People ex rel. Fitzgerald v. Boyd

• Decision Date: 21 January 1890
• Citation: 132 Ill. 60,23 N.E. 342
• Parties: PEOPLE ex rel. FITZGERALD, State's Attorney, v. BOYD et al.
• Court: Illinois Supreme Court

132 Ill. 60

23 N.E. 342

PEOPLE ex rel. FITZGERALD, State's Attorney,

v.BOYD et al.¹

Supreme Court of Illinois.

Jan. 21, 1890.

Appeal from appellate court, second district.

Quo warranto against John S. Boyd, R. A. McClelland, and J. B. Castle, to test the legality of the organization of a certain school-district of which defendants claimed to be directors. The organization of the district had taken place more than five years before. The defendants demurred to the petition, and the circuit court sustained the demurrer. The appellate court affirmed the judgment, and deliverded the following opinion:

‘LACEY, P. J. The appellee questions the sufficiency of the information in the respect that it does not show upon its face, in proper legal form, any grounds of illegality in the proceedings and formation of the new district No. 1. But we are inclined to think that at least some of the causes, though not all, set out, are in legal form, and would be sufficient, if the information had been filed in apt time. As the decision of the case hinges upon whether the statute of limitations is a bar to the prosecution of the information, or whether, if not strictly a bar to all quo warranto proceeding, the lapse of time in this class of cases is not a sufficient ground to deny the writ, we will not further occupy our time in consideration of the questions raised as to the sufficiency of the petition on its merits, in case of its having been filed in proper time.

‘It is insisted on the part of appellee that the quo warranto is a civil action, and that the statute of limitations of five years runs against it. Section 15, c. 83, Rev. St. This section provides, among other things, ‘that all civil actions not otherwise provided for shall be commenced within five years next after the cause of action accrued.’ It is also claimed, and the position is not controverted, that the statute of limitation may be interposed by demurrer, where the petition or declaration discloses the proper the question involved here respects public Henry Co. v. Drainage Co., 52 Ill. 454;Ilett v. Collins, 103 Ill. 74;Bank v. Jenkins, 104 Ill. 143;Bell v. Johnson, 111 Ill. 374. On the other hand, the appellant replies that the question involved here reapects public rights, and is prosecuted by the state's attorney in his official capacity, and that the statute of limitation will not run against a proceeding of this kind, and, as showing this to be a question respecting public rights, cited Chesshire v. People, 116 Ill. 493, 6 N. E. Rep. 486. The appellant also cites from the opinion of the court in Logan Co. v. City of Lincoln, 81 Ill. 156, the following passage, to-wit: ‘Our understanding of the law is that, as respects all public rights, or as respects property held for public use upon trusts, municipal corporations are not within the operation of the statute of limitations.’

‘The question presented involves a consideration of the nature and character of a quo warranto proceeding. In the first place, what is the nature of the action? Is it civil or criminal? If civil, does the above statute of limitations apply to the action in all cases, or in any case? Is the writ one of right, or the issuance of it within the sound discretion of the court, regulated by law and precedent? In the first place, we think there can be no question but that the action is at this day, however it formerly might have been, regarded by the law as in the nature of a civil remedy, and has been so decided by the supreme court of this state. People v. Shaw, 13 Ill. 581;Ensminger v. People, 47 Ill. 384. The quo warranto proceeding is used to enforce both public and private rights. Its purpose is dual; and the law, as regards the statute of limitations, ought to, and we think does, apply to the action, at least where its object is to enforce private rights, as distinguished from that to enforce public rights; and, in addition to this, the writ will be refused even before the statute of limitation runs, in certain cases, where the object sought is to enforce private rights, and in some other proper cases; and public policy requires that the writ should not issue insuch cases. As showing how the question has been regarded at common law, we will quote some extracts from the decisions of distinguished English judges, and passages from text-books. In King v. Stacey, 1 Term R. 1, Lord MANSFIELD says. ‘I remember when it was so much the practice of the court to grant quo warranto informations as of course; * * * but now, since these matters have come more under consideration, it is no longer a motion of course, and the court are bound to consider all the circumstances of the case before they disturb the peace and quiet of any corporation. The next thing which the court took into their consideration was the length of time within which they would grant informations. It was customary never to refuse informations for any length of time; but, as the inconvenience and vexation of this were plainly perceived, the court were desirous to go by a certain rule, and therefore, as the time was indefinite by the common law, and fixed by no statute, they drew a line by analogy to the statute of limitations in ejectments. They drew it for twenty years; and this has been acquiesced in by the bar and parliament, where it was once mentioned. * * * But when the court laid down the general rule they also said that it might be refused within twenty years upon other circumstances to warrant the court to say: ‘You shall not make use of the king's name for such and such purposes.’ The court is bound to guard the quiet of corporations. * * * Yet the king may prosecute by his attorney general.' In King v. Newling, 3 Term R. 315, BULLER, J., said: ‘Lord MANSFIELD has repeatedly said that the meaning of the rule was this: that, let the case be what it might, if twenty years have elapsed, the relator shall not be permitted to make any application whatever; but we all remember a variety of cases from that time to the present in which the court has refused to grant quo warranto informations within that time, as where it appears that the relator might have come sooner, or where a judgment against a defendant would tend to a dissolution of a corporation.’ Afterwards, in Rex v. Dicken, 4 Term R. 282, it was held that the statute of limitation of six years applied as against a person in peaceable possession of his franchise for six years. See, also, High, Extr. Rem. § 692.

‘In High, Extr. Rem. § 603, it is said: ‘In modern times, the information, as a means of criminal prosecution, has entirely fallen into disuse; and it has come to be regarded as a purely civil remedy, which, while...