The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1875-10-16
ARGUMENT OF T. LYLE DICKEY,
Made September 30th, 1875,

| blIf OF IHlCAtO, oN lif AboIiiO VI
| CHARTER OF 1872.
If tic cart please.
| Were il not for the importance OF this case
| (and it is confessed as well by our adverse
rles) should not myself have occupied tn
attention of the court at ALL but woul'
have contcnted myself with the printed bric
| nave filed.
This, If the court please, is an information
| in the nature OF q quo warranio to which
were filed pleas. There was no tria
in the case of facts. Thcdetermination rests
or questions Of law arising upon tht
pleadings The first plea is aplea o.
non user, 10 which there was n gen
eral demurrer sustained. The second plea i:
a plea justifying the exercise of certain pow
ers mentioned in the information, and saying
that these are the powers mentioned IN the
Information, for the exercise of which com
plant is made in the information, and that
without this, the defendant has not exercised
the powers conferred by the act of 1872 The
Sd and 4th pleas do not need the consider
alton of the court, for reasons that | will soon
mention.
The 9Th plea undertakes to justify the cxer-
else of every power that is mentioned in the
statute, and to that there was 4 general de-
murrer and that was sustained
The questions, therefore, that propose to
discuss arise, first
Upon the information.
I'd Upon the first plea
3D.. Upon the second plea, and,
Lastly, upon the fifth plea
The 4th plea is not before the court, tor The
reason that it was held good by the court. 1t
is not excepted to here, in the cross errors, and
upon 1t the court simply adjudged that the
city might continue to exercise the powers
granted In article of the statute, which re-
lates to the making Of local Improvements
and the levylng of special assessments.
The 3D. plea need not he considered by the
court nor any of the replications pleaded to
1t, for the reason that it IS the same in
substance with the 9th plea, and after
the 9th plea was filed,which was filed
by leave of the court as an additional
plea, the defendants in the court below
asked leave to withdraw the Sd plea.
For some reason, counsel for the REALTORS in
sisted that 1t should not be done, and the
court refused to allow it to be done. am
unable to understand the reason for that
action. 1t was suggested there that counsel
desired to bring before the court the facts
that were stated in their replications For
what purposeI know not for the facts that are
stated IN the replication can have no bearing
upon a case except in so far as it defeats the
IN his attempt TO bar the action by
nears of plea to which it is replication,
and when we surrender and abandon the
plea, the replicaiions become lmmatcrial.
McAlltster, ITO what plea were repli-
cations filed?
Dickey-The 3D.. The pleas left in dispute
ire the 1st, 2nd and 9Th, and to them demur.
ers were sustained; the demurrer to the 2d /
)lea being a special demurrer, and the others /
GENERAL
The first point make is that the lnforma.
ion itself is bad
In answer TO this it is said that we cannot |
aise this point before this court, because we
to the information, and that dc. .
nurrer being overruled, we have pleaded
That, | suggest, does not prevent US from
aising the question here. They have dc. |
hurried to all of our pleas, and to every one of
hem the demurrers have been sustained
Now, 1t IS true, tina. where declaration is ,
lot so utterly defective as TO be VOID and a
rood plea is FLED to it, and in addition to !
hat defective plea is filed TO IT, the court in
hat case will not carry the demurrer back
trough the plea to the declaration, for the
eason that the right to question that has
,een waived by filing good plea. But the
re none of our pleas good. The case stands .
lere precisely as 1t would have stood before
he circuit court, had motion in arrest of
Judgment been interposed When that motion
$ made, it is the duty of the court to review
he entire record and see whether upon that
ecord the judgment is warranted and if the
declaration itself does not show q foundation
or the action, no judgment Can be rendered
The statute under which this information is !
lied, is new one passed within the last two
'eais, Introduced in the revision of 1874 |
3efOre that time there was statute in rela-
ion to quo warranto which authorized the |
to be instituted against persons
exercising offices or powers without authority, |
tut there was no provision for an informa.
ion against a corporation. In the new stat.
lie provision is found that 1t may be "tl. !
ID in any case where a corporation exer-
Uses powers not warranted by law This |
loes not mean a municipal corporation, and
It common law quo warranto will not lie ia |
UGH case. If the law were otherwise, the in.
is bad for uncertainty.
Now this action is not authorized to be be- |
,un except in a case where corporation cr-
rcases powers not conferred by law. 1t would |
Gem, therefore, that an information, TO be
Iood, must allege that the corporation has ex,
TCIScu some power OF some class oil powers !
which can be characterized by some descrip.
ion. That is not done
The information says that the City of Chi. |
ago has exercised aud used, without warrant /
# law, for seven days last past, certain priv. .
leges, liberties functions and franchises, to
Wit; The privileges liberties, functions and
franchises conferred Ivy the &C: of the General
Assembly of April 10, 1872 That is the allie
,ation. Now | say that is void for uncer.
ainty. An examination of the act will show
hat there Is not one single function, privilege,
liberty or franchise conferred by that statute
RcoadtHondlly, save the privilege to the vo.
ers, IA given number OF voters of any given
ity) to petition the common council to pro-
eed under this act for an election. That right
) granted Internationally, and that is
'ower that city cannot exercise, and of
curse II cannot mean that. In the statute |
here are three classes of functions that are
to be exercised by cities upon
conditions; each class resting upon 4 differ.
mt condition. the first three sections of the
atute conferred upon any city the power To
lold an election to determine whether they