Raster v. Healy

• Citation: 82 N.E. 599,230 Ill. 280
• Parties: PEOPLE ex rel. RASTER v. HEALY, State's Attorney.
• Decision Date: 23 October 1907
• Court: Illinois Supreme Court

230 Ill. 280

82 N.E. 599

PEOPLE ex rel. RASTER

v.HEALY, State's Attorney.

Supreme Court of Illinois.

Oct. 23, 1907.

Appeal from Circuit Court, Cook County; R. W. Clifford, Judge.

Mandamus by the people, on the relation of Edwin O. Raster, to compel John J. Healy, as state's attorney, to sign a petition for leave to file an information in the nature of a quo warranto. From a judgment for respondent, petitioner appeals. Reversed and remanded, with directions.

Richberg & Richberg, for appellant.

Rosenthal & Hamill (Charles Goodman, of counsel), for appellee.

On May 15, 1906, the relator, Edwin O. Raster, filed in the circuit court of Cook county a petition for mandamus against John J. Healy, state's attorney of that county, praying for a writ commanding him to sign a petition for leave to file an information in the nature of a quo warranto against one Horace L. Brand, charged with having usurped the office of treasurer of the Illinois Publising Company.

The petition for mandamus alleges that on April 2, 1906, relator presented to appellee a petition, with relator's affidavit in support thereof, which petition was addressed to the circuit court of Cook county, and prayed leave to file an information in the nature of a quo warranto against Horace L. Brand, and that at appellee's request both relator and the respondent in said petition, so presented to appellee, appeared before appellee, who gave them a hearing and afterward refused to sign said petition; that appellee made no objection to the sufficiency of the same in law, and suggested no other way in which relator could have his rights judicially determined; that on May 10, 1906, relator presented a similar petition and affidavit to William H. Stead, Attorney General for the state of Illinois, and requested him to sign said petition, but he refused, giving as his sole reason therefor that the appellee had refused to sign the first-mentioned petition, and that he would not act on a similar petition in reference to the same subject contrary to the action of the state's attorney. The petition for mandamus sets out in full section 1 of chapter 112 of Hurd's Revised Statutes of 1905, and alleges that it was the duty of appellee, under the above statute, to sign the petition presented, and that because of his refusal to do so the people were deprived of their only adequate remedy against the usurpation of office of said respondent, Horace L. Brand, in violation of the laws and Constitution of the state of Illinois.

The facts alleged in the petition presented to appellee for his signature, as they appear from the petition in the case at bar, are substantially as follows: That the Illinois Publishing Company is an Illinois corporation; that the treasurer is an officer of said corporation; that on November 23, 1905, the office of treasurer became vacant through resignation; that since such resignation no person has been legally elected to said office, but since that time one Horace L. Brand unlawfully has assumed said office; and that petitioner believes the foregoing allegations can be established by proof. From the affidavit of relator attached to said petition presented to appellee, it appears, as shown by the petition in this case, that he (relator) is secretary of the Illinois Publishing Company, and that he is also a member of its board of directors; that on November 20, 1905, a special meeting was called by the president of said Company for November 23, 1905; that at such meeting the resignation of W. R. Michaelis as treasurer of the company was presented, and an attempt was made to elect Horace L. Brand to fill the vacancy; that the board of directors consisted of ten members; that there were but five directors present, including Brand, and he received but five votes; that as a result thereof he assumed to have been elected treasurer, and since that time has acted as treasurer; that the by-laws of the company require six directors to constitute a quorum, and provide that the election of officers shall occur at the first regular meeting of directors after the annual stockholders' meeting in each year, and that the board of directors shall consist of ten members; that at the annual meeting held for the annual election of officers on January 15, 1906, Horace L. Brand and W. R. Michaelis were both nominated for treasurer, and, each having received five votes, the presiding officer announced that there was no election.

To the petition for a writ of mandamus a general and special demurrer was interposed by appellee, which was sustained by the court and the petition dismissed. From the judgment of the circuit court appellant brings this case to this court by appeal, and urges as grounds for reversal, first, the court erred in construing section 1 of the statute of the state of Illinois entitled ‘An act to revise the law in relation to quo warranto,’ approved March 23, 1874, in force July 1, 1874, being section 1 of chapter 112 of Hurd's Revised Statutes of 1905; second, if the construction given by the court to that section be correct, then the court erred in not holding that section to be unconstitutional.

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

This controversy involved the construction of section 1 of chapter 112 of Hurd's Revised Statutes of 1905, which reads: ‘That in case any person shall usurp, intrude into, or unlawfully hold or execute any office or franchise, or any office in any corporation created by authority of this state (or any person shall hold or claim to hold or exercise any privilege, exemption or license, which has been improperly or without warrant of law issued or granted by any officer, board, commissioner, court, or other person or persons authorized or empowered by law to grant or issue such privilege, exemption or license), or any public officer shall have done, or suffered any act which, by the provisions of law, works a forfeiture of his office, or any association or number of persons shall act within this state as a corporation without being legally incorporated, or any corporation does or omits any act which amounts to a surrender or forfeiture of its rights and privileges as a corporation, or exercises powers not conferred by law, or if any railroad company doing business in this state shall charge an extortionate rate for the transportation of any freight or passenger, or shall make any unjust discrimination in the rate of freight or passenger tariff over or upon its railroad, the Attorney General or state's attorney of the proper county, either of his own accord or at the instance of any individual relator, may present a petition to any court of record of competent jurisdiction, or any judge thereof in vacation, for leave to file an information in the nature of a quo warranto in the name of the people of the state of Illinois, and if such court or judge shall be satisfied that there is probable ground for the proceeding, the court or judge may grant the petition, and order the information to be filed and process to issue. When it appears to the court or judge that the several rights of divers parties to the same office or franchise, privilege, exemption or license, may properly be determined on one (1) information, the court or judge may give leave to join all of such persons in the same information, in order to try their respective rights to such office, franchise, privilege, exemption or license.’

It is contended by the appellee that this statute vests the state's attorney of the proper county with an arbitrary discretion in reference to seeking leave to file an information in the nature of a quo warranto in the name of the people, that in the exercise of that discretion he cannot be controlled by the courts, and that he may refuse to seek the leave for any reason which to him seems sufficient or may refuse when no reason at all can be assigned for so doing; while appellant argues that in a case such as that now before us, where the proposed individual relator has a personal and private interest in the litigation which he desires to set on foot and where the interest of the public is purely or largely theoretical, the only discretion vested in the legal representative of the people is a discretion to determine whether the documents presented to him by the individual are in proper legal form, and whether the party seeking the institution of the suit presents evidence of such facts as establish his legal right to the remedy to be afforded by judgment against the respondent in the quo warranto proceeding.

Originally a proceeding of this character was by writ of quo warranto against any one who claimed or usurped any office, franchise, or liberty to inquire by what authority he supported his claim, in order to determine the right. Later the practice was changed, and an information in the nature of a writ of quo warranto succeeded the former method. 3 Blackstone's Com. 262, 263. By the common law the proceeding in quo warranto was employed exclusively as a prerogative remedy, to punish a usurpation of franchises or liberties granted by the crown, and never as a remedy for private citizens desiring to test the title of persons claiming to exercise a public franchise or desiring to establish a private right. In England the information, as a means of investigating and determining civil rights between parties, owes its origin to St. 9 Anne, c. 20, which authorized and required the proper officer to file the information by leave of court, upon the relation of any person desirous of prosecuting the same, against any person usurping or intruding into any municipal office or franchise in the kingdom. High on Extraordinary Legal Remedies (3d Ed.) § 602. That statute, however, having been passed in the year of our Lord 1710, has never been in force in this state. It will be observed from examination of section 1, supra, that the proceeding is made the vehicle for the assertion of many rights, both private and public,...