Massey v. People ex rel. Westcott

• Decision Date: 18 February 1903
• Citation: 66 N.E. 392,201 Ill. 409
• Parties: MASSEY v. PEOPLE ex rel. WESTCOTT et al.
• Court: Illinois Supreme Court

201 Ill. 409

66 N.E. 392

MASSEY

v.PEOPLE ex rel. WESTCOTT et al.

Supreme Court of Illinois.

Feb. 18, 1903.

Appeal from Appellate Court, Fourth District.

Information in the nature of quo warranto by the people, on the relation of Thomas E. Westcott and another, against Henry C. Massey. From a judgment of the appellate court (103 Ill. App. 397) affirming a judgment of ouster, defendant appeals. Reversed.

Farthing & Peavler and G. Gale Gilbert, for appellant.

D. H. Wells, Conrad Schul, and William H. Green, for appellees.

CARTWRIGHT, J.

The state's attorney of Jefferson county commenced this suit in the circuit court of said county by filing, by leave of said court, an information in the nature of a quo warranto, on the relation of Thomas E. Westcott and Barton C. Wells, against the appellant, Henry C. Massey, charging the appellant with usurping the office of alderman from the First Ward in the city of Mt. Vernon, in said county. Appellant appeared, and presented his defense to the information in three pleas, to which replications were filed. The appellant demurred generally and specially to the replications, and the state's attorney moved the court to carry the demurrer back to the pleas. The motion was allowed, and the demurrer was carried back and sustained to the pleas. The appellant elected to stand by his pleas, and refused to plead further, whereupon judgment of ouster and for costs was rendered against him. The Appellate Court for the Fourth District affirmed the judgment.

The demurrer of defendant to the replications opened the whole record, and was to be taken as a demurrer to that pleading which contained the first fatal defect. It might be properly carried back to the first substantial defect in the pleadings. McDonald v. Wilkie, 13 Ill. 22, 54 Am. Dec. 423. The defendant to an information in the nature of a quo warranto to contest his title to an office must show on the face of his plea that he has a valid and sufficient title to such office. It is not enough to allege generally that he was duly elected to the office, but he must allege facts which, if true, will invest him with the legal title. Clark v. People, 15 Ill. 213;People v. Ridgley, 21 Ill. 65;Carrico v. People, 123 Ill. 198, 14 N. E. 66. The first and third pleas amounted to no more than pleas of not guilty, and that defendant was duly elected to the office of alderman at the annual city election in the city of Mt. Vernon, held on the 16th day of April, 1901. The second plea was, in substance, as follows: It alleged that defendant was a candidate for alderman at the annual city election in the city of Mt. Vernon, held on the 16th day of April, 1901, for the purpose of electing a mayor and other city officers; that Henry B. Hinckley was a candidate for the same office; that defendant received 119 legal votes for said office at said election, and Hinckley received a much smaller number of legal votes; that two persons, whose names were given, who were not legal voters, voted for said Hinckley; that, by counting said illegal votes for said Hinckley, the returns of the election showed the defendant and Hinckley each received 117 votes; that the defendant, on April 18, 1901, filed his petition to contest said election before the city council; that due service was had on said Hinckley; that on May 2, 1901, at a regular meeting, the city council heard the contest, and declared the defendant elected to said office; that he possessed all the legal qualifications for alderman; and that he then took the oath as such alderman. While a plea must allege the facts showing good title to the office, certainty to a common intent, in general, will satisfy the requirements of the law, where the substantial facts constituting the defense can be put in issue. People v. Shaw, 14 Ill. 476. Where a demurrer is carried back of the pleading to which it is interposed, it is for defects of substance, such as are reached by general demurrer, and the question whether the court was right in...