People ex rel. Samuel v. Cooper

Mr. Justice Bailey delivered the opinion of the Court: There can be no doubt that the appeal in this case is properly taken directly to this court from the trial court. The proceeding is by information"in the nature of a quo wanranto, brought against the defendants to test their right to hold and exercise the office and franchise of commissioners of Central Special Drainage District, in Mason county, and the defendants, by their pleas, have alleged in detail the facts necessary to invest them with the title to said office and franchise. The facts thus alleged consist of the various proceedings whiclrare claimed to have resulted in the legal organization of said drainage district, and in the subsequent legal enlargement of the boundaries of said district so as to embrace additional areas of land, including the lands of the relator, and also of the proceedings by which the defendants claim to have been elected and inducted into the office of commissioners of said district. All of these allegations are put in issue by the replications. The defendants’ title depends upon the legality and sufficiency of these various proceedings, and the suit therefore involves, not only the right of the defendants to hold the office to which they claim to have been elected, but, incidentally at least, the legal existence of said drainage district as a corporation, and its right, through its commissioners, to enjoy and exercise the franchises, powers and privileges which the statute gives to corporations of that character. It thus appears that the legal existence of the district, as well as the right of the defendants to act as the corporate authorities thereof, is in issue, and that the final judgment in the casé must be, in effect, a judicial affirmance or disaffirmance of both. It is clear therefore that a franchise is involved, within the meaning of the statute defining the cases in which appeals may be taken directly from the trial court to this court. A considerable number of propositions are submitted on behalf of the relator as grounds for the reversal of the judgment of the Circuit Court, and so far as we deem them of sufficient importance to merit discussion, they will be considered in their order. The first point made calls in question the action of the court in sustaining the defendants’ demurrer to the second, third, fifth and sixth counts of the information. The form in which the information is presented would seem to indicate some misapprehension on the part of counsel as to the proper scope and object of a proceeding by quo warranto. This misapprehension is manifested by an apparent attempt to combine in the information matters which are properly remediable by this writ with mere private grievances of the relator for which the law furnishes him a proper remedy, by a private action, either at law or in chancery. Quo warranto is not a remedy provided for the vindication of mere private rights. “The State does not concern itself with the quarrels of private litigants. It furnishes them sufficient courts and remedies, but intervenes as a party only where some public interest requires action. Corporations may, and often do, exceed their authority, where only private rights are affected. When these are adjusted, all mischief ends and all harm is averted. But where the transgression has a wider scope, and threatens the welfare of the people, they may summon the offender to answer for the abuse of its franchise, or the violation of its corporate duty.” 1 Beach on Corporations, sec. 58. In those portions of the information to which the demurrer was sustained the relator attempts to set out and avail himself as a ground for issuing the writ, of the action of the commissioners in attempting to levy upon his land assessments in excess of the benefits which said land would receive from said proposed system of drainage, and that too without giving him notice or affording him an opportunity to be heard in relation thereto, and in instituting various proceedings for enforcing the collection of such assessments; in taking and appropriating to the uses of the district certain drains which the relator had already constructed on his own land at a large expense without compensating him therefor; in filling up and thus destroying the usefulness of one or more of said ditches, and also in taking portions of the relator’s land for the construction of the ditches of the district, and damaging other portions of his land, without making or tendering him compensation therefor. These allegations, if true, simply show an improper exercise of corporate or official authority on the -part of the commissioners for which the law furnishes the relator ample and sufficient remedies at his own suit, and which therefore •constitute no ground for interference by the people in their sovereign capacity by quo warranto. It may be further noticed that neither count of the information is based upon an allegation of an abuse of corporate or official authority, but solely upon a want of it. The first count alleges, generally, that the defendants, for the period of eighteen months next prior to the filing of the information, had unlawfully held and exercised and still do hold and exercise the franchise and office of commissioners of said drainage district, and had during all that time usurped and intruded into said franchise and office, and the same allegation, in substance, is contained in each of the other counts. In each of the counts subsequent to the first, the pleader, after making such general allegation, proceeds, merely by way of more minute specifications of the usurpations alleged, to state various official acts of the defendants in their alleged capacity of commissioners, most, if not all of which tend to show an abuse and not a usurpation of corporate or official authority. In none of the counts do the acts thus specified seem to be set out or relied upon as an independent ground for prosecuting the writ, but merely as specifications under the general charge of usurpation. It is clear that allegations of this character are not germane to and do not tend to sustain the general allegation, and as they are not put forward as a substantive and independent ground for relief, they may be wholly disregarded. But as we are disposed to view that case, it is unimportant for us to determine whether those counts of the information to which the demurrer was sustained were or were not sufficient in law. The sole purpose of the information is, to require the defendants to show by what warrant they are'holding and exercising the office and franchise of commissioners of said drainage district and if found guilty of unlawfully usurping and intruding into said office and franchise, to have them ousted therefrom. If then the two counts as to which the demurrer was overruled are sufficient for that purpose, neither the relator nor the people have any just ground of complaint. The rule of pleading in cases of this character is, that where an information is filed to test the question of an intrusion into or usurpation of an office, it is sufficient to allege generally that the defendant is in possession of the office without lawful authority. People v. Woodbury, 14 Cal. 43; People v. Flynnt 16 id. 358; High on Extraordinary Remedies, 713. Each of the counts of the information before us as we have already .said, contain, in substance, such general allegation. Except then as to defects pointed out by special demurrer—and as to those we express no opinion—they may have been sustained. But none of them receive any aid from the special averments therein contained, and rejecting those, they are substantially identical. Whether then the demurrer was sustained to four of its counts properly or improperly, the remaining counts being sufficient to enable the prosecution to obtain all the relief to which it could in any event be entitled, the sustaining of the demurrer to the four counts, even if erroneous, wrought no prejudice to the prosecution, and is therefore no ground for reversing the judgment. But it is claimed that by the third count, which is one of those to which the demurrer was sustained, a question as to the constitutionality of section 54 of the Drainage Act under which the defendants claim their election is so preserved in the record as to be reviewable here. Said section provided that at all elections held under said act, every adult owner of land in the district, whether residing within or without the district, shall be a voter, if a resident of the county in which the district or some part of it lies. This is said to be in conflict with' section 1 of article 7 of the Constitution which, in fixing the qualifications of legal voters at elections, provides, that every person having resided in this State one year, in the county ninety days, and in the election district thirty days next preceding any election therein, who was an elector in this State April 1, 1848, or obtained a certificate of naturalization before any court of record in this State prior to January 1, 1870, or who shall be a male citizen of the United States above the age of twenty-one years, shall be entitled to vote at such election. The allegation of said third count is, that at the several elections at which the defendants claim to have been elected, females, aliens and minors voted, and it is insisted that, as the allegations of said count are admitted by the demurrer, the facts thus alleged, which tend to show the illegality of such elections, stand admitted. It should be remembered, however, that the demurrer admits only such allegations as are well pleaded, and as the rules of pleading did not require the prosecution, in drafting the information, to anticipate that the defendants would justify under said elections and show in advance the invalidity of such justification, said allegation in the third count can not be regarded as having been properly pleaded, and so is not admitted. The invalidity of said election was matter to be set up by the State’s attorney by way of replication, and he appears to have done so, in part at least, by alleging in his second replication to the defendants’ first plea, that at said elections women voted and determined the result. Upon that allegation an issue of fact was formed which was submitted to the jury for trial, and which was found against the prosecution. It is next insisted that the court erred in submitting certain issues of fact to the jury, and in rendering judgment without making itself a formal finding upon the issues not thus submitted. It appears that when the cause came on for trial, the court submitted to the jury the several issues formed upon the second replication to the defendants’ first plea, the several allegations of said replication being submitted in the form in which they appear therein, each being followed by the words: “Was it or not true ?” Upon such submission no objection or • exception was taken on behalf of the people, but both parties, when such submission was made and in view of it, expressly waived a jury except as to the issues so submitted to them by the court. Whether the mode in which said submission was made was regular or not, the people are in no position to question or complain of it now. Having failed to except at the time,' and having proceeded with the trial tacitly if not expressly consenting to and approving the mode of submission adopted, they can not now insist that it was erroneous. But it is said that the court, after the jury had heard the evidence, gave to the jury certain instructions as to the form of their verdict upon the various issues submitted, and that exceptions to such instructions having been preserved on be? half of the People, the question of the propriety of the mode in which the case was submitted to the jury is open for review. This we think is a misapprehension. Assuming the propriety of the submission, the instructions were clearly correct, and as the People are in no position to question the former, they can not successfully assign error upon the latter. The further point is made that the issues submitted to the jury presented to them for their decision questions of law as well as of fact. This to a certain extent is true, but the fact that the replication tendered issues of law is primarily the fault of the state’s attorney, as it is his pleading, and after having allowed the issues thus formed to be submitted to and passed upon by the jury without objection or exception, he can not now be permitted to challenge the verdict on that ground. Nor do we think it material that the court failed to find upon the issues not submitted to the jury. The defendants, by their first plea, alleged in detail all the facts upon which they based their right to hold and exercise the office and franchise of commissioners of said drainage district. The plea, if true, was a complete defense, and established in the defendants a legal title to said office and franchise. The second replication to said plea traversed in detail each of the material facts thus alleged, and the issues thus formed on said replication having all been found in favor of the defendants, the effect of the verdict is, to establish the truth of said plea in all its parts. One good and complete defense having thus been found in favor of the defendants, they were entitled to a judgment, and the issues formed on the other pleas are no longer material. At least it may be said that none of the issues as to which the jury was waived, if found either way, could have been of any avail to the prosecution, in view of what the jury, actually found. Furthermore, the court heard all the evidence adduced at the trial, and if the trial is to be regarded as having proceeded as to part of the issues by the jury and as to the residue by the court, the action of the court in refusing the People a new trial and in giving judgment in favor of the defendants, necessarily implied and involved the finding of all the material issues submitted to.thé court. True, the record fails to show any formal finding of those issues by the court, but no objection seems to have been made by the prosecution to the entry of judgment on that ground. The motion for a new trial was not based to any extent upon the want of such formal finding, nor was any motion in arrest of judgment interposed alleging that ground. If the prosecution had desired a formal finding by the court upon the issues not submitted to the jury, they should have asked for such finding, or at least have in some way interposed an objection to the entry of judgment without it. Having failed to do so, they can not now be heard to complain that no such formal finding was announced by the court. It is next insisted that the verdict of the jury is unsupported by the evidence, in that it is not shown that the notice of the presentation and time of hearing of the petition for the enlargement of said drainage district was posted up in five public places in the township of Iiilbourne, one of the three townships in which said district is situated. The evidence on that point consists of the affidavit of one person that he posted up two notices in two public places in said township; of another person that he posted up two notices in two other public places in said township; of still another person that he posted up a notice in said township without stating whether the place where he posted it was a public place or not, and a certificateo of the county clerk of Mason county stating, among other things, that he had caused five copies of said notice to be posted up in five public places in said township. All of these notices are shown to have been in the proper form and to have been posted up within the time prescribed by the statute. Section 50 of the Drainage Act prescribes the notice to be given of the time and place of the hearing of the petition for the organization of special drainage districts, and, as we held in Drainage Commissioners v. Griffin, 134 Ill. 330, its provisions should, by construction, be held to apply to proceedings for the enlargement of the boundaries of such districts. Said section provides, that the county clerk shall give notice, among other things, by ppsting notices in at least five public places in each township in which the proposed district dr any part of it shall lie, and requires him to file his certificate of the posting of such notices in each township, if the same or any part thereof are posted by him, and the affidavits of all persons posting such notices or any of them, and declares that such certificate and affidavits shall be evidence of the facts therein stated. If the case rested solely upon the affidavits of the persons who claim to have posted notices in the township of Kilbourne, it might perhaps be justly claimed that there was a failure to show that more than four of said notices were posted in public places. But we have the certificate of the clerk that he caused five notices to be posted in five public places in said township, and the statute makes his certificate evidence of the facts therein stated. It may be said that he was not required to file his certificate except where he posted the notices himself; and that as the notices in this case appear to have been posted by other persons, his certificate is extra official and therefore not entitled to be received in evidence. But this conclusion by no means follows. He does not certify that the notices which he caused to be posted were the same notices referred to in the affidavits, but so far as appears from said documents, they may be other and different notices. The fact that the clerk, under the sanction of his official responsibility, has filed his certificate of the posting of five notices in five public places of said township, is, to say the least, some evidence independent of the affidavits, that said notices were posted as he states. It is further insisted that the evidence fails to show that any adjourned meeting was held by the commissioners, in their proceedings to enlarge the boundaries of said drainage district, as provided by section 52 of the Drainage Act. It is sufficient to say, that section 52 relates exclusively to proceedings for the original organization of special.drainage districts, and that we know of no reason or rule of construction by which they can be held to apply to proceedings for the enlargement of such district. In Drainage Commissioners v. Griffin, supra, we h,eld that, inasmuch as in section 42, under which annexation proceedings are authorized to be taken, no provision is made for notice to the land-owners whose land is sought to be annexed to an existing district, we would so construe that section as to apply to it the provisions of section 50 in relation to notice. This construction was arrived at upon the principle that natural justice required that some reasonable notice should be given to such land-owners, and as the Legislature had made no provision for notice in the section authorizing annexation proceedings, we would presume it to be the legislative intention thatQthe provisions as to notice in the case of the original organization of a district should be held to apply to annexation proceedings. It does not follow, however, that all the provisions relating to the original organization of a drainage district should be construed to apply to those1 proceedings. No such reason or necessity exists in relation to those portions of section 52 which provide for an adjourned meeting for the purpose of perfecting the original organization of a district, and we can see no ground therefore for holding that those provisions have any application to proceedings taken under section 42. It is further objected that the lands sought to be annexed to said district are not within the same system of drainage, and that the action of the commissioners in attempting to make said annexation was therefore unauthorized by law. Section 42 of the Drainage Act provides that drainage commissioners may, at any time, enlarge the boundaries of their district by attaching new areas of land which are involved in the same system of drainage and require for outlets the drains of the district made or proposed to be made. Whether the lands sought to be annexed to a district are of the character and description here indicated is a judicial question which the commissioners must, from the necessity of the case, determine in the first instance, as preliminary to making the annexation, and we are inclined to the opinion that, at least in the absence of fraud, their decision> when made, is so far final as not to be the subject of inquiry and review in quo warranto proceedings. But whether this is so or not, the evidence in this case, though conflicting, is sufficient to sustain the finding that the lands annexed are in fact within the system of drainage, and require for outlet the drains of the district. The point is also made that several of the owners of land ■ in the areas sought to be annexed to said district were minors, and that no guardians ad litem were appointed for them, and that they were not represented by their guardians in the annexation proceedings. The statute makes no provision for the appointment of guardians ad litem in proceedings of this character, and gives the commissioners no authority to appoint such guardians. In proceedings for the original organization of special drainage districts, which must be bad before the County Court, provision is made for the appointment of guardians ad litem for infant land-owners, but those provisions do not extend to proceedings for the annexation of new areas to districts already formed. The jurisdiction of the commissioners over the lands of infants in those proceedings is acquired by giving notice in the mode prescribed by the statute, and while infants thus notified may doubtless appear by their guardians and contest the proceedings, their appearance in that mode is not made necessary to the regularity or legality of the order for the enlargement of the boundaries of the district. It is said that the annexation proceedings were unauthorized and void because the commissioners were an interested tribunal, and therefore disqualified to act. We are unable to see from the evidence that they had any legal interest in the result in any other way than as residents and land-owners in the district. There is some evidence tending to show that one of the commissioners signed the names of several of the petitioners to the petition, but the evidence also shows that he did so at the request of the persons whose names were thus signed. It is also alleged, though with little if any foundation in the evidence, that one or more of the commissioners interested themselves actively in the circulation of the petition for signatures, and it may perhaps be inferred from all the evidence that one or more of the commissioners were personally in favor of the proposed annexation. It is not the rule however, so far ás we are aware, that interest as a land-owner or tax-payer in a municipal or quasi municipal corporation disqualifies a person for holding an office in such municipality, or for performing any duty incident to such office, although his own personal or pecuniary interest may to some extent be affected by his action. ■ And this must be especially true in case of drainage districts which are organized for the promotion of the private interests of the land-owners within such districts. Nor are we aware that preconceived opinions or preferences of persons elected to such offices have ever been held to.be a legal disqualification. On the contrary, municipal as well as other executive and ministerial officers are not unfrequently elected because of their avowed opinions or preferences in relation to public measures which are likely to come before them for their official action. And the question is not materially affected by the fact that the ministerial or" executive duties which he may be called upon to perform may involve more or less of quasi. judicial action, or of discretion akin to what may properly be called judicial. Doubtless such officer may, as a matter of prudence or -delicacy, decline to act in a matter in which he ■feels a personal interest, where his official duty may be as well performed by another, but if he chooses to perform the duty himself, it can not be said that he acts without jurisdiction, or that his act is ultra vires and therefore void, so as to be capable of being reviewed and set aside even by a direct proceeding by quo warranto. In this case the commissioners and they alone were authorized to entertain and grant or refuse the petition for annexation, and the duty to act in the premises was one which the statute imposed upon them, and which they could not commit to other hands. They had therefore no discretion, but were bound to act, and we perceive no reason for holding their action invalid by reason of any disqualification on their part. We think there was no error in admitting in evidence the petition for the organization of said district or the petition for the enlargement of its boundaries. The objection to their admission was based upon an alleged failure on the part of the •defendants to prove the genuineness of certain of the signatures appearing thereon. At the commencement of the trial it was stipulated by the respective parties in writing, that the ■defendants should not be required, in the first instance, to prove the signatures appearing as petitioners on the original petition, except those of six signers particularly specified, and also that they should not, in the first instance, be required to introduce evidence as to any of the signatures of any of the alleged signers of said petition for annexation, except as to eleven particularly designated. Evidence as to the genuineness of a part of the signatures thus excepted was given, but as to the residue no evidence was offered. Admitting that the burden was on the defendants to prove said signatures in the first instance, the effect of the stipulation was to relieve them of that burden as to all the signatures not particularly ex-oepted. Said papers were therefore properly admitted in evidence as showing petitions signed by all the petitioners whose signatures were thus admitted, and also by those petitioners whose signatures were proved. As we understand the record,, the petitioners whose signatures were thus established constituted the portion of the adult land-owners in the district which the statute requires to constitute a valid petition either-for the organization of a drainage district or for the enlargement of its boundaries. That being the case, the failure of the defendants to prove the signatures of the other petitioners, was immaterial. Another objection sought to be interposed to the validity of" said annexation proceedings is, that the areas of land annexed embrace all of the territory included in the village of Easton. It is assumed that Easton is an incorporated village, having conferred upon it by law the exclusive authority to provide for drainage within its own limits, and consequently, that the-Drainage Act does not apply to it, and that so far as said village is attempted to be brought into said drainage district, and subjected to the jurisdiction and control of said drainage-commissioners, it is nugatory and void. It should be observed in the first place that no question as * to the existence of said incorporated village is raised or in any manner sought to bp taken advantage of by the pleadings. Its existence is not alleged either in the information or in any of the subsequent pleadings on the part of the prosecution, nor is it in any manner relied upon as a ground for ousting the defendants, either in whole or in part, from the office or franchise which they are charged with usurping. Admitting all that is now claimed, the existence of said incorporated village-could only result in ousting the defendants from their office- and franchise so far as it relates to so much of the district as- ' is included in said village, leaving the district in other respects ■ unaffected. But as the prosecution have not adapted their-pleadings to that measure or species of relief, it can not be-granted. . Nor have we been able to discover any evidence in the record" that Easton is in fact an incorporated village. "We find on. one of the plats in evidence a tract containing eighty acres of land marked off and designated “Easton,” but whether it is an incorporated village or not does not appear. Counsel have pointed us to no evidence from which such incorporation may be inferred, and in view of the state of the pleadings, we have not regarded the question of sufficient importance to warrant the labor which would be involved in exploring the very voluminous record for ourselves to find out whether such evidence is contained in it or not. A number of other points are raised which we do not deem it necessary to discuss at length. We have duly considered them, however, and need only say that we find them without merit. We are of the opinion that there is no substantial error in the record, and the judgment of the Circuit Court will there- fore be affirmed. Judgment affirmed.