been deeded to appellee and had accepted Belinski's services in carrying out the terms of the deed. The bill prayed that the deed from Pochocki to Sobeziak be set aside as a cloud upon the title of appellee, and for such other and further relief as equity might require.

Counsel for appellant argues that the instrument from Pochocki to Belinski passed no present interest, and that while it was in the form of a deed it possessed all the incidents of a will; that the words "owners" and "property" used in the deed clearly showed that Pochocki intended to retain the ownership during his life. Counsel cites, to sustain his contention, only Devlin on Real Estate. That author supports the doctrine of the text only by authorities from other jurisdictions than Illinois. Under the decisions of this State a conveyance may be made not to take effect until the death of the grantor and will not be held to be in the nature of a testamentary devise. (Shackelton v. Sebree, 86 Ill. 616; Harshbarger v. Carroll, 163 id. 636.) Where a deed has been actually delivered to a grantee in the lifetime of the grantor, even though it contains a provision that it is not to take effect until the grantor's death, it will be sustained as a present grant of a future interest. (Hathaway v. Cook, 258 Ill. 92.) The delivery of a deed in the grantor's lifetime changes the effect of an instrument which might, but for the delivery, be of a testamentary character. (Potter v. Barringer, 236 Ill. 224.) Under the allegations of this bill, which appellant by his demurrer conceded to be true, the deed was rightly delivered and recorded, and therefore the conclusion must be reached that the grantor intended a present grant of a future interest. To hold otherwise would be equivalent to holding that the grantor intended that his act of executing and delivering the deed was a nullity. Such a conclusion the law does not favor and will not permit if it can be avoided without doing violence to established rules of law. (Bowler v. Bowler, 176 Ill. 541.) It is true that the deed from Po

chocki to Belinski, throughout, shows a lack of careful wording, and the use of the words "owners" and "property" might not be considered apt words in view of the other terms in the deed, but, taking the whole instrument together, the intention is clearly shown that the grantor intended to reserve a life interest to himself and convey the remainder to the grantee. Very frequently words are not used in their technical and literal sense, and where other parts of the instrument indicate a different intention, such intention may be gathered from the whole instrument and the surrounding circumstances. (Phillips v. Gannon, 246 Ill. 98; Bowler v. Bowler, supra.) This deed having been executed, delivered and recorded, it was beyond the grantor's power and he had no control over it, and certainly could not destroy its effect by simply making another deed. Potter v. Barringer, supra.

Counsel for appellant further contends that the bill does not state that the complainant was in possession of the land or that the same was vacant and unoccupied, and that therefore a court of equity was without jurisdiction. (McConnell v. Pierce, 210 Ill. 627; Glos v. Kemp, 192 id. 72.) Where a bill alleges that a deed was secured illegally or by fraud it is not necessary for the complainant to allege and prove possession. This bill, in effect, charges that the deed from Pochocki to appellant was obtained through fraud, the record showing that it was signed and executed only two days before the grantor's death and while he was very sick. Equity, having jurisdiction on the ground of fraud, will retain it and do justice between the parties, even to removing a cloud on the title. Ward v. Clendenning, 245 Ill. 206; Mitchell v. Shortt, 113 id. 251; Booth v. Wiley, 102 id. 84; Redmond v. Packenham, 66 id. 434; Kennedy v. Northup, 15 id. 148.

The decree of the circuit court will be affirmed.
Decree affirmed.

J. B. FERGUS et al. Appellees, vs. Andrew Russel et al.

Appellants.

Opinion filed December 22, 1915.

I. CONSTITUTIONAL LAW-Constitution limits the amount which members of the legislature may receive in addition to salary. Section 21 of article 4 of the constitution expressly prohibits members of the legislature from receiving, in addition to the salary fixed by law, any "other allowance or emolument, directly or indirectly, for any purpose whatever, except the sum of $50 per session to each member, which shall be in full for postage, stationery, newspapers and all other incidental expenses and perquisites."

2. SAME act of 1915, for payment of mileage to members of the legislature, is invalid. The act of 1915, appropriating money in accordance with House Joint Resolution No. 29, allowing to each member of the legislature actual mileage for twenty-one round trips from his home to the State capital at the rate of two cents a mile, is in violation of the provisions of section 21 of article 4 of the constitution expressly limiting the allowance to members for incidental expenses and prohibiting members from increasing their compensation during their terms of office.

APPEAL, from the Circuit Court of Sangamon county; the Hon. JAMES A. CREIGHTON, Judge, presiding.

P. J. LUCEY, Attorney General, (LESTER H. STRAWN, A. R. ROY, HIRAM T. GILBERT, and LOGAN HAY, of counsel,) for appellants.

FAYETTE S. MUNRO, and SHELBY M. SINGLETON, (JNO. A. WATSON, and STEVENS & HERNDON, of counsel,) for appellees.

Mr. JUSTICE CRAIG delivered the opinion of the court:

The appellee Fergus, a tax-payer and resident of Cook county, filed his bill for injunction in the circuit court of Sangamon county against appellants, James J. Brady, Auditor of Public Accounts, and Andrew Russel, State Treasurer, to restrain the Auditor from issuing and the Treasurer from paying certain warrants for mileage for members of

the house of representatives and senate of the Forty-ninth General Assembly. Later the bill was amended and Frederick W. Burlingham was joined as co-complainant. The original bill charged that a large number of the warrants had been issued and paid, and prayed that the Auditor and Treasurer be decreed to make restitution of the amounts so paid and for an accounting, and that the Auditor and Treasurer be perpetually enjoined from, respectively, issuing and paying any remaining warrants. By the amended bill it is only sought to restrain the issue and payment of the warrants remaining in the hands of the Auditor. The warrants in question were drawn pursuant to an act known as House Bill 882, passed by the General Assembly and approved by the Governor, appropriating the sum of $26,270.18 to pay the incidental expenses of the Forty-ninth General Assembly in accordance with House Joint Resolution No. 20, which is as follows:

"Be it resolved by the house of representatives, the senate concurring, That there is allowed out of the contingent expense funds to the senate and house to each member of the house and senate the actual railroad mileage of each member for twenty-one round trips from the capital of the State to and from their respective homes at the rate of two cents per mile, the same to be computed at the same mileage as now computed by the State Auditor, and the same to be approved by the speaker of the house and the president of the senate, and to be allowed for proper and necessary committee and legislative expenses of the respective members."

It is charged, among other things, that the attempted appropriation by House Bill 882 and House Joint Resolution No. 20 is unconstitutional, illegal and void, and is in violation of section 21 of article 4 of the constitution, which is as follows: "The members of the General Assembly shall receive for their services the sum of five dollars per day, during the first session held under this constitution, and ten cents for each mile necessarily traveled in going to and returning from the seat of government, to be computed by the Auditor of Public Accounts; and thereafter such compensation as shall be prescribed by law, and no other

allowance or emolument, directly or indirectly, for any purpose whatever, except the sum of $50 per session to each member, which shall be in full for postage, stationery, newspapers and all other incidental expenses and perquisites; but no change shall be made in the compensation of members of the General Assembly during the term for which they may have been elected. The pay and mileage allowed to each member of the General Assembly shall be certified by the speaker of their respective houses, and entered on the journals and published at the close of each session." The defendants to the bill answered, denying the right of the complainants, as tax-payers, to maintain the suit, denying that they had any special, material or substantial interest in the subject matter thereof, and denying that the court had jurisdiction to award the writ of injunction to control the defendants, as officers of the State, in the exercise of their executive duties, the performance of which requires the exercise of executive discretion. All of the facts alleged in the bill as to the passage of House Bill 882, House Resolution No. 20 and the drawing of warrants by the Auditor and payment by the Treasurer were admitted, and the cause was by agreement heard upon the amended bill and answer, and a stipulation that if deemed necessary by the court the journals of the house and senate of the Fortyninth General Assembly might be consulted or referred to or such parts of the same used in evidence as would seem necessary and material. Upon the hearing the court entered a decree holding that the complainants had a right to maintain the bill as tax-payers, that the act making the appropriation was unconstitutional and void, and that the defendant Brady, as State Auditor, be perpetually enjoined from thereafter drawing and issuing any of the warrants in question, and the defendant Russel, as State Treasurer, be perpetually enjoined thereafter from paying the same. The defendants to the bill have appealed to this court, and by proper assignments of error have raised the question of