Cheshire v. Kelley

• Citation: 116 Ill. 493,6 N.E. 486
• Parties: CHESHIRE and others v. KELLEY.
• Decision Date: 27 March 1886
• Court: Supreme Court of Illinois

116 Ill. 493

6 N.E. 486

CHESHIRE and others

v.KELLEY.

Supreme Court of Illinois.

March 27, 1886.

Error to appellate court, Third district.

Stevenson & Baum, for appellant.

Thornton & Lloyd, for appellee.

SCHOLFIELD, J.

Neither of the objections taken to the judgment below is, in our opinion, tenable.

1. This information, unlike those in Donnelly v. People, 11 Ill. 552;People v. Mississippi & A. R. Co., 13 Ill. 66;Wight v. People, 15 Ill. 417; and Hay v. People, 59 Ill. 94,-cited by counsel for plaintiff in error,-follows the language of the constitution, and is prosecuted ‘in the name and by the authority of the people of the state of Illinois,’ and concludes, ‘against the peace and dignity of the same, people of the state of Illinois.’ The constitution does not require that the people shall present or prosecute, but only that the prosecution ‘shall be carried on in the name and by the authority of the people of the state of Illinois,’ (section 33, art. 6, Const. 1870;) and hence, in indictments, it is only required that it be said: ‘The grand jurors chosen, selected, and sworn in and for the county of _____, in the name and by the authority of the people of the state of Illinois, upon their oaths present,’ etc.,-Rev. St. 1874, p. 408, § 408; Whitesides v. People, Breese (Beecher's Ed.) 21. And it must follow, by parity of reasoning, it is sufficient that, in information, the state's attorney, ‘in the name and by the authority of the people of the state of Illinois, prosents,’ or ‘gives the court to understand and be informed,’ etc.; and in practice we are not aware that this has ever been seriously questioned. There is surplusage in the language here employed, but it is not of that character which vitiates.

2. It is a misapprehension to suppose, as counsel seem to, that this is an information in regard to a matter of private right. It concerns, in a legal point of view, the public alone, and in such cases the state's attorney may proceed, ‘either of his own accord, or at the instance of any individual relator.’ Rev. St. 1874, p. 787, § 1. It is therefore not only of no consequence that the relator showed no interest in the so-called district 9, but his name might have been wholly omitted without prejudice to the prosecution.

3. Inasmuch as the information proceeds upon the hypothesis that there is no corporation in law by the name of school-district No. 9, it would have been impossible to make the corporation a party. The only persons, if that hypothesis be true, to be brought before the court are those assuming to act in the capacity of directors of such district. The persons assuming to act as directors of the district were therefore the only parties that need be before the court to test the validity of the organization of the district. People v. Draper, 15 N. Y. 532;People v. Carpenter, 24 N. Y. 86; and People v. Board of Education, 101 Ill. 308.

4. In our opinion district 9, under the...