Harrisburg, where he lived. Parker was arrested a few minutes after the fight, and he showed by a prisoner in the jail that when Parker came in there was a cut in the leg of his trousers just below the pocket, which Parker testified was not there when the fight began and which he did not notice until his attention was called to it at the jail.

We regard this evidence as insufficient to justify a conviction of assault with intent to commit murder. It is as essential in such a charge to prove the intent as to prove the assault and to prove it with the same certainty. Here was a mutual assault. The parties agreed to fight. No one knows who struck the first blow, and it is immaterial. Each party was guilty of the assault. No one knows the actual circumstances under which the wound was received. There were many witnesses, not far away, who were watching the fight, several of whom say that they saw every blow that was struck. The men were fighting with bare fists, apparently empty-handed, and no one saw any weapon used or suspected that one was used. Brown received the wound, but how or with what weapon does not appear. The quarrel about the note, resulting in the invitation to fight and its acceptance, was trivial. No previous malice is shown, and certainly nothing which would justify the inference that Parker, at the beginning of the fight, intended to murder Brown or afterward had such intention. Brown's wound was not serious, and we are satisfied from the lack of evidence of malice or premeditation, or of circumstances from which malice or premeditation may be inferred, that there is such a serious and well founded doubt of the existence of the specific intent, which is essential to the crime of which Parker was convicted, as requires the reversal of the judgment.

There was no error in the admission or rejection of evidence and no such error in the giving or refusal of instructions as would require the reversal of the judgment.

Judgment reversed.

THE RITTENHOUSE & EMBREE COMPANY, Appellant, vs. THE WILLIAM WRIGLEY, JR., COMPANY, Appellee.

Opinion filed June 16, 1914.

MECHANICS' LIENS-section 21 of the Mechanic's Lien act of 1903 is unconstitutional. Section 21 of the Mechanic's Lien law of 1903, in so far as it attempts to give a sub-contractor a lien notwithstanding the original contract waives all liens, is unconstitutional. (Kelly v. Johnson, 251 Ill. 135, and Cameron-SchrothCameron Co. v. Geseke, id. 4c2, adhered to.)

APPEAL from the Circuit Court of Cook county; the Hon. JOHN P. McGOORTY, Judge, presiding.

ADAMS, CREWS, BOBB & WESCOTT, for appellant.

SONNENSCHEIN, BERKSON & FISHELL, for appellee.

Per CURIAM: Appellant filed a bill to enforce a lien against property of the appellee, the William Wrigley, Jr., Company, for $9766.65, for materials sold and delivered to the Falkenau Construction Company and by said company used in the construction of a building it had contracted with appellee, the Wrigley Company, to furnish the materials for and build on appellee's land. During the time the work of constructing the building was going on the Falkenau Construction Company was adjudged a bankrupt. Appellant had before that time furnished said materials, which had not been paid for, and the bill was filed to enforce a lien against the property of appellee. A copy of the contract between appellee and the Falkenau Construction Company was attached to the bill as an exhibit. By this contract it was agreed between the parties that "neither the contractor nor any sub-contractor, material-man, nor any other person, shall file or maintain a lien, commonly called a mechanic's lien, for materials delivered for use in or work done in the performance of this contract, and the right to

maintain such lien by any or all of the above named parties is hereby expressly waived, except in the event of the failure or refusal of the owner to pay the amount called for by any certificate of the architect within three days of the date of its tender to the owner for payment. Then, and in such case only, shall any of the above named parties have the right to file and maintain a mechanic's lien." The bill alleges appellant had no knowledge of the terms and conditions of the contract. Appellee demurred to the bill and assigned as cause for demurrer that the general contractor, the Falkenau Construction Company, by the agreement waived its claim and the right of appellant to a lien on the premises, and that the bill did not, therefore, state a cause entitling appellant to relief. The demurrer was sustained, and appellant electing to stand by its bill the same was dismissed for want of equity. This appeal was prosecuted direct to this court on the ground that the constitutionality of section 21 of the Mechanic's Lien act of 1903 is involved.

Said section 21 was held unconstitutional in an opinion fiied at the June term, 1911, in Kelly v. Johnson, 251 Ill. 135. That decision was adhered to and followed in Cameron-Schroth-Cameron Co. v. Geseke, 251 Ill. 402, filed at the October term, 1911. It is conceded the decree of the circuit court must be affirmed if these cases are adhered to, but appellant contends those cases were decided erroneously and should be overruled. The decisions of this court referred to are decisive of this case, but appellant has filed an elaborate brief, in which it is contended the decisions of this court are not in harmony with or supported by the decisions of other courts, and it is earnestly insisted we should overrule them. We are not convinced that it is our duty to do so or that we would be justified in doing so.

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

THE PEOPLE ex rel. Frank Medd et al. Appellants, vs. ROBERT E. CARTER et al. Appellees.

Opinion filed June 16, 1914.

1. SCHOOLS-population requirement of section 1 of Township High School act of 1911 does not apply to districts organized under section 6. The requirement of section 1 of the Township High School act of 1911 that there be a single school district having a population of one thousand or more and not exceeding one hundred thousand, applies only where the township high school district is to be created from a single township, and not to a district created, under section 6 of said act, out of contiguous and compact territory in different townships.

2. SAME-when but one petition and one polling place are necessary. Where a township high school district is to be created, under section 6 of the Township High School act of 1911, out of contiguous and compact territory in different townships, there need be but one polling place in such territory, and but one petition need be presented in order to authorize the county superintendent to call the election. (People v. Dunlap, 248 Ill. 154, distinguished.)

APPEAL from the Circuit Court of Macoupin county; the Hon. ROBERT B. SHIRLEY, Judge, presiding.

JAMES H. MURPHY, State's Attorney, and FERNS & SUMNER, for appellants.

EDWARD C. KNOTTS, for appellees.

Mr. JUSTICE VICKERS delivered the opinion of the court: This is an appeal by the People from a judgment of the circuit court of Macoupin county overruling a demurrer to a plea to an information in the nature of quo warranto and dismissing the information against the relators and for costs.

The information was presented, upon leave of court being had for that purpose, against Robert E. Carter, Herbert M. Hayward, Benjamin S. Burr, Richard E. Metcalf, Walter Robinson, Sidney G. Wilton and Marcellus Brown,

calling upon them to answer by what authority they claimed to hold and execute the offices and franchises of president and members of the township high school board of education of an alleged township high school district designated as Township High School District No. 181. The petition for leave to file the information was verified by affidavit, and set forth that certain voters residing in certain described territory had signed a petition and presented the same to Robert C. Moore, county superintendent of schools of said Macoupin county, asking that an election be called for the purpose of voting for or against the proposition to establish a township high school for the benefit of the inhabitants of the territory described in said petition. The territory described within the petition is composed of parts of four townships, and a part of the territory is in Macoupin county and another part in Jersey county. The proposition to organize a township high school was decided in the affirmative by a majority of the voters who participated in the election so called by the county superintendent of schools. Afterwards the county superintendent of schools called an election for the election of a president and members of a board of education for said township high school district, and at said election respondent Robert E. Carter was declared duly elected president and the other respondents were duly elected members of the board of education. The respondents appeared and filed a plea, in which a detailed history of the organization of the high school district and the election of the board of education was stated. The relators filed a general and special demurrer to the plea, which was overruled, and relators having elected to stand by their demurrer the information was dismissed.

The questions presented require a construction of the Township High School law of 1911. (Laws of 1911, p. 505.) The plea shows that but one petition was presented to the county superintendent of schools requesting him to call an election in the proposed territory, although the ter