corporate real estate brokerage business there must all the more be one against a corporate real estate agency business.

But even admitting the plaintiff's whole argument, it is difficult to understand why the court treated it so seriously. For the plaintiff was organized to do a general brokerage business under a prior statute which expressly prohibited a real estate agency or brokerage corporation. Real estate brokerage was not included as an object in the plaintiff's articles of incorporation for the simple reason that it was illegal to do so. If that part of Section 2 of the Act of June 28, 1919, prohibiting real estate brokerage business had been entirely omitted, how could Section 3, which provides for real estate agency corporations, have enlarged the plaintiff's articles of incorporation, particularly in view of the closing sentence of that section which provides that "no corporation organized for one of the purposes specified in this section shall have any other object or purpose"? As well might it be argued that a bond and stock brokerage corporation could embark in the real estate brokerage business because real estate brokerage is no longer under the legislative ban.

Whatever may have been the reason for retaining Section 2 in the Act of 1919, it is perfectly obvious that no corporation theretofore organized could exercise the powers permitted by Section 3 unless it was specifically incorporated after the Act of 1919 as a real estate agency corporation, in which case engaging in any other business would under the explicit proviso of that section be unlawful.

Some day perhaps the legislature will become aware of the absurdity of the restriction against real estate brokerage corporations while authorizing real estate agency corporations. Then doubtless the restriction contained in Section 2 will be repealed.

C. G. L.

SPECIAL ASSESSMENTS-JURISDICTION OF COURT.-The case of Village of Elmwood Park v. Mills & Son 311 Ill. 136, 142 N. E. 532, it would seem, is authority for the proposition that in a proceeding to confirm a special assessment the court is never without jurisdiction if a petition is filed and the statutory notice is given. The petition, however, must be such as the law provides, and the notice such as is required by the statute, and, being a statutory proceeding, it would seem one may say that the petition must strictly conform to the statute.

The effect of such proposition is that the order of confirmation of a special assessment is conclusive, unless reviewed on appeal, wherever the petition was filed and the statutory notice given, with the result that nothing in the various steps leading up to the order of confirmation can be raised once the assessment has been confirmed and the proceedings have reached the stage where it is sought to collect the assessment, say, on application for judgment for delinquent special assessments. The authorities, it is seen, have so held as a general rule (People v. Glick 282 Ill. 203, People v. Owen 290 Ill. 63, People v. Freeman 301 Ill. 565, Springer v. City of Chicago

308 Ill. 361). In the case of People v. Freeman 301 Ill. 565, just referred to, the court says that the only objections that can be made on application for judgment for delinquent special assessments are such as go to the jurisdiction of the court which appear of record. The case suggests that such would exist where the ordinance exceeded the power of the city council, or where conditions necessary for its proper enactment were not observed.

Following out that theory, the case of Perry v. People 206 Ill. 334 holds that an ordinance which does not attempt at all to comply with the statutory requirement that the ordinance contain a description of the improvement is a nullity, and such defect can be reached collaterally, e. g., on application for judgment for delinquent special assessments. That case goes on to explain that if there is enough of a description of the improvement to challenge the attention of the court (evidently meaning thereby, if the court might think proof might have supplied deficiencies in the description) the ordinance is not void on its face and the court has jurisdiction.

The point arose in the principal case upon the contention of objectors there that they were entitled to raise objections relative to sufficiency of the description of improvement, etc., notwithstanding such defects were not specifically raised by objections, because, so it was contended, these defects would invalidate the proceedings and render the court without jurisdiction. The court rejected this contention, however, upon the theory that objections were necessary to authorize the admission of evidence, and in the absence of objections to cover, the court must take the face of the record with the presumption that the evidence would assist the record in all respects to render it valid. This attitude of the court would seem well borne out by the authorities.

E. M. L.

TORTS-CONTRIBUTORY NEGLIGENCE OF BENEFICIARY UNDER DEATH ACT.-In Hazel v. Hoopeston-Danville Motor Bus Co. 310 Ill. 38, 141 N. E. 392 (Dec. 6, 1923), H. and his wife were riding in an automobile which collided with the defendant's motor-bus, and the wife was killed. The surviving beneficiaries under the Death Act were the husband and 5 adult children; the husband was appointed administrator (upon incautious legal advice, it would seem); the husband was contributorily negligent. The Supreme Court holds that "the contributory negligence of one beneficiary who may be entitled to a share in the amount recovered is a defence to the action."

This problem has received variant solutions in the different States. A full analysis and discussion of them will be found in an article in this REVIEW (not cited in the opinion) entitled "Contributory Negligence of a Beneficiary," etc. (ILL. L. REV. II 487). The only equitable solution is that typified in Ohio (Wolf v. Lake Erie & Western R. Co. 55 Oh. St. 517, 45 N. E. 708) by which the recovery is allowed, but its distribution is limited to the non-negligent beneficiaries.

The law has no doubt already been declared in this State by a series of opinions which commit the Court irrevocably. But if the action for death by wrongful act is to be regarded as in itself a just measure of redress for the loss of support to innocent members of the family, then this rule defeats the statute's purpose, and is a fit subject for legislative reconsideration. At such a time, there are inherent anomalies also to be corrected.

J. H. W.

INCOME TAX-LESSEE'S COVENANT TO PAY TAXES DOES NOT INCLUDE LESSOR'S INCOME TAX.-In Young v. Illinois Athletic Club 310 Ill. 75, 141 N. E. 369, the Illinois Supreme Court had occasion to consider whether certain covenants in a lease of property in Chicago obligated the lessee to pay any part of the income tax of the lessor, whose taxable income included rentals from the property in question. The lessee had covenanted to pay all taxes (a) on the real estate, (b) upon any interest of the lessor under the lease, and (c) which the lessor should be required to pay by reason of his interest in the real estate in question. It was argued that the lessor's income tax was upon his interest under the lease, within clause (b) thereof, and was a tax that he was required to pay within clause (c) thereof. On the other hand, common sense indicated that payment of any part of the lessor's income tax could not have been intended.

The court decided that the covenants in this lease did not cover payment of the lessor's income tax on the authority of Northern Trust Co. v. Buck & Rayner 263 Ill. 222 (commented on in ILL. L. REV. IX 277), in which almost identical language in a lease had been held not to cover payment of inheritance taxes due upon the death of the lessor, and also cited several cases from other states. The ground of the decision is that the income tax was not upon the land or the lessor's interest under the lease, but upon his income, as income to the lessor, and separate from its several sources. This position is fully sustained by the authorities cited, but more interesting are the common sense illustrations given in the opinion, which lead to the same conclusion. The court calls attention to the fact that if the lessee were compelled to pay this tax, the amount of payment would depend upon whether or not the lessor suffered a net loss upon his other income or not, and upon the amount of his other income.

"Whether the lessor is to pay an income tax at all depends not alone upon his interest in the property, but is affected by his income or rentals from any source; and likewise his loss arising from totally different sources, as the income tax must be assessed against the income after deducting losses without regard to the sources of such loss. This is repugnant to the idea of a tax against the property itself. Such tax is not a tax against the real estate, and under the holding in the Buck & Rayner case, supra, cannot, in the absence of terms which expressly or by clear implication include it, be made a part of a covenant in a lease. We are of the opinion that it was not the intention of the parties

to this lease that the income tax levied on the rentals should be paid by the lessee."

C. B.

EASEMENTS OF WAY-EXTENT OF RIGHT.-The cases say that the servient owner is not deprived of his use of the land over which an easement of way runs merely because the dominant owner has the right of way, but that he may enjoy the way as well (ILL. L. REV. XIV 659); nay, more, that he may use the fee in any way he pleases so long as he does not interfere with the use of the way that the dominant owner makes of it within the legitimate scope of his easement (ILL. L. REV. XVIII 205). Within that rule, a servient owner could put a gate at either end of a way, in cases where the way was one for pedestrians, as that would not be an unreasonable interference with the easement (Bakerman v. Talbot 31 N. Y. 366; Green v. Goff 153 Ill. 534; Turpin v. Dennis 139 Ill. 274), but a solid fence across would be an unwarranted interference (Esperscheid v. Bauer 235 Ill. 172).

The cases indicate, also, that where the easement is one by prescription because the nature of the right which the dominant owner has is determined by the use he made of the way during the prescriptive period, there is no right of obstruction in the servient owner at all, as that would at once affect the nature of the user (ILL. L. REV. XIV 659).

The recent case of Doan v. Allgood 310 Ill. 381 presents the converse of the problem, in the query: How far may the dominant owner bar the servient owner from the way? In that case the dominant owner used the way to drive his stock from one portion of the dominant owner's lands to another. To render it more convenient for him, he undertook to fence the way in to safeguard the crops on the surrounding land of the servient owner from ravages by his cattle. Recognizing the right of the servient owner to use the fee and the way itself so far as he could without interfering with the dominant owner's use of the way, the court denied the dominant owner the right to fence the way in. The fact that it would render the use of the way more convenient to the dominant owner could not override the right of the servient owner.

The obligation to repair rested upon the dominant owner, it was true (Sell v. Fink 295 Ill. 480; ILL. L. REV. XVI 129), but that did not give him the right to impose upon it an additional servitude, viz., the fence (Carpenter v. Electric Co. 178 Ill. 29), or to exclude the servient owner altogether. Thus in such a situation the dominant owner had the further onus of seeing that his cattle did not stray off the right of way or injure the crops along it, and his obligation thereto must be observed without imposing any further servitude on the servient estate and with all respect to the right of the servient owner in the fee.

The same consideration for the servient owner's right in the fee enables that owner to arch over a private way (Wurlitzer v. State Bank 290 I11. 78).

E. M. L.

MUNICIPAL CORPORATIONS-Validity of ORDINANCES-POLICE POWER. In the case of County of Cook v. City of Chicago 311 Ill. 234, 142 N. E. 512, the opinion contains a discussion of the police power lodged in municipalities in this state. While the writer of this comment has no quarrel with the decision reached by the Supreme Court, he is inclined to think that the language of the opinion is somewhat misleading.

The questions before the Supreme Court were, in the language of the opinion (p. 236):

"First, is the unreasonableness of the city ordinances sufficiently pleaded? and, second, may the city, under its police power, regulate the construction of a county jail so far as fire hazards are concerned?" The county of Cook had filed a bill seeking to enjoin the city of Chicago from enforcing against the county its fire and building ordinances concerning the construction of a county jail located within the territorial limits of the city. The city demurred to the bill, and its demurrer was overruled. The Supreme Court reversed the decree overruling the demurrer and remanded the cause with directions to sustain the demurrer.

Ordinarily the determination of the validity of an ordinance suggests two inquiries: first, has the municipality the power to pass the ordinance? and, second, if it has the power, is it a reasonable exercise of that power? The first inquiry is almost entirely a matter of statute. In Illinois the answer depends on whether authority to enact the particular ordinance can be found among the hundred powers enumerated in Section 1 of Article V of the Cities and Villages Act. The second inquiry becomes necessary only if this statutory power is found. Under the second inquiry may be grouped a variety of questions not peculiar to ordinances but common to all legislation, statutes as well as municipal enactments. Such questions are: Is the ordinance reasonable, or is it in violation of any provision in the state or federal Constitution?

In the particular case under discussion the Supreme Court held first that the alleged unreasonablness of the city ordinances was not sufficiently pleaded because the only allegations of unreasonableness "were mere conclusions of the pleader" (p. 236). The Supreme Court then says (p. 237): "The bill was therefore demurrable on that ground." This, of course, was not strictly accurate; the bill was not demurrable if it made out a case of lack of power in the city to enact the ordinance. The opinion, however, proceeds apparently on the assumption that it must dispose of this question also.

The opinion goes on (p. 237) "to review some of the underlying principles governing the police power granted to cities and counties under the law," and it is with respect to this review that the opinion is most open to criticism. It takes no account of the doctrine carefully formulated in a long line of decisions in this state as to the source and extent of police power delegated by the General Assembly to cities and villages.