People Ex Rel. John R. Lewis v. Waite
| Citation | 70 Ill. 25,1873 WL 8539 |
| Parties | THE PEOPLE ex rel. John R. Lewisv.GEORGE W. WAITE. |
| Decision Date | 30 September 1873 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Criminal Court of Cook county; the Hon. LAMBERT TREE, Judge, presiding.
This was an application by the State's attorney, for leave to file an information of the relator, in the nature of a quo warranto, against George W. Waite.
The opinion of the court gives a summary statement of the case and the facts. The relator appealed.
Messrs. WILLETT & HERRING, and Mr. CHARLES H. REED, State's Attorney, for the appellant.
Messrs. LEAMING & THOMPSON, for the appellee.
Our statute, in relation to informations in the nature of a quo warranto, is a substantial, if not a literal copy of 9 Anne, chap. 20, on the same subject. The granting of leave to file such informations, has uniformly been held, both in this country and in England, to be within the sound discretion of the court. Leave is not given as a matter of course, but a court ought not arbitrarily to refuse leave, but should exercise a sound discretion, according to law. Dillon on Mu. Cor., sec. 722; State v. Tehoe, 7 Rich. 246; Commonwealth v. Arrison, 15 Serg. & Rawles, 133; The People v. Sweeting, 2 Johns. 183; King v. Hythe, 6 Barn. & Cres. 247; King v. Peacock, 4 Term R. 684; King v. Stacy, 1 Term R. 1.
The mode for instituting such proceedings is, usually, as pursued in the case at bar. The State's attorney submitted a motion, based on affidavit, for leave to file an information in the nature of a quo warranto. A rule nisi was laid on defendant to show cause why the information should not be filed. Respondent answered the rule by counter affidavits. This practice is warranted by the authorities. The People v. Shaw, 14 Ill. 476; The King v. Symons, 4 Term R. 221; The People v. Tibbitts, 4 Cowen, 383; The People v. Richardson, 4 Cowen, 103 and notes.
For cause shown, the court no doubt has a discretion to grant or refuse the leave asked, according to the circumstances.
Relator claims, he was, in a legal manner, elected school trustee for township 38, and that respondent has usurped that office, and now holds it, and is exercising its functions without authority of law. The affidavit shows respondent was, himself, elected to that office, by the qualified voters of the town. It is insisted, however, the election was void, for the reason it was not held at the place designated in the...
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