, and that she thereafter maintained such position up to the filing of the consent herein referred to. It appearing to the court that the position taken by Mrs. Wurn might, if the contention of the Berksons regarding that matter be sustained, materially affect the right of Wurn to damages for failure of the Berksons to execute the lease in accordance with the contract (which question has, by reason of lapse of time, become the one of largest practical importance in the case), the court of its own motion granted a rehearing in the original cause and made the writ of error in No. 15438 a supersedeas. The original opinion filed in this case holds that the intention of the parties signing the contract of September 16, 1915, was that Anna J. Wurn should be a party thereto and bound thereby; that, although her name did not appear in the body of the contract, she had signed the same; and that it was evident from the attitude of the parties throughout the transactions between them, up to and including the lease of March 17, 1916, that she was considered a party thereto. It was therefore held that she was a necessary party to Wurn's original bill. either as a complainant or defendant. While, as contended by counsel for the Wurns, the rule is that transactions or statements had contract or thereafter, unless they show a new contract and an abandonment of the old, cannot be shown to alter the terms of such written contract (Lancaster v. Roberts, 144 Ill. 213, 33 N. E. 27), it is also the rule that transactions between the parties after the execution of a contract had in reference thereto may be considered in determining the true intention of the parties concerning matters wherein the contract is not clear. It is well settled that the construction placed upon uncertain language of a contract by the parties themselves is of great weight in determining the true construction of that contract. In the instant case Mrs. Wurn's name was not in the body of the contract, and the contract does not show in what capacity she signed. The evidence of the conversations and negotiations of the parties shows, however, that they all considered her one of the parties to the contract, and that her name was unintentionally omitted from the body thereof. We are therefore constrained to adhere to the view in this regard as expressed in the opinion in this case origi nally filed. We also adhere to the view, for reasons given in the opinion originally filed herein, that the plaintiffs in error, the Berksons, are not entitled to have the contract removed as a cloud upon their title, but that such contract, when considered in connection with the lease signed, is of sufficient certainty to warrant, under proper pleading and proof, its enforcement by specific performance. We are also of the opinion that the Berksons should be given an opportunity to show, if they can, in what manner, if any, the attitude of Mrs. Wurn subsequent to the disagreement of the parties on March 17, 1916, justified refusal on their part to execute the lease in question in so far as that matter relates to the question of damages. The judgment of the Appellate Court and the decree of the superior court will therefore be reversed, and the cause remanded to the superior court, with leave to the parties to amend their pleadings if they be so advised, and for further proceedings not inconsistent with the views herein expressed. The decree of the court in No. 15438 being a further proceeding in the original cause on remandment, and the order allowing a rehearing of the original cause having necessarily set aside that mandate, the decree of the chancellor entered thereon is likewise set aside. Reversed and remanded, with directions. (309 II!. 488) PEOPLE v. BERGLIN. (No. 15442.) (Supreme Court of Illinois. (141 N. E.) Oct. 20, 1923.) 1. Criminal law 1034-Objection that insufficient time was allowed accused for preparation of case cannot be first made on appeal. No motion for a continuance or postponement having been made at trial, the objection that time for preparing accused's case was not allowed cannot be made on appeal. 2. Intoxicating liquors 236(61⁄2, 11) — Evidence held to sustain conviction for possession and sale. Evidence held sufficient to sustain a conviction for the possession and sale of intoxicating liquor. 3. Intoxicating liquors 231-Testimony as to alcoholic contents of liquor salvaged by officers making search held admissible. In a prosecution for possessing and selling intoxicating liquor, where officers before entering to search defendant's house heard some one say they were pouring the stuff out, and on entering found two jugs and a funnel in the bathroom, all of which smelled of whisky, held, that there was no error in admitting testimony as to the alcoholic tests of the contents of two bottles dipped by the officers from the toilet stool. 4. Criminal law 1030(2)-Objection to constitutionality of prohibition statute cannot be first raised on appeal. Objections that provisions of the Prohibition Act are unconstitutional cannot be raised for the first time in a court of review. 5. Criminal law 1206 (2)-Statute providing penalty for second offense held not unconstitutional. Prohibition Act, § 33, providing that for a second violation the penalty shall be not less than $500 nor more than $1,500, and imprisonment in the penitentiary not less than one nor more than two years, held not invalid under Const. art. 2, § 11, requiring the penalty to be in proportion to the nature of the offense, the penalty for the violation of a statute being primarily a legislative question, and such that the courts will not hold an act invalid, unless the penalty imposed is clearly forbidden by the the Illinois Prohibition Law (Hurd's Rev. St. 1921, c. 43). The first count of the indictment alleged defendant was convicted at the April term, 1922, of the circuit court, for possessing and selling intoxicating liquor, to wit, whisky; that he was sentenced to pay a fine of $100 and stand committed until the fine was paid; that after the conviction, on the 20th day of August, 1922, he unlawfully possessed intoxicating liquor containing more than one-half of 1 per cent of alcohol by volume. The second count of the indictment alleged the former conviction and sentence, and that on the 20th day of August, 1922, he unlawfully sold intoxicating liquor containing more than one-half of 1 per cent. of alcohol by volume. The jury found him guilty under both counts of the indictment, and the court, after overruling motions for a new trial and in arrest, sentenced defendant to the penitentiary for an indeterminate term, as provided by law, and to pay a fine of $500 under each count of the indictment. He has sued out this writ of error. The errors assigned and argued in the briefs are that section 3 of chapter 43, known as the Illinois Prohibition Act, and section 33 of the same act, are unconstitutional; that the trial court erred in appointing counsel for the defendant and requiring him to go to trial without sufficient time for preparation; that the trial court erred in the admission of evidence and in giving and refusing instructions. [1] Counsel appointed to represent defendant on the trial made no motion for a continuance or postponement of the trial and cannot now be heard to complain that he was not allowed time to prepare the defense. If he needed time to prepare, he should have made application to the court for postponement to a reasonable time to enable him to make preparation. [2] The people proved by Martin Gibson that he and Nolan Grubb met defendant on the streets of Bloomington the night of August 20, 1922, and Grubb asked the defendant where he could get some whisky. Defendant took the two men down to his house, Error to Circuit Court, McLean County; presented them to his wife, and then left the Edward Barry, Judge. Constitution. Dave Berglin was convicted of a second offense in the possession and sale of intoxicating liquor, and he brings error. Affirmed. Russell M. Bolin, of Bloomington, for plaintiff in error. Edward J. Brundage, Atty. Gen., Lester H. Martin, State's Atty., of Bloomington, George C. Dixon, of Dixon, and Joseph W. Depew, of Bloomington, for the People. room. Grubb bought a pint of whisky from Mrs. Berglin and paid her $2.50. They drank the liquor there in the house. That same night three police officers, with a search war rant, went to the house of defendant and knocked at his door. Defendant came to the door and the officers asked to be admitted. The screen door was fastened with a hook, and defendant did not open it, but walked away. One of the officers informed him he had a search warrant, but he went into another FARMER, C. J. Dave Berglin (hereafter room and left the officer standing at the called defendant) was convicted in the circuit door. One of the officers was at another court of McLean county for a violation of part of the house, and the officer at the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes door heard someone say they were pouring act invalid unless the penalty imposed for its We are of opinion there is no merit in the defendant's criticism of the instructions Defendant testified he did not possess or sell any intoxicating liquor August 20, 1922. He testified Gibson and Grubb asked him if he could get liquor for them, and he told them he did not know. He took them to his house, called his wife, and he left the room. The evidence abundantly authorizes the conclusion that he possessed and sold intoxicating liquor, as charged in the indictment. [3] No such errors were committed in the admission of testimony on the trial as to justify a reversal of the judgment on that ground. The principal error complained of in the admission of testimony was the admission of the testimony of the chemist as to the alcohol contained in the two bottles, the contents of which were dipped from the toilet stool. It is argued that the prohibition is against any liquid containing one-half of 1 per cent. or more of alcohol by volume which is fit for use for beverage purposes. It is insisted there was no proof the contents of the bottles were fit for use for beverage purposes, and the testimony should not have been permitted. We think this so obvious a misapprehension under the proof in this case as not to require discussion. [4] It is insisted section 3 of the Illinois Prohibition Act is unconstitutional. No question of that kind was raised on the trial or by the motion for a new trial or in arrest of judgment, and it cannot be raised for the first time in a court of review. Cummings v. People, 211 Ill. 392, 71 N. E. 1031; People v. Harrison, 223 Ill. 540, 79 N. E. 164; Motsinger v. Chenoweth, 308 Ill. 31, 139 N. E. 27. The judgment is affirmed. (309 III. 492) PEOPLE v. WILLIAMS. (No. 15410.) (Supreme Court of Illinois. Oct. 20, 1923.) I. Statutes 107 (3) -Prohibition Act not invalid as embracing more than one subject. Prohibition Act, entitled "An act to restrict the manufacture, sale, transportation, possession and use of intoxicating liquor, aiding thereby in establishing uniformity in state and federal laws in regard thereto," held not to embrace more than one subject, since aiding in establishing uniformity in state and federal laws is not a different subject from regulation of the liquor traffic, in view of Const. U. S. Amend. 18. 2. Statutes 64(1)—Rule stated as to effect of invalid portion of statute on act as a whole. make the act invalid as a whole, unless so An invalid provision of an act does not blended with and made a part of the remainder that the Legislature would not have passed the statute without such provision. 3. Statutes 64 (9) — Certain provisions of Prohibition Act, if invalid, do not affect validity of act as a whole. Prohibition Act held not void as against contention that it attempts to delegate legislative and judicial powers to the Attorney General and prohibition commissioner, and authorizes search and seizure in violation of constitutional rights, and prohibits one to accumulate and retain a certain kind of property contrary to natural rights, since, if certain provisions of the act are unconstitutional for such reasons, the act as a whole would not be void by reason thereof, for such provisions could be separated from the rest of the act. 4. Intoxicating liquors 25-Prohibition Act held to repeal Local Option Act of 1907. The Prohibition Act repealed the Local Option Act of 1907, since it was a revision of the whole subject of prohibition, under Const. U. S. isting law on the subject, though it contained Amend. 18, and operated as a repeal of the exno express repealing clause. ance for failure to show probability of attendance of absent witnesses held not error. [5] It is also contended section 33, which provides that for a second conviction for a violation of the act the penalty shall be not less than $500 nor more than $1,500, and imprisonment in the penitentiary not less than 5. Criminal law 603 (9)-Denial of continuone nor more than two years, is invalid. It is contended that section violates section 11 of article 2 of the Illinois Constitution, which requires the penalty to be in proportion to the nature of the offense. The penalty for a violation of the statute is primarily a legislative question, and courts will not hold an Denial of motion for continuance for absence of witnesses, for failure of defendant's affidavit to state facts showing reasonable ground for belief that the attendance of the witnesses could be procured at subsequent term, held proper. |