Mcphail v. People ex rel. Lambert

• Decision Date: 11 October 1895
• Citation: 43 N.E. 382,160 Ill. 77
• Parties: McPHAIL v. PEOPLE ex rel. LAMBERT.
• Court: Illinois Supreme Court

160 Ill. 77

43 N.E. 382

McPHAIL

v.PEOPLE ex rel. LAMBERT.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Appeal from appellate court, Second district.

Proceeding in the nature of quo warranto, on the relation of Charles T. Lambert, against Duncan McPhail, to oust defendant from the office of police magistrate. A judgment of ouster was affirmed by the appellate court (56 Ill. App. 289), and defendant appeals. Affirmed.W. H. Wells, for appellant.

R. J. Cooney, State's Atty., and L. F. Meek, for appellee.

BAKER, J.

This is an information in the nature of a quo warranto, prosecuted in the Peoria circuit court by the state's attorney of Peoria county, in the name of the people of the state of Illinois, on the relation of Charles T. Lambert, and against Duncan McPhail, the appellant. The information was filed by leave of the judge of the court in vacation, and process was issued and served to the October term, 1893. The cause was heard at said term upon a demurrer to the 1st, 2d, 3d, 4th, 5th, 6th, and 7th pleas of McPhail, and the court sustained the demurrer to each of said pleas; and, McPhail standing by them, the court rendered judgment of ouster against him from the office of police magistrate, and that he pay a fine of one dollar and the costs of the proceeding. On an appeal to the appellate court for the Second district, the judgment was affirmed, and this further appeal then taken.

It appears, from the information, that, prior to November 6, 1891, the city of Peoria was organized under an act entitled ‘An act to reduce the charter of the city of Peoria, and the several acts amendatory thereof, into one act, and revise the same,’ approved February 20, 1869. It also appears that section 1 of an act approved and in force April 13, 1875 (Laws 1875, p. 91; 1 Starr & C. St. p. 533), makes provision for the election of police magistrates in towns, cities, and villages, and that section 2 of said act provides that the election for police magistrates in cities that have one or more police magistrates, elected under a former organization, as a town or city, shall not be held until the term for which said police magistrate or magistrates were elected has expired. It also appears, from the information, that, at a municipal election held in the city of Peoria on the 4th day of November, 1890, Charles T. Lambert was elected police magistrate of the city of Peoria for the term of four years, and that afterwards, and within the time prescribed by law, he duly qualified as such police magistrate and was duly commissioned as such for four years from the first Tuesday in January, 1891, and ever since had been, and still was, performing the duties and exercising the powers, functions, and jurisdiction of police magistrate of the city of Peoria, and that his term of office would not expire until the first Tuesday in January, 1895. And the information shows that on November 6, 1891, the city of Peoria became incorporated under the general incorporation act, entitled ‘An act to provide for the incorporation of cities and villages,’ approved April 10, 1872, and that there is no provision in said act for the election of police magistrates in cities organized under it; and shows that, at a special election held in said city of Peoria, for the election of city officers, on April 19, 1892, candidates for police magistrate were voted for without authority of law, and that, at said election, Duncan McPhail received a majority of the votes cast, and afterwards assumed to qualify as police magistrate, and has since wrongfully, and without authority of law, assumed to act as police magistrate of the city of Peoria. The claim of the information is that, at the time of the adoption of the general incorporation law by the city, there was already a police magistrate in office, who had been elected while the city was incorporated under the act of February 20, 1869, and whose term of office would not expire until January, 1895, and that, therefore, the election of McPhail in April, 1892, as police magistrate, was not only unauthorized by law, but expressly prohibited by section 2 of the act of April 13, 1875.

The first plea sets up that the cause of action did not accrue within 1 year next before the commencement of suit, and the second plea, that it did not accrue within 16 months. Even if it should be regarded that the information in the case at bar is, in effect, a civil remedy, for the protection of private rights, and that the statutes barring ordinary civil actions are applicable to it, yet the statute that would govern would be the last clause of section 15 of chapter 83 of the Revised Statutes, which provides that all civil actions not otherwise provided for shall be commenced within 5 years after the cause of action accrued. But we do not consider this quo warranto proceeding, prosecuted by the state's attorney, for the purpose of ousting one charged with wrongfully and without authority of law exercising the office, jurisdiction, and powers of a police magistrate, as simply a civil remedy, for the protection of private rights only. Police magistrates are public officers, that are provided for in the constitution of the state; and by that instrument the judicial powers of the state are, in part, vested in them. Article 6, §§ 1, 21. The office of police magistrate is one in which the state and the general public have a deep interest, and the jurisdiction attached to it is uniform with that belonging to the office of justice of the peace. It is a matter of public concern to the people of the state, and against their peace and dignity, that any one should unlawfully, and without authority of right, exercise the jurisdiction, powers, and functions of such office, and also a matter of interest to the state and to the general public that more persons than the law authorizes are acting as police magistrates. In this country the rule is that the attorney general or state's attorney may file the information in behalf of the people, where the interests of the general public are involved, at any time, and that, in conformity with the maxim, ‘Nullum tempus occurrit regi,’ lapse of time constitutes no bar to the proceeding. High, Extr. Leg. Rem. § 621; Com. v. Allen, 128 Mass. 308. It is, however, to be borne in mind that granting leave to file an information in the nature of a quo warranto is a matter within the sound legal discretion of the court, or, under our statute, of the judge thereof in vacation; that, in the application for such leave, the...