* *

of the State, it would still not have the power to deprive a citizen of valuable property rights under the guise of prohibiting or regulating some business or occupation that has no tendency whatever to injure the public health or public morals or interfere with the general welfare. * The owner of property has the constitutional right to make any use of it he desires, so long as he does not endanger or threaten the safety, health and comfort or general welfare of the public." People v. City of Chicago, 261 Ill. 16; People v. Ericsson, 263 id. 368; People v. Village of Oak Park, supra.

The plans presented did not comply with the various building ordinances in a number of particulars. While, as counsel suggests, these were only in respect to minor matters, they were matters concerning which there were specific requirements in the ordinances and it was essential that they be complied with. After the plans were presented the clerk in charge in the office of the commissioner of buildings called attention to the various particulars in which the plans were not in compliance with the building ordinances. The relator offered to alter the plans in these respects and make them comply with the provisions of the various ordinances. The building commissioner informed the relator that he would not be permitted to make these changes; that the plans would not be approved in any event and that no permit would be issued. In an amendment to the petition for mandamus the relator sets up these facts and offers to make such corrections as will make the plans comply with the ordinances of the city of Chicago, and offers and agrees that the proposed building will be constructed and built in accordance with such ordinances. The prayer of the petition is that the court grant a writ of mandamus commanding the city of Chicago and the other appellants to approve the plans as presented and to issue and deliver to relator a permit for the construction of the building. The prayer of the petition was not amended to comply with the amend

ment to the petition, and the petition nowhere states what the proposed changes in the plans are. The judgment awarding the writ directed that the writ issue commanding appellants forthwith to issue and deliver to relator the permit for the erection of his building as described and prayed for in the petition.

Appellee contends that inasmuch as the commissioner of buildings stated that he would not permit any corrections or changes to be made in the plans, and that he would not, in any event, approve them or issue the permit, appellee was excused from making the changes which it is conceded are nécessary to be made. This contention would not be without force if the petition and the prayer thereof set out specifically the changes which it was proposed to make and the proof disclosed that with such changes the plans would be in compliance with the ordinances of the city. Under the judgment as entered the writ must issue, directing the approval of plans which are concededly not in compliance with the ordinances of the city and for the issuance of a permit for the erection of a building in accordance with such plans. Appellee is not entitled to such a writ. It was not the duty of the commissioner of buildings to approve plans which were not in compliance with the ordinances of the city, and before applying for the writ of mandamus the relator should have tendered the commissioner of buildings plans which complied with the requirements of the ordinances of the city. The writ of mandamus will be awarded only in cases where the petitioner shows a clear right to the writ and a clear neglect of duty on the part of defendant to perform the act sought to be enforced. In such a case as this, before the writ will issue the petition must show a compliance with all the valid requirements of the ordinances. People v. Busse, 248 Ill. 11.

As the plans submitted are not in compliance with the ordinances it was error to require the building commissioner to approve them and to issue the permit. For this reason

the judgment of the circuit court is reversed and the cause is remanded, with leave to amend the petition if the appellee so desires.

Reversed and remanded.

(No. 11502.-Judgment affirmed.)

JOHN M. GLENN, Appellant, vs. ANDREW M. Lawrence et al. Appellees.

Opinion filed October 23, 1917-Rehearing denied Dec. 6, 1917.

I. MALICIOUS PROSECUTION-how malice may be proved. While malice, as an element of malicious prosecution, does not necessarily mean personal ill-will, spite or hatred towards the person prosecuted and may be proved by showing that the prosecutor was actuated by improper motives, yet ill-will, spite or hatred constitutes express malice and may be proved both to sustain the action and for the recovery of exemplary damages.

2. SAME-proof of element of want of probable cause is essential. Proof of the element of want of probable cause is essential to the sustaining of an action for malicious prosecution notwithstanding malice and all the other elements are proven, as want of probable cause cannot be inferred from malice and both malice and want of probable cause must be proved.

3. SAME-general rule as to what is probable cause. Probabie cause is a belief held in good faith by the prosecutor in the guilt of the person prosecuted, based on circumstances sufficiently strong to induce a belief in the mind of a reasonably cautious person that the person prosecuted is guilty of the particular offense charged.

4. SAME what does not show a want of probable cause. The dismissal by the State's attorney, at the instance of plaintiff's attorney, of an information for criminal libel in the municipal court when there was an opportunity to try the defendant, the institution of a second proceeding in the criminal court of Cook county for the same alleged libel, the action of the grand jury in finding "not a true bill," and the dismissal of the complaint by the criminal court, do not show want of probable cause for the prosecution.

5. SAME when the plaintiff must be held to have had probable cause. Where the plaintiff in an action for criminal libel sets out the alleged libel in his complaint, together with all the facts in detail, and such complaint is examined by the judge and indorsed by him with the statement that he is satisfied there is probable

cause for filing the complaint, the plaintiff must be held to have had probable cause the same as though he had acted on the advice of counsel.

6. SAME when rule that every person is presumed to know the law has no application. The rule that every person is presumed to know the law is neither necessary nor applicable in an action for malicious prosecution, and it is a complete defense to show that the defendant to such action, after a full, fair and truthful statement of the facts within his knowledge, was advised by counsel that there was probable cause for a criminal prosecution and that he acted on such advice in making his complaint.

APPEAL from the First Branch Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook county; the Hon. RICHARD E. BURKE, Judge, presiding.

ZANE, MORSE & MCKINNEY, for appellant.

MAYER, MEYER, AUSTRIAN & PLATT, (LEvy Mayer, and ALFRED S. AUSTRIAN, of counsel,) for appellees.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

This action of trespass on the case for malicious prosecution of the appellant, John M. Glenn, by the appellees, Andrew M. Lawrence and Roy D. Keehn, on a charge of criminal libel based on two publications in The Manufacturers' News, a newspaper published by the appellant, was brought in the superior court of Cook county. The plea was the general issue, and on a trial the court, at the conclusion of the evidence offered by plaintiff, directed a verdict of not guilty, and judgment was entered accordingly. The Appellate Court for the First District affirmed the judgment on appeal, and this further appeal was prosecuted.

The facts proved upon which the verdict was directed are as follows: On February 14, 1913, the senate of this State passed a resolution directing the appointment of a committee, of which Barratt O'Hara, Lieutenant-Governor,

was to be president, to investigate, and to report to that or the succeeding senate, the workings of the existing statutes dealing with the subject of the white slave traffic. The committee held sessions and examined witnesses in Chicago. The plaintiff was the publisher of a newspaper called The Manufacturers' News, published in that city, and on March 6, 1913, it contained the following: "Lieutenant-Governor Barratt O'Hara, chairman of the so-called 'white slave commission,' was for a number of years connected with The Chicago Examiner. He now enjoys the fullest confidence of Andrew Lawrence, representative of the Hearst papers in Chicago. It is our judgment that this investigation would not be nearly so vigorous if the State street merchants would furnish the Hearst papers with a sufficient amount of full-page advertising to satisfy the greed of Mr. Lawrence." This was followed by a quotation from a book written by Jane Addams and criticisms of the alleged theory of the commission that the evil was due to low wages, and allegations that the committee apparently had in view the establishment of a minimum wage for women. On March 13, 1913, the plaintiff published in his newspaper another article concerning a meeting of the committee to which the plaintiff was brought and questioned as to the foundation of his former statement as to the connection between O'Hara and Lawrence. That article contained the following: "During the examination Lieutenant-Governor O'Hara was repeatedly prompted by M. B. Coan, who was immediately behind him and part of the time stood up so he could better say to Mr. O'Hara what he desired. Every person in the room had as good an opportunity to observe what was taking place between Mr. O'Hara and Mr. Coan as the witness. Many of the members of the General Assembly and many of the newspaper men present know Mr. Coan personally and know whether he has relations with Andrew Lawrence and the Hearst papers or not." This was followed by inquiries whether it was not well known