no

to an operation upon her, and such unless she was the victim of a false consent is sufficient authority to sur- and fraudulent misrepresentation, geons to perform the operation. Pratt which is a material fact to be estabv. Davis (1906) 224 Ill. 300, 7 L.R.A. lished by proof. The court below was (N.S.) 609, 79 N. E. 562, 8 Ann. Cas. therefore right in rejecting the first 197.

and third prayers of the plaintiffs, The question was squarely present- which place the burden of proof in reed in State use of Janney v. House- gard to consent on the defendants. If keeper (1888) 70 Md. 162, 2 L.R.A. the plaintiff alleges that there was no 587, 14 Am. St. Rep. 340, 16 Atl. 382, consent, he must establish his affirmawhere the husband brought an action tion by proof. The party who allows for damages against certain physi- a surgical operation to be performed cians for performing an operation up- is presumed to have employed the suron his wife without his consent. He geon for that particular purpose." claimed in this regard that while he In M'Clallen v. Adams (Mass.) suconsented to an operation to remove pra, there was involved the question a tumor, he expressly dissented to the of the liability of the husband for operation if it was found that the services in performing an operation growth was a cancer; the wife, how- upon his wife without his knowledge ever, was found to have impliedly as- or consent. In holding the husband sented to the operation. Under these liable, where the wife consented, circumstances it was held that the Shaw, Ch. J., speaking for the court, husband had cause of action said: “The court are of opinion, upon against the surgeons on the ground of the facts appearing by the bill of exfailure to obtain his consent, even ceptions, that the defendant, by placthough the operation resulted in the ing his wife under the care of the death of his wife. The court said: plaintiff, whom he knew, at a distance “There is evidence from which a jury from his own residence, for medical might infer that the patient knew that and surgical treatment for a dangerthe formation in her breast was a ous disease, impliedly requested him cancer. When the doctors came to to do all such acts and adopt such the house she had already prepared course of treatment and operations as herself to undergo the operation. If in his judgment would be most likely she consented to the operation, the to effect her ultimate cure and recovdoctors were justified in performing ery, with the assent of the wife, and it, if after consultation they deemed therefore that the operation in quesit necessary for the preservation and tion was within the scope of the auprolongation of the patient's life. thority given him. They are also of Surely the law does not authorize the opinion that the assent of the wife to husband to say to his wife, you shall the operation was to be presumed from die of the cancer; you cannot be the circumstances. Although it might cured; and a surgical operation afford- have been an act of prudence in the ing only temporary relief will result plaintiff to give the defendant notice in useless expense. The husband had of the situation of the wife, and of his no power to to withhold from his wife intention to perform a dangerous the medical assistance which her case

operation, yet we think he might safemight require.

The consent

ly trust to the judgment of the wife of the wife, not that of the husband,

to give her husband notice from time was necessary. The professional men

to time of her situation and intentions, whom she had called in and consulted,

and that it was not necessary, in point being possessed of skill and scientific

of law, for the plaintiff to give such knowledge, were the proper persons to

notice, or have any new request, in ordetermine what ought to be done.

der to enable him to recover a reasonThey could not, of course, compel her able compensation for his services. to submit to an operation, but if she

The performance of this operavoluntarily submitted to its perform- tion being within the scope of the ance, her consent will be presumed, plaintiff's authority, if in his judgment necessary or expedient, and that it was does not fall within either of these two so is to be presumed from the fact, it classes." was not necessary for him to prove In view of the dearth of authority to the satisfaction of the jury that it upon this point, attention may profitwas necessary and proper, under the ably be called to the decision of the circumstances, or that before he per- appellate court in the above case formed it he gave notice to the defend- ([1905] 118 Ill. App. 167), which was ant, or that it would be dangerous to affirmed on appeal. That court, aftthe wife to wait before he performed er alluding by way of illustration to it till notice could be given to the de- the superior authority which is vestfendant."

ed in parents over chiudren or in In Pratt v. Davis (1906) 224 III. 300, guardians of the person over those 7 L.R.A.(N.S.) 609, 79 N. E. 562, 8 who are insane or imbecile, said: “In Ann. Cas. 197, supra, the woman oper- a much restricted form it may be said ated upon was mentally unsound and to exist in the marriage relation, which hence incapable of giving her consent makes the husband the head of the to an operation upon her to remove family. This last authority is not, both ovaries and the uterus. The case however, supreme in the matter of surturned upon whether or not the hus- gical operations upon the person, and band consented to the operation, it be- this is really the gist of the decisions ing apparently assumed that under the in M'Clallen v. Adams (1837) 19 Pick. circumstances his consent would be (Mass.) 333, 31 Am. Dec. 140, and sufficient authority for the act of the State use of Janney v. Housekeeper surgeon in performing the operation, (1889) 70 Md. 162, 2 L.R.A. 587, 14 although the case was brought in be- Am. St. Rep. 340, 16 Atl. 382, which half of the wife. It was, however, are urged on us in argument as showfound as a matter of fact that the hus- ing that the consent of the husband of band did not consent to the operation, the appellant was not necessary in the and the surgeon was held liable in case at bar. These decisions are not damages. The court said: "Where authority for the proposition that the patient desires or consents that an when a wife is herself incompetent operation be performed, and unexpect- from mental condition intelligently to ed conditions develop or are discov- give or withhold her consent, that the ered in the course of the operation, it

husband's consent is unnecessary, but is the duty of the surgeon, in dealing for the very different proposition that with these conditions, to act on his

where the wife, competent mentally own discretion, making the highest

to decide, assents to and desires a use of his skill and ability to meet the

dangerous operation, the surgeon is

justified in performing it (if it be in exigencies which confront him; and,

his judgment a proper one) without in the nature of things, he must fre

the further consent of the husband. quently do this without consultation

The courts in cases cited supra or conference with anyone, except,

have decided that a husband has no perhaps, other members of his pro

right in certain circumstances to forfession who are assisting him. Emer

bid an operation that a wife wishes to gencies arise; and when a surgeon is subject herself to. Much more strongcalled, it is sometimes found that some ly would they deny that 'the gentle reaction must be taken immediately for straint of his wife's person, said to the preservation of the life or health be the right of the husband, extends of the patient, where it is impractica- to compelling her to a capital or major ble to obtain the consent of the ailing operation without her consent.” or injured one, or of anyone author- While not strictly within the scope ized to speak for him. In such event, of this note, attention is called to a the surgeon may lawfully, and it is case which supports the doctrine of his duty to, perform such operation the cases already referred to. In this as good surgery demands, without such case, Bakker v. Welsh (1906) 144 consent. The case before us, however, Mich. 632, 7 L.R.A.(N.S.) 612, 108 N.

W. 94, 8 Ann. Cas. 195, 20 Am. Neg. was not the cause of the boy's death, Rep. 382, it is held that surgeons were hence not actionable. (3) That, if it not liable for performing an operation were, the action does not survive unuçjoni à minor without first obtaining der the death act. (4) That the acthe consent of his father to the opera- tion, if any, is in the father, not in the tion. In reaching this conclusion, the administrator. court said: “We then come to the “We do not think it necessary to a question, Are defendants liable in this disposition of the case to decide all action because they engaged in this of the defenses interposed by the deoperation without obtaining the con- fendant. The record shows a young sent of the father? Counsel for the fellow almost grown into manhood, plaintiff are very frank with the court, who has been for a considerable period and say in their brief: “We are unable of time, while living with his father, to aid the court by reference to any afflicted with a tumor. He has atdecisions in point. We have devoted tempted, while at home, to have it remuch time and research to this inter- moved by absorption. It does disesting question, but have been unable appear, but after a time it reappears. to find any decisions of a higher court He goes up to a large city, and with either supporting or opposing the an aunt and two sisters, all adults, plaintiff's contention, and we will submits to examination, receives some therefore have to be content by call- advice, and goes back to his father ing the court's attention to such gen- with an agreement to return later to eral reasoning as leads us to take the receive the report of the expert, who is view herein contended for.' They then to make the microscopic examination. argue at length and with a good deal He returns accordingly, and with at of force that, as the father is the least some of his adult relatives arnatural guardian of the child and is ranges to have a surgical operation entitled to his custody and his services, of a not very dangerous character perhe cannot be deprived of them with- formed. Preparations are made for out his consent. We quote: "We con- its performance. There is nothing in tend that it is wrong in every sense, the record to indicate that, if the conexcept in cases of emergency, for a sent of the father had been asked, it physician and surgeon to enter upon would not have been freely given. a dangerous operation, or, as in this There is nothing in the record to indicase, the administration of an anes- cate to the doctors, before entering thetic, conceded to be always accompa- upon the operation, that the father did nied with danger that death may not approve of his son's going with result, without the knowledge and con- his aunt and adult sisters, and consent of the parent or guardian. It is sulting a physician as to his ailment, against public policy and the sacred and following his advice. We think it rights we have in our children that would be altogether too harsh a rule surgeons should take them in charge to say that under the circumstances without our knowledge, and send to us disclosed by this record, in a suit una corpse as the first notice or intima- der the statute declared upon, the detion of their relation to the case.' On fendants should be held liable because the part of defendants, it is contend- they did not obtain the consent of the ed: (1) Consent of the father was father to the administration of the unnecessary. (2) The lack of consent anesthetic."

A. G. S.

(288 Ill. 448, 123 N. E. 543.)

PEOPLE OF THE STATE OF ILLINOIS

V.
HARRY JOHNSON, Piff. in Err.

Illinois Supreme Court - June 18, 1919.

(288 Ill. 442, 123 N. E. 543.) Criminal law possession of vehicle with manufacturer's numbers re

moved. 1. Making possession of a motor vehicle with the manufacturer's serial numbers removed a penal offense is a valid exercise of the police power.

[See note on this question beginning on page 1538.] - trial - submission of propositions

for the exercise of the police power to of law.

meet existing evils. 2. Propositions of law cannot be sub- [See 6 R. C. L. 240.] mitted to the court in criminal cases

Criminal law scienter which are tried by the court without a

necessity.

6. Scienter is not, under the Constijury.

tution, a necessary element of an ofConstitutional law - police power. fense which is malum prohibitum. 3. The police power is founded on the

[See 8 R. C. L. 60.] duty of the state to protect its citizens

-punishment of innocent person and provide for the safety and good

constitutionality. order of society, and exists without any

7. A law cannot be held invalid reservation in the Constitution. [See 6 R. C. L. 183.]

merely because some innocent person - restraining liberty.

may probably suffer. 4. The mere fact that a law restrains - due process and equal protection. the liberty of a citizen does not render 8. Prohibiting the changing of the it unconstitutional.

manufacturer's serial numbers on mo[See 6 R. C. L. 265.]

tor vehicles does not deprive the owner Courts authority over exercise of

of such vehicles of his liberty or proppolice power.

erty without due process of law or deny 5. It is for the legislature to deter- him the equal protection of the law. mine when the conditions exist calling [See 6 R. C. L. 473.]

ERROR to the Municipal Court of Chicago (Richardson, J.) to review a judgment convicting defendant of violating the Motor Vehicle Law. Affirmed.

The facts are stated in the opinion of the court.

Messrs. Fyffe, Ryner, & Dale for the exercise of police power to meet plaintiff in error.

existing evils, and when the legislature Messrs. Edward J. Brundage, Attor- has acted, the presumption is that the ney General, Edward C. Fitch, Assist- act is a valid exercise of such power. ant Attorney General, Maclay Hoyne, People v. Henning Co. 260 Ill. 562; and Edward E. Wilson, for the Peo- Hawthorne v. People, 109 Ill. 302; People:

ple v. McBride, 234 Ill. 146; People v. The police power of the state, upon Stokes, 281 Ill. 159; Powell v. Pennsylits exercise by the legislature in the vania, 127 U. S. 678. passage of laws for the protection of The legislature may forbid the doing life, liberty, and property, or laws for of an act and make its commission the general welfare, has no limitations criminal without regard to the intent of or restrictions except such as are found the doer, and where such intention on in the Constitution.

the part of the legislature is maniPowell v. Pennsylvania, 127 U. S. fest, the courts must give it effect, al678; Hawthorne v. People, 109 Ill. 302. though the intention of the doer may

It is for the legislature to determine have been innocent. when the conditions exist calling for McCutcheon v. People, 69 11. 601;

Farmer v. People, 77 Ill. 322; Byars writ of error to reverse the judgv. City of Mt. Vernon, 77 Ill. 467; Peo- nient and sentence of the court. ple v. Hatinger, 174 Mich. 333; People The facts are not in dispute. The v. Emmons, 178 Mich. 128; Mills v.

plaintiff in error was the general The State, 58 Fla. 74; Beiser v. The State, 9 Ala. App. 72; Lightle v. The

manager of the Commercial Car State, 5 Okla. Crim. Rep. 259.

Unit Company, whose place

of busiAnd where the legislature makes an

ness is located in Chicago. The comact criminal, it is the duty of the party pany was engaged in the business of to know the law, and he should make attaching truck units to pleasure car inquiry as to what the situation is be- units and making of them commerfore acting.

cial trucks. On January 5, 1918, the McCutcheon v. People, 69 Ill. 601; Ford Motor Company delivered the People v. Spoor, 235 Ill. 230, at p. 232; six new Ford cars to the premises People v. Nylin, 236 Ill. 19.

of the Commercial Car Unit ComWhere a statute does not make knowl

pany. The plaintiff in error thereedge an element of the offense, the statute is not thereby rendered unconsti

upon ordered one of his workmen to tutional. Under such a statute, lack

change the motor numbers on these of knowledge or good faith is no de- cars. There were seven figures in fense.

each of the numbers, which had Farmer v. People, 77 Ill. 322; People been stamped on the left-hand side v. Robey, 52 Mich. 577; State v. Brown, of each of these motors with a steel 144 Pac. 444; State v. Quinn, 131 La. die by the Ford Motor Company. 490; Com. V. Mixer, 207 Mass. 141;

Following directions of plaintiff in State v. Welsh, 145 Wis. 86.

error, the workmen changed the moOne dealing with a subject brought

tor numbers of these new Ford cars under police regulation assumes the hazards thereof, and must be held to

by hammering out the third and strict conformity with the require

fourth figures and stamping differments of the law governing it.

ent figures over the same spots. People v. Nylin, 236 Ill. 19; City of The first two and last three figures Chicago v. Truax, Greene & Co. 192 "in the number were not touched. No Ill. App. 524; Feeley v. United States, explanation is made for changing 236 Fed. 903, 905; Feeley v. Melrose, the numbers. 205 Mass. 329; Wells Fargo Express

The only question before us is the Co. v. State, 79 Ark. 349.

constitutionality of said $ 15b of the In enforcing police power measures,

Motor Vehicle Law, which provides: in the absence of the use of the term "knowingly" therein, it is not necessary

“Any person having in his or her that the party charged have actual possession any motor bicycle or moknowledge of the commission of the tor vehicle from which the manufacoffense, or that there be a wrongful in- turer's serial number, or any other tent, because the general rule that manufacturer's trade or distinguishcriminal intent is the essence of the ing number or identification mark, crime does not apply to an act which is

has been removed, defaced, covered, simply malum prohibitum.

or destroyed for the purpose of conPeople v. Werner, 174 N. Y. 132;

cealing or destroying the identity of State v. Burnham, 71 Wash. 199; State

such motor bicycle or motor vehicle v. Nichols, 61 Wash. 142; 1 Wharton's

shall be liable to a fine of not more Crim. Law, 11th ed. sec. 108 et seq. pp.

than two hundred dollars ($200) or 143-146.

imprisonment in the county jail for Thompson, J., delivered the opin- a period not to exceed six (6) ion of the court:

months, or both." The plaintiff in error, Harry John- It is urged that this section of the son, was convicted in the municipal statute violates § 2 of article 2 of the court of Chicago of a violation of Constitution of this state as well as $ 15b of the Motor Vehicle Law

§ 1 of the 14th Amendment of the (Hurd's Rev. Stat. 1917, p. 2576), Federal Constitution, in that it deand was sentenced to pay a fine of prives the defendant of his liberty $200 and costs. He prosecutes this and property without due process of