People ex rel. Courtney v. Botts

• Decision Date: 04 June 1941
• Docket Number: No. 25730.,25730.
• Citation: 34 N.E.2d 403,376 Ill. 476
• Parties: PEOPLE ex rel. COURTNEY, State's Atty., et al. v. BOTTS et al.
• Court: Illinois Supreme Court

376 Ill. 476

34 N.E.2d 403

PEOPLE ex rel. COURTNEY, State's Atty., et al.

v.BOTTS et al.

No. 25730.

Supreme Court of Illinois.

April 10, 1941.

Rehearing Denied June 4, 1941.

Quo warranto proceeding by the People, on the relation of Thomas J. Courtney, State's Attorney, and others against G. G. Botts and E. E. Mitchell, requiring first-named defendant to show by what authority he claimed to hold the office of director of a company to the exclusion of another and the offices of secretary and second vice president to the exclusion of a third party, and requiring last-named defendant to show by what authority he claimed the office of treasurer of the company to the exclusion of still another. From a judgment of dismissal, relators appeal.

Affirmed.Appeal from Circuit Court, Cook County; Harry M. Fisher, judge.

West & Eckhart and Ashcraft & Ashcraft, all of Chicago, for appellants.

Orr, Sullivan & Ricks and Whitman, Holton & Tews, all of Chicago (Warren H. Orr, Roland D. Whitman, and Loren E. Lewis, all of Chicago, of counsel), for appellees.

GUNN, Chief Justice.

The State's Attorney of Cook county filed in the circuit court an amended complaint in the nature of quo warranto against appellee G. G. Botts, requiring him to show by what authority or right he claimed to hold and execute the office of director of the Riverview Park Company, an Illinois corporation, to the exclusion of Thomas G. Deering, and the office of secretary of said corporation to the exclusion of William F. Merle, Jr., and the office of second vicepresident to the exclusion of Henry J. Merle, and against E. E. Mitchell, requiring him to show by what right or authority he claimed to hold and execute the office of treasurer of said corporation to the exclusion of William F. Merle, Jr.

The relators set forth all of the facts upon which they were entitled to claim an ouster, and the defendants, Deering, William F. Merle, Jr., and Henry J. Merle, each answered admitting all of the material allegations. The defendants Botts and Mitchell made a motion to dismiss which was sustained. The People on the relation of the State's Attorney and Thomas G. Deering perfected an appeal to this court on the ground that the construction of section 3 of article 11 of the Constitution of the State of Illinois, Smith-Hurd Stats., was involved.

In the trial court the question involved was whether Boots or Deering was elected director of the Riverview Park Company at a stockholders' meeting held on December 12, 1938. The corporation had issued and had outstanding 1,000 shares of stock, all of which was represented at the meeting.

William Schmidt died in 1924 owning 548 shares of said stock. He left a will by which the stock was placed in trust with Wilhelmina Schmidt, the widow, and the State Bank of Chicago, as trustees. In due course, the Northern Trust Company succeeded the said State Bank of Chicago as corporate trustee. The widow died and George Alvin Schmidt succeeded her as trustee. The pertinent provision of the will provided that ‘so long as my said wife, Wilhelmina Schmidt, and my son, George Alvin Schmidt, or either of them live, said trustee, the State Bank of Chicago, shall be authorized and allowed to vote so much and so much only of the stock of The Riverview Park Company as may be sufficient to elect one director of said Riverview Park Company and my said trustees, Wilhelmina Schmidt and George Alvin Schmidt, whichever of them may be likewise at the time serving as trustee under this instrument, shall be authorized and allowed to vote the remaining trust stock of said Riverview Park Company.’

At the December, 1938, election, 273 shares of said stock stood in the name of the Northern Trust Company and George Alvin Schmidt, as trustees. The Northern Trust Company, claiming power under said provision of the will, gave Thomas G. Deering 835 votes, being 5 votes for each of 167 shares of the stock held in said trust. Botts received 625 votes. George Alvin Schmidt refused to join in voting said stock, and the directors refused to recognize the vote of the Northern Trust Company, as trustee, and declared Botts elected director. The board of directors then elected Botts secretary and second vice-president and Mitchell as treasurer.

Appellees contend the case has become moot and that the appeal should be dismissed. The judgment of the trial court dismissing the amended complaint, from which this appeal had been taken, was entered December 11, 1939. An affidavit is attached to appellee's brief showing that at the annual meeting of the stockholders held on December 20, 1939, Thomas G. Deering was not nominated or voted upon as director of said company, and that appellee Botts was nominated and elected to the office of director for a period of one year, and until his successor was elected and qualified.

Ordinarily when a reviewing court has notice of facts which show that only moot questions or abstract propositions are involved it will dismiss the appeal, and will not review the cause merely to decide such questions. People v. Village of Oak Park, 356 Ill. 154, 190 N.E. 286;National Jockey Club v. Illinois Racing Comm., 364 Ill. 630, 5 N.E.2d 224. The authorities sustaining this proposition have not been applied in quo warranto proceedings where the term of office of the contesting party has expired. The Illinois statute on quo warranto (Ill.Rev.Stat.1939, chap. 112, sec. 1, Smith-Hurd Stats. c. 112, § 9) provides when and at whose instance the writ may be issued, and includes cases in which both public and private rights are usurped. Section 1, as applying to private rights reads, in case ‘Any person shall usurp, intrude into, or unlawfully hold or execute any office, or franchise, or any office in any corporation created by authority of this State,’ etc. Section 6 provides: ‘The Court shall determine and adjudge the rights of all parties to the proceeding. In case any person or corporation against whom such complaint is filed is adjudged guilty as charged in the complaint, the court may give judgment of ouster against such person or corporation from the office or franchise, and fine such person or corporation, and also give judgmentin favor of the relator for the cost of the prosecution,’ etc.

The Illinois statute is modeled on the statute of Anne relating to quo warranto (9 Anne, chap. 20) which was enacted for the purpose of rendering proceedings in the nature of quo warranto more speedy and effectual. It has been held that under that statute, and the statutes of other States containing a provision for a fine, the case does not become moot although the usurpation was not continued to the date of trial. King v. Williams, 1 Blackstone's Rep. 93; Regina v. Blizzard, L.P., 2 Q.B. 55; Hammer v. Richards, 44 N.J.L. 667;Turtur v. Turley, 103 N.J.L. 526, 138 A. 209.

There are cases holding that the plaintiff or relator in a quo warranto proceeding may prosecute the case to a final judgment, notwithstanding the expiration of the term of office before the case is finally adjudicated. People v. Rodgers, 118 Cal. 393, 394, 46 P. 740, 741,50 P. 668;Commonwealth v. Swasey, 133 Mass. 538.

In People v. Gartenstein, 248 Ill. 546, 94 N.E. 128, 129, this court said: ‘The information in the nature of quo warranto is the substitute for the ancient writ of quo warranto, and when the proceedings by information was introduced it was essentially a criminal method of prosecution to punish encroachments upon the prerogative of the crown. It still retains that character to the extent that the proceedings are in the name of the people and criminal in form, for the double purpose of punishing the usurper and ousting him from the enjoyment of the franchise.’

It has been suggested that the punishment for usurpation mentioned in section 6 of the Quo Warranto Act only applies to public officials and not to private officers. We do not think the statute can be so construed. Section 1 of the act includes all cases for which the remedy is available, and includes private rights as well as public rights. Section 6 provides for judgment against any person when adjudged guilty, and provides for both ouster and fine. The expiration of the office might terminate the private right of the plaintiff, but it would not terminate the jurisdiction of the court to adjudge punishment for the violation of the law. The cases cited by appellee do not involve quo warranto proceedings. We are of the opinion that the case did not become moot by...