Ensminger v. People of State Ex Rel. John W. Trover.

CourtSupreme Court of Illinois
Citation95 Am.Dec. 495,1868 WL 5003,47 Ill. 384
Decision Date30 June 1868


APPEAL from the Circuit Court of Alexander county; the Hon. JOHN OLNEY, Judge, presiding.

The opinion states the case. Mr. WM. J. ALLEN, and Messrs. GREEN & GILBERT, for the appellant.

Messrs. JOHN F. MCCARTNEY, H. K. S. O'MELVENY, D. T. LINEGAR, and LOUIS HOUCK, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a proceeding in the nature of a quo warranto, instituted in the Circuit Court of Alexander county, requiring appellee to show by what authority he collects tolls and tonage duties of, and controls the anchoring of vessels lying in the harbor of the city of Cairo. Appellant pleaded four several pleas. First, denying that he did exercise the office of wharfmaster, nor did he use and enjoy the liberties, privileges and franchises in the manner and form as laid to his charge, and concludes to the country. By the second, that Edward Parsons and Samuel Staats Taylor, trustees of the Cairo City property, were the owners of the fee of certain property bor dering on the Ohio river, and being the shore of the river to low water mark, at the city of Cairo, and of the wharf or landing place for vessels, and that it had been and was a private wharf, and that as such they were entitled to charge the navigators of the river reasonable compensation for using the wharf in loading and unloading vessels; that the trustees, as owners and proprietors, gave public notice of the rates of charges for the use of the wharf, and appointed appellant their wharf-master, to collect the charges and take care of the wharf; and that, as such private wharf-master, he collected the charges of vessels landing at the wharf in Cairo.

The third plea avers that certain persons were the owners in fee of a body of land extending to and bordering upon the Ohio river, and as such, laid off and platted the same in November, 1853, into lots and blocks of the city of Cairo, which was duly acknowledged and recorded; that in 1866, the plat of an addition to the city of Cairo was made by the owners in fee of another portion of the land. It avers that the present trustees derive title from the original proprietors, and that in no sale or conveyance have they, or those from whom they derive title, ever parted with the title to the strip of land lying between Levee street and the Ohio river, upon which this wharf has been established, and that they are the owners in fee of the wharf and the ground upon which it is maintained. The plea then avers the establishment of the wharf, and rates of charges, and the appointment of appellant wharf-master, as in the second plea, but more in detail and at large.

The fourth plea avers that Parsons and Taylor are the owners in fee of a strip of land between Levee street and the Ohio river, and that it was expressly reserved in laying out and plating the city of Cairo, and that the fees and charges have been collected as stated in the second and third pleas.

Appellees filed a demurrer to the second, third and fourth pleas, which was overruled. And appellees thereupon filed a number of replications. By the first, it is averred that Levee street is a public highway, laid out upon the top of the bank of the Ohio river, and the high water line of the river is the outer edge of the street, and this street extends along the entire length of the harbor.

The second replication to these pleas avers, that the entire wharf is occupied by wharf and coal boats, the owners of which pay rent to Taylor and Parsons, so that vessels cannot land against the land of the wharf, and that appellant collected charges for landing against the wharf boats, and at places on the wharf where no improvement has been made.

The third replication avers, that appellant had intruded into the public harbor of the city, and collected tolls. The fourth, that the land between high and low water mark in the city of Cairo, had been dedicated by the United States government, and by those under whom Taylor and Parsons claim, to the public, from time immemorial. The fifth, that appellant passes out beyond the water line of the Ohio river, and controls the mooring and anchoring of vessels that do not touch the land between high and low mater mark, nor receive freight from the strip between those points. Sixth, that Taylor and Parsons have no title to the land between high and low water mark, where this wharf is maintained. A demurrer was filed to these replications, but was overruled, the court below holding that they constituted a sufficient answer to the pleas of appellant. Failing to further plead, the court rendered a final judgment restraining him from intermeddling with the offices, privileges and franchises alleged against him in the information. From that judgment an appeal is prosecuted to this court, and we are asked to reverse the same.

The appellant, in the court below, filed an affidavit, setting forth grounds for a change of venue, but the court overruled the motion and proceeded to try the cause. It is not denied that the affidavit contains all facts requisite to the allowance of a change of venue, but it is insisted that the proceeding is criminal in its nature, and that, under the statute, it is a matter of discretion whether the judge shall grant a change of venue in this class of cases. The first section of the statute of 1861, Sess. Laws 182, declares that when any defendant in any indictment, or information for any offense not punishable by death, in any court in this State, shall apply for a change of venue, the court shall have power to grant or deny the same, after hearing the application. Is this an offence punishable criminally? If so, it falls within this enactment; if not, it is otherwise. We are aware of no decision that has ever held that a proceeding by quo warranto is criminal in its nature, much less in form. Anciently, criminal prosecutions were commenced either by an indictment regularly found and presented by a grand jury, or simply on an information drawn up in form, and...

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