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(288 I. 442, 123 N. E. 543.)

law and denies to him the equal protection of the laws. It is contended that the statute is an arbitrary and unreasonable exercise of the police power of the state.

At the close of all the evidence plaintiff in error submitted eight propositions of law, which he asked the court to hold to be the law as applicable to the case. The court The court marked each of the propositions, "Refused." It will be unnecessary to discuss this action of the court, for the reason that we have held that the submission of propositions of law to the court is inapplicable to a sion of proposi- criminal case, where the same is tried by the court without a jury. People v. Taylor, 279 Ill. 481, 117 N. E. 62; Jacobs v. People, 218 Ill. 500, 75 N. E. 1034; Chicago, W. & V. Coal Co. v. People, 214 Ill. 421, 73 N. E. 770.

Criminal lawtrial-submis

tions of law.

Motions for a new trial and in arrest of judgment were made and overruled.

The police power of a state is an attribute of sovereignty, and exists

Constitutional law-police power.

-restraining liberty.

without any reservation in the Constitution, being founded on the duty of the state to protect its citizens and provide for the safety and good order of society. The mere fact that a law restrains the liberty of citizens of a state does not render it unconstitutional. In Hawthorn v. People, 109 Ill. 302, 50 Am. Rep. 610, we discussed at length the powers of the legislature, and an elaborate repetition of that discussion would serve no good purpose here. We have held in a long line of decisions, where the authorities have been collected and discussed, that it is for the legislature to determine when the conditions exist calling for the exercise of police power to meet existing evils, and when the legislature has acted the presumption is that the act is a valid exercise of such power. People v. Stokes, 281 Ill. 159, 118 N. E. 87;

Courtsauthority over exercise of

police power.

4 A.L.R-97.

People v. William Henning Co. 260 Ill. 554, 49 L.R.A. (N.S.) 1206, 103 N. E. 530; People v. Elerding, 254 Ill. 579, 40 L.R.A. (N.S.) 893, 98 N. E. 982.

Criminal law



It is contended by plaintiff in error that one might be guilty under this act by having a car in his possession from which the numbers had been removed without his knowledge. The Constitution does not require that scienterscienter be a necessary element of any law where an offense is malum prohibitum. may violate the law without any intent on his part to do so. People v. Nylin, 236 Ill. 19, 86 N. E. 156; People v. Spoor, 235 Ill. 230, 126 Am. St. Rep. 197, 85 N. E. 207, 14 Ann. Cas. 638. Various statutes of this state, punishing the doing of acts without requiring allegation or proof of criminal intent upon the part of the doer, have been upheld on the ground that they were a valid exercise of the police power. Maguire v. People, 219 Ill. 16, 76 N. E. 67; American Car & Foundry Co. v. Armentraut, 214 Ill. 509, 73 N. E. 766; Farmer v. People, 77 Ill. 322; Mapes v. People, 69 Ill. 523; Eells v. People, 5 Ill. 498. In other jurisdictions laws enacted by the legislatures punishing the doing of acts without intent or guilty knowledge on the part of the doer have been held to be valid enactments. People v. Hatinger, 174 Mich. 333, 140 N. W. 648; Com. v. Mixer, 207 Mass. 141, 31 L.R.A. (N.S.) 467, 93 N. E. 249, 20 Ann. Cas. 1152.

Laws cannot be held invalid merely because some innocent person may possibly suffer. The -punishment principle of police of innocent regulation is "the person-congreatest good to the


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will show that there is no merit in this contention. Burdick v. People. 149 Ill. 600, 24 L.R.A. 152, 41 Am. St. Rep. 329, 36 N. E. 948, 952; Munn v. People, 69 Ill. 80. We are unable to see how plaintiff in error was deprived of any "liberty or property without due process of law." The act does not deprive him of the use of the cars. He is merely prohibited from changing the numthe means of identification. What bers for the purpose of destroying

loss this will cause him is not revealed. The value of the act for the the citizens in general is too patent protection of the property rights of

to need discussion.

We think that the act is a valid exercise of legislative power, and therefore affirm the judgment of the municipal court.

Judgment affirmed.


Constitutionality of statute making possession of automobile from which identifying marks have been removed a crime.

It will be seen that in the reported case (PEOPLE v. JOHNSON, ante, 1535) it is held that a statute punishing any person having possession of any motor vehicle from which the manufacturer's number or identificaton mark has been removed, defaced, covered, or destroyed, for the purpose of concealing or destroying the identity of the vehicle, is a valid exercise of the police power, and that it does not deprive such possessor of his liberty or property without due process of law, nor deny him the equal protection of the laws. The court brushed aside as immaterial the suggestion that a person might be guilty under this act by having a car in his possession from which. the numbers had been removed without his knowledge; that is, one is guilty who commits the prohibited act although he does not know he is committing it. The views of the court in this particular are more fully set forth in People v. Fernow (1919) 286 Ill. 627, 122 N. E. 155, arising under the same statute, which was there sus

tained as a valid exercise of the police power, as not an illegal deprivation of liberty or property, or a denial of equal protection of the laws, or illegal class legislation, and as not having more than one object clearly indicated in its title. The court there said: "In the exercise of the police power for the protection of the public, the performance of a specific act may constitute the crime regardless of either knowledge or intent, both of which are immaterial on the question of guilt. For the effective protection of the public the burden is placed upon the individual of ascertaining at his peril whether his act is prohibited by criminal statute. The law in that regard has most frequently arisen in police regulations of the liquor traffic, but it has been applied in precisely the same way in other cases coming within the same rule and reason, such as a sale of imitation butter, a sale of milk below a prescribed quality, the obstruc tion of a public highway by a railroad corporation for longer than a specified

time, the admission of a minor to a pool room, driving an unregistered automobile, killing for sale an animal under a designated age, carriage by an express company for transportation beyond the state line of fish or game, and in prosecutions for bigamy. McCutcheon v. People (1873) 69 Ill. 601; Farmer v. People (1875) 77 III. 322; People v. Nylin (1908) 236 Ill. 19, 86 N. E. 156; People v. Spoor (1908) 235 Ill. 230, 126 Am. St. Rep. 197, 85 N. E. 207, 14 Ann. Cas. 638; Barnes v. State (1849) 19 Conn. 398; State v. Smith (1872) 10 R. I. 258; Com. v. Zelt (1891) 138 Pa. 615, 11 L.R.A. 602, 21 Atl. 7; Humpeler v. People (1879) 92 Ill. 400; State v. Hartfiel (1869) 24 Wis. 60; Com. v. New York C. & H. R. R. Co. (1909) 202 Mass. 394, 23 L.R.A. (N.S.) 350, 132 Am. St. Rep. 507, 88 N. E. 764, 16 Ann. Cas. 587; Com. v. Mixer (1910) 207 Mass. 141, 31 L.R.A. (N.S.) 467, 93 N. E. 249, 20 Ann. Cas. 1152; Wells F. & Co. Express v. State (1906) 79 Ark. 349, 96 S. W. 189, 8 R. C. L. 62. The section does not infringe upon the Bill of Rights or the 14th Amendment to the Constitution of the United States."

The cases cited in these two Illinois opinions on the subject of scienter are all cases where the defendant was accused of an affirmative act in disobedience of a statute. Thus, McCutcheon v. People (1873) 69 Ill. 601, 1 Am. Crim. Rep. 471; Farmer v. People (1875) 77 Ill. 322; State v. Hartfiel (1869) 24 Wis. 60 (one selling intoxicating liquor to a minor is guilty although he did not know the buyer was a minor); Mapes v. People (1873) 69 Ill. 523 (one selling intoxicating liquor to person in the habit of getting intoxicated is guilty though he did not know that the buyer had this habit); Com. v. Zelt (1891) 138 Pa. 615, 11 L.R.A. 602, 21 Atl. 7 (one furnishing liquors to a person of known intemperate habits is guilty although not knowing the habits); Barnes v. State (1849) 19 Conn. 398 (so one selling liquor to a common drunkard though not knowing him to be such); People v. Nylin (1908) 236 Ill. 19, 86 N. E. 156 (one selling intoxicating liquors in less quantities than 5 gallons is

guilty though he believed the manufacturer's packages he sold contained 5 gallons); People v. Hatinger (1913) 174 Mich. 333, 140 N. W. 648 (one selling intoxicating liquor is guilty although he supposed it contained no alcohol); Eells v. People (1843) 5 Ill. 498 (an indictment for harboring and secreting a slave, the property of another, need not allege that the defendant knew that the person harbored was a slave, the property of another); Maguire v. People (1905) 219 Ill. 16, 76 N. E. 67 (one permitting a female under eighteen years of age to room in the defendant's house of prostitution is guilty, though without knowledge of the female's age); American Car & Foundry Co. v. Armentraut (1905) 214 Ill. 509, 73 N. E. 766 (one employing a child under fourteen years of age in his factory, against the law, cannot resist an action for negligence because the child assured him he was sixteen years old); People v. Spoor (1908) 235 III. 230, 126 Am. St. Rep. 197, 85 N. E. 207, 14 Ann. Cas. 638 (one marrying a second time is guilty of bigamy although he believed his first wife had obtained a divorce); Com. v. Mixer (1910) 207 Mass. 141, 31 L.R.A. (N.S.) 467, 93 N. E. 249, 20 Ann. Cas. 1152 (the driver of a common carrier who transports unmarked intoxicating liquor into dry terrritory is guilty though he did not know that the barrel he carried contained intoxicating liquor); Wells Fargo & Co. Express v. State (1906) 79 Ark. 349, 96 S. W. 189 (a carrier is guilty of transporting game although it did not know the packages contained game); Com. v. New York C. & H. R. R. Co. (1909) 202 Mass. 394, 23 L.R.A. (N.S.) 350, 132 Am. St. Rep. 507, 88 N. E. 764, 16 Ann. Cas. 587 (a railroad company is guilty of blocking a crossing more than five consecutive minutes, though third persons unlawfully opened the air cocks on the cars so that they could not be moved in time); State v. Smith (1817) 10 R. I. 258 (one having in possession with intent to sell and exchange, and offering for sale and exchange, adulterated milk, is guilty though he did not know of the adulteration).

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As heretofore stated it will be seen that these cases are all cases of affirmative acts. While it is not intended to cite cases on the general subject of intent, it may be said that there are in Massachusetts three cases which are probably to be classed as cases of affirmative acts, which seem to go further than the cases cited in the two Illinois opinions supra. In Com. v. Smith (1896) 166 Mass. 370, 44 N. E. 503, and in Com. v. Yee Moy (1896) 166 Mass. 376, note, 44 N. E. 1120, the court sustained convictions of the offense of being found present in a place which had been complained of as a common gaming house, if any materials of any form of gaming are found therein, holding that it was immaterial whether the defendants knew of the presence of the implements or the character of the place; similarly, in Com. v. Kane (1899) 173 Mass. 477, 53 N. E. 919, a conviction was upheld for being present where implements for smoking opium were found, although it was not alleged that the defendants were knowingly, wilfully, and wantonly there.


The elimination of criminal intent, while reasonable enough in cases, is full of danger to the accused, even in cases where the statute punishes affirmative acts, and ought to be strictly limited by the courts in a day when the doctrine of the presumption of innocence has become unpopular. What would be thought of a statute making the utterance of forged paper a forgery whether the utterer knew of the forgery or not?

But a statute under which an innocent person, who does nothing, may be turned into a criminal by the act

of another, for which he is not responsible, is startling to old-fashioned ideas. Under the Illinois statute in question, what is the innocent owner of an automobile to do who finds in the morning that the manufacturer's number of his car has been mutilated in the night? Is he to give himself up to the police as a criminal? Is he at once to destroy his car? Is there any way in which he can escape? It seems that he may even be apprehended before he knows of the mutilation. In Park v. State (1919) - Nev. 3 A.L.R. 75, 178 Pac. 389, it was held that a statute making possession of the hides of cattle from which the cars have been removed or the brand defaced, a felony, deprives the owner of his property without due process of law.

It may be noted that in Daugherty v. Thomas (1913) 174 Mich. 371, 45 L.R.A. (N.S.) 699, 140 N. W. 615, Ann. Cas. 1915A, 1163, it was held that, under the due process and equal protection clauses of the Constitutions, a statute could not be sustained which made the owner of an automobile liable for injury to strangers through the use of persons who took it without his knowledge or permission, though their acts did not constitute larceny; and that a later statute, providing that the owner should not be liable unless the car was being driven by his express or implied consent or knowledge, was upheld in Stapleton v. Independent Brewing Co. (1917) 198 Mich. 170, L.R.A.1918A, 916, 164 N. W. 520.

For constitutionality of statute for prevention of larceny of live stock, see the annotation to Park v. State, 3 B. B. B. A.L.R. 81.



JESSE D. KASH, Guardian of Octavia Smith, et al.

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Constitutional law lease extending beyond minority of ward.

1. Permitting a guardian to grant leases for mining coal from his ward's land, to extend beyond the minority of his ward, violates the con

(180 Ky. 815, 203 S. W. 731.)

stitutional rights of the latter to acquire and protect property and pursue happiness.

[See note on this question beginning on page 1552.]

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APPEAL by the coal company from a judgment of the Circuit Court for Pike County in favor of petitioner, and overruling formal exceptions to the report of sale, in a proceeding to lease property for coal mining purposes. Modified.

The facts are stated in the opinion of the court. Messrs. Auxier, Harman, & Francis for appellant.

Messrs. P. B. Stratton, Jesse D. Kash, J. R. Johnson, Jr., E. C. O'Rear, J. T. Metcalf, B. R. Jouett, and Pendleton & Bush for appellees.

Messrs. John G. Winn and Robert H. Winn for Oil Men's Association et al. Carroll, J., delivered the opinion of the court:

This case presents the important question whether a circuit court, pursuant to legislative authority so to do, has the power to lease the mineral land of infants for a term of years beyond their minority, and brings before us the validity of the legislative act attempting to confer upon the circuit court the power exercised in this case.

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The question comes up in this way: În 1916, the legislature enacted a statute (Laws 1916, chap. 99) providing in § 1: "That the guardian of an infant curator or the committee of a person of unsound mind may lease the real estate, or any interest therein, of such infant or person of unsound mind for the purpose of mining and removing all or part of the coal, oil, gas and any or all other mineral or mineral substances and products therein; together with the usual and reasonable necessary privileges to mine, bore for, store, pump and remove the same, and similar prod

ucts taken from other land, and the right to dump upon said land refuse or other products taken therefrom and from other land; and to erect upon said land miners' houses, commissaries and hotels and other houses and equipment reasonto carry on the business in the most ably necessary to enable the lessee for such length of time as the economical way. Such lease may be guardian, curator or committee may approve, without being limited to the time at which the disability of such infant or person of unsound mind may be removed."

In 2 it was provided that no such lease shall be made until the guardian, curator, or committee shall have filed, in the office of the infants or person of unsound mind, circuit clerk, a petition against the setting forth a description of the land, and showing the propriety of making a lease thereto. In § 3 it was provided that a guardian ad litem should be appointed to protect the interest of the infants or the person of unsound mind, and in § 4 that the court should hear and dispose of the case upon the evidence taken, and if it was made to appear by the evidence of at least two creditable witnesses that the interest of the infants or person of unsound mind would be promoted by the lease, the court should order

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