People Ex Rel. Michael Evans v. Callaghan

• Citation: 1876 WL 14056,83 Ill. 128
• Parties: THE PEOPLE ex rel. Michael Evansv.BERNARD CALLAGHAN.
• Decision Date: 30 September 1876
• Court: Illinois Supreme Court

83 Ill. 128

1876 WL 14056 (Ill.)

THE PEOPLE ex rel. Michael Evans

v.BERNARD CALLAGHAN.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Criminal Court of Cook county; the Hon. SAMUEL M. MOORE, Judge, presiding.

On the 17th day of May, 1876, Charles H. Reed, State's Attorney in and for the county of Cook, asked leave to file, in the Criminal Court of that county, an information in the nature of a quo warranto, in the name of the People, at the instance of Michael Evans, against Bernard Callaghan, to make him answer by what warrant he claims to hold and execute the office of town collector of South Chicago.

It is alleged in the petition the relator, Michael Evans, was elected collector of the town of South Chicago, at the annual town meeting, in 1875, and discharged the duties of that office until he was elected and qualified as his own successor; that, at the annual election held on the first Tuesday, which was the fourth day, of April, 1876, for town officers, he received the highest number of votes cast for any candidate for that office; that, upon the usual canvass being made by the proper officers conducting the election, that fact appearing, a certificate of election was issued to him, and that afterwards, and within the time limited by law, he accepted the office by taking and subscribing the oath of office prescribed by law, and caused a certificate to be filed in the proper office.

It is further alleged that, on the 15th of April, 1876, the justices of the peace of the town, the supervisor and the town clerk held a meeting, at which the record of the proceedings of the annual town meeting of South Chicago, held on the fourth day of that month, was read, from which it appeared the proper number of officers to which the town was entitled had been elected, among whom was relator; that a majority of the town officers constituting the town board of appointment, voted to hear evidence in relation to the manner of conducting the election, and did hear statements in reference thereto, which it was claimed tended to show that frauds had been committed at the election; that a majority of the board found there had been a failure to elect the usual town officers at the annual election, and thereupon proceeded to fill such offices by appointment, under authority supposed to be derived from the statute, and, among others, appointed defendant to the office of town collector; that, on the 17th day of April, 1876, a certificate of appointment was delivered to defendant, and on that day, and within ten days of his appointment, he accepted such appointment, and took and subscribed the oath prescribed by law, as collector of the town of South Chicago, which was duly filed in the proper offices, as the law directs. The further allegation is, the appointment of defendant town collector in the manner set forth was without authority of law, and confers no authority upon him to intrude himself into and exercise the duties of the office, and that defendant, since his appointment, on the 17th day of April, has been and still is usurping and unlawfully holding and pretending to execute the duties of the office of town collector of South Chicago.

The petition was verified by the affidavit of the relator, and affidavits were filed, both in support and against the motion for leave to file the information. On the hearing, the court denied leave to file the information, and rendered judgment against the relator for costs. That decision is assigned for error.

Mr. CHARLES H. REED, State's Attorney, Messrs. FULLER & SMITH, and Messrs. GOUDY, CHANDLER & SKINNER, for the appellants.

Messrs. TULEY, STILES & LEWIS, and Mr. JOHN J. HERRICK, for the appellee. Mr. JUSTICE SCOTT delivered the opinion of the Court:

Under our statute, it has been uniformly held the granting of leave to file informations in the nature of quo warranto, is in the sound discretion of the court to which the application is made. As was said in The People v. Waite, 70 Ill. 25, 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.

Assuming that defendant had accepted the office of town collector, and entered upon the discharge of its duties, an important question arises, whether the petition shows, in the language of the statute, there is “probable ground” for allowing the information to be filed, and for awarding the writ.

Unless it shall appear there was “probable ground for the proceeding,” the court below ruled correctly in denying leave to file the information. Although the merits of this controversy can not be determined on this preliminary motion, some discussion of this question can not be avoided.

The allegation is distinct and positive, the annual election for town officers in the town of South Chicago was held on the day fixed by law for holding such election. According to the canvass made of the votes cast at that election, the relator received a plurality of votes over all other candidates for the office of collector.

On the authority of The People ex rel. Cummings v. Head, 25 Ill. 327, the decision of the canvassers afforded prima facie evidence the relator had been legally elected, and unless his title to the office was contested in some mode known to the law, he would be entitled to hold such office for the period for which he was elected.

It is not contested the election was holden, and that legal voters voted at the election for candidates of their choice for the several town offices. Affidavits filed in opposition to this motion do not disprove this proposition; they tend to prove there may have been gross frauds on the part of the election officers, and that some legal votes may have been abstracted from the ballot-boxes, and fraudulent ones deposited. All this may be conceded, and yet it does not disprove that the relator was elected by the legal votes cast at the election. This question has not been determined, so far as we can know, from this record, by any tribunal competent to hear and determine contested elections, and hence we can not know how the truth is. But the decision does not turn upon the question whether relator was regularly elected. His title to the office is only incidentally involved in this litigation. It is defendant that is called upon to show by what warrant he claims to hold and execute the duties of the office with which he is charged as having usurped. The information discloses he derives his authority from the town board of appointment, and if it shall appear the action of the board was...