said: "These cases are sufficient to show that under the established construction given to the word 'willful' in this statute the questions of the existence or non-existence of good faith or the presence or absence of an intention to comply with the statute on the part of the operator are not involved. In the case at bar the jury have found against appellant on the question of fact as to its willful failure to maintain a sufficient light so that persons could discern the cage and surroundings, and this finding is supported by evidence, and the mere fact that the undisputed evidence shows that appellant maintained an inadequate light at the bottom does not, as a matter of law, show a compliance with the statute. The intent and purpose of this statute is to require the mine owner to provide a light at the bottom of the shaft of sufficient capacity to enable any person approaching the bottom to clearly discern the cage and the objects in the vicinity. The sump is in the vicinity of the cage, and the light ought to be sufficient to enable one coming to the bottom to see where the sump is. It cannot be said, either as a matter of fact or law, that a small oil torch located a few inches from the bottom of the shaft, giving out a flame one or two inches high, is such a light as the law contemplates shall be maintained."

In Olson v. Kelly Coal Co. supra, the defendant was charged with the willful violation of the Mines and Mining act, and the court, on page 506, said: "The evidence was conflicting as to the condition of the debris upon the gob side of the entry, where the accident occurred. The evidence of the appellee tended to show it was piled near the track to a height of from eighteen inches to three feet, which made it very dangerous to persons similarly situated to appellee at the time he was injured, while the evidence of the appellant tended to show the entry at the point of the injury was in a safe condition. The question of the condition of the entry at the point where the accident occurred was one of fact to be determined by the jury, and

not by the mine examiner. The mine examiner had no power to adjudicate the question of the safety of the entry at that point, (Davis v. Illinois Collierics Co. supra,) and if the appellant permitted the appellee to enter the mine to work therein, otherwise than under the direction of its mine manager, knowing of said dangerous condition, before said dangerous condition had been made safe, such conduct on its part constituted upon the part of the appellant a conscious violation of section 18 of the Mines and Mining act and rendered the appellant liable to the appellee for a willful violation of said act."

The plaintiff in error has urged as grounds of reversal certain remarks made to the jury by the attorney for the plaintiff on the argument of the case. While what was said by the attorney might well have been omitted, we do not think the remarks constitute grounds of reversal.

Finding no reversible error in this record the judgment of the Appellate Court will be affirmed.

Judgment affirmed.

COOKE, CARTWRIGHT and DUNN, JJ., dissenting:

We do not agree with the majority that every failure on the part of a mine examiner to discover a dangerous condition in a mine is a willful violation of the statute, nor do we think that the cases cited in the majority opinion support that doctrine. A willful violation of this statute must necessarily be a conscious or knowing violation. To hold that a mine examiner is bound to discover a dangerous condition in the mine, even though by the honest application of every known means it is impossible to detect it at the time of the examination, and that a failure to discover such condition under such circumstances is willful, is to read into the statute that which is not there, and is to require of a mine operator that which is impossible for him to perform. This statute is not meant to make the operator an insurer against every accident in his mine which results

from dangerous conditions, but only requires him to cause an examination to be made by an authorized examiner, to make the required records of the examination, and to mark such places as are found, upon proper examination and the honest use of approved methods, to be dangerous. It is only a failure to make such an examination that constitutes a willful violation of the statute in respect to guarding against dangerous conditions in mines.

FRANK LOEFFLER, Appellant, vs. THE CITY OF CHICAGO et al. Appellees.

Opinion filed June 29, 1910-Rehearing denied October 13, 1910.

I. INJUNCTION-when tax-payer may maintain bill for injunction. Even though the complainant in a bill for injunction may not be entitled to enjoin the collection of the special assessment on his property because the grounds alleged in the bill might have been urged as a defense to the confirmation of the assessment, yet if the proceedings are void and require the illegal expenditure of the public money of the municipality, of which he is a tax-payer, he may maintain a bill to enjoin the letting of the contract.

2. SPECIAL ASSESSMENTS-Section 97a of the Local Improvement act contemplates one improvement in two municipalities. Section 97a of the Local Improvement act (Hurd's Stat. 1909, p. 480,) was added to said act to permit one continuous improvement to be constructed jointly by two or more municipalities.

3. SAME what are not two separate and distinct improvements. A sewer extending from a point in a city to the city limits and from the city limits through the territory of an incorporated town to the outlet, and designed for use by both municipalities, is one continuous improvement and not a separate improvement as to each municipality.

4. SAME-term "local improvements" defined. The term "local improvements," as used in section 9 of article 9 of the constitution, means such improvements as are paid for by special assessment or special taxation, and which, by reason of the locality of the particular improvement, are of greater benefit to property in the vicinity of the improvement, by enhancing its value, than to the municipality at large.

5. SAME whether improvement is local is a question of fact. Whether an improvement is local is a question of fact and not of law; but the municipal authorities cannot arbitrarily determine. that an improvement shall be regarded as local which, in fact, is general, and that question is subject to review by the courts.

6. SAME-local improvement must be wholly within one municipality. An improvement must be wholly within the limits and under the control of one municipality in order to be a "local improvement," as that term is used in the constitution. (Hundley v. Lincoln Park Comrs. 67 Ill. 559, followed.)

7. CONSTITUTIONAL LAW-Section 97a of Local Improvement act is unconstitutional. Section 974 of the Local Improvement act, (Hurd's Stat. 1909, p. 480,) authorizing a single improvement to be constructed jointly by two or more municipalities, is void.

HAND, J., dissenting.

APPEAL from the Circuit Court of Cook county; the Hon. ADELOR J. PETIT, Judge, presiding.

TOLMAN, REDFIELD & SEXTON, for appellant:

An injunction will be granted to restrain the letting and performance of an illegal contract with a municipal corporation, and the expenditure of public funds thereunder, at the instance of a citizen who will be assessed or taxed therefor. Lindblad v. Board of Education, 221 Ill. 261; Burke v. Snively, 208 id. 328; Holden v. Alton, 179 id. 318; Adams v. Brenan, 177 id. 194; Stevens v. Training School, 144 id. 336; Wright v. Bishop, 88 id. 302.

This rule is applicable to a local improvement payable by special assessment, notwithstanding the confirmation of said assessment, where the ordinance providing for said improvement is null and void and the court which confirmed said assessment had no jurisdiction to enter said order of confirmation. Steenberg v. People, 164 Ill. 478; Sumner v. Milford, 214 id. 388; Boals v. Bachmann, 201 id. 340; People v. Phinney, 231 id. 180.

The ordinance is void and the judgment of confirmation of the assessment entered by the county court was void, and said court had no jurisdiction to enter the same.

Leather Co. v. Chicago, 203 Ill. 451; Culver v. People, 202 id. 34; Cass v. People, 166 id. 126; People v. Hurford, 167 id. 226.

The act of the General Assembly amending the act concerning local improvements by adding a new section, known as section 974, and the ordinances of the town of Cicero and city of Chicago herein involved, are unconstitutional and void. Said act is within the constitutional prohibition against the passage of special laws changing or amending the charter of any city, town or village. Const. art. 4, sec. 22; Hurd's Stat. 1908, secs. 7, 8, p. 423; Hayward v. Sencenbaugh, 235 Ill. 580; L'Hote v. Milford, 212 id. 418.

An improvement situated within two or more municipalities and to be paid for by assessments levied upon property in both municipalities, is not, within the meaning of the constitution, a “local improvement," which cities, towns or villages may be authorized by the legislature to make by special assessment. Const. art. 9, sec. 9; Hundley v. Park Comrs. 67 Ill. 558; Chicago v. Law, 144 id. 569.

The construction of a sewer situated partly in the town. of Cicero and partly in the city of Chicago, and designed to be used by both municipalities, is not a corporate purpose of either municipality for which either can constitutionally assess and collect taxes. Hundley v. Park Comrs. 67 Ill. 558.

GEORGE A. MASON, and WILLIAM T. HAPEMAN, (EDWARD J. BRUNDAGE, Corporation Counsel, of counsel,) for appellees:

The ordinance of the town of Cicero, whether void or voidable, did not affect the jurisdiction of the county court. Such jurisdiction was obtained by the filing of the petition and the giving of the notices required by law. Leitch v. People, 183 Ill. 569; Pipher v. People, 183 id. 436; Conlin v. People, 190 id. 400; People v. Harper, 244 id. 121;