Heise v. Munroe

• Citation: 81 N.E. 704,227 Ill. 604
• Parties: PEOPLE ex rel. HEISE, State's Atty., v. MUNROE et al.
• Decision Date: 19 June 1907
• Court: Supreme Court of Illinois

227 Ill. 604

81 N.E. 704

PEOPLE ex rel. HEISE, State's Atty.,

v.MUNROE et al.

Supreme Court of Illinois.

June 19, 1907.

Appeal from Circuit Court, Will County; A. O. Marshall, Judge.

Quo warranto by the people, on the relation of William D. Heise, against George H. Munroe and others. Plaintiff appeals from a judgment for defendants. Affirmed.

William D. Heise, State's Atty. (Edward Corlett and George J. Clare, of counsel), for appellant.

S. J. Drew and J. W. Downey, for appellees.

SOCTT, J.

The state's attorney of Will county filed an information in the nature of a quo warranto in the circuit court of that county against appellees to test the organization of a drainage district bearing the name of the ‘Spring Creek Drainage District,’ purporting to have been organized under the levee act. The information contains two counts. The first is in the ordinary form, charging that the appellees, for the pretended body corporate, have without lawful authority exercised the franchise of a drainage district. The second count differs from the first, in that it sets out a description of the territory within the pretended district, and shows that a portion of the territory is within the city limits of the city of Joliet. Appellees filed two pleas. The first, after being several times amended, sets out in detail the steps taken in organizing the district. To the second plea a demurrer was interposed and sustained, and the only plea hereinafter referred to is the first plea as finally amended. Appellant obtained leave to reply double, and filed eight replications. Appellees demurred generally to all the replications, and the demurrer was sustained. The appellant elected to abide its replications. Final judgment was entered against it, and thereupon it appealed to this court.

The propositions discussed by appellant, so far as they arise upon consideration of the replications, will be disposed of by us without regard to which particular replication avers the facts considered.

Section 2 of chapter 42, Hurd's Revised Statutes of 1905, provides that the petition for the organization of the district may be filed ‘in the county court.’ The following section contains this language: ‘Such petition being filed the clerk of said county court shall cause three (3) weeks' notice of the presentation and filing of such petition to be given.’ It is then provided that the notice shall be by posting and by publishing in a newspaper, and that copies shall be mailed to nonresidents. It appears that the petition herein was filed on January 17, 1903, and the certificate of filing was signed, ‘Alfred E. Mottinger, Co. Clerk Will Co., Ill.’; that the notices given were signed, ‘Alfred E. Mottinger, County Clerk,’ and fixed March 20, 1903, which was one of the days of the February law term of the county court of Will county for the year 1903; that an order purporting to find all the jurisdictional facts was entered on the last-mentioned date, practically all the landowners being defaulted; and that the order organizing the district was entered on October 26, 1903. It is contended that the county court was without jurisdiction to organize the district, because the petition did not appear, by its file mark, to have been filed in the county court, and because the notice given was signed by Mottinger in his capacity as county clerk, and not as clerk of the county court.

Appellant relies principally upon the case of McChesney v. People, 174 Ill. 46, 50 N. E. 1110. It was there held that section 186 of the revenue act (Hurd's Rev. St. 1893, p. 1209, c. 120), which required a certain document to be filed as part of the records of the county court, was not satisfied by showing that instrument, bearing thereon, after the date of the filing, the signature of the clerk, followed by the words ‘County Clerk,’ for the reason that the records in the office of the county clerk, which are kept by that officer in his capacity was county clerk, are not the records of the county court. In that case there was nothing whatever to show that the instrument had been filed in the county court. Here the order of March 20, 1903, expressly finds that the petition was filed in the county court on the 17th day of January, 1903. That finding is not necessarily inconsistent with the file mark, as the petition, even after receiving that file mark, may have been on the same day filed or deposited in the county court. We have frequently held ‘that the finding by the court of due service of process will not be rebutted by a defective service of process to the return term where there has been a continuance to a subsequent term, but in support of such presumption [finding] we would presume that an alias summons to the subsequent term had been taken out and duly served, although such an alias writ might not appear upon the files.’ Dickison v. Dickison, 124 Ill. 483, 16 N. E. 861. Following the reasoning which led to that conclusion, we think the original file mark on the petition, in view of the finding of the court that the petition had been filed as required by statute, does not warrant us in holding that the court had no jurisdiction. We think, from the language of the statute, that the notice should be signed by the clerk of the county court. As the same person acts in the dual capacity of county clerk and clerk of the county court, a notice signed by the county clerk is necessarily a notice signed by the clerk of the county court, and it is not vitiated by the fact that he attaches to his signature the words ‘County Clerk,’ when he should attach the words ‘Clerk of the County Court.’ Parties are bound to take notice of the fact that the county clerk is clerk of the county court. The notice was made returnable on March 20, 1903, which was not the first day of any term of the county court, and was not a day which had been fixed or designated in any amnner as a return day for any term of that court, and it is urged that by analogy to the common law the notice was for this reason fatally defective. The statute merely provides that upon the petition being filed the clerk ‘shall cause three (3) weeks' notice of the presentation and filing of such petition to be given.’ We think the legislative purpose was to fix the return day with reference to the date of filing the petition, and that the clerk might properly make the writ returnable on any day which was far enough in the future to permit the statutory notice to be given prior thereto.

It is also averred that the petition was not signed by a majority of the landowners, and that it was not signed by landowners who represented one-third in area of the lands included within the district, as required by section 2, supra, and that the names purporting to be signed to the petition for organization of the supposed district were not, in fact, signed to such petition by the property owners. The order of March 20, 1903, finds, from evidence submitted, that the petition was duly signed by a majority of the owners who represented at least one-third in area of the lands to be affected by the formation of the district. As it appears from the plea that the court had jurisdiction of the parties and of the subject-matter, we think the finding of the court just mentioned is conclusive and binding upon the parties in this suit. If the evidence which the court heard did not warrant this finding, the remedy is not by this proceeding. People v. Waite, 213 Ill. 421, 72 N. E. 1087.

It is then argued that the petition does...