the owners of property should possess the privilege and immunity of authorizing or declining to authorize the construction of local improvements by special assessment or special taxation, and that the owners of property in all other cities and villages in the State, great and small, should not possess that privilege; and also upon the theory that the governing board of cities of the designated intermediate population should be restricted in respect of power to order local improvements to be made by special assessment or special taxation, and should be controlled by the wishes of the property owners in regard to the construction of public improvements at the expense of the owners of the property, while in all other cities and villages the governing body should possess power to make improvements to be paid for by the property owners, against the will of such owners or the majority thereof.

The right of the owner of property to petition for the making of local improvements, or the right to refuse to join in such petition, enables such owner to assist in securing an improvement which will, in his view, beneficially affect his property, and in preventing the making of an improvement which imposes what he believes to be an unreasonable burden of taxation upon it. It is a privilege which he may exercise to secure the advantage of the improvement of his property or be availed of for the protection of his property. Can it be there is nothing in the situation and circumstances of property owners or their property in cities having a population of 50,000 and more, and also in cities having a population of 20,000 and less, and villages of still lesser population, which renders the existence of the privilege unnecessary or unimportant, if the creation and preservation of the right be so important to the owners of property in cities having a population of less than 50,000 and more than 20,000 as to justify the classification of such property owners in a separate class and the enactment of legislation relating to such class? The selection of cities having a popu

lation of less than 50,000 and more than 20,000, as constituting a distinct class from the other cities of the State and demanding particular and peculiar legislation; investing the inhabitants and property owners of such cities with special privileges and immunities, and placing all other municipalities in the State in another class, and giving the governing boards of the cities, so classified, dissimilar powers and to their inhabitants and electors different privileges and immunities, cannot be defended against the charge that the classification is purely arbitrary, and without any reference or relation whatever to the legislation that is proposed to be predicated in the supposed distinction between the cities and villages placed in the different classes. The later of the enactments of 1903 still more glaringly offends against the fundamental law. It places all cities having a population of less than 28,000 and more than 20,000 in one class, and denies to them power to adopt ordinances making local improvements except on a petition of property owners. It places all other municipalities, the great metropolis and the smaller incorporated villages,-in another class, and gives the governing bodies in that class, power to make local improvements without consulting the property owners, but selects certain of such municipalities,—those having more than 28,000 and less than 50,000,-as a further special class, and authorizes the electors in such latter municipalities to determine, by ballot, whether an ordinance for making a local improvement may be adopted without a petition of the property holders. When considered in view of the population of certain cities as disclosed by the census, it is manifest this latter act was adopted for the purposes of securing local and special legislation for the benefit of certain particular cities in the State which could not be named in the act but could be designated with no less certainty by means of the classification. What actual or rational distinction can possibly be imagined which will justify the creation of a class of cities having a population of less than 28,000 and more than 20,000 and in

vesting the owners of property in cities of that class with the privilege of petitioning for local improvements and denying power to municipal authorities of such cities to make local improvements except on such petitions, and empowering cities having a greater population than 28,000 with power to make such improvements without a petition and without regard to the wishes of the owners of property in such cities, as was proposed to be done by the later of the acts of 1903? Or how can an act be defended against the charge that it is local or special legislation, which proposes to create as a separate class all cities and villages having a population of between 28,000 and 50,000 and conferring on each of the said municipalities, because the population is between these numbers, the special and exclusive right and privilege of determining for itself, by the ballots of its legal voters, whether the governing body of the municipality shall have power to adopt ordinances making local improvements to be paid for by special assessment or special taxation without the petition. of property owners?

The conclusion is irresistible that in each of these enactments the classification of the municipalities by population does not bear any true relation to the purposes and objects of the legislation. It is clear that the classification adopted in each of the acts is not based upon any distinction having a rational or reasonable relation to the special legislation affecting the classes. The classification is wholly arbitrary, and does not justify the legislation which would clothe some of the municipalities of the State with chartered powers not possessed by others, and which would also confer special privileges and immunities on property owners and electors in some of such municipalities which are denied to the owners of property and to electors in other of the cities and villages of the State. Both of the amendatory acts of 1903 contravene the organic law and are inoperative and void. The amendatory act of 1899 remains in force, and under it the board of village trustees of the appellee village were lacking in power

to adopt the ordinance in the absence of a petition by the owners of the property to be taxed to pay for the proposed improvement.

The judgment appealed from must be and is reversed.
Judgment reversed.

THE INDIANA, ILLINOIS AND IOWA RAILROAD COMPANY

ข.

HARRY OTSTOT.

Opinion filed October 24, 1904-Rehearing denied December 8, 1904.

1. MASTER AND SERVANT—when question whether section man assumed risk is for the jury. Whether knowledge by a section man of a hostler's practice of running engines without sounding the whistle or ringing the bell amounts to an assumption of risk is a question for the jury, under evidence that the hostler started the engine without warning within two hundred feet of where the section man was working, who had his back turned to the engine and did not know of its presence in the yards.

2. SAME-hostler and section hand are not necessarily fellowservants. A hostler whose duties require him to run engines from the depot to the round-house is not necessarily and as a matter of law a fellow-servant of a section hand employed in the yards, and whose association with the hostler in discharging his duties is accidental, and not habitual.

3. INSTRUCTIONS--when party cannot complain of refusal of instruction. A party offering several instructions embodying the same proposition in varying language cannot complain that the one he considers most important was refused, where the others are given.

4. SAME rule as to instruction for weighing affirmative and negative testimony. An instruction advising the jury that the testimony of a witness that he heard a locomotive bell ringing is of greater weight than the testimony of a witness that he did not hear it ring must be based upon the hypothesis of equal opportunity.

5. TRIAL-when improper statement of counsel will not reverse. A statement by counsel for plaintiff, in the presence of the jury, to the effect that plaintiff was not going to ask any instructions, while improper will not work reversal, where it was made in response to the court's request to "pass up your instructions and proceed with your arguments."

6. SAME-Sustaining objections to improper remarks does not always purge record of error. The action of the court in sustaining objections to improper remarks or conduct of counsel will not always be regarded as purging the record of error.

APPEAL from the Appellate Court for the Second District;-heard in that court on appeal from the Circuit Court of LaSalle county; the Hon. CHARLES BLANCHARD, Judge, presiding.

GLENNON, CARY & WALKER, and REEVES & Boys, for appellant.

ARTHUR H. SHAY, BROWNE & WILEY, and Brewer & STRAWN, for appellee.

Mr. JUSTICE SCOTT delivered the opinion of the court:

This is an appeal from a judgment of the Appellate Court for the Second District, affirming a judgment of the circuit court of LaSalle county for the sum of $8000, recovered by appellee against appellant for personal injuries.

One terminus of appellant's railroad is at Streator, Illinois, where it has extensive switch yards. Lundy street, in that city, is a street running east and west. North from that street, in the following order and parallel thereto, are Livingston, Wilson, Bridge and Main streets. Between Lundy street and Main street, the main track of appellant runs north and south. This track approaches Lundy street from the south, and, together with all the other tracks of appellant, terminates at or near Main street. The depot is located on Bridge street, about one block south of the terminus of appellant's tracks. About one hundred feet south of Lundy street, a switch leaves the main track on the east side and runs first in a north-easterly direction. As it approaches Main street, however, it gradually turns in a north-westerly direction and again intersects the main track. This switch is known as the lead track. Between this lead track and the main track are five switch tracks, which are parallel with the