People ex rel. Wilcox v. Barber

Decision Date03 December 1914
Docket NumberNo. 9471.,9471.
Citation106 N.E. 798,265 Ill. 316
PartiesPEOPLE ex rel. WILCOX et al. v. BARBER et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Christian County; J. C. McBride, Judge.

Proceeding in the nature of quo warranto by the People, on the relation of W. O. Wilcox and others, against William Barber and others. From a judgment in favor of defendants, relators appeal. Reversed and remanded.

Harry B. Hershey, State's Atty., of Taylorville, Brown & Burnside, of Vandalia, and John E. Hogan, of Taylorville, for appellants.

Taylor & Taylor, of Taylorville, for appellees.

COOKE, J.

This was a proceeding in the nature of quo warranto, brought in the circuit court of Christian county against the commissioners of Union drainage district No. 1 of the towns of Pana and Assumption, in Christian county, to test the legality of the annexation by the commissioners of certain lands to said district. The information was filed by the state's attorney of Christian county upon the relation of W. O. Wilcox and M. Hutchins, two of the owners of land attempted to be annexed to the district, and attacked the legality of the annexation of the relators' lands and the lands of more than 50 other persons whose names and a description of the lands owned by each were set forth in the information. Thereafter, by leave of court, an amended information was filed upon the relation of all the owners of land mentioned in the original information. In other respects the amended information is substantially the same as the original information and questions the legality of the annexation of the same lands. The defendants demurred to the amended information; one of the special grounds of demurrer being that it is double, in that it charges the defendants with 62 separate and distinct usurpations. The demurrer was overruled, and the defendants filed pleas justifying their action in annexing said lands to the district on the ground that the relators had connected their lands with the ditches of the district, and had thereby, by virtue of the statute, applied to be included in the district, and that the defendants had thereafter, as required by statute, annexed said lands to the district and classified the same for the purpose of making assessments thereon. A replication denying that the relators had connected their lands with the ditches of the district was filed, and the cause proceeded to trial before a jury upon the issue thus made. After hearing the evidence and viewing the premises in controversy the jury returned a verdict finding the defendants not guilty. A motion for a new trial was made and overruled, and judgment was rendered in favor of the defendants. This appeal has been prosecuted from that judgment.

Before proceeding to consider the grounds relied upon by appellants for reversal, it is necessary to dispose of the cross-errors assigned by appellees.

[1] It is first urged by appellees that the amended information is fatally defective because it does not charge that the commissioners acted fraudulently in annexing the lands of the relators to the drainage district. This contention is necessarily the result of a misconception of the office of an information in the nature of quo warranto. If it be conceded that the action taken by the commissioners in annexing the relators' lands to the district could only be attacked on the ground that the commissioners acted fraudulently, still it would not be necessary to allege fraud in the information. The office of an information in the nature of quo warranto is not to tender an issue of fact, but merely to call upon the defendants, in general terms, to show by what warrant they are exercising the privilege claimed, and it is sufficient to allege generally that they are exercising the same without lawful authority.

[2] The people are not required to set out in the information any specific facts upon which to base the charge that the defendants are exercising a certain privilege without lawful authority, but the defendants must, in their plea, either disclaim or justify, and if they justify they must set out such facts as will refute the charge that they are exercising the privilege complained of without lawful authority. People v. Central Union Telephone Co., 232 Ill. 260, 83 N. E. 829.

[3] We are of the opinion, however, that the legality of the annexation of the lands of relators to the district can be attacked in this proceeding solely on the ground that such lands have not been connected with the ditches of the district and that it is not necessary for the people to either allege or prove fraud. The pleas filed by the defendants, as well as the proof, show that the annexation of the lands of relators was made under and by virtue of section 42 of the Farm Drainage Act (Hurd's Rev. St. 1913, c. 42, § 117), which provides that:

‘The owners of land outside the drainage districts * * * may connect with the ditches of the district already made, by the payment of such amount as they would have been assessed if originally included in the district,’ and ‘if individual landowners outside the district shall so connect they shall be deemed to have voluntarily applied to be included in the district, and their lands benefited by such drainage, shall be treated, classified and taxed like other lands within the district.’

[4] In People v. Drainage Com'rs, 143 Ill. 417, 32 N. E. 688, it was said:

‘No appeal is allowed by the statute from the classification of the lands of the relators, or from the determination of the commissioners to classify them, and the right to classify and assess them being dependent, not upon any order of the commissioners, but upon the fact of connection with the ditches of the district, that fact was properly before the court upon quo warranto. That fact is jurisdictional, and without it exists, the proceedings of the commissioners in respect of classifying or assessing the land are without authority of law.’

In Shanley v. People, 225 Ill. 579, 80 N. E. 277, following previous decisions of this court, we held...

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18 cases
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