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traffic, and not that they will be governed by motives of personal friendship or ill-feeling towards applicants for license. Certainly there may be good and just motives for signing or refusing to sign a petition, and it will not be presumed that the voters will be actuated by a bad motive rather than a good one. They may be willing that one saloon shall be kept but be opposed to more. Having signed a petition for one it would not be unjust discrimination against the second applicant to refuse to sign his petition. They might be willing to have saloons in a particular part of the district but not in others. Certainly it would not be discrimination to sign the petition of one for the unobjectionable locality and refuse to sign the other. Under this ordinance unjust or arbitrary discrimination could only result from the misconduct of the legal voters, and for the purpose of destroying the validity of the ordinance it cannot be presumed that they will so act. The contention of counsel, if sustained, would overthrow all local option laws and ordinances enacted for the regulation of the sale of intoxicating liquors. Our statute regulating the granting of license to keep dram-shops by county boards provides that they "may grant license to keep so many dram-shops in their county as they may think the public good requires, upon the application, by petition, of a majority of the legal voters of the town, if the county is under township organization, and if not under township organization, then of a majority of the legal voters of the election precinct or election district where the same is proposed to be located," etc. (1 Starr & Curtis, chap. 43, sec. 3, p. 968.) Section 18 of the Annexation act, approved April 25, 1889, (3 Starr & Curtis, p. 224,) recognizes as valid, ordinances prohibiting the issuing of license to keep dramshops within certain territory annexed, “except upon petition of a majority of the voters residing within a certain distance of such proposed dram-shop." The validity of this statute and the reasonableness of such ordinances

were very fully considered in the case of People v. Cregier, 138 Ill. 401, and sustained.

If this ordinance is void on the ground urged, we are unable to see why, for the same reason, all laws and ordinances requiring applicants for license to keep dramshops to comply with certain requirements before the same is granted may not also be held void. One may be able to give the required bond, whereas another cannot; one may be able, through his personal influence, (or even by the use of money, as is said may be done in this case,) to produce satisfactory evidence that he is a person of good character, whereas another of equal good character, through "whim, fancy or prejudice," may be unable to do so. The business of regulating the keeping a dramshop is within the police power of the State, and restrictions which may rightfully be imposed upon it might be obnoxious, as an illegal restraint of trade, when applied to other pursuits. (Schwuchow v. City of Chicago, 68 Ill. 444.) As we said in People v. Cregier, supra (p. 419): "The refusal to license deprives no man of any personal or property right, but merely deprives him of a privilege which it is in the discretion of the municipal authorities to grant or withhold." So long as a reasonable regulation is applicable to all alike, it is valid, whether all alike can comply with its conditions or not.

We see no valid objection to this ordinance. Relator failing to show by its petition that it had conformed to the requirements of the ordinance in its application for license, the circuit court properly sustained the demurrer thereto, and the Appellate Court erred in reversing its judgment. The judgment of the Appellate Court is reversed.

Judgment reversed.

LEWIS WALD

v.

PITTSBURG, CINCINNATI, CHICAGO AND ST. LOUIS R. R. Co.

Filed at Ottawa June 13, 1896-Rehearing denied October 13, 1896.

1. ACT OF GOD—an unprecedented flood is an act of God. An unprecedented flood, by reason of which the baggage of a passenger is swept away, is an act of God.

2. SAME-when loss is due to act of God. A loss or injury is due to the act of God where it is occasioned exclusively by natural causes such as could not be prevented by human care, skill and foresight.

3. CARRIERS-act of God does not exempt carrier where negligence contributes to the loss. A common carrier is not exempt from liability for a loss occasioned by an act of God, if the carrier has been guilty of any previous negligence which brings the property in contact with the destructive force or unnecessarily exposes it thereto.

4. SAME-responsibility where act of carrier exposes property to the cause of loss. A carrier is responsible where property committed to it is by its negligence brought under the operation of natural causes that work its destruction, or is exposed to such cause of loss.

5. SAME-liable for loss by act of God where promptness would have avoided it. Unnecessary delay of a carrier which subjects the goods in its possession to a loss by an act of God which they would not otherwise have met with, is of itself such negligence as will make the carrier liable for the loss.

6. SAME-duty of railway company to send baggage on same train with passenger. A railway company impliedly undertakes that the baggage of a passenger upon a limited express train shall go upon the same train on which he takes passage, unless he gives some direction, does something or omits to do something which authorizes the carrier to send the baggage by another train.

7. SAME-destruction of baggage shipped by later train—liability for loss. A carrier which, without sufficient reason, fails to ship the trunk of a passenger upon the limited train taken by such passenger, is liable for its destruction by a flood which comes upon the later train on which it is shipped, though such flood is in itself an act of God.

8. TRIAL-question of negligence in separating baggage from passenger is for the jury. It is a question of fact for the jury whether or not a railroad company is guilty of negligence in not sending a passenger's baggage by the train on which he travels, and having it so carried throughout the journey.

Wald v. P., C., C. & St. L. R. R. Co. 60 Ill. App. 460, reversed.

162 545
68a 637

162 545
70a 656

173 176, 162 545 d91a 5579 162 545 95a 2339

APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook county; the Hon. ARTHUR CHETLAIN, Judge, presiding.

This was a suit by appellant, against appellee, to recover the value of appellant's trunk and its contents, lost while in the possession of appellee as a common carrier, between Cincinnati, Ohio, and New York City. On May 30, 1889, the plaintiff bought a ticket at Cincinnati for passage by the so-called "limited express train" over defendant's road, to New York City. The limited express was a fast train, arriving in New York City two hours sooner than the regular day express. The tickets for this limited train consisted of two printed slips, one, the railroad ticket, being green, the other, the special limited sleeping-car ticket, being purple. No passenger could travel by the limited without having both of these tickets. It was necessary to present these tickets at Cincinnati to some agent of the railroad company in order to have a trunk checked to New York. Plaintiff did so present his tickets and had his trunk checked at Cincinnati for New York. From Cincinnati to Pittsburg passengers and their baggage, for both the limited and day express, traveled on the same train. This was the case with plaintiff and his baggage. Both left Cincinnati at the same time. At Pittsburg the Cincinnati sleeper, carrying passengers for the limited train, was attached to the regular limited express which had come from Chicago, and the Cincinnati baggage for the limited train was transferred at Pittsburg from the baggage car of the Cincinnati express to the baggage car of the limited train. In order to have baggage intended for the limited express so transferred at Pittsburg, it was the practice of the railroad company to attach to each trunk at Cincinnati a white pasteboard tag in addition to the regular brass check, and unless such a white tag had been so at

tached a trunk remained on the baggage car from Cincinnati and went through by the day express from Pittsburg to New York. In the present case no such white tag had been attached to plaintiff's trunk at Cincinnati, and as a result, while plaintiff's car was transferred at Pittsburg to the limited express his trunk remained on the day express, which followed along some time after the limited. This day express carrying plaintiff's baggage was overtaken by a flood at Johnstown, Pennsylvania, and the baggage car with the entire contents, including plaintiff's trunk, was lost. The limited express on which plaintiff traveled passed beyond the point of danger before the flood came, and was uninjured.

There was some conflict in the testimony as to whether or not it was defendant's fault, that the white tag was not placed on plaintiff's trunk at Cincinnati.

It is agreed, "that there was no negligence in the management of the train, or in the care of the baggage in question while on the train."

On the trial of the case before a jury, at the close of all the evidence the court instructed the jury, as requested by defendant, that plaintiff was not entitled to recover, and that a verdict should be returned for defendant. On the verdict so returned judgment was entered, and this judgment was affirmed by the Appellate Court. The case is brought to this court under a certificate of importance.

In their opinion deciding this case the Appellate Court thus describe the flood which destroyed the baggage car containing appellant's trunk, as such description appears from the testimony to be found in the record: "The flood that was encountered far exceeded what had ever before been known in the region where it occurred. There was a great fall of rain, lasting many hours, which raised the river to a height never before known, and caused wash-outs and land-slides to an extent necessitating the train carrying the trunk to come

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