The Ill. Midland Ry. Co. v. People Ex Rel.
| Decision Date | 31 January 1877 |
| Citation | 1877 WL 9404,84 Ill. 426 |
| Parties | THE ILLINOIS MIDLAND RAILWAY COMPANYv.THE PEOPLE ex rel. |
| Court | Illinois Supreme Court |
WRIT OF ERROR to the Circuit Court of Macon county; the Hon. C. B. SMITH, Judge, presiding.
On the 26th day of November, 1875, an information, in the nature of a quo warranto, was filed in the circuit court of Macon county, by leave of court, in which it is alleged, that on the 1st day of July, 1875, and ever since, without any authority of law for so doing, the Illinois Midland Railway Company, acting as and claiming to be the lawful successor of a certain corporation known and called the Peoria, Atlanta and Decatur Railroad Company, is using and exercising, without any lawful grant, warrant or charter, the liberties, privileges, powers and franchises conferred by the people of the State of Illinois, by act of the General Assembly, upon and vested in the Paris and Decatur Railroad Company, all of which liberties, privileges, powers and franchises the Midland Railway Company have usurped and still do usurp.
Other charges are contained in the information, but they are but different statements of the same usurpation of liberties, privileges, powers and franchises of the Paris and Decatur Railroad Company, with the additional allegation the Midland Railway Company has wrongfully taken possession of the personal property of that company, and is using it without any authority of law so to do.
A plea of not guilty was filed, and a second plea, to which a demurrer was sustained. On leave given, defendant filed second and third amended pleas, to which a demurrer was sustained, and defendant standing by its pleas, judgment of ouster was pronounced.
Messrs. CREA & EWING, and Mr. A. J. GALLAGHER, for the plaintiff in error.
Messrs. D. T. & D. S. MCINTYRE, and Messrs. SMITH & CLOKEY, for the defendant in error.
Where a party is charged, by information in the nature of quo warranto, in the name of the people of the State, with having usurped powers and franchises, and with exercising the same without authority of law, he must either justify, or disclaim having done so. The second amended plea, to which a demurrer was sustained, does neither. It is neither a complete plea of justification nor a full disclaimer. Such pleas must be consistent, and not allege defenses repugnant to each other. This one contains some matters tending to show justification, and others tending to show a disclaimer. In that respect, the defenses set up are repugnant and inconsistent with each other, and for that reason the plea is bad.
The amended third plea, we think,...
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