Swigert v. Golden Rule 1@

• Decision Date: 15 May 1885
• Parties: PEOPLE ex rel. SWIGERTv.GOLDEN RULE et al.1@
• Court: Illinois Supreme Court

114 Ill. 34

28 N.E. 383

PEOPLE ex rel. SWIGERT

v.GOLDEN RULE et al.1@

Supreme Court of Illinois.

May 15, 1885.

Appeal from circuit court, Warren county; JOHN J. GLENN, Judge.

Motion by the attorney general for leave to file an information in the nature of a quo warranto on the relation of the auditor of public accounts against the Golden Rule, O. S. Barnum, T. S. Stamps, J. H. Wallace, John Troutman, and W. B. Young, to compel the respondents to show by what warrant they claim to engage in the business of an insurance company. The affidavit supporting the motion showed, on the information and belief of the auditor, that while the Golden Rule had been incorporated under an act in force July 1, 1872, not for pecuniary profits, its real and actual business had been to solicit and receive applications for membership, and to grant certificates to such persons as were accepted, which, together with the rules and regulations of the corporation, bound it, upon the death of a member, to serve notice of such death upon the surviving members, to make collections of money, and receive contributions from the survivors, and to pay out 75 per cent. of the money so received, not exceeding $1,500, to a person named therefor in the deceased member's application, and 25 per cent. to the two persons who should hold valid existing certificates numbered next above or below the number of the certificate held by the deceased member. The motion was allowed, and thereupon the attorney general filed an information setting out the same matters more at length. The respondents were then summoned, and filed their motion to vacate the order granting leave to file the information, and also to quash the writ and dismiss the suit; because, among other reasons, there had been no notice given of the application, and no rule nisi entered and served on them before leave. Respondents' motion was sustained, and an order made vacating the order for leave to file the information, quashing the writ, and dismissing the suit. The attorney general appeals. Judgment reversed.E. S. Smith, for appellant.

James McCartney, for appellees.

SCHOLFIELD, C. J.

This case is not analogous to that of People v. Railway Co., 88 Ill. 538, as seems to be claimed by counsel for appellees. There the application was by a private party to file an information. Here it is by the attorney general, at the instance and upon the affidavit of the auditor of public accounts. It is provided by section 15, c. 15, Rev. St. 1874, that ‘the auditor shall be deemed the proper officer to institute all suits, motions, and other proceedings, in law and equity, in which the state is plaintiff, except in cases otherwise provided by law.’ By other provisions of the statutes the auditor is given supervision over life as well as other insurance companies, and, where companies assume to insure without having sufficient legal authority, it is within the line of his duty to cause them to be prosecuted, and to be deprived of their franchises etc. And by the second subdivision of section 4, c. 14, Rev. St. 1874, it is made the duty of the attorney general ‘to institute and prosecute all actions and proceedings in favor of or for the use of the state, which may be necessary in the execution of the duties of any state officer.’ There is not, therefore, in our opinion, the slightest foundation for the position that this is a private prosecution. It is a suit instituted by appropriate public officers in respect to a matter which concerns, so far as we are able to perceive, the public alone.

The question now comes before us for the first time whether, under the first section of the amended and revised act in relation to quo warranto, of March 23, 1874, (Rev. St. 1874, c. 112, p. 787,) it is necessary to lay a rule upon the respondents to show cause against it, upon presenting a petition to the court or judge for leave to file an information in the nature of a quo warranto. The language of the prior statute was: ‘It shall and may be lawful for the attorney general, or the circuit attorney of the proper circuit, with the leave of any circuit court, to exhibit to such court one or more information or informations in the nature of a quo warranto, at the relation of any person or persons desiring to sue or prosecute the same, * * * and to proceed therein in such manner as shall be usual in cases of informations in the nature of quo warranto,’ (Gross' St. 1869, p. 533;) thus adopting, unmistakably, the common-law practice in that respect; and so we said in People v. Waite, 70 Ill. 25: ‘The mode for instituting such proceedings is, usually, as pursued in the case at bar. The state's attorney submitted a motion, based on affidavit, for...