amended, makes all appropriations out of the state treasury a separate and distinct subject of legislation, and that a bill cannot now be an appropriation bill in part and in part be in relation to other matters; that this conclusion naturally follows from the fact that the Governor was given the power to veto any item or section of an appropriation bill, while other bills are required to be approved or disapproved in whole. The three appropriation acts-two for $400,000 each and one for $300,000-were approved on June 26, 27, and 28, 1913, respectively (Laws of 1913, pp. 41, 42), and were no part of the act entitled "An act to revise the law in relation to roads and bridges," approved June 27, 1913. They were appropriations to carry out the provisions of the last-named act, but were separate acts, and were separately approved on three different days. Sections 15a and 15b of the act do not attempt to appropriate money out of the state treasury. The three appropriation acts before referred to provide the means for carrying out the purposes and intent of the act by appropriating in all $1,100,000. Sections 15a and 15b do not add one penny to that fund, but merely provide a plan for the apportionment of said fund among the different counties of the state.

future, exist in other localities. If the con- | roads, violate section 16 of article 5 of the ditions existing in any county at the time Constitution, as amended in 1884. Appelof the passage of an act furnish a reason- lant contends that the Constitution, as able basis for making it apply only to that county, and the classification is reasonably appropriate for the purpose of the legislation, it is not essential to the validity of such classification that the conditions upon which it is based are such that they may obtain in every county in the state. It may be similar conditions may never exist in any other county and the law be valid. The proviso to section 15a is applicable to any county which pays more than 40 per cent. of the taxes; but it is known, and is conceded, that there is but one county in the state to which the proviso applies. Cook county pays 45 per cent. of the tax. We are justified in assuming the tax paid by that county is a fair indication of its proportion of the wealth of the state. It is also a matter of common knowledge that Cook county contains more than one-third the population of the entire state. We cannot say these conditions did not furnish a reasonable basis for the proviso to section 15a. It would seem almost like begging the question to say that, if any other county ever reached a state of population and wealth where it would pay more than 40 per cent. of the taxes, the proviso would apply to it also, for, if we are permitted to make use of common knowledge, we know it is beyond the range of probabilities, or even possibilities, that any other county should ever pay 40 per cent, of the taxes. If it should, then such county and Cook county would be paying substantially all the taxes, which could not occur unless the rest of the state should become depopulated and impoverished, which is not a possible condition.

Numerous acts have been sustained which, on account of existing conditions at the time of their passage, applied only to certain subjects or certain localities in the state, without regard to whether, in the course of time, the same conditions would exist in other localities to which the act would then also apply. Certainly an act which applies to one class, but excludes another class similarly situated, is invalid. It has been held

that:

"Where a statute does not relate to persons or things as a class, but to particular persons or things of a class, it is a special as distinguished from a general law." Bessette v. People, 193 Ill. 334, 62 N. E. 215, 56 L. R. A. 558. But the section of the statute here involved does not exclude any county which comes within the classification. That it applies to only one county is because the conditions prescribed exist in only one county. The permanency of the conditions upon which the statute is based does not affect its validity.

[6] It is contended by appellant that sections 15a and 15b, and the three appropriation acts appropriating money for state aid

[7] It is further contended that the three appropriation acts appropriate money "for the purpose of building and maintaining state aid roads in the several counties of the state," and violate section 16 of article 5 of the Constitution in not specifying the amount for building roads in one item and the amount for maintaining them in another item. The constitutional provision here invoked is one of importance and must be complied with in all appropriations to which it is applicable. Building roads and maintaining them when built are different undertakings, but both are necessary to carry out the general scheme or purpose of the act. which is to provide for better highways throughout the state. The purpose of the constitutional provision here invoked is to enable the Governor, when passing on appropriation bills, to consider and act on the items of the appropriations separately. In order to carry out the general scheme of the act, however, the building and maintenance of roads are so closely connected that it is difficult to say where one ends and the other begins. The act itself clearly contemplates but one fund to carry out its provisions, as is evidenced by section 1, which provides "that the term 'state road and bridge fund,' when used herein, shall mean all moneys appropriated by the state of Illinois for road and bridge purposes." We do not think the construction and maintenance of state aid roads constitute separate and distinct

(264 Ill. 459)

William D. Munhall, of Chicago, for plainHARPER v. OWEN H. FAY LIVERY CO. tiff in error. William B. Jarvis, of Chicago,

(No. 8925.) (Supreme Court of Illinois. June 16, 1914.

Rehearing Denied Oct. 7, 1914.) 1. LIVERY STABLE KEEPERS (§ 11*)-ACTION

FOR INJURY TO HIRER-DECLARATION.

That a livery stable keeper let for hire a carriage, horses, and driver was a necessary averment. in a declaration in an action to recover damages for the hirer's death from the alleged negligence of the liveryman or his servants, since, if the use of the carriage was gratuitous, or without the knowledge or consent of the liveryman, he would not have owed the hirer the duty to convey him safely.

[Ed. Note.-For other cases, see Livery Stable Keepers, Cent. Dig. § 12; Dec. Dig. § 11.*] 2. LIVERY STABLE KEEPERS (§ 10*)-IMPLIED RIGHT TO COMPENSATION.

Where the compensation for hiring a team is not fixed or agreed upon, the law will imply a promise on the part of the hirer to pay what the service is reasonably worth.

[Ed. Note.-For other cases, see Livery Stable Keepers, Cent. Dig. § 11; Dec. Dig. § 10.*] 3. LIVERY STABLE KEEPERS (§ 11*)-ACTION FOR INJURY TO HIRER-PRESUMPTION.

In an action against a liveryman for damages for the death of plaintiff's intestate from the alleged negligence of the liveryman, acting through his servants, where it appeared that intestate, with others, used the carriage and team furnished by him, and was directing the driver's course when he attempted to cross railroad tracks, and in the absence of any showing by the liveryman, who had the sole knowledge thereof, that the use of the carriage was gratuitous, or without his consent, it would be presumed that

the use was for hire.

[Ed. Note.-For other cases, see Livery Stable Keepers, Cent. Dig. § 12; Dec. Dig. § 11.*] 4. LIVERY STABLE KEEPERS (§ 11*)-LIABILITY FOR INJURY TO HIRER.

for defendant in error.

CRAIG, J. The defendant in error, Ella D. Harper, as administratrix of the estate of Henry Harper, Jr., deceased, brought suit against the plaintiff in error, the Owen H. Fay Livery Company, and the receivers of certain railroad companies, to recover damages for the death of her intestate, said Henry Harper, Jr., caused, as alleged, by the neglect of said defendants and their servants. The declaration, among other things, charges that said Owen H. Fay Livery Company was in the business of conducting a livery stable and providing and letting for hire drivers, vehicles, and horses for such of the public as might engage the same of the said company, for the purpose of conveying persons to such places as they might wish to go; that on January 15, 1909, said livery company did let for hire a certain carriage and team of horses, together with the driver thereof, to drive and carry said Harper and others over the streets in said county of Cook to and from funeral services, and did, by means of said carriage and team and said driver, conVey said Harper and others on and over Douglas boulevard and upon the crossing of the Chicago Terminal Transfer Railroad Company, and that the said livery company, acting by its said servants, so negligently and carelessly drove said team of horses and carriage that the said carriage collided with a train of the Chicago & Great Western Railway Company being operated on said track; that by such collision or striking the tongue of said carriage was broken, said team be

A liveryman, who furnishes a carriage, team, and driver for hire, is liable for an injury to a passenger, which would not have hap-came frightened and uncontrollable, and ran pened, but for the negligence of the driver.

[Ed. Note.-For other cases, see Livery Stable Keepers, Cent. Dig. § 12; Dec. Dig. § 11.*] 5. LIVERY STABLE KEEPERS (§ 11*)-ACTION FOR INJURY TO HIRER-SUFFICIENCY OF EVI

DENCE.

Verdict for plaintiff, in an action for damages for the death of his intestate from the alleged negligence of a liveryman, whose carriage he was using for hire, held not against the weight of the evidence.

[Ed. Note.-For other cases, see Livery Stable Keepers, Cent. Dig. § 12; 'Dec. Dig. § 11.*]

Cartwright, C. J., and Cooke, and Dunn, JJ., dissenting.

Error to Branch B, Appellate Court, First District, on Appeal from Superior Court, Cook County; Homer Abbott, Judge.

Action by Ella D. Harper, administratrix of Henry Harper, Jr., deceased, against the Owen H. Fay Livery Company and others. From a judgment of the Appellate Court (177❘ Ill. App. 138), affirming a judgment against the Owen H. Fay Livery Company and in favor of the other defendants, the Livery Company brings error. Affirmed.

along the right of way of said railroad company; that said Harper, while in the exercise of ordinary care and caution for his own Safety, was put in danger, and having reasonable cause to believe, and believing, that he was in imminent peril, alighted or sprang from said carriage, and in so doing was struck by a car or some portion thereof, which resulted from his efforts to escape said danger, and thereby received injuries from which, on the 19th day of January, 1909, he died. The defendants, including plaintiff in error, pleaded the general issue. A trial was had by jury, which returned a verdict finding the defendant the Owen H. Fay Livery Company guilty and assessing plaintiff's damages at the sum of $6,500, and finding the other defendants not guilty. A motion for a new trial and in arrest of judgment was overruled, and judgment was entered on the verdict. The Owen H. Fay Livery Company prayed an appeal to the Appellate Court for the First District, which affirmed the judgment of the superior court, and the case has been brought to this court by certiorari.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 106 N.E.-18

At the close of the evidence plaintiff in er- | circumstances a hiring will be presumed ror offered a peremptory instruction direct- from the facts proven that at that time the ing the jury to return a verdict in its favor, plaintiff in error was engaged in the genwhich the court refused. The principal error eral livery business, letting out horses and assigned is the holding of the Appellate Court carriages for hire, and from the further that the defendant in error's intestate was a fact, which is also proven, that the carriage passenger for hire. The other errors as- in which Harper was riding, and the team signed are for not reversing said case because drawing the same, belonged to the plaintiff of the refusal of the peremptory instruction, in error company, and that the driver was which was based on the ground that there in the employ of that company; that the was no evidence to show that said Harper driver started with the team and carriage was a passenger for hire, and other instruc- from the place of business of plaintiff in tions drawn on the same theory, which were error, and drove from there to the place refused by the trial court. where he met Harper and his three companions, who entered the carriage and were driven from there to the place where the funeral services were held, and from there to the cemetery; and that the accident happened on the return trip from the cemetery, while the carriage was being driven as directed by Harper and the other occupants. That plaintiff in error let for hire the carriage, horses, and driver to convey Harper was a necessary averment in the declaration; for if the use of the carriage was gratuitous, or without the knowledge or consent of plaintiff in error, then it would not owe the deceased the duty to carry and convey him safely, as charged in the declaration.

It appears from the evidence that the carriage and team in which defendant in error's intestate was riding at the time of his death was owned by the plaintiff in error, and the driver of the carriage, Andrew Johnson, was in its employ, and that the plaintiff in error conducts a general livery business, letting carriages and horses for hire. The driver started out from the place of business of the plaintiff in error company with the carriage and team about noon, and drove to Market and Jackson streets, and from there to Taylor street, near Roby street. He had in the carriage M. F. Burke, H. A. Hohenadel, W. J. Kruse, and Harper. He took them from Market street to the funeral, and from there to the cemetery. On returning from the cemetery the carriage was stopped at a road house and other places by direction of the occupants. About 5:30 o'clock in the afternoon, pursuant to the direction of the passengers, the driver was driving said carriage south along Douglas boulevard, which at the railroad crossing in question is a wide street, with a roadway on each side. As the carriage approached the railroad crossing a train of cars was being switched from east to west across Douglas boulevard. There are three railroad tracks at this place, and the train was on the middle track. The driver saw the train when he was almost on the track and reined in his horses too late, so that the engine struck the near horse in the face. The driver tried to turn his horses to the left. The horses became frightened, and the pole of the carriage struck the side of the third freight car from the engine and was broken. The horses got beyond the driver's control, wheeled to the right, and ran down the railroad right of way towards the west. The occupants of the carriage, when the collision occurred, got out as best they could, and Harper, in alighting from the carriage, was apparently struck on the head by some portion of one of the cars of the train, and received injuries from which he died a few days later. [1] The principal contention of plaintiff in error is that there was no evidence of the hiring of the carriage by the deceased. There is no direct evidence as to who hired the carriage, or whether it was engaged for hire from the plaintiff in error company.

[2, 3] But such fact need not be shown by direct proof. It may be established by proof of such facts and circumstances as would permit the plaintiff in error to maintain an action for the use or hire of its carriage. The presumption of law always is that the bailment is one for the mutual benefit of both parties or for hire (5 Cyc. 175; 3 Am. & Eng. Ency. of Law [2d Ed.] 759; Schouler on Bailments, § 29; Lemon v. Chanslor, 68 Mo. 340, 30 Am. Rep. 799); and where the rate of compensation is not fixed or agreed upon, the law will imply a promise on the part of the party for whom the services were rendered to pay what the services were reasonably worth (3 Am. & Eng. Ency. of Law, supra). The evidence in this record was sufficient to have allowed plaintiff in error to maintain an action against the estate of the deceased for the hire of its carriage. Such an action would be based upon the presumption that the use of the carriage was for the benefit or pleasure of deceased, and that he contracted to pay what the use of the carriage was reasonably worth. This presumption arises from the facts proven, and applies to both parties alike. To say that the presumption is available for one and not available for the other would be to destroy that equality of right which the law must preserve. Nor could it consistently be said that upon the proof of these facts it will be presumed the use of the carriage by the deceased was for hire, for which his estate would be liable, and at the same time that on the same facts it

Finding no error in the record sufficient to justify a reversal of this case, the judgment of the Appellate Court will be af firmed.

the deceased was gratuitous, or without the stances surrounding the accident, whether knowledge or consent of plaintiff in error, the driver was negligent. In the case at bar and hence that it is not liable for the neg- the jury by its verdict found that the driver ligence of its servant. If the use of the was negligent, and we cannot say that such carriage by deceased was gratuitous, or finding was against the weight of the eviwithout the knowledge or consent of plain- dence. The employer, therefore, was liable. tiff in error, proof of such facts would constitute a perfect defense to the action, and such proof was entirely in the knowledge and possession of plaintiff in error, and not in the possession of defendant in error, whose intestate was in his grave, and in the absence of such proof on the part of plaintiff CARTWRIGHT, C. J., and COOKE and in error the presumption of law which aris- DUNN, JJ. (dissenting). The only evidence es from the facts proven must be allowed as to how Harper came to be in the carriage to prevail. Great Western Railroad Co. v. is the testimony of the driver that he startBacon, 30 Ill. 347, 83 Am. Dec. 199; Ger-ed with the carriage from plaintiff in error's mania Fire Ins. Co. v. Klewer, 129 Ill.

599, 22 N. E. 489.

To sustain the contention of plaintiff in error would be to preclude a recovery altogether in all cases like the present, where the one who hires the carriage, and who, alone, could prove that fact on his part, is killed. Nor can the opposite holding work any hardship, when the proof, if it exists, remains altogether in the possession of the adverse party.

"Where, for any reason, the evidence to prove a fact is chiefly, if not entirely, within the control of the adverse party, it has been held that the burden of proof-meaning the burden of evidence is in the party who knows, or has special opportunity of knowing, the fact." 16 Cyc. 937.

"Similar in result to the effect of presumption is the effect of peculiar knowledge possessed by one party of the evidentiary facts, which the other party claims would, if brought forward, tend to sustain the claim of the latter. In such case, if the party possessed of such knowledge fails to bring forward the facts which it is shown can be produced by him, alone, a presumption arises in favor of his adversary's claim." 5 Am. & Eng. Ency. of Law, 41; Great Western Railroad Co. v. Bacon, supra. We are constrained to hold that the circumstances surrounding the use of the carriage of plaintiff in error as shown by the evidence in this case raise a presumption that such use was for hire, which presumption remains until the contrary is proven by the adverse party, who has the knowledge as to whether such use was for hire or gratuitous.

Judgment affirmed.

place of business at 53 Plymouth place, in the city of Chicago, and drove to Market and Johnson streets, where Harper and three companions entered the carriage; that they then drove to the place where the funeral services were to be held, and from there to the cemetery; and that the accident occurred on the return trip from the cemetery. That plaintiff in error let for hire the carriage, horses, and driver to convey Harper

was a necessary averment in the declaration, and it was incumbent upon defendant in error to prove this averment. Unless such proof was made, it was not shown that plaintiff in error owed the deceased the duty declared upon.

The profitable relations expressed in the words "for hire" must be shown either by direct proof or by proof of such facts that the presumption of hiring is necessary or inevitable. Such facts were not proven. Plaintiff in error was not a common carrier, but was a private carrier of passengers for hire. Under the facts shown the use of this carriage may have been for hire, gratuitous, or without the knowledge or consent of plaintiff in error. If the use of the carriage was gratuitous, or without the knowledge and consent of plaintiff in error, then it did not owe deceased the duty declared upon.

The majority opinion states that the evidence presented would have been sufficient to sustain a claim by plaintiff in error against the estate of the deceased for the [4, 5] Plaintiff in error further contends hire of the carriage, and that therefore it is that the only duty of a liveryman, in cases sufficient upon which to base the presumplike the one at bar, is to exercise ordinary tion that the carriage was hired for the care in furnishing a reasonably safe car- benefit of the deceased. The evidence would, riage, horses, and harness and a reason- no doubt, be sufficient upon which to sustain ably competent and careful driver, and after a claim against the estate of the deceased, so doing he has done his full duty, and is as it appears that he used the conveyance. not liable if an accident should occur. This Plaintiff in error was entitled to compensacourt has held in the case of Johnson v. tion for the use of the carriage, and could Coey, 237 Ill. 88, 86 N. E. 678, 21 L. R. A. recover compensation for such use against (N. S.) 81, that the owner of an automobile the estate of the deceased, without any proof for hire, who furnishes the driver, is liable of a hiring. He may have obtained the carfor an injury to a passenger, which would riage by any one of the many means which not have happened, but for the negligence he might have employed to obtain it withof the driver, and that it was a question out the knowledge or consent of the plainfor the jury to determine, from the circum-tiff in error; but it does not necessarily fol