right to use any part of the strip as a public | St. Rep. 185, relied on by counsel for appelway. From this record the court was fully lants, might then be in point, as would the justified in finding that the 27-foot strip of reasoning of the decisions last heretofore land had never been accepted by the public cited, but no such situation is presented authorities as a street or alley. here.

In view of this holding it is unnecessary to consider the questions argued in the briefs as to whether there was a public way by prescription, or as to whether, if the street had been accepted by the public authorities, there was an abandonment by nonuser, or whether the city had a right to vacate the street and deed it to the original owners or their grantee.

[16] The decree in this case reserved for future consideration the question of damages for wrongfully suing out the injunction. It was proper to make such a reservation. Johnson v. McNellis, 228 Ill. 351, 81 N. E. 1035; Poyer v. Village of Des Plaines, 123 Ill. 111, 13 N. E. 819, 5 Am. St. Rep. 494; Wing v. Dodge, 80 Ill. 564.

The decree of the circuit court will be affirmed. Decree affirmed.

(No. 9491.)

(265 111. 83)

(Supreme Court of Illinois. Oct. 16, 1914.) EMINENT DOMAIN (§ 176*)—PROCEEDINGSTRUSTEES OF SCHOOLS.

1.

of

The trustees of schools, and not the board education, are the proper parties to petition to condemn land for a school site; and, the board of education having requested them to institute proceedings, the action was properly prosecuted by them.

[15] The facts in this case do not bring it within the rule that the owner is estopped to deny the existence of a dedication because it would be an injury to intervening private rights. A mere survey of land by the owner into lots, squares, streets, etc., will not, without a sale, amount to a dedication. The sale of lots with reference to such plat, when describing lots as bounded by a street, as between the grantor and the grantee, will be held to be forever binding upon both, and the owner is precluded from exercising any power of retraction without the consent of those to whom he has sold property. 3 Dillon on Mun. Corp. (5th Ed.) §§ 1083, 1090. This court has held in numerous cases that when the owner of lands exhibits a map or plat of a town or addition and on which a street is defined, and sells lots abutting on such street with a clear reference to the plat exhibited, then the purchasers of said lots have a right to have said street remain open forever. The owner or owners who plat TRUSTEES OF SCHOOLS v. McMAHON. lands and sell property with reference thereto, their privies and successors in title, are estopped, as against purchasers and holders of property so platted and bought with reference to such plat, to deny the existence of streets or public passageways platted thereon. Earll v. City of Chicago, supra; Russell v. Chicago & Milwaukee Electric Railway Co., 205 Ill. 155, 68 N. E. 727; Village of Riverside v. MacLain, 210 Ill. 30S, 71 N. E. 408, 66 L. R. A. 288, 102 Am. St. Rep. 164; Stevenson v. Lewis, 244 Ill. 147, 91 N. E. 56; Marshall v. Lynch, 256 Ill. 522, 100 N. E. 289; 1 Elliott on Roads & Bridges (3d Ed.) § 165. The 27-foot strip in question was not made a public highway on the original plat. No evidence is found in the record indicating that the appellant corporation or its grantors conveyed or purchased the property now owned by said corporation with reference to said strip as a public way, or that any one had conveyed any property in that vicinity with reference to such strip as a public street or alley. No evidence is found in the record showing any injury to private rights, as that term is recognized in the decisions just referred to, by the deeding of this property to Mitchell by the city. If this record showed that the dedication of this strip had been made complete by acceptance before a revocation of any part or all of it, or that deeds had been made by the original grantors of this strip, or their privies, to any property in the vicinity, referring therein to such strip as a public way, then a different situation would be presented. The reasoning of this court in City of Chicago v. Ward, 169 Ill. 392, 48 N. E. 927, 38 L. R. A. 849, 61 Am.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 477, 480-482, 485; Dec. Dig. § 176.*]

2. SCHOOLS AND SCHOOL DISTRICTS (§ 65*)— ACQUISITION OF SCHOOL SITE-SUBMISSION TO VOTE-ADDITIONAL APPROPRIATION.

Under Laws 1909, p. 377, § 127, providing that the board of education shall have all the powers of school directors, and shall buy or lease sites for schoolhouses, with the necessary grounds, provided that it may not purchase or locate a site unless authorized by a majority of all the votes at an election called therefor, and that if no locality receives such a majority, it may select a suitable site to be taken by condemnation, the board, after a site has been duly located, need not submit to popular vote the questions as to how much shall be acquired or the purchase or condemnation of additional grounds.

[Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. §§ 162-167; Dec. Dig. § 65.*]

Appeal from Du Page County Court; Charles D. Clark, Judge.

Condemnation proceedings by Trustees of Schools against Fannie McMahon. Judgment for plaintiff, and defendant appeals.

firmed.

Af

Bulkley, Gray & More, of Chicago, for appellant. Charles W. Hadley, of Wheaton, for appellee.

The two principal contentions made by ap-inent domain." pellant are: First, that a board of education cannot acquire property for school purposes vithout submitting the question whether the property shall be acquired to a vote of the people; and, second, that there is no authorty for the condemnation of additional rounds after a site has been acquired and a chool building erected thereon.

The statute authorizing boards of educaion to acquire property for school purposes s section 127 of an act to establish and maintain a system of free schools. Laws of 909, p. 377. That section, so far as materi1 here, is as follows:

"Sec. 127. The board of education shall have 1 the powers of school directors, be subject to ne same limitations, and in addition thereto hey shall have the power, and it shall be their uty:

which is by the statute left to the discretion | taxpayer's bill to enjoin the payment of their of the board.

It necessarily follows that if the board of education, after a site has been selected in accordance with the statute, has the power, without a vote of the people of the district, to determine the area of the site to be acquired and to purchase or condemn the same, it has the power to purchase or condemn additional grounds without a vote of the people of the district, whenever, in the judgment of

the board, such additional grounds are necessary for the proper conduct of the school. The board of education having determined that additional grounds were necessary, it had the right to proceed to purchase or condemn the same without submitting the question to a vote of the people.

The judgment of the county court is affirmed.

Judgment affirmed.

(261 I11. 563)

KUCHARSKI v. HARRISON et al. (No. 9537.)

(Supreme Court of Illinois. Oct. 16, 1914.) 1. MUNICIPAL CORPORATIONS (§ 126*)-Po

LICE OFFICERS-STATUTE.

Under Cities and Villages Act (Hurd's Rev. St. 1913, c. 24) 8$ 73, 74, requiring cities organized thereunder, including the City of Chicago, to elect a city council which by ordinance might provide for the election or appointment of such officers as it deemed necessary, the Chicago city council had authority to create the offices of second deputy superintendent of police and inspector of moral conditions and to prescribe their duties and powers.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 298-300; Dec. Dig. § 126.*]

2. MUNICIPAL CORPORATIONS (§ 111*)-ORDI

NANCE-PARTIAL INVALIDITY.

salaries as a misappropriation of public moneys. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 324, 325; Dec. Dig. § 147.*]

Appeal from Circuit Court, Cook County; Jesse A. Baldwin, Judge.

FARMER, J. Appellant, Joseph Kucharski, a citizen and taxpayer of the city of Chicago, filed his bill in chancery in the circuit court of Cook county to enjoin said city and its fiscal officers from paying the salaries of Metellus L. C. Funkhouser as second deputy superintendent of police and William C. Dannenberg as inspector of moral conditions, and to enjoin said Funkhouser and Dannenberg from collecting or receiving salaries as such officers. The bill is based upon appellant's claim that the ordinance creating said offices is invalid, by reason of which no such offices are in existence, and the payment of salaries to said Funkhouser and Dannenberg is a misapplication, misappropriation, and diversion of the public money, to restrain which a taxpayer has a right to maintain a bill.

The ordinance purporting to create the offices of second deputy superintendent of police and inspector of moral conditions was passed by the city council of the city of Chicago by a two-thirds vote of all the alder- . Where the city of Chicago, under Cities men elected, December 30, 1912. The city of and Villages Act, §§ 73, 74, providing for city Chicago is under the Cities and Villages Act, councils and prescribing their powers, was au- and prior to the passage of the ordinance thorized to create the offices of second deputy superintendent of police and inspector of moral in question had, under the authority conferconditions and to prescribe their duties and pow-red by said act, established a department of ers, the provision of the ordinance creating such offices that the second deputy should not be a member of the police force and the omission of both offices from the enumeration of officers designated as policemen, even if invalid, would not invalidate the ordinance creating such offices, under the rule that although part of an ordinance is invalid the other part may be valid, unless all the provisions are so connected and so dependent as to warrant the belief that the legislative body would not have passed the valid part independently of the invalid part.

[Cd. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 245-256; Dec. Dig. § 111.*]

3. MUNICIPAL CORPORATIONS (§ 147*)-OFFICERS DE JURE AND DE FACTO-COMPENSATION-RESTRAINING PAYMENT.

Where the offices of second deputy superintendent of police and inspector of moral conditions were legally created by ordinance, the right of de facto incumbents to hold such offices, discharge their duties, and receive their salaries provided by law could not be inquired into by a

police as an executive department in the administration of the municipal government. The previous ordinance establishing said department named as offices and positions therein a general superintendent of police, an assistant general superintendent of police, 23 captains of police, 68 lieutenants of police, 327 sergeants of police, 2,500 first-class patrolmen, a chief of detectives, 3 lieutenants of detectives, 65 detective sergeants of the first class, and 400 detective sergeants of the second class. All these offices or positions came under the City Civil Service Act except the general superintendent of police and were classified by rules adopted by the civil service commission. On the 30th of December, 1912, another ordinance was passed enumerating the offices and positions in the department of police and changing the titles of some of the offices as they had existed

al conditions is a police officer, only; and that only lieutenants of police, sergeants of police, or detective sergeants of the first grade, they being the next lower in rank, were eligible to take the examination for promotion to the position of inspector of moral conditions; but that, contrary to law and the rules of the civil service commission, no promotional examinations were held, but an original examination was held, and Funkhouser and Dannenberg were certified as having passed the examinations with the highest grades and for appointment to their respective positions. The bill further alleges that persons admitted to take said examinations were not members of the police force of the city of Chicago and that Funkhouser resided in the town of Evanston. demurrer was sustained to the bill and a decree entered dismissing the bill for want of equity. The trial court certified that the validity of an ordinance was involved and the public interest required that an appeal be allowed direct to this court.

under former ordinances. This ordinance tendent of police; that the inspector of morchanged the title of assistant general superintendent of police to first deputy superintendent of police and added the offices of a second deputy superintendent of police and an inspector of moral conditions. Section 1908 of the ordinance provided that the general superintendent of police, the first deputy superintendent of police, the chief of detectives, and all captains, lieutenants, sergeants, patrolmen, and operators, should be known and designated as policemen and should constitute the police force of the city of Chicago. It will be seen the second deputy superintendent of police and the inspector of moral conditions were not designated as policemen and included as part of the police force. Section 1913 enumerated the duties of the first deputy superintendent of police. Section 1914 provided that the second deputy superintendent of police should not be a member of the police force. Said section prescribed the duties to be performed by him under the direction of the general superintendent of police, among which duties were: "(6) The receipt and investigation of all complaints of citizens regarding members of the police force; (7) the supervision of the strict enforcement of all laws and ordinances pertaining to all matters affecting public morals; (8) the censoring of moving pictures and public performances of all kinds."

The secretary of the department, the custodian of lost and stolen property, the manager of properties, the department inspector, and the director of instruction were required to report to the second deputy superintendent of police. Section 1907 created the office of inspector of moral conditions as a part of the department of police, but his duties are not prescribed by the ordinance, and it is not expressly provided therein that he shall not be a member of the police force, nor is that office or position enumerated in section 1908, which purports to enumerate all the officers to be known as policemen and constituting the police force of the city.

A

[1, 2] Appellant concedes that if Funkhouser and Dannenberg were de facto officers exercising the duties of a de jure office the remedy by a bill for an injunction is not the proper one, as in such case a court of equity will not restrain officers from performing the duties and receiving the salaries of such offices. It is not denied the city council had authority to create the offices of second deputy superintendent of police and inspector of moral conditions; but it is contended the ordinance creating them is invalid, because they were authorized by said ordinance to be filled contrary to the provisions of the Civil Service Act (Hurd's Rev. St. 1913, c. 24a). Beyond question the city council had authority, under sections 2 and 3 of article 6 of the Cities and Villages Act, to create said offices and prescribe their duties and powers. People v. McCann, 247 Ill. 130, 93 N. E. 100, 20 Ann. Cas. 496; Moon v. Mayor, The bill alleges, in substance, that it was 214 Ill. 40, 73 N. E. 408; Stott v. City of the purpose in omitting the second deputy Chicago, 205 Ill. 281, 68 N. E. 736. If it be superintendent of police and inspector of conceded that the provision of section 1914 of moral conditions from the enumeration, in the ordinance that the second deputy supersection 1908, of the officers of the police de- intendent of police shall not be a member of partment who should be known and designat- the police force, and the omission of said ofed as policemen and constitute the police fice and the office of inspector of moral conforce of the city of Chicago, and the provi- ditions from the enumeration in section 1908 sion in section 1914 that the second deputy of the officers of the department designated superintendent of police should not be a as policemen and constituting the police force member of the police force, to authorize the of the city of Chicago, were invalid, would appointment of persons to those positions it invalidate the ordinance creating the of without compliance with the Civil Service fices? If the council had authority to create Act and the rules of the civil service commission. The bill further alleges that 23 captains of police were next lower in rank to the second deputy superintendent of police, and that the Civil Service Act and the rules of the civil service commission required promotional examinations of those holding positions in the next lower rank for the purpose of filling the office of second deputy superin

said offices and they were created in the manner required by law, would the fact that the ordinance authorized filling them in an illegal manner render void the ordinance creating the offices? We think the answers must be in the negative unless the alleged invalid provisions in the ordinance render the whole ordinance void. A part of a statute or ordinance may be invalid and a part valid,

unless all the provisions are so connected in subject-matter and so dependent upon each other as to warrant the belief that the legislative body would not have passed the valid part independently of the invalid part. People v. Strassheim, 240 Ill. 279, 88 N. E. 821, 22 L. R. A. (N. S.) 1135; People v. Knopf, 183 Ill. 410, 56 N. E. 155; 1 Lewis' Sutherland on Stat. Const. § 296; Freeport Street Railway Co. v. City of Freeport, 151 Ill. 451, 38 N. E. 137.

"The constitutional and unconstitutional provisions may even be contained in the same section and yet be perfectly distinct and separable, so that the first may stand though the last fall. ** If when the unconstitutional portion is stricken out that which remains is complete in itself and capable of being executed wholly independent of that which was rejected, it must be sustained." Cooley's Const. Lim. 178.

[3] Under the rules of construction we think it must be held that if the parts of the ordinance appellant alleges are invalid are so in fact, still it would not invalidate the whole ordinance, and by the valid portions of the ordinance the offices of second deputy superintendent of police and inspector of moral conditions were created and are de jure offices, and their status as such offices would not be affected even though the ordinance contained invalid provisions as to the manner of filling said offices. The offices having been legally created, the right of de facto incumbents to hold them, discharge their duties, and receive the salaries provided by law could not be inquired into in this form of action. Lavin v. Commissioners of Cook County, 245 Ill. 496, 92 N. E. 291; Marshall v. Illinois State Reformatory, 201 Ill. 9, 66 N. E. 314; Burgess v. Davis, 138 Ill. 578,

28 N. E. 817.

The decree of the circuit court is affirmed.
Decree affirmed.

(264 III. 640)

CLEAR CREEK DRAINAGE & LEVEE
DIST. v. ST. LOUIS, I. M. & S. RY.
CO. et al. (No. 9540.)

(Supreme Court of Illinois. Oct. 16, 1914.)
1. Levees (§ 25*)—ASSESSMENTS-CONDITIONS

PRECEDENT.

been made to obtain an outlet, the owners pre-
served the point for consideration on appeal
from a judgment of confirmation.
[Ed. Note.-For other cases, see Levees, Cent.
Dig. 88 24, 28; Dec. Dig. § 25.*]
3. LEVEES (§ 25*)—ASSESSMENTS-CONDITIONS

PRECEDENT.

An assessment for benefits, levied by a levee district, can only be justified on proof cially benefit the property assessed, and an that the work proposed and provided will speassessment cannot be legally predicated on future action of public authorities or future legauthorize a special assessment, and before the islation, as such benefits are too speculative to court may enter judgment assessing property for benefits for proposed improvements, such definite action must be taken by public authorities that property owners may enforce, by legal proceedings, the construction of the improve

ments.

[Ed. Note.-For other cases, see Levees, Cent. Dig. 88 24, 28; Dec. Dig. § 25.*] 4. LEVEES (§ 25*)—ASSESSMENTS-CONDITIONS

PRECEDENT.

A levee district may not levy an assessment against property for benefits for the construction of a levee and the draining of the wa other district, where there has been no agree ters of a stream by an outlet through anment binding the latter district to construct the outlet, or where the former district has not taken any definite action for the construction thereof, notwithstanding Laws 1913, p. 271, authorizing connection with adjoining drainage districts, which is inapplicable.

[Ed. Note.-For_other_cases, see Levees, Cent. Dig. §§ 24, 28; Dec. Dig. § 25.*] 5. LEVEES (§ 25*)-ASSESSMENTS-INVALIDITY.

Where an erroneous judgment confirming assessments levied by a levee district provided that the assessments should bear interest from the date of the judgment until paid, the owners of the property assessed were injured, though the judgment directed that bonds should not be issued or the contract let for the work until a contract for the construction of a necessary outlet ditch had been let.

[Ed. Note.-For other cases, see Levees, Cent. Dig. §§ 24, 28; Dec. Dig. § 25.*]

Appeal from Union County Court; W. F. Ellis, Judge.

Proceedings by the Clear Creek Drainage & Levee District for the confirmation of an assessment for benefits against the St. Louis, Iron Mountain & Southern Railway Company and against the Illinois Central Railroad Where, in proceedings to confirm an assess- Company. From a judgment of confirmation, Reversed ment for benefits, levied by a levee district for the railroad companies appeal. the building of a levee and the draining of a and remanded. stream through an outlet extending through another district, the objecting owners relied on H. L. Browning and L. O. Whitnel, both of the fact that the right of way for the proposed E. St. Louis (M. L. Clardy, of St. Louis, outlet had not been obtained, and that no arrangements had been made as to obtaining an outlet, the court must dispose of the objection before the selection of a jury to try the question of benefits.

[Ed. Note.-For other cases, see Levees, Cent. Dig. §§ 24, 28; Dec. Dig. § 25.*]

2. LEVEES (§ 25*)-ASSESSMENTS OBJECTIONS -MANNER OF RAISING.

Mo., of counsel), for appellant St. Louis, I. M. & S. Ry. Co. W. W. Barr and C. E. Feirich, both of Carbondale (Blewett Lee and W. S. Horton, both of Chicago, of counsel), for appellant Illinois Cent. R. Co. A. Ney Sessions, of Anna (0. B. Dobbins and D. C. Dobbins, both of Champaign, of coun

Where owners objecting to the confirmation sel), for appellee. of an assessment levied for the construction of a levee and the draining of the waters of a stream through an outlet through another dis

CARTER, J. This is an appeal from the

assessment for benefits

trict raised the point before the jury that the judgment of the county court of Union counright of way for the proposed outlet had not ty confirming an been made, and no definite arrangement had against the St. Louis, Iron Mountain &