in its procurement, but the averment is, in substance, that the failure of the United States company to exercise greater diligence in its defense and permitting judgment to go against it under the circumstances set out in the plea was a fraud upon appellees. This averment the Appellate Court held to be surplusage, and we are of opinion the defense to the bill interposed by the pleas was not dependent upon this averment or whether the parties were guilty of any fraud, in fact, in the procurement of the judgment. The proofs clearly show that claim was founded upon a contract that was in violation of law and contrary to the public policy of the State. In such cases equity will not afford relief.

It is contended by appellants that the bonds sued on by Loughlin were issued by the United States company after all its contracts with its constituent companies had either expired or been canceled and after the judgment in the quo warranto proceeding, and that the United States company at that time was not an unlawful combination. This position we think untenable even if it be true (which does not clearly appear from the evidence) that the United States company was not an unlawful combination at the time the bonds were issued. The bonds issued to Loughlin in February, 1897, were in renewal of bonds that had matured, and those bonds had been issued to him for merchandise sold and money loaned under the unlawful agreement. This could not have the effect of relieving the transaction of the taint of illegality. Embrey v. Jemison, 131 U. S. 336. We are of opinion the judgment of the Appellate Court was correct, and the judgment is affirmed.

Judgment affirmed.

THE CITY OF CHICAGO, Defendant in Error, vs. JOHN E.

KNOBEL, Plaintiff in Error.

Opinion filed December 17, 1907-Rehearing denied Feb. 6, 1908.

I. ACTIONS ANd defenses—suit to recover penalty for violation of an ordinance is a civil suit. A proceeding by a city to recover a penalty for violation of an ordinance is not a criminal proceeding but a civil suit.

2. CONSTITUTIONAL LAW-petit jurors for municipal court are properly drawn from body of county. Section 25 of the Municipal Court act, requiring petit jurors for the municipal court of Chicago to be drawn from the body of the county instead of from the city of Chicago, does not violate sections 5 and 9 of article 2 of the constitution, relating to trial by jury, since the practice of drawing jurors from the body of the county for courts of record preserves inviolate the right of trial by jury.

3. SAME it is not improper to require county to bear part of expenses for juries for municipal court. The provision of section 25 of the Municipal Court act making the county of Cook bear part of the expense for juries for the municipal court of Chicago, does not deprive residents of the county outside the city of their property without due process of law, nor does it violate sections 9 and 10 of article 10 of the constitution, concerning taxation. (People v. Stookey, 98 Ill. 537, explained.)

4. ORDINANCES-what is admissible in prosecution for violating smoke ordinance. In a suit by a city against the manager of an office building for violation of a smoke ordinance, proof that the building was equipped with a heating plant of the most approved type, and that the owner of the building had done all that human skill could devise to prevent smoke escaping from the stack, should be admitted for the consideration of the jury, to guide them in fixing the penalty.

WRIT OF ERROR to the Municipal Court of Chicago; the Hon. JOHN C. SCOVEL, Judge, presiding.

EDWARD B. ESHER, for plaintiff in error.

GEO. H. WHITE, City Prosecuting Attorney, (J. Kent GREENE, and HENRY M. SELIGMAN, of counsel,) for defendant in error.

Mr. JUSTICE CARTER delivered the opinion of the court:

This is a proceeding brought by the city of Chicago against plaintiff in error in the municipal court of Chicago for the recovery of a penalty for the violation of the "smoke ordinance." Trial was had before a jury and judgment and verdict rendered for $300 and costs. The plaintiff in error moved for a new trial, which the court overruled. Thereupon he prayed an appeal to this court, which was denied, and a writ of error was then sued out from this court.

It appears that the plaintiff in error is manager of an eighteen-story office building located on Madison street, in Chicago, known as the Heyworth building. One of the deputy smoke inspectors for the city testified that on a number of occasions each day for three days in February, 1907, in the course of his official duties he observed dense smoke coming from the smoke-stack of the building. This, with some evidence from the chief smoke inspector as to the routine of his office, and the reading of the ordinance, constituted substantially the city's case.

Plaintiff in error insists that section 25 of the Municipal Court act of the city of Chicago (Hurd's Stat. 1905, p. 644,) is unconstitutional, in that it requires that the petit jurors for the trial of cases in the municipal court shall be provided by the jury commissioners of Cook county in the same manner and from the same lists, as near as may be, as petit jurors are for the circuit, superior and criminal courts of that county, instead of providing that such jurors should be drawn only from within the limits of the city of Chicago. The claim is that this provision is in conflict with that part of section 5 of article 2 of the constitution which reads, "The right of trial by jury as heretofore enjoyed shall remain inviolate," and section 9 of the same article, which provides that the accused in all criminal prosecutions shall have a right to trial by an impartial jury "of the county or district in which the offense is alleged to have been committed."

We think it is clear that this action, being one to recover a penalty for violation of a city ordinance, is not a criminal prosecution but a civil suit; that such a penalty could not be recovered in criminal proceedings. (Hoyer v. Town of Mascoutah, 59 Ill. 137; Ewbanks v. Town of Ashley, 36 id. 177; Town of Jacksonville v. Block, 36 id. 507; Baldwin v. City of Chicago, 68 id. 418; Town of Partridge v. Snyder, 78 id. 519.) This being so, said section 9 of article 2 cannot be here invoked. However that may be, under the common law, in both civil and criminal cases, the jury were to be taken from the visne or neighborhood,— from among the neighbors and equals of the litigants or the accused, and by long usage this came to mean from the body of the county. (2 Sharswood's Blackstone's Com.. book 3, *360-379; 17 Am. & Eng. Ency. of Law,—2d ed.— p. 1120; Proffatt on Jury Trial, sec. 80; Watt v. People, 126 Ill. 9.) The rule seems to have been considered more important as applying to criminal than to civil trials. (2 Sharswood's Blackstone's Com. book 4, *349.) This difference in the enforcement of the rule between the two classes of cases is seen in our own State in allowing a change of venue. In criminal cases change of venue can only be had at the request or by consent of the accused, while in civil cases either party, if he brings himself within the provisions of the statute, may have a change of venue from the county. In this State the question seems to have been raised only in criminal cases, and it has been held that the word "district,” as to such cases, means "county."

In Miller v. People, 183 Ill. 423, this court held that a grand jury, under the City Court act, should be drawn from the body of the county and not from within the limits of the city in which such city court had jurisdiction. Under the recent decision of Miller v. People, 230 Ill. 65, this court, in considering the constitutionality of another section of the Municipal Court act of the city of Chicago, held that the court provided for under that act was substantially the

same, in jurisdictional features, as the courts held under the City Court act. Comparing the reasoning of this last decision with that found in Ladies of Maccabees v. Harrington, 227 Ill. 511, it is obvious that any claim that courts under the City Court act (Hurd's Stat. 1905, p. 631,) and the Municipal Court act of the city of Chicago, now under consideration, have different powers, under the constitution, as to the selection of grand or petit jurors, cannot be upheld. While the case of Miller v. People, supra, (in 183 Ill.) only discusses the question as to the grand jury of the city court, manifestly the reasoning in that decision is decisive of the question here under discussion. While the service of original process for the commencement of suits under both of these laws is confined to the city limits wherein such court is located, it has been held that such court could send its process beyond the city limits to serve a juror, and that when jurisdiction of the cause once attached, the court might issue process beyond the limits of the city to enforce any judgment. (People v. Barr, 22 Ill. 241; Reid v. Morton, 119 id. 118.) Not only by the common law but by the practice in this State the rule is well established that jurors in courts of record can be legally drawn from the body of the county. This practice preserves the right of trial by jury as enjoyed before the present constitution was adopted, and therefore does not violate sections 5 and 9 of article 2 of the constitution. The cases of Weyrich v. People, 89 Ill. 90, and Buckrice v. People, 110 id. 29, do not in any way conflict with this conclusion.

It is also urged that said section 25 of the Municipal Court act of the city of Chicago is unconstitutional because it provides that the expense of summoning the jurors by the sheriff of Cook county shall be paid by the county, and because the county pays the expenses of the jury commissioners' office in drawing the jurors for the municipal court; that as the municipal court has been created and is maintained solely for the convenience of and in the interests of