116 Ill. 493 | Ill. | 1886
delivered the opinion of the Court:
Neither of the objections taken to the judgment below, is, in our opinion, tenable.
First—This information, unlike those in Donnelly v. The People, 11 Ill. 552, The People v. M. & A. R. R. Co. 13 id. 66, Wight v. The People, 15 id. 417, and Hay v. The People, 59 id. 94, cited by counsel for plaintiffs in error, follows the language of the constitution, and is prosecuted “in the name and by the authority of the People of the State of Illinois, ” and concludes, “against the peace and dignity of the same People of the State of Illinois. ” The constitution does not require that the People shall present or prosecute, but only that the prosecution “shall be carried on in the name and by the authority of the People of the State of Illinois,” (sec. 33, art. 6, Const, of 1870,) and hence, in indictments it is only required that it be said, “the grand jurors chosen, selected and sworn, in and for the county of......., in the name and by the authority of the People of the State of Illinois, upon their oath present, ” etc. Rev. Stat. 1874, p. 408, sec. 408; Whitesides v. The People, Breese, (Beecher’s ed.) p. 21. And it must follow, by parity of reasoning, it is sufficient that in an information the State’s attorney, “in the name and by the authority of the People of the State of Illinois, presents,” or “gives the court to understand and be informed,” etc., and, in practice, we are not aware that this has ever been seriously questioned. There is surplusage in the language here employed, but it is not of that character which vitiates.
Second—It is a misapprehension to suppose, as counsel seem to, that this is an information in regard to a matter of private right, It concerns, in a legal point of view, the public alone, and in such cases the State’s attorney may proceed “either of his own accord or at the instance of any individual relator.” (Rev. Stat. 1874, p. 787, sec. 1.) It is therefore not only of no consequence that the relator showed no interest in the so-called district 9, but his name might have been wholly omitted without prejudice to the prosecution.
Third—Inasmuch as the information proceeds upon the hypothesis that there is no corporation, in law, by the name of school district No. 9, it would have been impossible to make the corporation a party. The only persons, if that hypothesis be true, to be brought before the court, are those assuming to act in the capacity of directors of such district. The persons assuming to act as directors of the district were therefore the only parties that need be before the court to test the validity of the organization of the district. The People v. Draper, 15 N. Y. 532; The People v. Carpenter, 24 id. 86 ; The People v. Board of Education, 101 Ill. 308.
Fourth—In our opinion, district No. 9, under the facts admitted by the demurrer, could have no legal existence. The limitation in the formation of new districts out of territory previously organized as one district, imposed by the amendment to section 33, approved May 31, 1881, applies to each district. Neither must contain less than ten families. Both are, in fact, new districts, so far as this question is concerned, though, as a matter of convenience, for purposes of description in designating duties of officers and providing for disposition of property or funds, etc., one may be denominated the old or original district, and the other the new district. The spirit and manifest purpose of the act, if not the very letter, forbid that there should be any discrimination between the districts in the respect of this limitation. Town of Jefferson v. The People, 87 Ill. 506, is entirely analogous.
We find no cause to disturb the judgment below. It is affirmed.
Judgment affirmed.
