People ex rel. Slusser v. Gary

• Court: Illinois Supreme Court
• Writing for the Court: MAGRUDER
• Citation: People ex rel. Slusser v. Gary, 196 Ill. 310, 63 N.E. 749 (Ill. 1902)
• Decision Date: 16 April 1902
• Parties: PEOPLE ex rel. SLUSSER v. GARY et al.

196 Ill. 310

63 N.E. 749

PEOPLE ex rel. SLUSSER

v.GARY et al.

Supreme Court of Illinois.

April 16, 1902.

Appeal from circuit court, Du Page county; H. B. Willis, Judge.M. Slusser, State's Atty. (Hopkins, Dolph & Scott, of counsel), for the People.

Botsford, Wayne & Botsford, for appellees.

This is an information in the nature of a quo warranto filed on leave in the circuit court of Du Page county by the state's attorney of that county against E. H. Gary, Jesse C. Wheaton, and John Weisbrook, appellees, requiring them to show by what warrant and authority they claim that there is such a drainage district as Union drainage district No. 1 of the towns of Milton and Winfield, in said Du Page county, Ill., and by what warrant and authority they claim to hold and execute the said office of drainage commissioners of said alleged Union drainage district No. 1 of the towns of Milton and Winfield, in said Du Page county. The information contains two counts. The first count challenges the organization of the drainage district. The second count relates to the election of the drainage commissioners of the district, who were in office at the time of the filing of this information. To the second count of the information the appellees filed one plea relating to their election and qualification as drainage commissioners. To this plea the appellant demurred. The demurrer was overruled, and, the appellant electing to stand by the demurrer, the court below quashed the second count of the information, and dismissed the quo warranto proceedings, so far as they related to that count. To this ruling and order of the court, the people, by the state's attorney of said county, duly excepted, and prayed an appeal to this court. To the first count of the information the appellees filed three pleas. The first sets up the proceedings had in organizing the district; the second, the proceedings had and judgment rendered in certain certiorari proceedings in the circuit, appellate, and supreme courts; and the third plea sets up an estoppel by alleged delay and laches and limitation on the part of the people. Each of these pleas was demurred to by the appellant, and the court overruled the demurrers. Thereupon the appellant filed replications to the pleas, denying that the said Union district No. 1 of the towns of Milton and Winfield, Du Page county, Ill., was lawfully and duly organized, and existing as such when the information was filed, and alleging that the record and proceedings, as amended in the certiorari case, were false and fraudulent, and were not a true record of the proceedings had in reference to the drainage district, etc., and denying that there was any such estoppel by laches, etc., as was claimed by the appellees. Besides the original replications filed to the three pleas to the first count of the information, additional replications were filed. To all of these replications the appellees filed demurrers. The demurrers to these replications were sustained by the court. The people, by the state's attorney, elected to stand by the replications, and thereupon the court quashed the first court of said information, and dismissed said quo warranto proceedings; and to this ruling and order of the court the people, by the state's attorney, excepted, and prayed and perfected an appeal to this court. Reversed.

MAGRUDER, J. (after stating the facts as above).

1. The first question which arises in the case is whether or not the court below erred in overruling the general and special demurrer filed by the appellant to the plea filed by appellees to the second count of the information, the appellant having elected to stand by the demurrer so overruled. The plea to the second count of the information relates to the election and qualification of the appellees as drainage commissioners, and it is claimed that the plea fails to set forth specifically the various steps taken in the several elections of appellees, as required by the statute.

The first objection made to the plea is that it neglects to set forth that the several elections of the above-named appellees were held between the hours of 2 and 6 o'clock p. m. on the second Saturday in March. Section 15a of the act of June 27, 1885, in reference to farm drainage, provides, among other things, that ‘it shall be the duty of the town clerk to call an election in each district in his township, including the new districts organized during the previous year, by giving ten (10) days' notice that an election will be held (specifying time and place); said notices shall be posted in three (3) conspicuous places in said districts. Elections shall be held in the several drainage districts, organized under this act, on the second Saturday in March of each year between the hours of two and six o'clock p. m.’ 2 Starr & C. Ann. St. (2d Ed.) p. 1542. It is true that elections must be held at the time and place provided in the statute. Stephens v. People, 89 Ill. 337;Snowball v. People, 147 Ill. 260, 35 N. E. 538. But it is a well-established rule that, where both the time and the place of an election are prescribed by law, every voter is supposed to take notice of the law, and to deposit his ballot at the time and place appointed; the right to hold the election in such case being derived from the law, and not from the notice. Cooley, Const. Lim. (2d Ed.) § 603; McCrary, Elect. § 118; Stephens v. People, supra. It is, however, stated in the plea that notices were given by the town clerk of the township of Milton, and were published by the posting of the same, as required by the statute, for more than 10 days prior to the day for holding said election. The pleas name the day upon which the election was to be held, and, as the law requires that the election should be held between the hours of 2 and 6 o'clock p. m., it will be presumed that the voters took notice of the particular hours of the day when the voting was to be done. It is said, however, that, as to one of the elections of one of the three appellees, the plea stated that the election was held on Saturday, March 14, 1897, but that March 14, 1897, was Sunday, and that the court will take judicial notice of that fact. The giving of the date is manifestly a clerical error. The averment of the plea is that these notices were posted for this election ‘for more than ten days prior to said 14th day of March, 1897, the day for holding said election.’ The day of the month mentioned may be excluded as surplusage, so that the averment would read ‘for more than ten days prior to the day for holding said election.’ As to the day for holding the election, the averment of the plea is sufficiently certain and not misleading.

The next objection made to the plea is that it states that the appellees, at the several elections mentioned in the plea, took the oath of office without stating specifically that the oath of office was taken, as required by the statute, before an officer authorized to administer oaths, and without further stating that an oath was taken by the appellees to support the constitutions of Illinois and of the United States. The plea alleged that the person elected ‘took the oath of office required by the statute.’ The form of the oath to be taken by the drainage commissioners is prescribed by section 15a of the drainage act, as above set forth. This being so, it was not the intentof the legislature to require any other or additional oath than the one so prescribed. Directors v. People, 79 Ill. 511. Involved in the allegation of the plea that the person elected ‘took the oath of office required by statute’ is the statement that he took the oath prescribed by the statute before an officer authorized to administer the oath. It was not necessary to state all the details as to the mode and manner of taking the oath.

It is furthermore claimed by the appellant that section 15a, as above quoted, does not apply to the election of commissioners for union drainage districts. The point made is that sections from 11 to 47 of the act of June 27, 1885, relate wholly to districts in one town, and that section 48, entitled ‘Union Districts,’ relates to the districts in two towns, such as the one under consideration in the case at bar. 2 Starr & C. Ann. St. (2d Ed.) p. 1556. It is said that in 1895 section 15a was added as an amendment to that part of the act which relates to one town, and does not purport to affect those portions of the act relating to drainage districts lying in two towns. A careful examination of section 48 in connection with the preceding sections of the act will show that the election provided for in section 15a applies to drainage districts lying in two towns, as well as to those lying in one town. Section 48, which relates to union districts lying in two towns, provides that ‘the clerk and commissioners shall have like powers and duties, as provided for such officers in districts wholly in one town.’ Id. p. 1557. Section 48 also provides that the commissioners, when selected, are to meet at the town clerk's office ‘as provided in section twelve (12) of this act, or to meet as provided in section sixteen (16), as the case may be.’ Id.

It is furthermore urged as an objection to the plea by the appellants that the appellees in the first instance should have set out every material fact relating to the organization of the so-called Union drainage district No. 1, so that from an inspection of the plea the court could see whether or not the statute had been complied with, and the district had in fact been legally formed. Clark v. People, 15 Ill. 213;Carrico v. People, 123 Ill. 198, 14 N. E. 66. Inasmuch as the second count of the information is predicated upon the assumption that the election of the appellees was invalid and without lawful authority, the one issue presented by the plea related to the election. There is no formal averment in this plea that the district was not legally organized; the organization of the district...