People ex rel. Gillinwater v. Mississippi & Atlantic Railroad, 13 Ill. 66 (1851)

Nov. 1851 · Illinois Supreme Court

13 Ill. 66

The People, ex relatione Thomas J. Gillinwater, v. The Mississippi and Atlantic Railroad Company.

ERROR TO EEEIEGHAM.

A proceeding by quo warranto is a prosecution which must be carried on in the name of the people.

A demurrer to a plea reaches a defect in the information.

At September term, 1851, of the Effingham Circuit Court, Gillinwater filed an information against the Mississippi and Atlantic Railroad Company, commencing as follows : “ In the Circuit Court of said county, Alfred Kitchell, State’s Attorney for the Fourth Judicial District of the State of Illinois, who prosecutes in behalf of the people of the State of Illinois, on the relation of Thomas J. Gillinwater, of the county of Effingham, aforesaid, comes here into Court and gives the Court to understand and be informed,” that on, &c., a railroad company, named, &c., was formed in the town of Vandalia, &c., by the adoption of articles of association, in conformity with the act to provide for a general system of railroad incorporations. The information proceeds to set out the organization of the company, and the franchises usurped; and then closes as follows : “ And the said State’s Attorney upon the relation of the said Thomas J. Gillinwater, further gives the Court here to understand and be informed that the said president and directors of the said Mississippi and Atlantic Railroad Company are still continuing unlawfully to hold and usurp their offices and franchises aforesaid, and to unlawfully intrude upon and hold possession of the premises aforesaid, as is above stated, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Elinois.”

To this information the company filed a plea, averring that their charter was not dissolved, denying all usurpation, &c. To this plea a demurrer was filed. The Court, Harlan, Judge, presiding, overruled the demurrer, and dismissed the information. The relator brought the cause to this court, assigning for error the overruling of the demurrer and the dismissal of the information.

A. Kitghell, for the relator.

W. B. Scates, C. H. Constable, E. Rust, and J. G. Marshall, for the defendants.

Per Curiam.

The constitution declares that “ all prosecutions shall be carried on 1 in the name and by the authority of the people of the State of Illinois.’ ” This court held, in the case of Donnelly v. The People, 11 Ellinois, 552, that a proceeding by quo warranto was a prosecution within the intent and meaning of that provision. The information in this case does not run in the mode prescribed. It is, therefore, fatally defective; and it becomes unnecessary to inquire into the validity of the plea. If the plea should be held insufficient, no judgment could be entered against the defendants. The demurrer extends beyond the plea, and reaches the defect in the information.

Affirm the judgment.

Judgment affirmed.