It sible construction. General terms should be who handed his transfer to another upon the car, to be delivered to the conductor; so, too, would the witness in court who gave the transfer to the judge for inspection, or the judge who in turn might deliver it to the clerk. To some of the objections thus presented answer may be made that the life of the transfer ends with the passage of the time indicated upon its face. It ceases then to be a transfer, to have any value at all other than that which may attach to it as a bit of paper. But for the more substantial objection that the ordinance, by its terms, would oppress and lead to the conviction of persons guilty of no fraudulent act, it is to be remembered that the letter of a penal statute is not of controlling force and that the courts, in construing such statutes, from very ancient times, have sought for the essence and spirit of the law, and decided in accordance with it, even against express language; and in so doing they have not found it necessary to overthrow the law, but have made it applicable to the class of persons or the kind of acts clearly contemplated within its scope. The rule was thus early expressed in Bacon's Abridgment [p. 250]: "A statute ought sometimes to have such an equitable construction as is contrary to the letter." The oft-cited instance of the Bologna law, which enacted that whoever drew blood in the streets should be punished with the utmost severity, was wisely held not to apply to the barber who opened the veins of a sick man to aid in his cure. The statute of Edward II., declaring guilty of a felony any person who broke prison, was held, upon considerations of the most ordinary common sense, not to apply to one who did so to escape from a burning jail. The law declaring it a felony to lay hands upon a priest, by the We concur: Beatty, Ch. J.; Temple, same principles of common-sense reasoning, J.; McFarland, J. was held not to apply to one who did so by way of kindness or warning, but only to those who acted with illegal or improper intent. In United States v. Kirby, 7 Wall. 482, 19 L. ed. 278, the act provided "that if any persons shall knowingly and wilfully obstruct or re- I agree with a great many of the views extard the passage of the mail, or of any driver pressed by Mr. Justice Henshaw, but must or carrier," etc. ". . . for every such of dissent from the conclusion declared, and fense shall pay a fine not exceeding one hun-from his construction of the ordinance, as dred dollars." A mail carrier was arrested evidenced by the language in the closing porby a state officer on an indictment for mur- tion of his opinion, to wit: "In all of these der. The act came within the letter of the cases the apparent defect of the statute is law. Mr. Justice Field, delivering the opin-cured by making it apply according to its ion of the court, discusses the exemption of spirit to the act in its nature illegal or mail carriers from detention under civil pro- generality of the language, no lawful or incess, but declares that they are liable to arrest and detention under criminal process for nocent use of the transfer would subject the acts mala in se. Therefore, notwithstanding passenger to the penalties of the ordinance." Stripped of immaterial matters, the ordithe fact the defendant had "knowingly and wilfully" retarded the mail carrier, it is nance declares all persons guilty of a misdemeanor, other than some agent of the comsaid: "When the acts which create the ob-pany, who "should deliver, give, or sell, or struction are in themselves unlawful, the intention to obstruct will be imputed to their author, although the attainment of other ends may have been his primary object. The statute has no reference to acts lawful in themselves, from the execution of which a temporary delay to the mails unavoidably folAll laws should receive a sen lows. I dissent: Van Dyke, J. Garoutte, J., dissenting: fraudulent. So, here, notwithstanding the offer to deliver, give, or sell, to any other person whatsover a transfer." Now, the opinion says no innocent or lawful use of the transfer by the passenger would make him guilty of a misdemeanor. In other words, as construed by the opinion, the ordinance reads that any passenger "who gives away or sells a transfer, with intent that it shall be used by some other party, is guilty of a mis- acts as judge, jury, and attorney, untramdemeanor." An ordinance so framed ap- meled by legislatures and constitutions, I pears to me to be perfectly valid, but this have no doubt but that he would enforce the court has no right to frame such an ordin- ordinance, promptly declare the prisoner ance, even by construction. An ordinance guilty, and probably affix the penalty at a of that kind would be entirely dissimilar to fine of five goats and a heifer, and do it all the one passed by the board of supervisors. within a few minutes; for he administers In such an ordinance this particular intent justice on very general principles, and makes becomes the very heart of the act, overshad- the law fit the case. But the practice and owing everything else. How can this court procedure are different in this country. In say that the lawmaking body passed any the days when the Bologna case was decided, such an ordinance? How can this court even in that and similar jurisdictions such a say that such body intended to pass that thing as the invalidity of a law was not kind of an ordinance? We only know what known. The power that made the law was the intention of the board of supervisors was supreme. Every law was a constitution unfrom what it did, and this court can only to itself, and woe betide the judge who would measure and test this act by what it says. Ac- have the temerity to set it aside. His probcording to the main opinion, a complaint able fate would be to be "punished with the against a passenger, worded in the language utmost severity." Things in these days and of this ordinance, would not charge an of- in this country are not as they were in those fense; for, as there said, a passenger might days and in those countries. The Indiana do all the things forbidden, and still be in-case cited in the opinion, as to the selling of nocent. It thus appears that a complaint liquor, is opposed to the later case of Com. sufficient to sustain a cause of action must v. Kimball, 24 Pick. 370, where Chief Jusgo beyond anything found in the ordinance, tice Shaw says: "If the law is more reand allege that the passenger sold or gave strictive in its present form than the legislaaway the transfer "with intent that it ture intended, it must be regulated by legisshould be used by another person." There lative action." I fully indorse the doctrine being no authority in the ordinance itself of United States v. Kirby, 7 Wall. 482, 19 L. which justifies the pleader in inserting these ed. 278, as to the stoppage of the United words, he clearly has no right to do so. The States mails. The court there said: "The opinion relies upon various decisions to sup- statute of Congress by its terms applies only port this liberal construction of the statute, to persons who 'knowingly and wilfully' obnotably an ancient and somewhat celebrated struct or retard the passage of the mail or of case which arose under the law of Bologna, its carrier; that is, to those who know that -a law which read that "whoever drew the acts performed will have that effect, and blood in the streets should be punished with perform them with the intention that such the utmost severity;" and it was there held shall be their operation." I find nothing in that this law did not apply to the surgeon that case supporting the construction given who in his professional capacity bled a sick the ordinance in this case. And I venture to man in the streets. I find no fault with the say that no case can be found where, by judecision of that case, to the end that the sur- dicial construction, a specific particular ingeon was not guilty, but do dissent from the tent has been placed in a statute. If by conimplication found in the opinion here,—that struction you may inject the words into this certain classes of persons could be legally ordinance, "with intent that it shall be convicted of violating a law so worded if used," then it seems that the legislature has found on our statute books. The indefinite-enacted a vast mass of useless legislation; ness of the penalty is only a fair illustration for by the language of a hundred different of the indefiniteness of the entire act. A law sections of the Penal Code various acts are so worded is beyond all salvation by con- declared to be either felonies or misdemeanstruction, and that case is not valuable as ors, when done with a certain particular inan authority here. For many reasons I am tent. If the certain intent may be supplied quite clear that such a law in these times by construction, it was idle to insert in it would not stand the test of judicial scru- these various sections. For example, § 356 tiny for a second. To support the validity of the Penal Code reads: "Every person of a law of that kind at the present time by who cuts out, alters, or defaces any mark construction would partake rather of the made upon any log, lumber, or wood, or puts character of Solomonic justice, as adminis- a false mark thereon, with intent to prevent tered by that great King in the celebrated the owner from discovering its identity, is trial of the title to the baby. I have a curi- guilty of a misdemeanor." In the absence of osity to know what decision would have been a particular intent in this statute, would the rendered by the Bologna court if some pub-court legislate a certain intent into it? How lie-spirited citizen, similar to those we have in these days, for the purpose of testing this law had drawn blood in great quantities in the street by slashing the throat of a goat or an ox. If a question similar in principle to the one here presented came before the cadi who sits daily upon his mat in front of the opening of his tent, administering justice under the soothing fumes of his hookah, from whose decisions there is no appeal, and who would a court know what intent to insert? Naturally, I should have supposed the intent to be inserted in this statute would have been an intent to appropriate the "log, lumber, or wood." Yet not so, for the intent named is an intent "to prevent the owner from discovering its identity." It is thus plain that a court cannot do these things, for the reason, among many reasons, that it does not and cannot know what intent the legislature had in mind. 1. 2. ILLINOIS SUPREME COURT. Randall H. WHITE, Appt., v. Milo H. WAGAR. (185 Ill. 195.) Labels and trademarks are not the subject of forgery at commom law,-at least where the trademark or label cannot be made the basis for a suit against the alleged issuer for deceit or warranty. Statutory authority to issue search warrants for forged bank notes or other forged instruments, or the tools, machinery, or materials for making them, does not in clude forged trademarks, labels, caps, corks, cases, bottles, or boxes, or the machinery for making them. 3. A search warrant is void which merely directs the bringing of the property before the officer who issued it, where the statute provides that the property and the person in whose possession it is found shall be brought. 4. Certiorari lies to review the action of a Justice of the peace in issuing a search war rant not authorized by statute. Statement by Craig, J.: This is an appeal from a judgment of the appellate court affirming a judgment of the cricuit court of Cook county, wherein the circuit court, upon the petition of Milo H. Wagar, the appellee, for a writ of certiorari as at common law, entered a judgment that "the record and proceedings brought before it in the case of the people of the state of Illinois against No. 265 Fifth avenue, Chicago, Cook county, Illinois, before Randall H. White, a justice of the peace in and for the town of South Chicago, in the county of Cook and state of Illinois, are manifestly illegal, erroneous, and void in law, and wholly without effect, and that such proceedings are hereby vacated, annulled, and set aside." Randall H. White, the appellant, was the justice of the peace before whom the judgment was rendered which was called in question by the petition for certiorari. The complaint made before the justice, as shown by the petition, was substantially as follows: "William M. Copeland, being duly sworn, upon his oath deposes and says that certain forged and counterfeit trademarks, labels. bottles, caps, corks, cases, boxes, dies, stamps, stencils, plates, names, and signatures, purporting to be the true and genuine trademarks, labels, bottles, caps, corks, cases, NOTE. On the question, What may be the subject of forgery?-see note to People v. Munroe (Cal.) 24 L. R. A. 33; also the case of State v. Evans (Mont.) 28 L. R. A. 127, on the forgery of worthless instruments. boxes, dies, stamps, stencils, plates, names, and signatures of James E. Pepper & Co., of Lexington, Kentucky; the same as to J. A. Gilka, of the city of Berlin, Germany; also, Dr. J. G. B. Siegert & Hijos, of Port of Spain, Island of Trinidad, British West Indies; John De Kuyper & Son, Rotterdam, Holland; Martell & Co., of Cognac, France; Benedictine Co., of Fecamp, France; W. A. Gaines & Co., of Frankfort, Kentucky; Coates & Co., Plyland; Martini & Rossi, Italy; Joseph F. Boll, mouth, England; Booth & Co., London, Engof Isere, France; John Jameson & Son, Limited, Dublin, Ireland; G. H. Mumm & Co., Reims, France; Edward Pernod, Couvet, Switzerland; H. Underberg-Albrecht, Rheinberg, Germany; Field, Son & Co., of London, England; Louis Roederer, of Reims, France; Paris, Allen & Co., of New York City; Axel Bagge & Co., of Goteborg, Sweden; Jorgen B. Lysholm, of Throndhjem, Norway; John Ramsay, of Port Ellen, Islay, Scotland; L. Garnier, of France; E. H. Taylor, Jr., & Co., of Frankfort, Kentucky; Hiram Walker & Sons, Limited, of Canada; E. & J. Burke, Limited, of Dublin, Ireland; Cook, Bernheimer & Co., of New York City; also, certain tools, machinery, and printing presses, cuts, type, and other materials used for making the said forged and counterfeit trademarks, labels, bottles, caps, corks, cases, boxes, dies, stamps, stencils, plates, names, and signatures, which said forged and counterfeit trademarks, labels, bottles, caps, corks, cases, boxes, dies, stamps, stencils, plates, names, and signatures, and the tools, machinery, printing presses, cuts, type, and other materials for making the same, were forged and counterfeited, and used for the unlawful purpose of cheating and defrauding some person, body corporate, by some person or persons unknown to this affiant. And he verily believes that a large number of said forged and counterfeit trademarks, labels. bottles, caps, corks, cases, boxes, dies, stamps, stencils, plates, names, and signatures, and the tools, machinery, printing presses, type, cuts, and other materials for making the same, are now concealed in and about the building and premises of No. 265 Fifth avenue, and the basement connected therewith. all in the city of Chicago, county of Cook, and state of Illinois, and that the following are some of the reasons for such belief: First, that one of the agents of said affiant reports to him that he, said agent, saw shipped away from said premises on the 18th day of January, 1898, about twenty cases of counterfeit and bogus Martini & Rossi Vermouth, having stamped thereon forged marks and signatures purporting to be the true and genuine marks and signatures of Martini & Rossi, and also reports that he saw on said date a large number of forged and counterfeit cases, purporting to be the true and genuine cases of James Hennessy & Co., stored on said premises." Upon the complaint so made the justice issued a warrant, which, among other things, contained the following: "We therefore ing further, and by setting aside and annulcommand you, with necessary and proper as- ling the proceedings had therein. sistance, to enter in the daytime the said premises, and there diligently search for said goods and chattels, and, if the same or any part thereof be found on such search, that you bring the goods and chattels so found before the said justice, or, in case of his absence, before some other justice of the peace in said Cook county, to be disposed of according to law." The warrant was delivered to William Breen, a constable, and by him returned on January 20, 1898, with the following indorsement thereon: Mason & T. Special Drainage Dist. Comrs. v. Griffin, 134 Ill. 340, 25 N. E. 995; Hyslop v. Finch, 99 Ill. 171; Union Drainage Dist. Comrs. v. Volke, 163 Ill. 243, 45 N. E. 415; Ennis v. Ennis, 110 Ill. 78; People ex rel. Schuylerville & U. H. R. Co. v. Betts, 55 N. Y. 600; Hamilton v. Harwood, 113 Ill. 154; Doolittle v. Galena & C. Union R. Co. 14 Ill. 381; Scates v. Chicago & N. W. R. Co. 104 Ill. 93; Trustees of Schools v. Shepherd, 139 Ill. 114, 28 N. E. 1073; Wright v. Carrollton Highway Comrs. 150 Ill. 138, 36 N. E. 980; Harvey v. Dean, 62 Ill. App. 41. The common-law writ is not a writ of right, but issues only upon proper cause shown. Executed the within writ by searching the within-mentioned premises between sunrise and sunset of the 19th day of January, 1898, and taking therefrom articles found in the Trustees of Schools v. School Directors, 88 possession of M. H. Wagar, to wit: Fifty- Ill. 100; Mason & T. Special Drainage Dist. two bottles alleged Hennessy brandy, having Comrs. v. Griffin, 134 Ill. 330, 25 N. E. 995; forged and counterfeit labels attached; twen- Board of Supers. v. Magoon, 109 Ill. 142; ty-three bottles alleged Chartreuse, having Lees v. Drainage Comrs. 24 Ill. App. 487; forged and counterfeit labels attached; Chapman v. Dist. No. 3 Drainage Comrs. 28 one case alleged Angostura Bitters, pint bot-Ill. App. 17; Hyslop v. Finch, 99 Ill. 171. tles, as described in complaint; one case alleged Angostura Bitters, quart bottles, having forged and counterfeit labels, as shown in the complaint; one quart bottle alleged Angostura Bitters, having forged and counterfeit labels attached, as described in the complaint. Dated this 20th day of January, 1898. Costs and expenses, eight men and team, $20. William Breer, Constable. The articles seized, in part, having been brought before the justice of the peace, a hearing was had, and the justice adjudged the labels, trademarks, names, and signatures attached to certain of the bottles so seized to be forged and counterfeit labels, trademarks, names, and signatures, and directed that said labels, trademarks, names, and signatures attached to said bottles so produced be safely kept by said William Breen so long as necessary, for the purpose of being produced or used in evidence on any trial, and, as soon as might be afterwards, to be burned or otherwise destroyed under the direction of the said justice of the peace, appellant herein, and that as to the other labels, trademarks, names, and signatures attached to the articles as mentioned in said constable's return, adjudged that each and all were forged and counterfeit labels, trademarks, names, and signatures attached to bottles, as alleged, and found upon appeilee's premises. Messrs. Randall H. White, in propria persona, and Charlton & Copeland, for appellant: The writ of certiorari should not have been issued in this case. Certiorari, as at common law, is an extraordinary proceeding in our practice, and is only allowable in cases where there is no other remedy, and where the injury or wrong complained of is irreparable and cannot be prevented or compensated for, save by prohibiting the inferior tribunal from proceed The defendant may appeal from the judgment of the justice of the peace in criminal cases to the county or circuit court of the county. Hurd (Ill.) Stat. chap. 79, § 172, p. 972; Com. v. Gaming Implements, 119 Mass. 332. The petition or affidavit upon which the writ issues serves the purpose of an assignment of errors, and no irregularities will be considered except such as are pointed out therein, although they are apparent of rec ord. State v. Kirby, 5 N. J. L. 835; Griffith v. West, 10 N. J. L. 350; New Jersey R. & Transp. Co. v. Suydam, 17 N. J. L. 69. larities in respect to the summons, defects in By appearing and going to trial, irreguthe warrant upon which the defendant was apprehended, and errors committed in adjourning the case, are waived. Clifford v. Overseer of Poor, 37 N. J. L. 152. The complaint was sufficient to give jurisdiction. The property to be seized, considering its nature and use, was sufficiently described. Dwinnels v. Boynton, 3 Allen, 310; State v. Whiskey, 54 N. H. 164. The warrant did not cominand the officer to bring any person before the justice, but actual notice was given to appellee, and he responded in person and by his attorneys. What purpose would have been served by bringing him into court, that was not served by his coming as he did? Tewalt v. Irwin, 164 Ill. 592, 46 N. E. 13; Mason & T. Special Drainage Dist. Comrs. v. Griffin, 134 Ill. 348, 25 N. E. 995; Huston v. Clark, 112 Ill. 350; Miles v. Goodwin, 35 Ill. 53; Baldwin v. Murphy, 82 Ill. 485; Scott v. People, 59 Ill. App. 112; Schofield v. Pope, 104 Ill. 130. There is no property or property right in and to the sixteen forged and counterfeit labels detained by the order of the justice. Langdon v. People, 133 Ill. 383, 24 N. E. Such articles are evidence belonging to the public and to the people, to be used against the person in whose possession they are found, in any trial growing out of a violation of the statutes prohibiting the possession of such articles. State v. Flynn, 36 N. H. 64. Forged labels, trademarks, names, and signatures are covered by the words "forged instruments," under division 8 of our Criminal Code. Langdon v. People, 133 Ill. 382, 24 N. E. 874; Boyd v. United States, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524; Com. v. Dana, 2 Met. 329; Glennon v. Britton, 155 Ill. 232, 40 N. E. 594; Atty. Gen. v. Boston Municipal Ct. Justices, 103 Mass. 456; Spalding v. Preston, 21 Vt. 9, 50 Am. Dec. 68; Thompson Lumber Co. v. Mutual F. Ins. Co. 66 Ill. App. 261. 874; Glennon v. Britton, 155 Ill. 232, 40 N. | has been conferred upon justices of the peace E. 594. to issue search warrants. The authority to issue a search warrant in this state will be found in division 8 of chapter 38 of the Criminal Code, § 1 of which provides that a warrant may issue for stolen or embezzled goods. Section 2 provides that any judge or justice may, on like complaint made on oath, issue search warrants, when satisfied that there is a reasonable cause, in four instances: (1) "To seach for and seize counterfeit or spurious coin, forged bank notes and other forged instruments, or tools, machinery or materials prepared or provided for making either of them;" (2) obscene books; (3) lottery tickets, etc.; (4) gaming apparatus. The appellant, as we understand the argument, relies upon the following clause of the statute: "To seach for and seize counterfeit or spurious coin, forged bank notes and other forged instruments, or tools, machinery, or materials prepared or provided for making either of them," -as conferring the power to issue the search warrant in question. The contention is that forged and counterfeit trademarks, labels, caps, corks, cases, bottles, boxes, dies, stamps, stencils, plates, names, and signatures, together with tools, machinery, printing presses, type, cuts, and other materials for making the same, are embraced within the meaning of the clause "other forged instruments," and it is insisted that the words "other forged instruments" are suficiently comprehensive to include such articles. If, however, labels and trademarks are not properly embraced within the subject of forgery, then they will not fall within the designation of forged instruments. The weight of authority seems to be that labels and trademarks are not the subject of forgery at common law. In 2 Bishop, Crim. At common law, to constitute forgery the instrument need not be such as, if genuine, would be legally valid. 8 Am. & Eng. Enc. Law, p. 478; Garmire v. State, 104 Ind. 444, 4 N. E. 54; Reed v. State, 28 Ind. 396; Shannon v. State, 109 Ind. 407, 10 N. E. 87; Com. v. Ray, 3 Gray, 441. Any writing in such form as to be the means of defrauding another may be the subject of forgery, or alterations in the nature of forgery. 8 Am. & Eng. Enc. Law, p. 478; Berrisford v. State, 66 Ga. 53; Arnold v. Cost, 3 Gill & J. 219, 22 Am. Dec. 302. When a trademark or label can be made the basis of a suit against the alleged issuer in an action for deceit or warranty, then to falsely appropriate such a trademark or label is forgery. Wharton, Crim. Law, 10th ed. § 690; Reg. v. Smith, 8 Cox, C. C. 32; People v. Molins, 7 N. Y. Crim. Rep. 61, 10 N. Y. Supp. 130; Vogt v. People, 59 Ill. App. 684; Cohn v. People, 149 Ill. 486, 23 L. R. A. 821, 37 N. E. A justice of the peace in this state is a court of limited jurisdiction. It has and can exercise no powers except those conferred by the statute, and, whenever it assumes jurisdiction in a case not conferred by the statute, its acts are null and void. Moore, Justice, § 36, p. 18; Robinson v. Harlan, 2 Ill. 237; Bowers v. Green, 2 Ill. 42; Evans v. Pierce, 3 Ill. 468. It is also well settled that a justice of the peace has no jurisdiction to issue a search warrant except in cases provided by law. Moore, Crim. Law, § 141: Cooley, Const. Lim. 6th ed. 364. It therefore becomes important to determine what power Law, 8th ed. § 536, the author says: In |