People ex rel. Webber v. City of Spring Valley

• Decision Date: 15 June 1889
• Citation: 129 Ill. 169,21 N.E. 843
• Parties: PEOPLE ex rel. WEBBER et al. v. CITY OF SPRING VALLEY et al.
• Court: Illinois Supreme Court

129 Ill. 169

21 N.E. 843

PEOPLE ex rel. WEBBER et al.

v.CITY OF SPRING VALLEY et al.

Supreme Court of Illinois.

June 15, 1889.

Error to circuit court, Bureau county; CHARLES BLANCHARD, Judge.

Brewer & Strawn, (M. A. Trimble, State's Atty., and Eckels & Kyle, of counsel,) for plaintiffs in error.

G. S. Eldredge, for defendants in error.

MAGRUDER, J.

This was an information in the nature of a quo warranto, filed by leave, in the circuit court of Bureau county, on April 23, 1886, against the city of Spring Valley, and Charles J. Devlin, as mayor of said city. The information charged that the city of Spring Valley was then using, and for three months past had used, without any warrant, charter, or grant, the following liberties, privileges, and franchises, to-wit: That of exercising the municipal power of every kind and nature conferred by ‘An act to provide for the incorporation of cities and villages,’ over certain specified territory in the township of Hall, in Bureau county, and over all persons found or residing within the limits of said territory; and that Devlin then was, and during the same time had been, exercising the power, right, franchises, and duties conferred by said act upon mayors of cities, claiming, without any warrant or authority of law, to be mayor of said city of Spring Valley,-all which privileges, franchises, and duties said city and said Devlin had usurped, and still usurped, to the damage and prejudice of the people, and against the peace and dignity of the same. The information contains a prayer that the defendants answer by what warrant they respectively claim to have, use, and enjoy and exercise the said privileges, liberties, franchises, and duties. The defendants demurred to the information. Their demurrers were overruled, and they failed to stand by them, but filed pleas to the information. In their pleas they attempted to set up the various steps taken for the organization of the city, as required by section 5 of said act, beginning with the filing of the petition with the clerk of the county court on January 8, 1886, and ending with the calling of an election to vote upon the question of incorporation, the canvassing of the vote, the declaration of the result showing a majority in favor of organization, the certificates thereof of the county judge, and the recording of the result upon the records of the county court, etc. The pleas also set up the proceedings for the election of city officers, showing the election of Devlin as mayor on February 23, 1886, and that he was duly qualified, etc. The people filed seven replications to the pleas,-the first denying the incorporation; the second, third, and fourth denying that the petition was subscribed by 50 legal voters, that there was a resident population of 1,000 inhabitants, and that the territory described was contiguous territory. The fifth, sixth, and seventh replications charge that the organization of the city of Spring Valley was fraudulent; that Devlin controlled the Spring Valley Coal Company; that the miners who were employed by the company constituted nearly all the population of the territory, and were under the control of Devlin; that he fraudulently procured the petition to be signed and the organization to be voted for by his mining employés; that he was owner of most of the ground platted into lots, blocks, streets, and alleys; that the territory described in the information comprises all the territory in the limits of said pretended city; that before January 22, 1886, there was no organized city in said territory, and no such municipality as the city of Spring Valley; that underlying said lands were strata of coal; that the company had sunk shafts upon some of said lands, and erected buildings and other improvements; that Devlin fraudulently omitted these portions of his lands from said petition, so that they might escape taxation for city purposes; that such lands were suited for municipal purposes; that, without the knowledge of relators or notice to them, he included their lands in said petition, so as to make them bear the burdens of the municipal taxes, and thereby improve his own property; that the lands of relators were only adapted for agricultural purposes, and were farming lands, and pasturage, and wooded lands; that the same were fraudulently inserted in said petition; that the remainder of said territory, except that occupied by the employés of said coal company, was sparsely settled, there being only about one family to each 150 acres; that said company and Devlin, its general manager, put into execution a fraudulent scheme to defraud the owners of lands adjoining those of the company, by compelling such owners to contribute by taxation to the improvement of the company's lands that were platted, and by relieving those not platted from taxation, and for that purpose fraudulently caused the petition to be presented to the county court, and falsely and fraudulently represented that it was signed by 50 legal voters, and that said territory was occupied by 1,000 inhabitants, and that the same was contiguous, etc. The defendants demurred to these replications. The court sustained the demurrers. On August 22, 1887, the defendants moved for judgment on the demurrers to the replications. September 14, 1888, the court sustained the motion, and dismissed the information. The demurrers to the replications were properly sustained. The first replication was a general denial of the legal incorporation of the city. The second, third, and fourth were specific denials of particular facts necessary to constitute such legal incorporation. The fifth, sixth, and seventh charged that the incorporation was illegal and void by reason of the fraudulent means put forth to secure it. In substance, therefore, all the replications attacked the existence of the city of Spring Valley as a corporation. But this was a departure from the information, or, if not a technical departure in pleading, it amounted to a contradiction of the information by the replications, because the information, by making the city of Spring Valley a party defendant, thereby admitted its existence as a corporation. When an existing corporation abuses any of its franchises, or usurps franchises which do not belong to it, the information should be against the corporation as such. But when a body of men or a number of individuals unlawfully assume to be a corporation the information should be against them as individuals, and not by their corporate name. Dillon, in his work on Municipal Corporations, (volume 2, 3d Ed., § 895,) says: ‘It is held in England that, if the information be for usurping a franchise by a corporation, it should be against the corporation; but, if for usurping the franchise to be a corporation, it should be against the particular persons guilty of the usurpation.’ People v. Richardson, 4 Cow. 97;People v. Railroad Co., 15 Wend. 113;People v. Supervisors, 41 Mich. 647, 2 N. W. Rep. 904;State v. Coke Co., 18 Ohio St. 262.

The weight of authority in this country ‘may now be regarded as sustaining the proposition that the effect of filing an information against a corporation by its corporate name, to procure a forfeiture of its charter, or to compel it to disclose by what authority it exercises its corporate franchise, is to admit the existence of the corporation. When, therefore, the information is filed against the respondent in its corporate name, and process is issued and served accordingly, and the respondent appears and pleads in the same corporate character, its corporate existence cannot afterwards be controverted.’ High, Extr. Rem. (2d Ed.) § 661; State v. Bank, 33 Miss. 474; People v. Railroad Co., supra; State v. Coke Co., supra. If, in the present case, the information had charged...