, 1876-06-03
EVANS--CALLAGuAN.
The Petition for a Writ OF Quo
Warranto Denied,
On tho Ground TINT There Has Been
No User of tho Office.
1lad There Been, Prima Fncic Case
Would Have Been Made Out.

ycstertny, delivered his lcsfsion f the enso Of
the application Of Michael Evans f1r writ ri
quo wMrra,iio ngaInst BERNARD Callnghan, Col
lcetor nf solltl, Chicago. Tho prayer OF tho
}mtitioncr Is denied. The decision is substa1l-
TALLY ns follows:
After stating that the Court must he satisfied
thai probable ground fur thu application exists,
thu Judge goes over tho fa,nlltar facts in tho
Ease, a1nl then says:
Tng ApFrDAvrrs.
According to wcil-settlcd practice, in this statn
Ard r%ewsse s sfendant ha rrMnec, md
rraun.! relied upon By the petitioner. The pruof
.hus made con.lncrs to sl,ow that fsau' wna rruc
Ths escncc /. 1t such eiaraetcr a. entities Il to
tho highest consideration, ant yet Fune Of tho
most Important wtincrpcs may he mistaken in
On the other hand. rome nj the witnesses who
arc introduced to sustain the view takrn by tho
rcator unst know the truth: AM, 4 ttcir testimo.
respondent stnst be mistaken. II tho ynu1t.tluus
was opened; rs is cai!nc! BY the respondent, then
known!t. Tflcy say It wn. nnt 50 opct.sd. ii Is
not: however, necessary 1T this stuge Of thu. case
to dcscr.nIne The tsnti The petition need no.
probable ground. II, at thia sings Of tho casc,
d"nbt cxIrts ~ 70 the rights, ii thu parties. Ii
,loalt hc retolrct IN fayor =. thc reiator. Tho
filed where question of law or fact Ia In dirpnto
AMI doubtful. Leave tn nlc The Information ii not
pss UPON the found sereion Of tscV tc csart TX.
Will however, usually be granted whcre thy right,
OF ths fact on which the right depends, is disputed
reiator, anu It Is view 70 wall sustained ,y
ttority All precedent that 1t canno nt this tlay be
questioned: II. tara. th!s application depended
falr clcctlun un tle first Tncstny Of ApFIl,-if the
application cpenct! OH the question al to whether
n II In rt ri T,t1Hl
Collector 1t mist be determined in favor OF the ap.
nicaslon: and far the purpose Of this motion It
al appointment. II the uacr was averrct' mud Mt
mlted. nnd no ntllcr question waa ra1scd ut this
lc The information. in order thut tsEuc Of fact
st se ~ s III ~" Esca ana IT, sat @ e hs de-
against him, rs the truth might require.
USER.
The next inquiry considered II, whether
the user Is lscrrcl. The various aycTmcnts arc
stated and the authorities cited ou tlIo point Of
user discussed I'll order to SEQ II Cnl1nghat
Il actunl!y "ustlrpng" or ''uslng" tho uillcc.
Thc petition, it ia said, relies upon tic fact
that tho defendant llna taken tic oath pre-
Rcribed by tho Constitution, US the att the fact
that constituted user; tlut that amounted to
taking possession of thu uf1fcc
From thc authorities cited. It u found that the
information. unless It r. lnac to appear TINT thu de-
an unless it appears that he has nat merely m &C.
crptc4 tho oIElcc. lie murt have ,tcd tI,n oN1cc
He must have donc something that n,anIfcsts an
actual use.
In this connection 1t must be arccrtninetl wllnt
may hc required by tho INV Of thr SlAtc. l1uw is
lawn Collector ndncted ntn oll1ccf Ilnw docs he
luke tho possession nf the oflcc3 What must hu do
IN order that 1t may be sail lie IL In tho oicu, Ald
that he Is using the officer
THE WRIT DENIED.
The various statutory requirements arc stated
nr1 f1Ih fh1trtEff ffr jJlSff trr }yrtn NJ
I5cforc the Collector enters upon tho duties of his
Office, before he can use the Office, bcfore hu can
oeaess Tho o!ca, lefore lie can hold or c1rcntu tbs
bond ard take the prescribed nath. 1t is not
pretended that tl,e defendant linn otther given Or
altered to give any hond required by law. The DO
ecrye rs Collector, aa Il has bccn found from tho
stntate .that hc docs mt give such ercur'ty and
take sueh cath within tue prescribed tine, anc'
neglect may be- deemed refusal lo Eerve." II hs
thus neglcctx, then harm rcsulta to any one aud
no one he' my wrong Of which to complain.
-that il to sny, such neglect shall amount to a
failure to potstss or use the ttlec.
.. From all these considerations, from the fact
there be user by tho defendant. md from the
fact that there can hc no user un the party shall
havo given thr required hund. ant! until in shali
hare taken tho prescribed oath, therefore the
prnycr Of the petition In this bcinff for leave to
illc IN Information In tho nutura nf un0 warrnnto
IN tue nano Of the puoplc ui thu statc o Illinois IL
Thcrcupnn bill Of exceptions wna flied, ausl
al appeal taken to the Supreme Court.
TiH BOND.
The wnrk Of making up the Collectors books
rannut be begun until September, since it ie
during tlAt month TINT this Commissioners ,.c-
cldc On t!lu amount Of tnxes to be raised fur
county purposes. To lnakc them ont re4nIres
sulle time, unh tho County Clerk Is given until
ten days from Dec. to deliver them. Tho CoI-
icctor Ia nut required to give Ills bond until
within eight days utter hu l,as learned tho
amount Ut taxcs to be collected, which will
probably he su,nu time in November.