People ex rel. Williams v. Darst

• Decision Date: 08 December 1914
• Docket Number: No. 9567.,9567.
• Citation: 265 Ill. 354,106 N.E. 936
• Parties: PEOPLE ex rel. WILLIAMS et al. v. DARST et al.
• Court: Illinois Supreme Court

265 Ill. 354

106 N.E. 936

PEOPLE ex rel. WILLIAMS et al.

v.DARST et al.

No. 9567.

Supreme Court of Illinois.

Oct. 16, 1914.

Rehearing Denied Dec. 8, 1914.

Appeal from Circuit Court, McLean County; C. D. Myers, Judge.

Information in the nature of quo warranto by the People, on relation of Richard Williams and others, against Rolla M. Darst and others. From a judgment for defendants on demurrer, the relators appeal. Reversed and remanded, with directions.Miles K. Young, State's Atty., and W. B. Leach, both of Bloomington (Charles L. Capen, Lester H. Martin, F. Y. Hamilton, and Wight & Alexander, all of Bloomington, for appellants.

Welty, Sterling & Whitmore, of Bloomington, and A. M. Hester, of Colfax, for appellees.

CRAIG, J.

This was an information in the nature of quo warranto by the state's attorney of McLean county, Ill., in the circuit court of that county, on the relation of Richard Williams and 16 other landowners and residents of the county, the majority of whom are owners of land in an alleged drainage district, against Rolla M. Darst, Henry A. Welch, and William McKever requiring them to show by what warrant or right they exercise the corporate powers, privileges, and franchises of drainage commissioners of a supposed drainage district known as the Mackinaw drainage district, in that county. The object of the proceedings is to test the legality of the organization of the drainage district, which includes land both in McLean county and the adjoining county of Ford.

The information contains two counts. The first count charges appellees with usurping and exercising the corporate powers, liberties, privileges, and franchises of a supposed drainage district known as the Mackinaw drainage district, in McLean county, and requires them to show by what warrant they exercise such corporate powers, privileges, liberties, and franchises. The second count charges the appellees with unlawfully holding and executing the rights, powers, duties, and privileges of drainage commissioners of a supposed drainage district known as the Mackinaw drainage district, and requires them to show by what warrant they hold, use, and enjoy such corporate powers, privileges, liberties, and franchises, and by what warrant or right they claim to hold, use, and execute the powers, liberties, and privileges of such drainage commissioners. Appellees appeared and filed a plea of justification to the information, in which they set forth certain proceedings had under the Levee Act in the county court of McLean county, resulting in a final order in that court declaring certain territory therein described organized into a drainage district, known as the Mackinaw drainage district, in that county. Thereupon appellants moved for judgment nil dicit as to the second count of the information, which motion the court overruled. Appellants then moved to strike out certain portions of the plea, which motion the court also denied. Thereupon appellants filed a special demurrer to the plea. The court overruled the demurrer, and, appellants electing to abide by their demurrer, the court entered judgment on the demurrer in favor of appellees, finding the respondents not guilty, and taxing the costs to the relators. This appeal followed.

The errors assigned are: (1) That the court erred in denying the motion of the people for judgment nil dicit; (2) that the court erred in denying the people's motion to strike out certain portions of appellees' plea; (3) that the court erred in overruling the people's demurrer to appellees' plea; (4) that the court erred in rendering judgment in favor of the appellees and against the people; and (5) that the court erred in rendering judgment against the relators for costs. The errors assigned will be considered in the order above indicated.

[1] The plea, on its face, purports to answer the whole information. It sets forth the filing of the petition in the county court for the organization of the drainage district and the order entered thereon appointing appellees commissioners to lay out and construct the proposed improvement, as provided by section 5 of the Levee Act. Hurd's Stat. 1913, p. 922. It also sets forth certain proceedings thereafter had in the county court, resulting in an order in that court declaring the territory over which appellees are assuming to exercise jurisdiction as drainage commissioners organized into a drainage district, known as the Mackinaw drainage district, in that county. It will thus be seen that the plea filed is to the whole information, and, if good in substance, constitutes a defense both to the charge of the usurpation of the office of drainage commissioners and of usurping the corporate powers, privileges, and franchises of a drainage district. Under these circumstances it would have been error to allow the motion. Under our statute the course of pleading is the same in quo warranto as in other forms of action at common law. People v. Heidelberg Garden Co., 233 Ill. 290, 84 N. E. 230. The rule at common law is that a plea is to be taken as extending to the whole of the charge in the declaration, unless it is expressly limited, in its beginning, to a part of the charge, only. Gould's Pl. (5th Ed.) 355. The plea in question contained no such limitation, but both in its form and subject-matter, went to the whole information. The motion for judgment nil dicit was therefore properly denied.

[2] The matters complained of in the motion to strike out portions of the plea were of such a character that full advantage could be taken of the same by special demurrer. Appellants subsequently filed a special demurrer to the plea, and thereby waived the benefit of their motion to strike. The third assignment of error, therefore, presents no question that is subject to review by this court at this time.

[3][4] Appellants argue that the petition filed in the county court for the organization of the district was insufficient to give jurisdiction to that court to entertain the proceedings. The objections urged to the petition are: (1) That it did not describe with sufficient minuteness the starting point, route, terminus, and the nature and plan of the proposed improvement; and (2) that it did not conclude with a formal prayer for the organization of the drainage district to be known as the Mackinaw drainage district. The petition asks that a drainage district be formed for a combined system of drainage, independent of levees, to be known as the Mackinaw drainage district, which should include certain lands therein described, and gives the starting points, routes, and termini of the open ditch and the tile drain it is proposed to construct, the tracts of land through which the ditches will pass, and the general plan, scope, and nature of the proposed improvement. Attached to and made a part of the petition is a plat of the proposed drainage district, on which are shown the lands included in the district and the starting points, courses, and termini of the proposed open ditch and the tile drain. The petition further states that in constructing the open drain the channel of Mackinaw creek is to be followed so far as practicable, and that said creek is to be widened, deepened, and freed from brush, driftwood, sediment, and all other accumulations. The statute does not contemplate that these matters shall all be minutely set forth and described in the petition, nor does it contemplate that the matter of the practical construction of the improvement shall be fully determined in advance of the filing of the petition, but that matter is left for the determination of the commissioners subsequently to be appointed. Hurd's Stat. 1913, c. 42, § 9-11. What the statute contemplates is that the petition shall describe the proposed improvement with sufficient definiteness to inform the landowners who are to be specially assessed to pay for its cost what is proposed to be done, so as to enable them to judge as to the necessity and propriety of the work proposed and of the advantages and disadvantages that will result from the construction of the proposed improvement. Aldridge v. Clear Creek Drainage District, 253 Ill. 251, 97 N. E. 385;Brady v. Hayward, 114 Mich. 326, 72 N. W. 233;Kinnie v. Bare, 68 Mich. 625, 36 N. W. 672;Dodge County v. Acom, 61 Neb. 376, 85 N. W. 292. In our opinion the petition was sufficiently specific in this respect. The objection as to the omission of the formal prayer for the organization of a drainage district to be known as the Mackinaw drainage district from the conclusion of the petition is one as to matter of form and too hypercritical to require any serious consideration from this court in a proceeding of this character. The petition filed fully set forth all of the essential requirements of the statute, including a request that the district be known as the Mackinaw drainage district. That is all the statute requires. It was sufficient, in substance, to give the county court jurisdiction of the subject-matter of the proceedings.

[5] It is further argued...