People ex rel. Cockrell v. Wyatt

Green, J. Counsel for appellant is right in the contention that the people in this proceeding are not called upon to prove the averments of the information, but that defendant must disclaim or justify. If, as in this case, he justifies, he must in his plea set out and specifically aver his title to, and by what warrant and authority he exercises the powers of the office he is alleged to have usurped, and the burden is cast upon him to prove the truth of his plea. Mor can he plead non usurpavit. Tested by these rules was the plea good ? The record discloses that this amended plea was not the same as the former plea, to which a demurrer had been sustained; hence the first cause for demurrer to the amended plea was not well assigned; neither is the amended plea a plea which amounts to non usurpavit, nor does it cast any burden of proof upon the people, but concluding with a verification, it must be proven by the defendant. We hold the plea good also as responsive to the information and setting up a complete justification. The several counts in the information do not charge defendant with claiming to be a justice of the peace, or police magistrate of East St. Louis, but with exercising the powers of a justice of the peace and police magistrate in the city of East St. Louis, in the county of St. Clair. He is charged with usurping the office of justice of the peace or police magistrate, and is called upon by the very words of the information, “ to answer the said people by what warrant-he claims to hold, exercise, and execute the office of justice of the peace or police magistrate aforesaid.” This amended plea by apt averments sets up and shows that long before the filing of the information, defendant had been lawfully elected, qualified and' commissioned as police magistrate for the village of Hew Brighton, in St. Clair county; then took upon himself the duties of said office, and assumed the right to exercise the powers and functions thereof, and has held and maintained said office in said village ever since, as he well might, and still may, under the warrant and authority aforesaid. If this plea is true as it is admitted to be by the demurrer, defendant had lawful warrant and authority to “hold, exercise and execute the office of police magistrate” and was not guilty of usurping the same; as such officer his official powers and jurisdiction throughout St. Clair county was co-extensive with those of a justice of the peace, and certain of those powers he might lawfully exercise and certain official acts he might lawfully perform even in the city of East St. Louis, it being in St. Clair county; and if the defendant has unlawfully exercised any power, or done any official act in the city of East St. Louis which he had not the lawful right to do as police magistrate for the village of Hew Brighton, the law furnishes ample and appropriate remedy for such malfeasance, but not by quo warranto. That is a remedy employed to test the actual right to an office or franchise, but not to aEord relief for official misconduct, and can not be employed to test the legality of the official action of public or corporate officers. High on Ex. Rem., 2d Ed., Sec. 618; The People v. Whitcomb, 55 Ill. 176. The demurrer to the amended plea was properly overruled and the judgment is affirmed. Judgment affirmed.