Poor v. People ex rel. Selby

Mr. Justice Wilkin delivered the opinion of the Court: This proceeding was begun in the court below by petition by the State’s attorney of Calhoun county, of his own accord, for leave to file an information in the nature of a quo warranto. The information charged that appellants were usurping and exercising the powers of a body corporate and politic, conferred upon cities not exceeding five thousand inhabitants by an act of the General Assembly approved April 10, 1872, entitled “An act to provide for the incorporation of cities and villages, ” and the several amendments thereto, in and over certain territory in said county. The petition having been granted, appellants filed what they called an answer, but which was treated as a plea, alleging that on the 21st day of January, 1889, a petition by at least thirty legal voters resident within said territory was filed in the office of the county clerk in said county, petitioning the county judge thereof, (setting out the petition, in which it is alleged said territory has resident therein a population of three hundred,) that the question be submitted, etc., whether said territory should be organized as a village; that in pursuance of said petition all the steps required by the statute in such case were regularly taken, resulting in the organization of the village of Hamburg, of which village they, the respondents, had been duly elected and qualified president, trustees and clerk. To this plea the State’s attorney replied that there was not, at the time of filing said petition with said county clerk, in the territory designated, a resident population of at least three hundred inhabitants, as required by the statute before a village can be legally organized. To this replication appellants filed a general and special demurrer. It.appears from the record that the court held the replicar tion good, but, on motion of the State’s attorney, carried the demurrer back to the plea and held it bad, to both of which rulings appellants excepted, and elected to stand by their plea and by their demurrer to the replication, whereupon judgment of ouster was entered against them. From that judgment this appeal is prosecuted. The question here raised is, whether or not, in this quo warranto proceeding, the number of inhabitants residing within the limits of the territory proposed to be organized into a village could be inquired into. This question we have answered in the affirmative in the recent case of Kamp v. The People, 141 Ill. 9. While it was irregular to carry the demurrer to the replication, which had been overruled, back to the plea, appellants having stood by their demurrer to the replication and allowed judgment to go against them on that issue, and the replication being good, the error in going back to and condemning the plea was harmless. The allegation in the replication that there were not three hundred inhabitants residing in the organized territory was admitted by the demurrer, and the judgment of ouster was therefore clearly right. The case of Kamp v. The People, supra, is decisive of this. The judgment of the circuit court will be affirmed. Judgment affirmed.