Catlett v. People ex rel. Wilson

• Decision Date: 13 June 1894
• Citation: 151 Ill. 16,37 N.E. 855
• Parties: CATLETT v. PEOPLE ex rel. WILSON, State's Atty.
• Court: Illinois Supreme Court

151 Ill. 16

37 N.E. 855

CATLETT

v.PEOPLE ex rel. WILSON, State's Atty.¹

Supreme Court of Illinois.

June 13, 1894.

Appeal from circuit court, Vermilion county; F. Bookwalter, Judge.

Quo warranto by the people, on the relation of S. G. Wilson, state's attorney of Vermilion county, against H. B. Catlett and others. There was judgment of ouster. Defendant Catlett appeals. Affirmed.Lawrence & Lawrence, for appellant.

S. G. Wilson, State's Atty., Edwin Winter, and Blackburn & Rearick, for appellee.

MAGRUDER, J.

This is an information for quo warranto by the state's attorney of Vermilion county, ‘who sues for the people of the state of Illinois,’ against J. W. Turner, J. A. Cox, Ed. Robinson, Peter Barry, J. H. Wells, J. M. Hall, and the appellant, B. H. Catlett, charging that they execute, without any warrant or right whatever, the office or corporate name of ‘President and Board of Trustees of the Village of Fairmount,’ and, as such, are unlawfully, without grant or charter, assuming to be a body corporate and politic, by the name and style of the ‘Village of Fairmount,’ and by such name and style are, without warrant of law or charter, assuming and usurping the powers granted by the act of the general assembly of the state of Illinois to provide for the incorporation of cities and villages, approved April 10, 1872, in force July 1, 1872, and acts amendatory thereof, etc., and praying that they show cause by what warrant they claim to hold and execute the said office, etc. The defendant Turner, as president, and five of the other defendants, as trustees, filed an answer, to which the people demurred; and, the demurrer having been sustained, said defendants elected to stand by their answer. The defendant Catlett filed a demurrer to the information,which was overruled, and he then filed four pleas, to which the people demurred, and their demurrer was sustained. He elected to stand by his first and second pleas, and, by leave of court, amended his third and fourth pleas, and filed an additional plea. The latter pleas were demurred to by the people, and their demurrer was sustained. To the order sustaining this demurrer, the defendant Catlett excepted, and elected to stand by his pleas. The court thereupon found the defendants guilty, and rendered judgment of ouster against them, and that they be prohibited from exercising the offices and franchises of the alleged village of Fairmount. From said judgment the defendant Catlett prosecutes the present appeal.

Of the pleas thus filed, the first was not guilty, and the second was the five-years statute of limitations. The other pleas allege, in substance, that the N. 1/2 of the S. E. 1/4 of section 4, township 18, range 13, in Vermilion county, Ill., had been laid off into lots, blocks, streets, and alleys, and in January, 1863, contained more than 150 inhabitants, when, pursuant to the provisions of the statute, a vote of the legal voters of said territory was had, which was favorable to the incorporation of said territory as a town, and, pursuant to said statute, an election was had for the election of five trustees for said town; and that on the 14th day of February, 1863, there was filed in the office of the circuit clerk of said county a certificate of the president and clerk of said first meeting to vote upon the question of incorporation, setting forth the result thereof, and the name of the town being Fairmount, which certificate was recorded in the deed records of said clerk's office. That annually since said time trustees have been elected for the said village, taxes levied, collected, and expended for municipal purposes, as provided by law. That ordinances have been passed, published, and enforced. A stone prison has been built; an interest in a townhall has been purchased; a park is owned,-and all now maintained by the village; streets improved, and debts incurred for the corporation, which remain unpaid; and the general powers and duties of a municipal corporation have been exercised by the village from tis said organization until the present time. It is further alleged that about the year 1872, and after the act of 1872 providing for the incorporation of cities and villages, the trustees changed the name from ‘Town of Fairmount’ to ‘Village of Fairmount,’ and soon thereafter the clerk of the county of Vermilion, upon the request of the secretary of state to furnish the names of all incorporated cities and villages in said county, furnished, among others, the name of the ‘Village of Fairmount,’ which name was duly registered by the said secretary in a book required by law to be kept by him in his office, and that it has ever since said year 1872 been in the list of incorporated villages of this state, in the office of the secretary of state.

Counsel for appellant concede in their brief that the first and second pleas are ‘too general under the statute regulating the practice in a quo warranto proceeding.’ In the proceeding by information in the nature of a quo warranto, the defendant must answer by a disclaimer of title, or justify by showing title. If he disclaims, the people are at once entitled to judgment. If he justifies, he must set out his title specially. He must show on the face of the plea that he has a valid title to the office. The people are not bound to show anything. Being called upon to show by what warrant he exercises the functions of the office, if he does not exhibit good authority for doing so the people are entitled to a judgment of ouster. Carrico v. People, 123 Ill. 198, 14 N. E. 66;Holden v. People, 90 Ill. 434;Clark v. People, 15 Ill. 213.

We do not deem it necessary to consider the question whether or not the town of Fairmount was in all respects legally organized as a town, under the act in relation to the incorporation of towns, which was in force in 1863.1 Scates & B. St. Ill. 1866, p. 195; Gross' St. Ill. 1871, p. 96. For the purpose of determining whether the circuit court decided correctly in sustaining the demurrer to the amended and additional pleas, it may be admitted that the town of Fairmount existed as a legal incorporation prior to 1872. The present information charges usurpation of the powers granted by the act of 1872, providing for the incorporation of cities and villages. The pleas do not explain how the incorporated town of Fairmount became converted into the village of Fairmount. A mere change of the name from the ‘Town of Fairmount’ to the ‘Village of Fairmount’ could not change an incorporated town into an incorporated village. An act passed on March 7, 1872, to enable any city, town, or village in this state to change its name, provides the mode in which such change may be effected,-by filing the proposed name with the secretary of state, and obtaining from him a certificate; by presenting a petition to the corporate authorities of the town for the change; by an order of such authorities, after notice and hearing; and by filing a copy of such order with the secretary of state, and publications, etc. 1 Starr & C Ann. St. p. 513. But article 11 of the city and village act provides an entirely different method by which an incorporated town may become organized as a village....