, 1873-02-27

- M. F. Tu1Er, Corporation Counsel.
Upon the receipt Of this opinion, the Mayo
sent word to 6upt. Washburu, notifying him o
the status Of the two Captains, and inrtr1lctint
him to order them to report at once for duty.
Thus Capts- Gund and Hickey are once NOR
Capts Gund aud Hickey do jnre and de facto
They will probably resume their commands to
day.
COURT PROCEEDINGS.
The Board OF Police contest came up agai1
yesterday morning, before Judge Gary, in thu
Criminal Court.
Mr. Goudy, counsel for Messrs. Reno ant
Kokke, submitted the following affidavit, ani
| thereupon asked leave to file an information:
Ernest T. Q. Klokke, being duly sworn, saya: Or
the alth Of February, 1878, Garlic Mason and Ler
Wright, Of the County OF Cook and State OF Illinois
/ appeared IN the office Of the Commissioners Of the
Board cf Police Of the City OF Chicago In said county
snG % s.ate @ and undertook & TO- and d act o. Commits ms
select said Mason a. President Of said Board They end
Mark Sheridan, Commissioner Of said Doard, acted
act ss Commissioners. And deponent further says
that he and Charles L. Reno voted for and elect
ed Eus At 9S o s as a
ernor md qualified, and By Yirue thereof they have
oc % nn f Tie aitb Of Febrna1S M I % When - the he said
Mason and Wright tntruded therein, Is Aforesaid.
terms 4a Of once s'ne of the ssa Reno % and Do
ponent have not expired nor have they, or either
Of them resigned Or voluntarily vacetsa said Offices
they advised by counsel, and they believe, that
they, the said Reno and R1okke. now, With said
Of Police, and that the said Mason aud
Wright are not lawfully entitled to hod or exercise
said office and tho deponent further says that the said
Reno and K1okke are such Commissioners, and said
Mason and Wright arc not such Commissioners II tho
Mayor Of Chicago has not lawfully, and by due auttor
nd KeSh n so9 taa oes Us hs ss'd es hsns
to have done. on or about the 18th day
Of the Board Of Police from Office without any
able grounds Is the only one, thoy advised, In
against the said Mason and Wright, in the Criminal
Court Of Cook County.
n1r. Goudv went on to say that the statute
provided that if any person should usurp any
Office, the State's Attorney could apply for leave
to file an information in the nature of a quo
Tar1anto, upon the relation OF any individual.
Application Was now made to the Criminal Court,
under that section Of the new constitution giving
it. criminal and quasi-criminal jurisdiction.
The language Of Sec. 10 of the new Practice
Act, referring to petition for which provision
was not elsewhere made, was perp1exing, and it
was his opinion that it related to some other
chapter prepared by the rcvisers, and upon
which the Legislature had not yet acted. Still,
proceedings under the old statute, the first sec
ton of which provided that, when the informa-
ton was fled, the defendant should appear and
plead a6 of that term.
The Court stated that, where application was
made for rule to chow cause why an informa-
tion should not be filed, it was an ex parte pro-
ceeding, and would be granted Is q matter Of
| course. Did Mr. Goudy ask for such rule, Or
would both aldes make the arguments upon tho
affidavit he had fled?
Mr. Goudy was willing to elect either course.
II the counsel on the other side saw fit the afi-
dayit could be considered as rule to show
cause.
Gen. Stiles said he and Mr.. Tuley we're pres
ent to resist the granting the information.
. The Court would like to hear any reasons
against fling the information. Did they pro-
pose to make any Issue Of fact on the affidavit
presented ?
Gen. Stiles said this Was an attempt to file an
information to decide whether Wright and Ma
son we're Commissioners Under the case pre-
sented the Court might mako Judgment Of ouster
H. while It might logically follow M from m % Do:
Wright and Mason, that Le had no
power to. remove Reno and Klokke,
yet IL did not legally follow. It might be part
part Of the Judgment itself. In the concluding
portion OF the affidavit; the afiant said: s' and
the question OF the legal right Of the Mayor
aforesaid to remove the Commissioners OF the
1ohIA VI IQuce 1TQ1u DluCo WlLQOUL any Iea9Ona-
bic ground, is the only one, as they are advised,
involved in the proceedings about to be com
menced against said Mason and Wright" But
ho submitted that that WAS not involved at ALL
except By way OF argument. It might, or might
not, become necessary to consider whether the
Mayor had power to remove Messrs. Reno
and Klokke; it did not follow necessarily
that that question would be considered at all.
Surprising it should appear that Mossrs. Wright
and Mason had not been confirmed by the Com
mon Council. That would eud the question,
and no one would claim there Was any lawful ap-
pointment. II the object, as Mr.. Nokke said it
was, WAS only to test the question OF the right
eite it could never BE- done Under ri tho p present. sss
proceeding. There wore others, however, IN
which it could be tested, as il one OF the re-
1ators should bring an action in assurupsit
AGAINST: the city to obtain the salary
would test the question directly, for he did not
see how the city could defend upon any other
ground but that the p1aintiH Was not q Police J
Co1naissloner, and, therefore, not entitled to tho
salary: bill 1or an injunction against Mason
and Wright might raise the same question. Il
they reBorted to either Of those remedies, they
could not join, and it was questionable whether
they could be Joined in the present proceeding.
The illinois statute Was closely modelled after
the English one, OF 8 Queen Anne, but omitted
few words which would eeem to allow join
ing under the English Law. 1t was questionable
whether the Court could determine the right OF
each to the office OF Commissioner in the same
proceeding. Il the Court gave Judgment Of
custer, it would remove Mason and Wright,
but would not put Reno aud Klokke back,
for the only question involved was whether
the present Commissioners were legally acting.
lf they were to accept such dgment Of custer,
it would work dissolution OF the Board, and
leave it without q quorum. That result it was
desirable to avoid, il there WAS another course |
open to the relators which WAS equally efectiye,
though probably not as prompt. In an action |
OF assumpsit Messre. Reno aud Kokko could |
get direct decision as to whether they we're
entitled to the Office He referred to an English |
cnse where tho Court Ind refused leave to file |
IN information, since q Judgment Of custer |
it would in the pending case.
The affidavit Was statement OF fact, on which |
leave to fife information vas asked for. But |
The one under consideration wns not specific |
enough. since it did not state that they had not
been :" lawfully removed" They stated that |
Ehey had been "'voted for and elected" but it !
might have to be decided whether it WAS an |
elective or appointive office. STILL the aver
nents probably raised 3 presumption that they
lad been Commissioners, But they made no
reference to the various ways in which they |
night have been put out OF Office. The affidavit |
3;5 1o+ oho,r ~ sTara had bppu anv yfnfant /