whereat Snedeker received 176 votes and the only opponent 141 votes; that Snedeker was declared elected by the judges and by the canvassing board and filed his oath of office and bond with the town clerk within the statutory time.

Counsel for appellant contend that the real purpose of this proceeding is to declare the election for organizing said single highway commissioner system illegal, and that this cannot be done by quo warranto proceedings, citing People v. Whitcomb, 55 Ill. 172. and High on Ex. Legal Remedies, sec. 618. The information in this case alleges the usurpation of a franchise, right or privilege exercised through Snedeker, and does not make the commissioner district a party, and does not allege, in terms, that the district was illegally organized. In discussing the proper allegations in an information of this character, this court said in People v. Rodenberg, 254 Ill. 386, on page 389: "If the object of the information is to question the legal existence of a corporation, body or thing to which the office pertains, the information is to be filed against the individual assuming to hold and exercise the duties and powers of the office. If the information alleges the usurpation of a franchise, right or privilege exercised through individuals as officers, it is not necessary to make the inconsistent allegation that the office exists." The information in this last case challenged the existence of the court, which was characterized as a pretended court, and called upon the respondent to show by what warrant he claimed to exercise the powers of a judge of a court having no legal existence.

In Hinze v. People, 92 Ill. 406, this court said (p. 413): "The statute provides that the writ shall lie as well where any person unlawfully holds or executes any office or franchise as where any person shall usurp or intrude into any office or franchise. If the law by which it is claimed the office is created is invalid and of no effect because in contravention of the constitution, any person who assumes to hold or execute such office must necessarily do so unlaw

fully and therefore come literally within the language of the statute, that is, 'unlawfully hold and execute such office.' Whether there can, legally speaking, be a usurpation or intrusion when there is no lawful office is not, therefore, a material inquiry. Although there may have been no unlawful usurpation or intrusion, there was an unlawful holding and executing of an office if the law by which it is claimed to have been created is unconstitutional." In the Hinze case the information alleged that there was no law authorizing the office.

In a quo warranto proceeding brought against certain persons claiming to be drainage commissioners of Union Drainage District in DuPage county, those persons were ousted and deprived of their office upon a finding by the court that the district was illegally organized. The information contained two counts, the first count challenging the organization of the district. (People v. Gary, 196 Ill. 310.) See, also, to the same effect, People v. Weber, 222 Ill. 180, where the illegality of the office was first raised in the replication. The fact that the legality of the office was not alleged in the information was not raised in any pleading of the respondent.

Under the above authorities it is clear that the information contained allegations which justified the court in taking jurisdiction in this matter in quo warranto proceedings.

We do not deem the authorities relied on by counsel for appellant on this question in point. In People v. Whitcomb, supra, the question attempted to be raised by quo warranto was to test the constitutionality of an act of the legislature which proposed to extend the territorial limits of the city of Morrison, in this State, and the court there said that the question attempted to be improperly raised was whether the city officers could enforce ordinances and levy and collect taxes in the territory annexed by said act when it is claimed that such act was unconstitutional and void, and it was there held that the writ could not be employed to restrain an offi

cer from exercising power not conferred upon him or in territory in which he was not authorized to act. It is largely on the doctrine laid down in that case that the text relied on in High on Extraordinary Legal Remedies is based. We do not think anything is said in these authorities that in any way conflicts with the rulings of this court in the cases heretofore cited where quo warranto proceedings were allowed to oust a person or persons from illegally or unlawfully holding and executing an office that did not exist.

It further appears from the pleadings and the admissions in the record that at the election at which the proposition was submitted the wording of the proposition was, "For Single Highway Commissioner System," while section 161 of the Road and Bridge law of 1913 requires that the ballots to be used at such election shall be in the following form: "For Single Highway Commissioner System;" "Against Single Highway Commissioner System." (Hurd's Stat. 1916, p. 2296.) Under the rulings of this court in construing similar statutes as to the form of ballots to be used in voting, we think it must be held that these ballots for the organization of this district were improperly worded and for that reason the district was not legally organized. This provision of section 161 of the Road and Bridge law as to the form of the ballot is mandatory. Harvey v. Cook County, 221 Ill. 76; People v. Hanson, 150 id. 122; People v. Sullivan, 247 id. 176.

Section 14 of the Australian Ballot law provides, among other things, that "on the back or outside of the ballot, so as to appear when folded, shall be printed the words, 'Official Ballot,' followed by the designation of the polling place for which the ballot is prepared, the date of the election and a fac-simile of the signature of the clerk or other officer who has caused the ballots to be printed." (Hurd's Stat. 1916, p. 1181.) It appears from the record before us that no such printing was on any of the ballots which were cast as to the adoption of the highway commissioner system. As

we deem this provision mandatory with reference to the ballots cast at such election, it must be held that this election was invalid for this reason also.

As this decision on these two points disposes of the case, it is unnecessary to consider or decide the question whether the proper number of votes were counted in order to declare the election carried.

The judgment of the circuit court will be affirmed.

Judgment affirmed.

(No. 11603.-Judgment affirmed.)

JOHN C. MILLER, Defendant in Error, vs. THE GRAND LODGE BROTHERHOOD OF RAILROAD TRAINMEN, Plaintiff in Error.

Opinion filed February 20, 1918.

1. BENEFIT SCCIETIES-when service on a subordinate lodge is equivalent to service on grand lodge. Where all the business of a benefit society is done through subordinate lodges by their officers, suit on a benefit certificate may be instituted by service on the treasurer of a subordinate lodge as agent of the grand lodge in the absence of an averment denying that the grand ledge is a corporation, notwithstanding the constitution of the society provides that subordinate lodges or their officers shall not act as agents for the grand lodge in matters pertaining to the beneficiary department unless authorized in writing.

2. SAME when a motion to continue for want of copy of certificate sued on comes too late. A motion to continue a suit against a benefit society for want of a copy of the certificate sued on comes too late when not made until the case is called for trial, and it is not error to deny the motion where it appears from the record that the certificate was surrendered to the benefit society and was not in the custody of the beneficiary so he could attach it to his declaration when filed.

3. SAME-benefit certificate must be construed as an insurance policy. A benefit certificate is an insurance contract between the parties creating rights and liabilities and must be construed by the same rules as apply to any other insurance policy.

4. SAME-when provision of benefit contract is contrary to public policy. A provision of the constitution of a benefit society that

except in the specific cases enumerated as constituting permanent disability the right of the member to recover for permanent disability shall be determined arbitrarily by the beneficiary board of the society, with no right of appeal in case the claim is rejected, is contrary to public policy and void.

WRIT OF ERROR to the Appellate Court for the Fourth District;-heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. GEORGE A. Crow, Judge, presiding.

N. C. LYRLA, (COLLISTER, GENTSCH & KAVANAugh, of counsel,) for plaintiff in error.

T. M. WEBB, for defendant in error.

Mr. JUSTICE CRAIG delivered the opinion of the court:

The defendant in error recovered a judgment for $2000 against the plaintiff in error in an action of assumpsit in the circuit court of St. Clair county on a beneficiary certificate issued by plaintiff in error to defendant in error. On appeal to the Appellate Court for the Fourth District the judgment was affirmed, and the cause has been brought to this court pursuant to a writ of certiorari.

The errors assigned call in question, first, the action of the circuit court in rendering a judgment of respondeat ouster against plaintiff in error on an issue of fact tendered by replication to a plea in abatement denying proper service; second, the denial of a motion for continuance for lack of a copy of the instrument sued on, attached to the declaration; and third, the construction of certain clauses of the constitution and general rules of plaintiff in error as affecting the benefit certificate or contract of insurance between the parties and permitting a recovery thereon.

The replication to the plea to the jurisdiction put in issue the fact whether or not Maine Lodge Brotherhood of Railroad Trainmen No. 545, a subordinate lodge of said brotherhood, was an agent of the grand lodge. This issue