manded to the circuit court, with directions | 6. INSURANCE (§ 28*)-PENALTY FOR DISCRIMIto overrule the demurrer to the amended bill. NATION-RULE OF AGENCY-MITIGATION OF PENALTIES. Reversed and remanded, with directions. In an action for a statutory penalty for discrimination as to rates between insurants, a rule of the insurance agency of the defendant prohibiting rebating would have no tendency to reduce the penalty, where the rule was shown to have been violated with the knowledge of the manager in charge. VICKERS and HAND, JJ., dissenting. (252 111. 398.) PEOPLE v. HARTFORD LIFE INS. CO. (Supreme Court of Illinois. Dec. 21, 1911.) 1. CONSTITUTIONAL LAW (§ 89*)-INSURANCE ($ 4*)-POLICE POWER-LIBERTY OF CON TRACT. Contracts of life insurance, unlike other contracts, are subject to police regulation, so that an act (Hurd's Rev. St. 1909, c. 73, 8g 27-30) prohibiting discrimination between life insurants of the same class and equal expectation of life is not an unconstitutional invasion of the right to contract. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 34, 35; Dec. Dig. § 28.*] 7. APPEAL AND ERROR (§ 1060*)—HARMLESS ERROR. Where it is evident on appeal by defendant in an action for a statutory penalty that the judgment is correct on the merits, the acts of the plaintiff's counsel in asking questions of a witness tending to create a prejudice or raise an improper inference against defendant's attorney, and in stating the reasons for his questions on objection to them, and where such objection was finally sustained by the court, [Ed. Note.-For other cases, see Constitution-will not amount to reversible error. al Law, Cent. Dig. § 157; Dec. Dig. § 89;* Insurance, Cent. Dig. § 4; Dec. Dig. § 4.*] 2. INSURANCE (§ 12*) - CONSTITUTIONALITY OF STATUTES-FORFEITURE OF AGENT'S LI CENSE. The occupation of insurance agents calls for no previous course of study or special fitness, and that an act (Hurd's Rev. St. 1909, c. 73, §§ 27-30) prohibiting a discrimination between life insurants of the same class and equal expectation of life also provides for the forfeiture of the agent's license will not render the act void for prescribing a punishment disproportionate to the offense. [Ed. Note. For other cases, see Insurance, Dec. Dig. § 12.*] 3. INSURANCE (§ 28*)--PENALTY FOR DISCRIMINATION-ACTION-PLEADING. Where an act (Hurd's Rev. St. 1909, c. 73, §§ 27-30) prohibiting a discrimination in rates between life insurants of the same class and equal expectation of life fixes in its first section the character of discrimination prohibited, and in its second section declares that any company making any unjust discrimination as enumerated in section 1 shall be deemed guilty of a violation, a statement of claim for a penalty which states with particularity all of the facts showing a violation of the act is sufficient, though it does not allege that the discrimination was unjust. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 34, 35; Dec. Dig. § 28.*] 4. APPEAL AND ERROR (§ 204*)-ADMISSION OF EVIDENCE-FAILURE TO OBJECT. In an action against a life insurance company to recover a penalty for a discrimination prohibited by statute, that the court erred in admitting testimony which might allow the jury to believe that the defendant had been guilty of other violations of the statute is not available on appeal, where such testimony was admitted without objection at the time. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1258-1280; Dec. Dig. § 204.*] 5. APPEAL AND ERROR (§ 882*)-ESTOPPEL TO ALLEGE ERROR. It cannot be objected on appeal in an action to recover a statutory penalty that testimony admitted tended to show appellant guilty of other violations of the statute, where the testimony complained of was offered by appellant. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3597-3599; Dec. Dig. § 882.*] [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.*] 8. INSURANCE (§ 28*)-REGULATION—STATUTORY PENALTY-ACTION FOR EVIDENCE. Where, in an action for a penalty for discrimination in rates between life insurants of the same class and equal expectation of life, it is apparent that the agent securing the application for the policy did not divide his commission with the insured for services rendered in securing other business, but that the proposition for commissions was a mere device to cover a rebate to the insured, proof as to the amount of the agent's commission was properly refused. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 34, 35; Dec. Dig. § 28.*] An action for a statutory penalty is a civil action in debt, and the amount of the penalty is properly fixed by the jury. [Ed. Note. For other cases, see Penalties, Cent. Dig. §§ 36, 37; Dec. Dig. § 35.*] Error to Municipal Court of Chicago; Edwin K. Walker, Judge. Action by the People of the State of Illinois against the Hartford Life Insurance Company. From a judgment for plaintiff, defendant brings error. Affirmed. Harvey Strickler, for plaintiff in error. John E. W. Wayman, State's Atty., and David K. Cochrane, for the People. CARTWRIGHT, J. The municipal court of Chicago entered a judgment on the verdict of a jury against the Hartford Life Insurance Company for a penalty of $750 in a suit of the fifth class brought by the people of the state of Illinois for a violation of the act prohibiting discrimination between life insurants of the same class and equal expectation of life (Hurd's Rev. St. 1909, c. might follow reckless and ruinous competi 73, §§ 27-30), by issuing a policy to Alfred tion. The right to contract is a property Bellstrom for less than the fixed annual right, but, like all other rights, its exercise. premium. The defendant moved the court is subject to the police power, and may be to strike the amended statement of claim limited and restricted for the preservation from the files, and one of the reasons assign- of the public health, morals, safety, or weled was that the act violated constitutional fare or to prevent a well-known evil and restrictions upon the legislative power, and wrong. Ritchie v. Wayman, 244 III. 509, 91 was therefore void. The motion was over- N. E. 695, 27 L. R. A. (N. S.) 994. A reguruled, and, the validity of the act being in-lation designed to secure equality between volved, the record has been brought to this those contributing to the funds and resourccourt by writ of error. es of life insurance companies and to secure financial ability to meet obligations which may mature in the distant future and adapted to that end does not violate any prohibition of the Constitution. Similar acts are in force in a large number of the states (Joyce on Insurance, § 1091, note; Richards on Insurance Law, 703); and have been re garded as valid. We decided in Metropolitan Life Ins. Co. v. People, 209 Ill. 42, 70 N. E. 643, that the nature of the life insurance business and the interest of the public in it are such as to subject it to regulation, and that the act prohibiting discrimination in favor of individuals between insurants of the same class and with equal expectation of life is a valid exercise of the power of regulation. [2] The act provides for a forfeiture of Subsequently, in People v. Commercial Life the agent's license, and counsel insists that Ins. Co., 247 Ill. 92, 93 N. E. 90, it was it is void because that penalty is not procontended that the act was void as a police portionate to the offense. Other acts proregulation because it excluded fraternal as-vide for the revoking of licenses to practice sociations furnishing life insurance, thereby professions requiring great skill and leartdiscriminating arbitrarily between companies in the same class. That question was considered, and it was held that there is such a fundamental difference between life insurance companies and fraternal associations that they are not substantially in the same class or situation, and there was, therefore, no arbitrary discrimination against life insurance companies. ing where the holder has violated the law, and they are considered valid. The occupation of an insurance agent does not call for learning or a previous course of study but only for persuasive powers; and, if he vie lates the law, he may be lawfully deprived of the right to prosecute that business. making any unjust discrimination, as enmerated in section 1, shall be deemed guilty of having violated the act. It was not neces sary, after stating the facts in the claim, tə denounce the discrimination as unjust. [3] It is also argued that the statement of claim was insufficient because it did not [1] It is not now contended that insurance allege that the discrimination was unjust. companies are not subject to police regula- although it stated with particularity all of tion, nor that there is no difference in char- the facts showing a violation of the act acter or situation between life insurance The first section of the act fixes the characcompanies and fraternal associations, butter of discrimination prohibited, and the the argument is that the real purpose of second section declares that any company the act is to stifle competition between life insurance companies, and compel them to have only one price for their policies and make everybody pay that price, which cannot be deemed for the public welfare; that there is no difference, in principle, between August C. Wegner, who was the informer selling contracts for life insurance and fire and entitled to one-half of the penalty, was insurance and the sale of other contractual an agent of the New York Life Insurance obligations, such as bonds, notes or mort- | Company, and he gave to John F. Goggin $44 gages, or the selling of any other property. There are material differences between life insurance contracts and those of fire insurance companies, as well as the sale of bonds, notes, mortgages, or other property. The purchaser of property or securities takes title to the same and pays the price agreed upon, and, when one takes a fire insurance policy, he makes the contract for his own benefit for a short period of time, and does not need the aid of a statute designed to secure the solvency of the company at a distant period of time. The policies of life insurance companies run for comparatively long periods of time, and are mainly for the benefit of a class of dependents entitled to to pay as premiums on policies which he would get from other insurance companies. and he was to get rebates if he could. In pursuance of the plan, Wegner wrote a letter June 29, 1910, to which he signed the name of Goggin, directed to Harry B. John ston, manager of the defendant at Chicago, saying that he had received a proposition for insurance in that company, and had a few other offers, but concluded to accept Johnston's offer. He requested Johnston to call July 7th at his residence. Goggin had received no proposition for insurance, and the statement was false. Goggin saw the letter when Wegner was at his house, and he mailed it to Johnston. Johnston employed sal Hazen to Goggin's home as requested, and Hazen took an application for a policy for $1,000, which was afterward delivered. The regular annual premium was $22.08, and Wegner gave Goggin $16.56, with which Goggin paid for the policy. Wegner had told Goggin that he would furnish the money for the premium, and all the discount or rebate Goggin could get would be his. In pursuance of that arrangement, Wegner paid Goggin the amount of the rebate, which was the difference between $16.56 and $22.08. On July 18, 1910, Johnston wrote Goggin inclosing the policy, saying that the balance due was $16.56, which was to be sent to the office, and adding: "I hope you will be able to secure more business for us on the same basis." Wegner wrote a letter in reply, saying that Johnston had offered to extend the terms granted to Goggin to others; that he had a friend, Alfred Bellstrom, whom he had told about his premium, and if Johnston could see Bellstrom on August 2d at 8 p. m., he believed he could secure an application. Goggin signed the letter, and gave it back to Wegner. Another letter was written to Johnston, saying that Ida Waters wanted to take out some insurance and Goggin would send her to the office with a letter, if he could persuade her to go. Johnston wrote to Goggin, saying that he had recommended two prospects for insurance, and, in case the policies were issued and paid for, 25 per cent. of the premium would be paid Goggin. Johnston sent Hazen to see Bellstrom and took his application for a policy for $1,000, which was issued, and the annual premium was $29.25. The defendant gave Bellstrom a receipt for that amount, but Bellstrom paid only $21.94 in a check of J. H. Fetterhoff, furnished him by Wegner. This was the act of discrimination alleged in the statement of claim, which did not include the transaction with Goggin or Ida Waters. On September 9th Goggin wrote to Johnston, claiming a commission of 25 per cent. on the Bellstrom and Waters policies which had been deducted by the defendant, and Johnston answered on September 12th, saying that the other parties were informed by Goggin that the 25 per cent. was to be credited to them, as had been done in Goggin's case, and he understood it was to be given to the other parties. On September 22d Goggin wrote to Johnston that he had inquired of his friends, and found that they had got the commission instead of himself, and that they would call the matter square. [4, 5] It is objected that the court admitted evidence of transactions not pertaining to the case, and leaving the jury to believe that the defendant had been guilty of other offenses. The letter to Goggin about securing other business was brought into the case on the cross-examination of Bellstrom, and was admitted in evidence without objection. was an arrangement with Goggin for 25 per cent. commissions, and this was presented as the sole defense. The letters about the Waters policy were offered in evidence by the defendant, so that there is no ground for the complaint. [6] The court did not err in refusing to permit proof of a rule prohibiting rebating. It is said that it would tend to mitigate the amount of the penalty, but it could not have that effect where the manager having charge of the agency knew that the rule was being violated. If the defendant was guilty and subject to a penalty, the existence of a rule which was not enforced, but was violated by the defendant's manager, would have no tendency to reduce the penalty. [7] It is next argued that the trial court failed properly to control the conduct of plaintiff's counsel in asking improper questions and in making improper statements at the trial. Bellstrom had testified and later in the trial was recalled and asked if he had seen the attorney for the defendant at the state's attorney's office, if he went there at the request of the attorney, and what occurred there. He persisted in asking the questions, and in reply to objections of defendant's attorney and interrogations of the court simply said that the evidence would tend to show the facts of the case, and that it would straighten out the testimony so that the jury would get it right, and that he wanted to show what those people falsely represented at Bellstrom's house. The conduct of the attorney was grossly improper, and had no object except to create prejudice or raise an unfavorable inference against defendant's attorney. The court finally sustained the objection, and, in view of all the evidence, we are not inclined to reverse the judgment because of the conduct of the attorney. [8] The defendant offered to prove that the commission on Bellstrom's policy was 60 per cent. of the face of the premium, in connection with the evidence that he paid 25 per cent. less than the amount of the premium, but was not permitted to make the proof. The object was to prove that the agent had divided the commission with Goggin for services rendered in securing the insurants. It is not claimed that the agent had a right to dispose of his commission as he saw fit or to rebate a part of it to the insured where the insurance company received the entire amount to which it was entitled, but it is assumed here, as it was in Metropolitan Life Ins. Co. v. People, supra, that doing so would be a violation of the terms of the act. That question, therefore, is not considered, and we do not think the jury could have believed that the allowance to Bellstrom was made as a commission to Goggin. It is true that Goggin directed the attention of Johnston to Bellstrom, but the conduct of the parties in for commissions was a mere device, since the deduction of 25 per cent. was made to Bellstrom directly, without any inquiry to Goggin. Proof that the commission was 60 per cent. of the premium would not have aided the defendant on that question. [9] The court refused to instruct the jury that the law does not permit an informer to reap a benefit from his own wrongful conduct in inducing a violation of a statute. One cannot arrange for a crime to be committed against himself or his property and aid, encourage, or solicit the commission of the crime (Love v. People, 160 Ill. 501, 43 N. E. 710, 32 L. R. A. 139), but if he does not induce or advise the commission of the crime, and merely creates the condition under which an offense against the public may be committed, the rule does not apply (People v. Smith, 251 Ill. 185, 95 N. E. 1011). It is not a violation of the law to find out whether offenses are being committed, although it is done by artifice or deceit, such as the use of decoy letters, writing letters under assumed names, or furnishing money to secure evidence. We see no substantial distinction between the act of an informer and that of one who secures evidence of criminal acts for a reward, and undoubtedly a prosecution could not be defeated because the evidence is so obtained. shall be delivered by one of the petitioners to [Ed. Note.-For other cases, see Schools and School Districts, Dec. Dig. § 37.*] 2. SCHOOLS AND SCHOOL DISTRICTS (§ 37*)— FORMATION OF DISTRICT - PROCEEDINGSSERVICE OF NOTICE-NECESSITY. Service by a petitioner of a copy of the petition for the organization of a new schoo district, together with notice in writing, signed by the petitioner, upon the president or clerk of the school directors of the district affected as required by the statute, is necessary to give the trustees jurisdiction to act upon the peti tion. [Ed. Note.-For other cases, see Schools and School Districts, Dec. Dig. § 37.*] CATION-SUFFICIENCY. A plea of justification in quo warranto must affirmatively show that jurisdiction existed in the proceeding by which the municipal body was organized. [Ed. Note. For other cases, see Quo Warranto, Dec. Dig. § 50.*] 4. PROCESS (§ 55*)-SERVICE. A party to a suit cannot serve his own writ, as the server should be wholly disiaterested. [Ed. Note.-For other cases, see Process, Dec. Dig. § 55.*] 5. CORPORATIONS (§ 507*)-SERVICE OF PROCESS-PERSON SERVED INTEREST. Service of process against a corporation on an officer or agent thereof, whose relation to the claim in suit is such as to make it to his interest to suppress the fact of service, is invalid, though the person served is such a one as the statute authorizes to receive service. [Ed. Note.-For other cases, see Corpora tions, Cent. Dig. §§ 1971-2000; Dec. Dig. 507.*] 6. PROCESS (§ 57*)-SERVICE-PERSON SERVED -INTERESTED PERSON. [10] Counsel contends that it was error for the jury to fix the amount of the penalty. There seems to be no uniformity of practice in the courts of different states with respect to the proper functions of the court and jury in such cases. In this state the action for a penalty is a civil action in debt (Metropolitan Life Ins. Co. v. People, supra), and we see no reason why it should not be governed by the same rule that obtains in other civil cases where the jury fixes the amount. That has heretofore been the unquestioned practice. The case of Armstrong v. People, 37 Ill. 459, does not apply, because that was a criminal prosecution for an offense punish-in such relation. able by imprisonment in the penitentiary and Dec. Dig. § 57.*] [Ed. Note. For other cases, see Process, a fine, while this is a civil action to recover a penalty as a debt. Service of process upon one occupying a fiduciary or representative relation to a person or subject-matter affected by an action, when such representative has an interest aatagonistic to the interest of others represented by him in receiving service, is void, though the statute expressly provides for service on one Appeal from Circuit Court, De Witt Coun We cannot say that the judgment was ty; W. G. Cochran, Judge. wrong, and accordingly it is affirmed. Judgment affirmed. (252 Ill. 414.) PEOPLE ex rel. LAFFERTY et al. v. (Supreme Court of Illinois. Dec. 21, 1911.) Service, by a petitioner for the formation of a new school district out of several existing districts, upon himself as clerk of the board of school directors of one of such old districts, was void as service upon such district, in view of his antagonistic interests, though the statute provides that a copy of the petition, with notice in writing, signed by one or more of petitioners, Proceeding by the People, on the relation of Isaac C. Lafferty and others, against Leonard Feicke and others. From a judzment dismissing the petition, relators appeal. Reversed and remanded. V. F. Browne, State's Atty., and Herrick & Herrick, for appellants. Ingham & Ingham, for appellees. VICKERS, J. The state's attorney of De Witt county, on the relation of Isaac C. Lafferty and the school directors of district No. 11 in said county, filed an information in the nature of a quo warranto in the circuit court of the said county against Leonard Feicke. James D. North, and Joseph Kinnett, and the plea shows that the only service of the petition and written notice upon district No. 11 was a service by Leonard Feicke, as a petitioner for the formation of the new district, upon Leonard Feicke, clerk of the board of school directors of district No. 11, by delivering to himself the copy of the petition and notice set out in the plea. The only question discussed by counsel on either side is the sufficiency of the service shown by the plea upon the board of directors of district No. 11. against school district No. 107, of which the tition and written notice. In other words, three persons named pretended to be school directors. The purpose of the information was to require the defendants to show by what right and authority they pretended to exercise the office of school directors, and by what right said school district assumed to be a legally incorporated school district. To the amended information the defendants filed a plea, which purported to set out all of the proceedings by which a school district was organized out of territory detached from school districts Nos. 10, 11, and 20, and also the calling and holding of an election in the said district No. 107, at which Feicke, North, and Kinnett were declared elected school directors of the new school district. To this plea a demurrer was interposed and overruled. The plaintiffs elected to abide by their demurrer, and their petition was dismissed. The present appeal is prosecuted by plaintiffs below from the judgment overruling the demurrer and dismissing the petition, and adjudging costs against relators. The controversy in this case grows out of an attempt to organize a new school district out of territory belonging to three school districts. The territory composing the school districts affected was in three different townships. Districts Nos. 10 and 11 are wholly within township 21 N., range 4 E., which is known as Rutledge township. District No. 20 is partly in Rutledge township and partly in township 20 N., range 3 E., called Hart township, and partly in township 20 N., range 4 E., called De Witt township. Three school districts and three townships were therefore interested in the formation of the proposed new district. The statute provides that, when a new district is to be formed out of parts of other districts, a petition shall be filed with the clerk of the board of trustees of the township in which such territory is located, at least 20 days before the regular meeting in April, and also requires that a copy of the petition, with notice in writing signed by one or more of the petitioners, shall be delivered by one of the petitioners, not less than 10 days before the day on which the petition is to be considered, to either the president or the clerk of the school directors of the district that will be affected by granting the prayer of such petition. The plea filed by appellees sets out in detail what was done by the petitioners as a compliance with the statute in regard to serving a copy of the petition and written notice upon the three boards of school directors whose districts were affected by the proposed change. Leonard Feicke was one of the petitioners for the formation of the new district. He was also a school director and clerk of the board in school district No. 11, in Rutledge township. The plea shows that Feicke, as a petitioner, attempted to serve a copy of the petition and notice in writing upon the board of directors of district No. 11 [1-4] The statute contemplates a hearing before the trustees upon a petition for the formation of a new school district, and the purpose of requiring a copy of the petition and written notice to be served upon the president or clerk of the board of directors in each district whose territory is affected by the proposed change is to afford an opportunity for the districts concerned to appear and present reasons for or against the allowance of such petition. The giving of this notice and serving a copy of the petition upon the president or clerk of the board of school directors of the districts affected is necessary to give the trustees jurisdiction to act upon the petition. In a plea to an information in quo warranto seeking to justify, it must affirmatively be shown that jurisdiction existed in the proceeding by which the municipal body was organized. Miller v. Trustees of Schools, 88 Ill. 26; Mason v. People, 185 Ill. 302, 56 N. E. 1069. The law is well established that a party to a suit cannot serve his own writ. Filkins v. O'Sullivan, 79 Ill. 524. The reason for this rule is that the party serving process should be a wholly disinterested person. Tallon v. Schempf, 67 Ill. 472. If such a practice were sanctioned, there would be great danger of abuse and inducement to the person making the service to make a false return, and thereby put himself in a position to obtain judgment by default, or some other undue advantage over the opposite party, who would, perhaps, not know anything of the proceeding until after judgment had been rendered against him. The courts have therefore generally adhered, with great propriety and justice, to the rule that in no case can a person be both officer and party in the same proceeding. Woods v. Gilson, 17 Ill. 218; Gage v. Graffam, 11 Mass. 181; Morton v. Crane, 39 Mich. 526. In the case at bar we have a petitioner serving the only process provided by the statute to be served upon himself. This service was in compliance with the letter of the statute, but in violation of its spirit. Feicke's interest as a petitioner for the new district was antagonistic to his position as a member of the board of directors of school district No. 11. A service of notice by himself, as a petitioner, upon himself, as clerk of the board of school directors, cannot be held to be a coin |