The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1875-10-16

Why does not the information say, that the
complain OF the City of Chicago, becaus
it has exercised, without warrant of law
certain functions, privileges. liberties an
franchises, to wit the function, liberty, priv
ilege and franchise OF using that act as tn
charter of the city without warrant OF la"
If the information had been thus, don't sa
that the election could not have been attack
ed by quo warranto. But say that this In
formation does not complain OF the unlawful
exercise 0i that power at all. Ii is univel
sal rule of pleading that every declaratlon
information or indictment must be so certail
, that the defendant may know the oilensc q
which he is charged. Now no mortal man
from the residing OF that information, cal
possibly know the otfense OF which the city !
charged insist, therefore, that under n,
! pleadings whatever can any judgment b.
rendered upon such an information. Ih
judgment that is rendered, is one that pre-
vents the city from hereafter holding al
election rs TO whether she shall adop
that charter Assuming that 1t has no
been adopted yet that is one ofthe priv
ileges, liberties functions and franchise
condltlonally conferred upon the city
Let lis assume that this charter has not beer
adopted. Was it ever contemplated that be
cause it was not adopted, the city should never
have the power to exercise, and should he
ever forbidden from exercising, any of the
powers conferred by that act, except those
conferred in article o? She is estorped anf
forbidden forever by the judgment in this
record TO hold any election hereaitertO see
whether she shall adopt that act or not
SO much as to the information. Now as &c
the LIST plea we take the position that under
our present statute the plea OF non user is
a good plea. Under the old statute in this
state, it was expressly provided that the pro-
ceedings in the matter of an information In
the nature OF q quo warranto should be con-
Quoted according to the usual rules IN such
cases; thus by statute adopting expressly
and affirmatively the common law rules
of practice on that subject, and under
that rule of practice this court decided,
and decided very properly, that a plea
of non user was not good plea. 1t is
principle OF common law that where
the reason of the rule ceases, the rule ceases.
Now what is the reason Of that rule? No
mortal man can find n reason tor that rule,
save one. BY the practice at common law it
was necessary in order to institute such pro-
ceeding that notice should be given to the
party against whom the proceeding was in
tended 10 be instituted or q rule niSi should
be served on him, to show cause why
leave should not be granted, and he was per-
mtted to come in and have q hearing upon
that question, and when that question was de-
termined, when the information was filed,
the rules of practice in this case did not per-
nit him to come in atterward and say that he
had not used the function named in the infoi-
nation. Why? Because he had had his day
in court on that question. and that question
had been determined against him, and there.
fore he was compelled either to discaim the
right 10 the further use or to justify, because
The fact that he had exercised it was already
The new statute has changed this action
It has converted it from quaSi criminal
INTO a mere civil action. In fact
il is called civil action in the statute, as ii is
said an appeal may be taken in these cases
Is III other civil actions, and the practice is
prescribed in the statute. II begins by say
ng tlat where corporation has exercised
he power, the information may be applied
or and filed; no rule HtSi, no notice; and
hen the party may proceed as in other act
ons. The service is to be as in chancery, and
he other proceedings as in actions at law.
It is PLAIN, that at some stage of the proceed
ngs Il defendant who is called in question
n such proceeding must have the right to
,omc in and say that there is no foundation
or your action, | have not exercised the
powers. 1t is not sufficient by the statute
hat he has claimed the right to act as complain
Il Of The statute does not say where q cor
,oration claims the right that this &C
ion may be instituted but it is only where
/ corporation has exercised the power which |
S not conferred by law. The statute dis
1enses with the necessity of serving notice
md getting rule niSi. Under this new stat.
lie the rule nisi is not held to be necessary.
This question of user not having been deter
mined under rule niSi, it remains open for
)lea.
| come now to the second plea. That plea
ets cut in answer to the general verbiage of
his information that the city council did, by
ordinance, adopt article 0. 1t also sets on
hat 1t did hold an election that 1t was called
hat it was held, and the returns were made by
he judges to the city council, and that the city
council canvassed the result, and caused it to
De spread upon the record. And then it adds
hese words: And hcse are the functions,
privileges, liberties and franchises mention.
"a in said information, and in relation to
which it is therein alleged that the city has |
exercised them without warrant of law"
That is good plea. 1t covers the whole ac- |
ion.
The information is very indefinite, and |
hereupon we come in and justify q certain |
lass of powers and functions which fall I'M
Ter this general description found In the in
we say that those are the ones
Mentioned in the information. They come
n with a demurrer anG confess that that is |
rue, and yet say i! does not cover the whole
round. If these are the powers and func. |
ions mentioned in the Information, land we
ny in the plea that they are,) and if we JUST. |
y them fully and clearly, this is enough. |
They object to it because we have added tn II |
he words, without this, that the city has not
used, &c" If the gentlemen
will look into the precedents, lone found in |
D johnson, another in Puterbaugb, or any
,recedent,) they will find out that this is the |
Usual formal conclusion TO such pleas. | have
never seen plea Justiting the exercise of
power IN reply Ia an information in the mat.
er of aquo warranto that did not conclude |
with the abs9as lac. | have not looked at |
Ihitty's forms, but have no doubt the form |
$ that way there. have never seen one that
lid not conclude in that way, and the plea
iself before you come To the dbSgUe hoe, Is |