Stephens v. People Ex Rel. James J. Rafter

• Decision Date: 30 June 1878
• Citation: 1878 WL 10033,89 Ill. 337
• Parties: M. M. STEPHENSv.THE PEOPLE ex rel. James J. Rafter et al.
• Court: Illinois Supreme Court

89 Ill. 337

1878 WL 10033 (Ill.)

M. M. STEPHENS

v.THE PEOPLE ex rel. James J. Rafter et al.

Supreme Court of Illinois.

June Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

This was an information, in the nature of a quo warranto, against the defendant, M. M. Stephens, jointly with seven other persons, as the acting aldermen of the city of East St. Louis, filed in the circuit court of St. Clair county on the 6th day of May, 1878; the relators, six in number, being aldermen elected under and in pursuance of the special charter and ordinances of such city. After the filing of a general demurrer, the information was dismissed as to all the other seven defendants, and the remaining defendant, M. M. Stephens, filed his plea, to which a general demurrer was sustained pro forma, and he standing by his plea, the court rendered judgment upon the demurrer and a judgment of ouster against him, from which he appeals to this court.

The plea, in substance, sets up, that on the 16th day of September, 1877, the city of East St. Louis was a municipal corporation of this State, under an act entitled, “An act to reduce the charter of East St. Louis, and the several acts amendatory thereto, into one act, and to revise the same,” approved and in force March 26, 1869; that the city was divided into four wards, and had two councilmen from each ward, and that John B. Bowman was mayor of the city; that afterward, on the 17th day of September, 1877, there was presented to the mayor and council of said city, then in session, a petition of more than one-eighth of the legal voters of the city voting at the last preceding municipal election, to submit the question as to whether said city should become incorporated under the general law, viz: “An act to provide for the incorporation of cities and villages,” approved April 10, 1872; that five of the councilmen, naming them, and composing the relators except one, wrongfully, fraudently, and for the purpose of perpetuating their own power, and with intent to thwart the wishes of the legal voters of the city, wholly neglected and refused to perform their duty to submit the question of incorporating the city under the general law to the legal voters of the city; and that, thereupon and afterward, on the 12th day of December, 1877, John B. Bowman, the mayor of said city, published in a newspaper within the city a notice of an election to be held under the said law of 1872, wherein he appointed the 15th day of January, 1878, as the time when, and also the places in said city where, a vote might be taken upon the question of incorporation under said act of 1872, and also designated the persons who should act as judges of the election; that on the said 15th day of January, 1878, such election was held at the places appointed in the notice, at which there was cast a majority of seventy-one votes “for city organization under general law;” that of said vote returns were made by the judges of the election to the city council, and a canvass thereof was made at a meeting of the council on the 22d day of January, 1878, and the same was entered upon the records of the city; and it is averred that thereby, to-wit, by said majority of votes cast “for city organization under general law,” said city became organized under the general law of 1872, and that the election has not been contested under section 117, chapter 46, Revised Statutes 1874, or in any other manner; that five of the eight councilmen of the city at the time, three of whom are of the number of the present relators, voted at and took an active part in the election; that afterwards, and within three months after the election, said city of East St. Louis was duly entered and registered by the Secretary of State of Illinois in the records of his office, in pursuance of the provisions of said act of 1872, as a city organized under that act.

The plea further avers, that the city council having neglected and refused to re-divide the city into wards according to law, and to designate the places at which the next annual election should be held in the city, and to appoint the judges and clerks thereof, and to cause notice thereof to be given and of the officers to be elected, thereupon John B. Bowman, mayor of the city, gave twenty days' notice, by publication in the East St. Louis Gazette, a newspaper in such city, that the first general election for city officers, under the general law of 1872 would be held on the third Tuesday, the 16th day of April, 1878, for the election of two aldermen from each ward, a city clerk, a city attorney and a city treasurer, in and by which notice the mayor, after reciting the neglect and refusal of the city council in that behalf, himself designated the places in which the election should be held, and appointed the judges and clerks thereof; that at a meeting of the city council, held on April 11, 1878, the mayor laid before it a copy of said election notice, and the council passed a resolution, “that the action of the mayor in giving notice of the first annual election to be held in this city under the general law of 1872, for the election of city officers, to-wit, on the 16th of April, 1878, be and is hereby approved;” that the last mentioned election was held accordingly, at which the defendant was elected one of the aldermen in and for the fourth ward of the city, and afterward qualified, by virtue of all which he entered into the office of alderman, and claims the right to exercise the powers and perform the duties thereof.

The provision of law in regard to becoming incorporated under the general law of 1872, entitled “An act to provide for the incorporation of cities and villages,” is contained in the first section of that act, as follows: “That any city now existing in this State may become incorporated under this act in the manner following: Whenever one-eighth of the legal voters of such city voting at the last preceding municipal election shall petition the mayor and council thereof to submit the question as to whether such city shall become incorporated under this act to a vote of the electors in such city, it shall be the duty of such mayor and council to submit such question accordingly, and to appoint a time and place or places at which such vote may be taken, and to designate the persons who shall act as judges at such election. The mayor of such city shall...