terial what Gentzel said in his answer by way of denial or whether he swore to it or not. Another particular thing in which counsel say there is a deliberate attempt to deceive this court is the failure to show by the abstract a motion to dismiss the bill at the close of the evidence for the complainant. It does not appear from the decree that there was such a motion, but it recites that the court having heard the evidence offered by complainant and proofs taken in the cause and the arguments of the parties, it is ordered, adjudged and decreed that the bill of complaint, and the amended and supplemental bill of complaint as amended, be and the same are hereby dismissed for want of equity. The abstract shows that before the testimony was closed Gentzel said he wanted to make a motion to dismiss the bill, but if there was such a motion which does not appear in the abstract, the appellees should have filed an additional abstract, as required by the rules of this court, instead of devoting their energies to abusing counsel. If we assume that there was such a motion the fact is immaterial. We do not recognize a practice of making a motion in a case on final hearing before a chancellor to dismiss the bill on the evidence submitted at any stage of the case. This cause was on hearing before the chancellor for a final decision on the merits, where the parties were at liberty to introduce such evidence as they had to establish a right to the relief prayed for or to show good defense. To permit such a motion would result in hearing a case by piece-meal, the sustaining of a motion resulting in an appeal and on a reversal another hearing on more evidence, followed, perhaps, by another appeal. The party has a right to submit his cause to the chancellor upon the evidence adduced if he sees fit, and the motion, if made, was neither more nor less than a submission of the cause to the chancellor.

It is argued that the evidence was not sufficient to establish fraud on the part of Doyle. The statement that

money had been deposited for these certificates and that they represented actual deposits of money in the bank was a statement of a fact. It was made for the purpose of inducing appellant to act. It was false and Doyle knew it to be untrue. The appellant and Doyle did go to the bank to see whether the statement would be corroborated, and a man introduced as Chandler made the same statement, from which it is argued that the appellant did not believe and act upon the representations of Doyle. It is a mistaken idea that if a rogue has another rogue to make the same false statement he is exonerated, and the fact that there is more than one telling the same falsehood does not show that reliance is placed on the second one alone. The evidence was sufficient to establish the fraud and entitle the appellant to have the transaction set aside so far as Doyle and his wife were concerned.

The only question remaining is whether Gentzel, and Brennan, for whom Gentzel acted, occupied the position of purchasers for a valuable consideration without notice of any fraud. The burden of proving the alleged fraud by which the conveyance from appellant was obtained rested upon him, but when he had proved it, if Gentzel or Brennan claimed that he had acquired a right superior to Doyle or his wife as a subsequent grantee, he had to take the burden of affirmatively proving his right. Fraud is not presumed, but when it is proved, one who claims title under a grantee whose title is fraudulent must show affirmatively that he purchased in good faith, without knowledge of the fraud, and for a valuable consideration. (Brown v. Welch, 18 Ill. 343; Campbell v. Whitson, 68 id. 240; Roseman v. Miller, 84 id. 297; 20 Cyc. 763.) So far as anything appeared when the cause was submitted to the chancellor, the conveyance to Gentzel was in consideration of the settlement of a criminal prosecution of Doyle, who had been arrested and imprisoned, and that was not a valuable or even a legal consideration. The appellees chose to

submit the case to the chancellor upon the evidence for complainant, and the chancellor erred in dismissing the bill.

The decree is reversed and the cause is remanded to the superior court, with directions to enter a decree as prayed for by the bill.

Reversed and remanded, with directions.

JOHN WITTER, Appellee, vs. THE COUNTY COMMISSIONERS OF COOK COUNTY et al. Appellants.

Opinion filed December 17, 1912.

1. CONSTITUTIONAL LAW-division of governmental power by article 3 of constitution. Article 3 of the constitution divides the powers of the government into three distinct departments,-legislative, executive and judicial,-and prohibits the exercise of any power belonging to either department by any person or collection of persons belonging to another department, except as expressly directed or permitted by the constitution.

2. SAME-judicial power defined. The judicial power of the government is that which adjudicates upon and protects the rights and interests of individual citizens and to that end construes and applies the laws.

3. SAME-rule as to appointment of officer whose duties belong to judicial department. If the powers and duties of an officer belong to the judicial department, he must either be elected by the people, as the ultimate sovereign authority of the State, or his appointment and removal must be vested in the judicial department, and his appointment cannot be delegated by the legislature to a county board nor his removal to a civil service commission.

4. SAME article 3 of constitution does not mean that the three departments of government shall have no connection. The three departments aid in the administration of the government, each one performing its own functions; but article 3 of the constitution does not mean that the legislative, executive and judicial departments shall be kept so entirely separate and distinct as to have no connection with or dependence upon each other.

5. SAME what does not, of itself, determine whether officer's duties belong to judicial department. The mere fact that the duties of an officer are performed in or in connection with a court

does not, of itself, determine the question whether his powers and duties belong to the judicial department.

6. SAME-juvenile court performs a purely judicial function in hearing cases before it. The juvenile court exercises a jurisdiction of the court of chancery which is of very ancient origin, extending to the care of the persons of infants within the jurisdiction and to their protection and education, and in the hearing of causes brought before it the juvenile court administers the parental care of the State and performs a purely judicial function.

7. SAME-probation officers are assistants to the court in performing judicial functions. The investigation of causes which the statute requires to be made by probation officers is the investigation of the court through such officers, and, like attorneys, masters in chancery, receivers, commissioners and referees, probation officers are assistants to the court in the performance of judicial functions, and, in addition, are practically guardians ad litem for the children in court.

8. SAME-judicial power includes authority to select assistants. The power to select officers who are to act as assistants to the court in the performance of judicial functions rests in the judicial department, and is necessary to the independent exercise of judicial power and the separation of the judicial department from the other departments prohibited from exercising its functions.

9. SAME proviso of the Juvenile Court act authorizing county board to appoint probation officers is invalid. The first proviso to section 6 of the Juvenile Court act, (Laws of 1907, p. 70,) which purports to vest the power to appoint probation officers in the county board in a county having more than five hundred thousand inhabitants, is invalid as in violation of article 3 of the constitution, but after rejecting such invalid proviso there remains a complete and valid statute applicable to the whole State, by which probation officers are to be appointed by the court, to hold office during the pleasure of the court.

DUNN, C. J., and CARTER, J., dissenting.

APPEAL from the Circuit Court of Cook county; the Hon. THOMAS G. WINDES, Judge, presiding.

FRANCIS S. WILSON, County Attorney, and WILLIAM F. STRUCKMANN, for appellants:

In certiorari the record to be reviewed is to be considered without reference to any evidence that may have been considered. The evidence cannot be reviewed. The rec

ord returned by the civil service commission makes out a complete case against the petitioner. Smith v. Highway Comrs. 150 Ill. 385; Drainage Comrs. v. Volke, 163 id. 243; Scheiwe v. Holz, 168 id. 432; People v. Lindblom, 182 id. 241.

The power to appoint probation officers with compensation is not vested in the court but in the judges. The Juvenile Court act is not unconstitutional. People v. Onahan, 170 Ill. 449; Healy v. People, 177 id. 306.

The classification of counties is not unconstitutional. People v. Onahan, 170 Ill. 449.

ALBERT M. KALES, and ELMER M. LIESSMANN, for appellee:

Section 6 of the Juvenile Court act of 1907, so far as it attempts to place the appointment of probation officers in the hands of the county commissioners and the county civil service commission, is unconstitutional, because it is an attempt by the legislature to take away from the control of the judicial department of the government the selection of officers of the court representing the interests of defendants before the court, acting as receivers in chancery and also as assistants to the court in the discharge of its judicial duties.

Probation officers are, by reason of their statutory du ties, (when not acting as practitioners in representing the interests of the child in court upon the hearing, or as receivers,) assistants to the court in the discharge of its judicial duties. Juvenile Court act, sec. 6; Leman v. Sherman, 117 Ill. 657; In re Supreme Court Commission, 37 Neb. 655; Randall v. Building Ass'n, 43 id. 876; People v. Hayne, 83 Cal. 111.

An act which so attempts to control the appointment and removal of officers of the court practicing in the juvenile court in representing the interests of defendants, and to take that control from the judicial department, is void