People ex rel. Mark v. Hartquist

• Decision Date: 19 February 1924
• Docket Number: No. 15807.,15807.
• Citation: 142 N.E. 475,311 Ill. 127
• Parties: PEOPLE ex rel. MARK et al. v. HARTQUIST et al.
• Court: Illinois Supreme Court

311 Ill. 127

142 N.E. 475

PEOPLE ex rel. MARK et al.

v.HARTQUIST et al.

No. 15807.

Supreme Court of Illinois.

Feb. 19, 1924.

Quo warranto by the People, on the relation of Elmer Mark and others, against William Hartquist and others. From judgment sustaining motion to vacate order granting leave to file information and dismissing the cause, relators appeal.

Reversed and remanded, with directions.

Stone and Thompson, JJ., dissenting.Appeal from Circuit Court, Henderson County; George C. Hillyer, judge.

M. E. Nolan, State's Atty., of Oquawka (Hartzell & Werts, of Oquawka, of counsel), for appellants.

W. C. Ivins, of Stronghurst, and Grier, Safford & Soule, of Monmouth, for appellees.

DUNN, J.

On the relation of two citizens, taxpayers, property owners, and residents of supposed community high school district No. 104 of Henderson county, the state's attorney of that county presented to one of the judges of the circuit court a petition for leave to file an information in the nature of quo warranto against William Hartquist and four other individuals, who were charged with usurping the offices of members of the board of education of the supposed school district. The judge granted leave to file the information, and a summons was issued returnable to the October term, 1923. The respondents appeared at that term and made a motion to vacate the order, and the court sustained the motion and ordered the information stricken from the files and the cause dismissed at the relators' costs. The relators appealed from this judgment.

No objection has been argued to the legal sufficiency of the information, which consisted of two counts; the first questioning the right of the respondents to hold the offices of members of the board of education, and the second questioning such right and specifically alleging that community high school district No. 104 is not an existing school district under the law. The correctness of the order vacating the leave to file the petition depends upon the sufficiency of the petition to show prima facie grounds for the ouster of the respondents from the offices which they are alleged to have usurped. Upon the presentation of the petition for leave to file an information a judge may, if he sees fit, enter a rule nisi against the respondents to show cause why leave should not be granted, or he may consider the application upon the petition, alone, and grant or deny the leave. The statute requires the leave to be granted if the judge shall be satisfied that there is probable ground for the proceeding, and if the petition showed such ground it was the duty of the court to grant its prayer. People v. Anderson, 239 Ill. 266, 87 N. E. 1019. The words ‘probable ground’ mean a reasonable ground of presumption that the charge is or may be well founded. People v. Union Elevated Railroad Co., 269 Ill. 212, 110 N. E. 1. When leave is granted in an ex parte proceeding, the court may vacate the order if it is made to appear that the leave was inadvertently or improvidently granted or allowed under a misapprehension of the law or the facts. The probable ground alleged in the petition for leave was that there is no record in the office of the superintendent of schools of Henderson county, or of any other official, that notice of an election for the purpose of voting for or against the proposition to establish the community high school district was ever posted for at least 10 days in 10 of the most public places throughout the territory, as required by the statute, and that in the election which was held, as well as in the subsequent elections for directors, the requirements of the Ballot Law were not complied with. The petition which averred these facts was sworn to by the relators, and there was no contradictory showing made by the respondent. The cause was submitted on the motion to vacate the leave on precisely the same showing which was made on the motion for leave. There was no misapprehension of the facts, and the fact that there was no record of posting notices of the election was sufficient to show that there was probable ground for the proceeding. At the time of the attempted organization of this district, in March, 1920, the statute for the organization of community high school districts, section 89a of the School Law (Laws of 1919, p. 908), required an election upon the proposition to establish a community hgih school district in certain territory to be called by the county superintendent of schools upon the petition of 50 voters residing in the territory, by posting notices for at least 10 days in 10 of the most public places throughout the territory. The petition was a condition precedent to the calling of the election, and the posting of notices in the manner required by law was a condition precedent to the holding of the election. Where the time for holding an election is not prescribed by law, but must be fixed by the authority vested with the power to call it, the voters are not required to take notice unless notice be given as required by the statute. In such case the giving of notice for the time and in the manner required by the statute is a condition precedent essential to the election. Roberts v. Eyman, 304 Ill. 413, 136 N. E. 736.

The office of an information in the nature of quo warranto is not to tender an issue of fact but only to call upon the respondents to show by what warrant they exercise the right claimed. The people need not allege any facts showing that the exercise of the right by the respondents is without lawful authority, but it is enough to allege that they are exercising it without lawful authority. The respondents must then disclaim or justify, and if they justify must set out the facts which show their lawful authority to exercise the right claimed. People v. Central Union Telephone Co., 232 Ill. 260, 83 N. E. 829;People v. Barber, 265 Ill. 316, 106 N. E. 798. The organization of a school district may be attacked by an information in the nature of quo warranto, and in such a proceeding the respondents, if they justify, must plead the proceedings by which the district was organized, must set out their title with particularity, and must state the facts showing a de jure title. People v. Central Union Telephone Co., supra; Place v. People, 192 Ill. 160, 61 N. E. 354;Gunterman v. People, 138 Ill. 518, 28 N. E. 1067. Before the election of a board of education the proceedings for the organization of a school district may be attacked by the common-law writ of certiorari, in which case their validity must be determined from an inspection of the record, alone; no other evidence being admissible. Miller v. Trustees of Schools, 88 Ill. 26;Lafferty v. Moore, 275 Ill. 580, 114 N. E. 336;Fisher v. McIntosh, 277 Ill. 432, 115 N. E. 529;People v. Owen, 286 Ill. 638, 122 N. E. 132, 3 A. L. R. 447. In either form, quo warranto or certiorari, the case of the respondent depends upon the record and the validity of the proceedings shown by it. The conditions precedent essential to the action of the superintendent of schools and to the holding of the election must appear by the record. While there is no express requirement that the county superintendent of schools shall...