People ex rel. Cullen v. Anderson

• Decision Date: 15 April 1909
• Citation: 87 N.E. 1019,239 Ill. 266
• Parties: PEOPLE ex rel. CULLEN, State's Atty., v. ANDERSON et al.
• Court: Illinois Supreme Court

239 Ill. 266

87 N.E. 1019

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

v.ANDERSON et al.

Supreme Court of Illinois.

Feb. 19, 1909.

Rehearing Denied April 15, 1909.

Error to Circuit Court, La Salle County; Edgar Eldredge, Judge.

Petition by the People, on relation of Charles S. Cullen, State's Attorney, for leave to file an information in the nature of quo warranto against A. B. Anderson and others. Leave was denied, and relator brings error. Reversed and remanded.Charles S. Cullen, State's Atty., and Browne & Wiley, for plaintiff in error.

James J. Conway and Butters, Armstrong & Ferguson, for defendants in error.

CARTWRIGHT, C. J.

A petition signed by Charles S. Cullen, state's attorney of La Salle county, in the name of the people on his relation, praying for leave to file an information in the nature of quo warranto against A. B. Anderson, Fred Bushell, and Austin Sanderson, calling upon them to show by what warrant they claimed the existence of a corporation under the name of ‘Drainage District No. 1’ in the town of Earl, in said county, under the farm drainage act, and claimed to exercise the corporate powers thereof as commissioners, was presented to the circuit court of said county. The petitioner, on behalf of the people and upon the relation of [239 Ill. 268]22 individuals alleged to be owners of land within what was claimed to be a drainage district, challenged the legality of the organization of such district and the legality of the election of said persons who assumed to act as commissioners, and prayed for leave to file an information to oust said persons from the exercise of corporate powers and from office as commissioners. The ground on which the existence of the district was disputed was that the meetings to organize the same were not held within the territorial limits of the district, but were held at a distance of 15 or 20 miles from the nearest boundary thereof. The title of the drainage commissioners was disputed on the ground that they were chosen under the provisions of section 15a of the farm drainage act (Hurd's Rev. St. 1908, c. 42, § 89a), which had been repealed. It was alleged that the commissioners had levied three assessments; that the first was held to be illegal in Rogne v. People, 224 Ill. 449, 79 N. E. 662; that the second was also held to be illegal in People v. Warren, 231 Ill. 518, 83 N. E. 271, and that the third was levied for the same purpose as the former ones, and to pay for indebtedness incurred before the assessment was levied, and was therefore invalid under the decisions in Drainage Com'rs v. Kinney, 233 Ill. 67, 84 N. E. 34, and Vandalia Drainage District v. Hutchins, 234 Ill. 31, 84 N. E. 715. The petition was accompanied by an affidavit of four of the relators to the truth of its averments. The court entered a rule nisi, and upon the return of the rule heard evidence and denied the prayer of the petition. The writ of error in this case was sued out to bring the record here for review.

The petition, on its face, was sufficient, and showed probable cause for granting leave to file an information as prayed. It alleged that the meetings conducted for the organization of the district and the meeting at which it was declared organized were held at a distance of between 15 and 20 miles from the proposed district. Official power does not ordinarily attend the person of the officer, but must be exercised within the territory where he is an officer, and it was held in People v. Carr, 231 Ill. 502, 83 N. E. 269, that proceedings of drainage commissioners at a meeting held outside of the district are illegal and void. It was also decided in Patton v. People, 229 Ill. 512, 82 N. E. 386, that section 15a of the farm drainage act, under which the petition alleged that the commissioners were chosen, had been repealed. The proposed information was to be filed against the individuals who assumed to exercise the powers of the corporation, and that was the proper method to challenge the legal existence of the district. People v. City of Spring Valley, 129 Ill. 169, 21 N. E. 843. The petition was also sufficient to question the title of the defendants in error to the office of commissioners. People v. Gary, 196 Ill. 310, 63 N. E. 749;People v. Hanker, 197 Ill. 409, 64 N. E. 253;People v. Burns, 212 Ill. 227, 72 N. E. 374. Unless good ground was shown for refusing leave, it was the duty of the court to grant the prayer of the petition. The right to file an information in the nature of quo warranto is not absolute and rests within the sound legal discretion of the court, but that discretion must be exercised according to law and its exercise is subject to review. People v. Town of Thornton, 186 Ill. 162, 57 N. E. 841.

The ground upon which it is claimed that the court might lawfully deny leave to file the information is that all of the relators, except four, had recognized the existence of the drainage district, either by voting at elections or in some other way. As to four of the relators no act or conduct was shown which could estop them from prosecuting the...