People ex rel. Busch v. Green

• Citation: 281 Ill. 52,117 N.E. 764
• Decision Date: 06 December 1917
• Docket Number: No. 11421.,11421.
• Parties: PEOPLE ex rel. BUSCH, State's Atty., v. GREEN, Judge, et al.
• Court: Supreme Court of Illinois

281 Ill. 52

117 N.E. 764

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

v.GREEN, Judge, et al.

No. 11421.

Supreme Court of Illinois.

Oct. 23, 1917.

Rehearing Denied Dec. 6, 1917.

Petition for mandamus by the People, on the relation of Louis A. Busch, state's attorney, against Theodore N. Green, judge, and others. Writ ordered to issue.

Craig, J., dissenting.

Edward J. Brundage, Atty. Gen., Louis A. Busch, State's Atty., of Champaign, Charles F. Mansfield, of Monticello, Arthur R. Roy, Asst. Atty. Gen., and Edward C. Fitch, of Chicago, for petitioner.

H. Leonard Johes, of Champaign, and Herrick & Herrick, of Farmer City, for respondents.

DUNCAN, J.

An original petition for mandamus was filed in this court in the name of the people, on the relation of the state's attorney of Champaign county, praying for the issuing of a writ of mandamus to compel Theodore N. Green, one of the judges of the Tenth judicial circuit of tyhis state, of the Tenth judicial circuit of this state, to expunge from the record of the circuit entered by him in a habeas corpus proceeding instituted by William C. Robbins, as relator, before Theodore N. Green, as said judge, and also commanding Augustus M. Evans, sheriff of Champaign county, to apprehend and imprison Robbins in the common jail of Champaign county. Respondents filed their answers to the petition, to which the relator has filed general demurrers,and by the briefs and arguments herein filed the points on the demurrers to be passed on have been argued by counsel for the parties.

The facts disclosed by the pleadings are that on the 23d day of November, 1916, there was pending in the county court of Champaign county an indictment against William C. Robbins for selling liquor in anti-saloon territory, which indictment or cause was numbered 2813 on the trial docket of said court. On that day, by agreement of the state's attorney of said county with Robbins, indictment No. 2813 was consolidated for trial with two other indictments and an information pending in the same court for the same character of offense against the defendant as the one for which he was indicted in cause No. 2813, which causes were numbered 2814, 2815, and 2856. A jury was impaneled in the county court, and the causes so consolidated for trial were tried before the court and a jury, and the jury rendered a separate verdict in each of the four causes. In cause No. 2813 defendant was found guilty on the second count of the indictment; in cause No. 2814 he was found guilty on the second, third, fourth, and fifth counts; in cause No. 2815 he was found guilty on the second count; and in cause No. 2856 he was convicted on the second and third counts. Four entirely separate and distinct judgments and sentences were entered by the county court in said causes. The judgment and sentence in cause No. 2813 were for a fine of $50 and costs of prosecution, and defendant was sentenced to serve 20 days in the common jail of the county, with a further order that, in default of payment of the fine and costs aforesaid, he should stand committed to jail until the fine and costs were fully paid or until otherwise discharged by law. In cause No. 2814 the judgment was that he pay a fine of $50 on each of the second, third, fourth, and fifth counts of the indictment and costs of prosecution--

‘and that the defendant be taken from the bar of this court by the sheriff and by him confined in the common jail of said county for a period of 20 days on each of said second, third, fourth, and fifth counts aforesaid. It is further ordered that the jail sentence in the several counts herein shall run consecutively, and that sentence in this cause shall begin at expiration of sentence in cause No. 2813 against said defendant.’

There was a judgment entered in cause No. 2815 for a fine of $50 and costs on the second count of the indictment and a jail sentence fixed in this langauge:

‘And that said defendant be taken from the bar of this court by the sheriff and by him confined in the common jail of said county for the period of twenty days, and that said jail sentence in this cause shall begin at expiration of sentence in cause No. 2814 against said defendant.’

In cause No. 2856 there was a judgment entered for a fine of $100 and costs on each of the second and third counts, and the defendant was sentenced to serve 10 days in jail on each of said counts, with this further order:

‘It is further ordered that the said jail sentence on the second and third counts shall run consecutively, and that sentence in this cause shall begin at expiration of sentence in cause No. 2815 against said defendant.’

There were also orders in Nos. 2814, 2815, and 2856 that, in default of payment of fine and costs in said causes mentioned, the defendant should be committed to jail, there to remain until said fine and costs were fully paid or until he was discharged by law. There was no reference in any one of the last three mentioned judgments or orders that designated, otherwise than as above set forth, in what court or on what docket the other causes were pending that were referred to in each of said judgments, and by which it was to be ascertained when sentence in jail was to begin for the defendant in the last three numbered causes.

Robbins was placed in jail by the sheriff of said county after the judgment was entered in cause No. 2813, and he served his term in jail as provided by said judgment and paid the fine and costs therein adjudged. On December 29, 1916, after he had satisfied the judgment in cause No. 2813, as aforesaid, Robbins presented to the respondent Theodore N. Green, one of the judges of the Tenth judicial circuit, a petition for a writ of habeas corpus, in which he alleged, in substance, that said pretended judgments and sentences in causes Nos. 2814, 2815, and 2856 are so vague and indefinite that each and all of them are void and of no legal effect, and that the county court was without jurisdiction to pronounce and enter said judgments, and that the county court exceeded its jurisdiction in pronouncing, rendering, and entering each of said pretended judgments, by reason whereof the detention of the petitioner is unjust and contrary to law. It was further averred in the petition that the petitioner was not committed or detained in jail by virtue of any process, judgment, decree, or execution specified in section 21 of ‘An act to revise the law in relation to habeas corpus.’ Certified copies of each of the judgments in causes Nos. 2814, 2815, and 2856 were attached to the petition for the writ of habeas corpus as exhibits. The sheriff, who was made a party defendant to the petition for the writ of habeas corpus, produced the body of Robbins before the circuit judge, and made return to the writ issued thereon, in substance, that he is the sheriff of said county to whom the writ was directed; that he had said Robbins in his custody; that the cause of his detaining Robbins is by virtue of the three judgments of the county court of Champaign county, of which judgments true and exact copies are attached to the petition for writ of habeas corpus, and that he holds Robbins under no other judgment, writ, or process. On a hearing of the petition before Judge Green, January 13, 1917, he entered and signed an order in said cause in the following language:

‘That the court has jurisdiction of the parties and the subject-matter herein; that the detention and imprisonment of the petitioner by the said A. M. Evans, such sheriff, was and is unlawful and without authority of law. It is therefore ordered and adjudged by the court that the relator, William C. Robbins, be discharged from further imprisonment and detention by the defendant, and that the said William C. Robbins be released by the said defendant, A. M. Evans, and set at liberty.’

The first point made by respondents in support of their answers to which the demurrers were interposed is that the demurrers should be carried back to the petition, and that the petition is insufficient to justify the granting of the writ because it was not sufficiently verified by the affidavit following the same. The affidavit is, in substance, that affiant, Louis Busch, has read the petition for mandamus, and that the matters and things therein set forth are true ‘to his information and knowledge.’ The law is that a petition for mandamus must be positively verified by the affidavit required to be attached. But conceding that the affidavit is deficient, by the filing of their answers respondents have treated the same as sufficient, and thereby have waived their right to complain of its insufficiency. The affidavit is no part of the body of the petition, and a plea or answer, or even a general demurrer to the petition, would not reach the defect in the affidavit. To have obtained the benefit of their objection to the affidavit it was incumbent upon the respondents, before pleading to the same, to have moved the court to strike it from the files for want of a sufficient affidavit. King v. Haines, 23 Ill. 340.

It is also insisted by respondents that the petition is insufficient because it nowhere discloses or avers that any demand was ever made upon respondent Evans to rearrest said Robbins or to imprison him, or that any demand was ever made upon Judge Green, the other respondent, asking him to vacate or expunge the order made by him in the habeas corpus proceeding.

The general rule is that before applying for mandamus a demand should be expressly made on the defendant to perform the particular act or duty requiredof him, and that there must be a refusal of the defendant to comply therewith. City of Chicago v. Sansum, 87 Ill. 182. That rule does not apply, however, where the duty is of a public nature, affecting the public at large. The demand here made is upon two public officers to do official acts and not acts of a private nature, and the right of the relator to demand the performance of said official acts is not an...