People v. Wood

• Decision Date: 20 March 1952
• Docket Number: No. 32199,32199
• Citation: 104 N.E.2d 800,411 Ill. 514
• Parties: PEOPLE v. WOOD et al.
• Court: Illinois Supreme Court

Page 800

104 N.E.2d 800

411 Ill. 514

PEOPLE v. WOOD et al.

No. 32199.

Supreme Court of Illinois.

March 20, 1952.

David Levinson, Robert S. Cushman, and Robert I. Logan, all of Chicago, for appellant.

Roy A. Whiteside, and Joseph B. Fleming, both of Chicago, and Sidney H. Block, of Waukegan, for appellees.

DAILY, Chief Justice.

This appeal brings before us a quo warranto action which was commenced in the circuit court of Lake County to test the legality of the detachment of certain territory from Deerfield-Shields Township High School District No. 113, and the legal sufficiency of Community High School District No. 115 into which the detached territory was organized. The action was brought in the name of the People of the State of Illinois as the voluntary act of the State's Attorney of Lake County, and the defendants named were the individual members of the board of education of District No. 115. After a hearing, the circuit court entered a judgment in favor of the defendants, finding that District No. 115 was legally organized and that the individual board members were validly elected and entitled to hold their respective offices.

The only plaintiff, the People of the State of Illinois, did not appeal from the judgment the State's Attorney, who brought and controlled the action, electing to abide by the judgment. However, Deerfield-Shields Township High School District No. 113, from which the territory comprising District No. 115 was detached, filed a notice of appeal and is the only appellant in this court, although heretofore not a nominal party to the action. Appellees have filed a motion in this court to dismiss the appeal, contending that District No. 113 is not a proper appellant. It is urged that only the People, through the Attorney General or State's Attorney, can appeal an adverse decision in a quo warranto action involving solely public, as opposed to personal and private, rights and interests. The motion has been taken with the case and commands our first consideration.

Appellant suggests that, although not a party to the original proceeding, it is a proper appellant and is insured a review of the decision under the theory that it is a nonparty which has been adversely affected by the decision and would be benefited by its reversal, regardless of the fact that this is a quo warranto proceeding involving only public rather than private interests. Relying upon the language used in section 7 of the Quo Warranto Act, (Ill.Rev.Stat.1951, chap. 112, par. 15,) and that contained in the last sentence of section 81 of the Civil Practice Act, (Ill.Rev.Stat.1951, chap. 110, par. 205,) appellant urges that it is entitled to a review of the judgment by filing a notice of appeal under present practice because under prior practice in such cases, it could have obtained a review by writ of error. Appellees maintain, however, that appellant would not have had such a right under prior practice in a quo warranto proceeding involving like parties and like interests, for the reason that only the People are entitled to a review in such case, due to the very nature of a quo warranto proceeding involving matters of general public import, and for the further reason that the interests of an entity such as appellant would not cause it to be directly affected by a judgment adverse to the People or directly benefited by a reversal thereof.

Immediately prior to the enactment of the Civil Practice Act, the manner of review in quo warranto proceedings was set forth in section 7 of the Quo Warranto Act as follows: 'Appeals and writs of error may be taken and prosecuted in the same manner and upon the same terms, and with like effect as in other civil cases.' (Ill.Rev.Stat.1933, chap. 112, par. 7.) Under the statute presently in force the same section reads: 'The provisions of the Civil Practice Act, including the provisions for appeal, and all existing and future amendments of said Act and modification thereof, and the rules now or hereafter adopted pursuant to said Act, shall apply to all proceedings hereunder, except as otherwise provided in this Act.' (Ill.Rev.Stat.1951, chap. 112, par. 15.) The last sentence of section 81 of the Civil Practice Act, (Ill.Rev.Stat.1951, chap. 110, par. 205,) makes the following provision: 'The right heretofore possessed by any person not a party to the record to review a judgment or decree by writ of error shall be preserved by notice of appeal.' It thus appears that in a quo warranto proceeding, prior to our Civil Practice Act, a writ of error was an appropriate means of gaining a review in a proper case and that section 81 now applies to quo warranto proceedings so as to make review possible by appeal whenever a writ of error would have been proper before. Consequently, the basic issue presented by the motion to dismiss is whether appellant would have had the right to prosecute a writ of error in an identical quo warranto action prior to the advent of the Civil Practice Act.

In approaching the problem, some repetition of the fundamental characteristics of quo warranto, of its origin and development, becomes necessary. These factors were ably described in Rowan v. City of Shawneetown, 378 Ill. 289, 38 N.E.2d 2, 5, as follows:

'The ancient common-law writ of quo warranto was an original writ issuing out of chancery in the nature of a writ of right for the king against one who claimed or usurped any office, franchise or liberty, to inquire by what authority he asserted a right thereto in order that it might be determined. Ames v. State of Kansas, 111 U.S. 449, 4 S.Ct. 437, 28 L.Ed. 482; Rex v Marsden, 3 Burr. 1817. It was an exclusive prerogative of and could be availed of only by the Crown for the purpose of correcting public wrongs. It was never available for the correction of the private wrongs of the individual. This purely civil writ became obsolete at an early date, due partly to the complicated and cumbersome nature of the proceeding, and it was supplanted by the information in the nature of quo warranto, which was properly a criminal prosecution instituted by the Attorney General to fine the usurper and to oust him from the office or franchise. 3 Blackstone's Com. 263. The information, as any other criminal action, was under the exclusive and arbitrary control of the Attorney General. His discretion could not be coerced and leave of court to file the information was not required. A private citizen could no more prosecute such a proceeding than he could prosecute in his own name for any other crime.

'Early in the history of this State a statute was passed to regulate proceedings upon information in the nature of quo warranto (Revised Laws of 1833, page 506) and by subsequent enactments the uses and purposes of quo warranto were extended to the correction of certain wrongs done to the private rights of individuals. Section 1 of the Quo Warranto Act of 1874, and subsequent amendments thereto, Smith-Hurd Stats. c. 112, § 1, abrogated the commonlaw rule and provided that an information for quo warranto could not be filed for the correction of wrongs done to either public or private rights except by leave of court on a showing of probable cause. Section 2 of the act of 1937 has changed the proceeding and now the Attorney General or the State's Attorney may file a complaint in quo warranto without obtaining leave of court.

'A proceeding in quo warranto prosecuted by such public official is now as it was at common law. Under the section of the statute referred to, however, a fundamental distinction exists between a quo warranto proceeding brought to protect purely public interests involving no personal or individual rights differing from those of the general public, and a proceeding brought on the relation of an individual citizen to enforce a private right in which the citizen has a purely individual and substantial interest, differing from the general public, and in which the interest or concern of the State may be small or entirely theoretical. At common law the Attorney General, and, under the Quo Warranto Act of 1937, the Attorney General or the State's Attorney of the proper county, have an absolute, arbitrary discretion to determine whether they will institute quo warranto proceedings or not, in all cases which are of purely public interest. No leave of court is necessary, and the discretion vested in the State's prosecuting officers can not be controlled, coerced, or reviewed by the individual citizen. People v. Fullenwider, 329 Ill. 65, 160 N.E. 175; People v. Hanson, 290 Ill. 370, 125 N.E. 268; People v. Healy, 231 Ill. 629, 83 N.E. 453; Porter v. People, 182 Ill, 516, 55 N.E. 349; People v. North Chicago Railway Co., 88 Ill. 537.

'These officers have no such arbitrary authority where the proceeding is to enforce individual rights. Under the Quo Warranto Act in force prior to 1937, where the individual citizen had a private and personal right, differing from that of the general public, to enforce which quo warranto was the only remedy, he could apply to the State's attorney with a petition showing facts necessary to establish his interest, and on such showing it then became the duty of that official to institute quo warranto proceedings, and if he refused to do so, he could be compelled by mandamus to perform that duty. People v. Healy, supra. Under that statute it became well settled that the interest which the individual relator must have in the question to support a quo warranto proceeding and one in which he could mandamus the State's attorney to institute quo warranto proceedings in his behalf, should be personal and peculiar to him, and not one shared in common by other members of the general public. The interest which an individual has as a taxpayer or as a member of the general public was held not to be sufficient. People v. Fullenwider, supra; Newman v. United States, 238 U.S. 537, 35 S.Ct. 881, 59 L.Ed. 1446.

'Under the present Quo Warranto Act, in ...