lage of Western Springs, 180 Ill. 318,) although the standpipe, reservoir, pumping works and power house are the original sources of purely local benefits. These and other cases demonstrate that the question whether an improvement is a local one, within the meaning of the constitution and statute, does not depend upon the fact that there are incidental or indirect public benefits for which an equitable portion of the cost may be assessed to the municipality, as contemplated by the statute, and is not determined by the fact that some property in the municipality is benefited to a greater degree than other property, but does depend upon the nature of the improvement and whether the substantial benefits to be derived are local or general in their nature. If its purpose and effect are to improve a locality it is a local improvement although there is incidental benefit to the public, but if the primary purpose and effect are to benefit the public it is not a local improvement although it may incidentally benefit property in a particular locality. Water mains laid in a street for local use would be utterly worthless and afford no benefit to adjacent property without a stand-pipe or reservoir and pumping apparatus to furnish the water which confers the benefit, and poles, electric wires and lamps would be of no benefit without the engine, generator and appliances at the power house which furnish the electricity, but the mains, poles, wires and lamps are held to be local improvements, while the plants which furnish the water and electricity are regarded as improvements of general utility and not coming within the legal definition of local improvements.

The question what shall be considered a local improvement is committed, in the first instance, to the municipal authorities. (Louisville and Nashville Railroad Co. v. City of East St. Louis, 134 Ill. 656; City of Chicago v. Blair, supra.) Their decision, however, is not final but is subject to review by the courts, and if it appears from the ordinance and the nature of the work that the improvement can

not be regarded as a local improvement a special assessment for its construction cannot be maintained and the court will so declare. (City of Bloomington v. Chicago and Alton Railroad Co. 134 Ill. 451; Village of Morgan Park v. Wiswall, supra; Hewes v. Glos, supra.) Counsel for the appellant has correctly stated the purpose of the improvement in this case to be the restoration of the continuity of the street, which had been severed into two parts by the ravine which bisected it. The effect of the improvement, when made, would be to restore to the public the use of the principal thoroughfare of the city. The improvement was projected primarily for the public benefit and not to convert the street in front of adjacent property into a passable condition or to benefit such property, and such an improvement is substantially different from the one held to be a local improvement in Louisville and Nashville Railroad Co. v. City of East St. Louis, supra, which is the main reliance of counsel for appellant. It is true that in both cases the improvement consisted of a viaduct, but in that case there was a street in regular public use across railroad tracks. The improvement consisted of a viaduct over the tracks, by which travel would undoubtedly be less dangerous, and that benefit would accrue to the public. The railroad companies were subject to all the regulations of the law in relation to the operation of their trains at the street crossing, and the viaduct would result in benefits peculiar to their property. There was incidental benefit to the public, but the substantial benefits were to the railroad property. It was held that the special assessment was not rendered unlawful merely because the viaduct would extend across Cahokia creek and serve the purpose of a bridge over that stream, because it would be impossible to construct the viaduct without crossing the creek, and the evidence showed that the cost would not be increased thereby, so that the railroad companies were paying nothing for the extension across the creek. If the railroad companies had been called.

upon to pay for an improvement consisting of a bridge across Cahokia creek, as was attempted in this case, a very different question would have arisen.

We regard the conclusion of the county court as correct, and the judgment is affirmed.

Mr. JUSTICE VICKERS, dissenting.

Judgment affirmed.

THE PEOPLE ex rel. J. F. Gillham, Defendant in Error, vs. PARKER J. ARCHIBALD et al. Plaintiffs in Error.

Opinion filed April 19, 1913.

I. NUISANCES-abatement of a nuisance is no part of the punishment for maintaining it. The abatement of a nuisance at the expense of the defendant convicted of maintaining the same, as authorized by section 222 of the Criminal Code, is no part of the punishment for the misdemeanor of maintaining the nuisance, and it is therefore proper to prosecute such misdemeanor by an information.

2. SAME-agents of corporation who aid in maintaining a nuisance are liable as principals. If the business of a corporation is so carried on as to constitute the maintaining of a nuisance, the agents of the corporation who perform the acts constituting the offense are guilty of the misdemeanor equally with the corporation, as there is no agency in crime, and all persons who aid, abet or assist in the commission of a misdemeanor are guilty as principals.

3. INSTRUCTIONS—when it is not error to modify instruction in prosecution for maintaining nuisance. In a prosecution for maintaining a nuisance, where an instruction is asked authorizing the jury to take into consideration the location of the plant of the defendant corporation, "whether convenient or not," the management and manner in which the plant was operated and run, etc., it is not error to strike out the words "whether convenient or not," as they are indefinite and misleading as so used.

4. SAME-defendants who testify have a right to have a proper instruction given as to weighing their testimony. In a prosecution for a misdemeanor, defendants who testify in their own behalf are entitled to have given a proper instruction presented by them directing the jury to judge their testimony by the same rules as apply to the testimony of other witnesses and not to reject it merely because they are defendants.

WRIT OF ERROR to the County Court of Madison county; the Hon. J. P. STREUBER, Judge, presiding.

C. E. POPE, for plaintiffs in error.

P. J. LUCEY, Attorney General, JAMES N. BANDY, State's Attorney, and GEORGE P. RAMSEY, (C. H. BURTON, and J. F. GILLHAM, of counsel,) for defendant in

error.

Mr. CHIEF JUSTICE DUNN delivered the opinion of the

court:

The plaintiffs in error were convicted in the county court of Madison county on the seven counts of an information charging them with maintaining a nuisance, were fined $25 on each count, and have sued out a writ of error to reverse the judgment. They claim that under section 8 of article 2 of the constitution a prosecution for this offense cannot be carried on by information but only by indictment, because, in addition to fine and imprisonment in the county jail, the statute authorizes the court in which a conviction is had, if a court of record, to order the nuisance abated by the sheriff at the expense of the defendant. It is urged that this abatement of the nuisance at the defendant's expense is a punishment additional to fine and imprisonment in the county jail, and the case is therefore one which can be prosecuted only by indictment, in accordance with the decision in the case of People v. Russell, 245 Ill. 268.

Section 221 of the Criminal Code enumerates certain acts which are declared to be public nuisances. Section 222 provides that "whoever causes, erects or continues any such nuisance shall, for the first offense, be fined not exceeding $100, and for a subsequent offense shall be fined in a like amount, and confined in the county jail not exceeding three months. Every such nuisance, when a conviction therefor is had in a court of record, may, by order of the court be

fore which the conviction is had, be abated by the sheriff or other proper officer, at the expense of the defendant, and it shall be no defense to any proceeding under this section, that the nuisance is erected or continued by virtue or permission of any law of this State."

The abatement of the nuisance is no part of the punishment for the misdemeanor of causing or continuing it. It is not punishment of a past offense to prohibit its repetition. An indictment lies for creating or maintaining a public nuisance, but this is not the only remedy. A court of equity has also jurisdiction to restrain a public nuisance on the application of the People, through the State's attorney or the Attorney General. (Roloson v. Barnett, 243 Ill. 130.) These two forms of proceeding are distinct though each seeks the abatement of the nuisance,-one by the punishment of the person creating or maintaining it, the other by directly compelling its abatement. The same proof which will justify conviction on the indictment will justify a decree abating the nuisance in the equity case. If the defendant has been found guilty on the indictment there is no reason why the People should be driven to another proceeding, by bill in equity, to directly abate the nuisance. The last sentence of section 222 therefore authorizes the court, in a proper case, to grant the civil remedy, which might be obtained by a bill for an injunction whenever a conviction for the misdemeanor has been had. No penalty is thereby imposed upon the defendant, but relief which might be obtained by a suit of a civil nature is granted against a condition injurious to the public without the necessity of another hearing of the same issue between the same parties, on the same evidence. The punishment for the nuisance is a fine for the first offense and a fine and imprisonment for a subsequent offense. But before or after or contemporaneously with the criminal prosecution the nuisance may be abated, and this has nothing to do with the defendant's punishment. The punishment has reference to the act of

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