Lusk v. Thatcher

• Decision Date: 31 March 1882
• Citation: 1881 WL 14534,102 Ill. 60
• Parties: ROBERT T. LUSKv.GEORGE L. THATCHER et al.
• Court: Illinois Supreme Court

102 Ill. 60

1881 WL 14534 (Ill.)

ROBERT T. LUSK

v.GEORGE L. THATCHER et al.

Supreme Court of Illinois.

Filed at Ottawa Nov. 10, 1881.Rehearing denied March Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Cook county; the Hon. MASON B. LOOMIS, Judge, presiding.

Messrs. HERBERT, QUICK & MILLER, for the appellant.

Mr. JOHN P. WILSON, Mr. GEORGE L. THATCHER, and Mr. FELIX J. GRIFFIN, for the appellees.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

We are of opinion the decree below should be affirmed, upon the ground that an indispensable party defendant was not before the court. The court itself may state this “objection, and refuse to make the decree, or if a decree is made, it may, for this very defect, be reversed on a rehearing or on an appeal.” * * * Story's Equity Pleading, (5th ed.) secs. 75, 236; Herrington v. Hubbard, 1 Scam. 569.

The object of the bill was to contest an election held for the purpose of determining whether certain territory should become incorporated as a village. The only defendants named or brought before the court are certain private individuals alleged to have been the principal promoters of the scheme. The contestants are certain private individuals claiming to be residents and voters within the territory proposed to be incorporated. Thus the suit is entirely between private parties. But if there be an incorporation, it constitutes a municipality, and is vested with local sovereignty. It is public, and its powers are to be exercised for the benefit of the public, and not of private parties. Both persons and place are indispensable to such a corporation. Dillon's Municipal Corporations, (1st ed.) sec. 9. But the persons interested in the establishment of the municipality to-day, may cease to have any interest in it to-morrow, since it is manifest there can be no property rights in a public franchise. Upon no theory are the persons here made defendants entitled to represent the public, and the question, legally considered, however much private feeling may be enlisted, is one that purely concerns the public.

But counsel say there were no village officers elected, and hence it was impossible to make the village a party; but it does not hence follow that it was impossible to bring before the court a proper representative of the village--that is to say, of the public. But it is not at present important to ascertain who should have been brought before the court to represent the public interest,--it is sufficient no rule of common law and no statute authorizes those who are before the court to represent that interest. No one can be affected by a decree who was not before the court, actually or constructively, when it was rendered. It being the public, not A B or C D, that is to be represented in this corporation, it must result that a decree in regard to the election not concluding the public would conclude nobody.

The decree is affirmed.

Decree affirmed.

Subsequently, on an application for a rehearing of this cause, the following additional opinion was filed:

Mr. JUSTICE MULKEY:

An application having been made for a rehearing of this case, we have, with much care, reconsidered the grounds upon which it was placed on...