People ex rel. City of Pontiac v. Cent. Union Tel. Co.
| Decision Date | 24 October 1901 |
| Citation | 192 Ill. 307,61 N.E. 428 |
| Parties | PEOPLE ex rel. CITY OF PONTIAC v. CENTRAL UNION TEL. CO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Livingston county.
Quo warranto by the people, on relation of the city of Pontiac, against the Central Union Telephone Company. From a judgment in favor of respondent, relator appeals. Affirmed.
A. C. Ball, State's Atty. (W. C. Graves, of counsel), for appellant.
Louis G. Richardson and William B. Mann, for appellee.
This is an information in the nature of a quo warranto begun in the circuit court of Livingston county by the people, on the relation of the city of Pontiac, against the Central Union Telephone Company. The information is by the state's attorney of Livingston county, for the people, and gives the court ‘to understand and be informed that the Central Union Telephone Company, a corporation, for the space of four months or more now last past, in the county aforesaid, unlawfully has held, and still does hold, without any warrant or right whatever, the use of the streets and alleys of the city of Pontiac for the purpose of maintaining a system of telephones or telephone exchange in the said city of Pontiac; that the said Central Union Telephone Company during all the time aforesaid, in the city aforesaid, upon said people has usurped, and still does usurp, the said use of the said streets and alleys of the city of Pontiac, to the damage and prejudice of the said people,’ etc., whereupon said state's attorney ‘prays the consideration of the court in the premises, and due process of law against the said Central Union Telephone Company to make answer to the said people by what warrant it claims to exercise and use the streets and alleys of the said city of Pontiac as aforesaid.’ The respondent, the Central Union Telephone Company, filed six pleas. The relator filed a demurrer to each of them, which was sustained to all except the sixth. The relator replied double to the sixth plea, filing four replications thereto. The respondent demurred to each of these replications, and the court held them bad. The relator amended each of the four replications, and the respondent moved to strike them from the files, which motion was sustained as to the second and fourth, and overruled as to the first and third, to which ruling both parties excepted. The respondent then demurred to the first and third amended replications, which demurrers were sustained, and, the relator having failed to plead over, judgment was entered for the respondent. The relator appeals.
The first error assigned on the record is, ‘The court erred in striking from the files the plaintiff's second and fourth amended replications to defendant's sixth plea.’ The second and third question the decision of the court in overruling the demurrer to the sixth plea; the fourth and fifth, in sustaining the demurrer to the first and third replications; the sixth, in not carrying defendant's demurrer to the first and third amended replications back to the sixth plea and sustaining the same; and the seventh, in entering judgment in favor of the defendant on the sixth plea. The second amended replication is almost a literal copy of the first, and the fourth is exactly, in legal effect, like the third. They serve no other purpose than to further incumber an already unnecessarily voluminous record, and were properly stricken from the files. As counsel suggest, the court might have required the party to elect on which it would proceed, and struck out the others, but it was not bound to follow that practice. Parks v. Holmes, 22 Ill. 522.
After the demurrer to the sixth plea was overruled, the relator took leave and replied to it. The demurrer was thereby waived-First, because no motion was made to carry the demurrer back to the plea; and, second, because, by pleading over after demurrer, the right to question the sufficiency of the plea ceased. It is not permissibleto plead and demur at the same time. Culver v. Bank, 64 Ill. 528, and cases there cited.
The sixth plea set up: First. The incorporation, under the general incorporation law of the state of Illinois, of the Central Telephone Company. Second. An ordinance of the city of Pontiac granting it the right to use the ‘streets, sidewalks, alleys and public grounds of the city for the use and purpose then and there to erect, maintain and use all the necessary poles or posts, of wood or iron, or other substance, material and the necessary wires to successfully operate and use a system of telephones or a telephone exchange in the city of Pontiac.’ Third. The organization of the defendant, the Central Union Telephone Company, under the same laws of the state. Fourth. That on the 29th day of June, 1883, the first-named company granted, bargained, sold, and conveyed to the latter ‘all its property, assets, licenses, contracts, concessions, and all documents, correspondence, and papers; all property rights, legal or equitable, credits and rights of action; all telephone exchange wires, poles, insulators, switch-boards, batteries, instruments and machines; all tools and articles of every description; all right, title, and interest in any contract, license, or privilege, or property, of whatever description.’ Fifth. That the Central Telephone Company accepted the license under the ordinance first named, and that the defendant, upon the assignment and conveyance to it of the property, etc., of the Central Telephone Company, entered upon the use of the streets and alleys of the city of Pontiac, and from thence hitherto has continued to use them for the purpose of operating a telephone system, etc. Sixth. That on the 7th day of April, 1899, the city of Pontiac adopted and approved an ordinance granting the right and privilege to the defendant to use certain streets and alleys of the city for the purpose of extending its telephone system in said city. This plea sets up other facts by way of inducement, and concludes: ‘Without this, that the Central Union Telephone...
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