Hay v. People, 59 Ill. 94 (1871)

June 1871 · Illinois Supreme Court

59 Ill. 94

Daniel Hay et al. v. The People of the State of Illinois.

Qxjo "warranto—oftlie information. An information in the nature of a quo warranto must run “in the name and by the authority of the People of the State of Illinois,” as required by the constitution, and the omission of these words may be taken advantage of in arrest or on error.

Appeal from the Circuit Court of Washington county; the Hon. Silas L. Bryan, Judge, presiding.

On the 6th of April, 1870, John Michan, State’s attorney for the second judicial circuit of the State of Illinois, on the relation of several persons, filed in the circuit court of Washington county an information in the nature of a writ of quo warranto, against Daniel Hay and others, alleging, that by act of the State legislature of March 31st, 1869, the “city of Nashville” was incorporated ; that by sec. 1 of article 2 of the city charter, the city government was to consist of one mayor, and two aldermen from each ward, and that by another section, it is provided, that three aldermen may be elected from each ward ; that, by the terms of the charter, a general election of all elective officers should be held the third Monday of April in each year; that, by a subsequent act of the legislature, the time for holding general elections in all cities, for the year 1869, was extended to the 1st Tuesday in June; alleging that no election was held in said city of Nashville for the year 1869, on or prior to the 1st Tuesday of June; that, from the 6th of July, 1869, said Daniel Hay has usurped and unlawfully exercised the office of mayor of said city; that the other defendants have, for the same time, unlawfully exercised the office of aldermen, and that all the defendants have, for the same time, unlawfully exercised the authority of the city council, as mayor and aldermen, and that all have, for the same time, and still do, usurp and unlawfully exercise the rights of city council, etc.

The defendants entered a motion to quash the information, for the reason that the same did not run “in the name and by the authority of the People of the State of Illinois,” and because different offices were charged to be usurped, and for misjoinder of offenders and offenses, which motion was overruled by the court. Whereupon the court sustaining a demurrer to the defendants’ amended plea, the defendants elected to stand by their plea, and judgment was entered against them, to reverse which judgment they bring the record to this court.

Mr. I. Miller, and Mr. P. E. Hosmer, for the appellants.

Messrs. Michan, LeCompte, Watts & Phillips, for the appellees.

Per Curiam:

This is a proceeding in the nature of a writ of quo warranto.

The motion to quash should have been sustained. The information does not run, “in the name and by the authority of the People of the State of Illinois,” as required by the constitution.

These words can not be dispensed with. They constitute matter of substance, and advantage can be taken of their omission, in arrest or on error.

This proceeding is a prosecution, and the language of the constitution must be used, as in indictments. Wright v. The People, 15 Ill. 417; Donnelly v. The People, 11 Ill. 552.

The judgment is reversed.

Judgment reversed.