Soule v. Cullen

• Decision Date: 16 December 1903
• Parties: SOULE et al. v. PEOPLE ex rel. CULLEN, State's Atty.
• Court: Illinois Supreme Court

205 Ill. 618

69 N.E. 22

SOULE et al.

v.PEOPLE ex rel. CULLEN, State's Atty.

Supreme Court of Illinois.

Dec. 16, 1903.

Error to Circuit Court, La Salle County; Chas. Blanchard, Judge.

Quo warranto by the people, on the relation of Charles S. Cullen, state's attorney, against Charles E. Soule and others. From a judgment in favor of relator, respondents bring error. Reversed.

John H. Armstrong and Browne & Wiley, for plaintiffs in error.

Charles S. Cullen, for defendant in error.

SCOTT, J.

This was an information in the nature of a quo warranto, filed in the circuit court of La Salle county on March 5, 1902, in accordance with an order of the court granting leave which had been entered on that day. It questions the right of Charles E. Soule to hold the office of president, and the right of J. W. Carr, William Callagan, M. L. Courtright, Louis Dondanville, L. M. Eaton, and August Girolt to hold the offices of trustees of the village of Sheridan, in that county, and these seven persons were made respondents. The petition is in the usual form, but it appears from the petition for leave to file that the charge of the usurpation of the offices in question is based upon the alleged fact that the village of Sheridan is not legally organized, and is without a valid franchise. The respondents entered their appearance and filed two pleas to the information. To these pleas the people demurred. The demurrer was sustained to both pleas. The respondents abided their pleas, judgment of ouster was entered at the March term, 1902, of that court, and Soule alone sues out of this court a writ of error to review the judgment.

The only question is whether either of the pleas presented a good defense. The first plea seeks to show a valid organization of the village of Sheridan, and avers that on June 24, 1872, the inhabitants of the territory which is now within the limits of the alleged village of Sheridan organized such territory and the inhabitants thereof into a corporation or body politic by the name and style of ‘President and Trustees of the Town of Sheridan,’ under the act of March 3, 1845, and that thereafter, on July 26, 1873, an election was held in the said town of Sheridan for the purpose of organizing as a village under the city and village act of 1872 (Laws 1871-72, p. 218), and the plea contains averments intended to show an organization under that act. This plea was insufficient. The act of 1845 (Rev. St. 1845, p. 111, c. 25, § 1) provided for the inhabitants of a territory, upon proper notice, holding a mass meeting and voting upon the question whether or not they would incorporate as a town. The second section of the act provided that, if two-thirds of the votes were in favor of incorporation, the organization of the town should proceed. The plea fails to show that such proportionof the votes was in favor of incorporating. The attempt to organize a village was under the statute of 1872. Rev. St. 1874, p. 242, c. 24, § 178. Provision was made by that act for the submission to the voters of any incorporated town, by the president and trustees thereof, on the petition of any 30 voters in such town, of the question whether such town shall become organized as a village under that act. This plea does not aver that 30 voters of the town of Sheridan petitioned for the submission of this question, and therefore fails to show a legal organization of the village of Sheridan.

The second plea proceeds upon a different theory. It avers that at all times after the organization of the village on July 26, 1873, said village of Sheridan has been represented by a president and board of six trustees duly elected in accordance with the law; that during all that time the officers and authorities of said village have annually levied and collected village taxes and expended the same for municipal purposes, have duly passed, published and enforced village ordinances, and have erected and maintained a village hall and a prison; that public parks have been dedicated to said village, and are owned, improved, and maintained by it; that a bridge had been erected within the limits of said village across the Fox river, and has been owned, maintained, and repaired by said village since its construction, in 1874, with village taxes levied and collected for that purpose; that bonds and other evidence of indebtedness were issued by said village to obtain money to build said bridge, which bonds and evidence of indebtedness were paid by said village, acting as a body politic under the name and style of ‘The Village of Sheridan’; that by said name and style it has been sued in the circuit court of said La Salle county, and by that name and style a judgment in that court was entered against it as a municipal corporation; that it has, by its name and as a municipal corporation, purchased valuable lands in said county, the deed conveyingthe same to it being of record in said county; that on November 1, 1874, the authorities of said village, acting as such, purchased lands within the limits of said village for a cemetery; that said lands were surveyed and platted into burial lots, and the plat recorded in the proper office in La Salle county; that on January 10, 1895, the authorities of said village made an addition to said cemetery, and caused the same to be platted, and the plat thereof to be recorded in the proper office in said county. The plea avers that the respective state's attorneys of said county had notice of such suit, deeds, and plats. It further avers that since the establishment of such cemetery the same has been maintained by the village, and used exclusively for burial purposes; that the authorities of such village, acting as such, have sold to private parties numerous lots, which have been used for burial purposes in said cemetery; that the titles to said lots have been derived from the village of Sheridan; that by reason of the great laches in the commencement of this suit and the great injury and injustice which will result to private individuals who have acquired valuable property rights...