38 Ill. 414 | Ill. | 1865
delivered the opinion of the Court:
This was a qui tarn action for the recovery of various penalties of the railroad company for a failure to ring a bell or sound a whistle at road crossings, in the county of McLean, as required by the statute. The declaration contained twenty counts. Each count contains an averment, that the defendants were the owners of the railroad, situated in part in the county of McLean, over which road they propelled engines and cars, and that their railroad crossed a public highway in the “ county, and that on the day and year aforesaid, the said defendants propelled an engine across said highway, without blowing a steam whistle or ringing a bell of thirty pounds weight, at the distance of eighty rods from the place where the said railroad crosses the public highway, and while crossing the said highway, contrary to the statute in such cases made and provided,” &c. To this declaration a demurrer was filed, which the court overruled, and defendants abiding by their demurrer, the court rendered a judgment on the demurrer in favor of plaintiffs; to reverse which this appeal was taken.
It is insisted that these various counts of the declaration are fatally defective, for want of certainty. It will be observed that the road is not described, where the offense is charged to have been committed. Under either count in the declaration appellee could have proved an omission to sound a whistle or ring a bell at any road crossing in the county of McLean. It is a familiar rule that each pleading must be sufficiently certain to apprise the opposite party of what he is required to meet on the trial, and the court, of the issue presented. In this we think this declaration was fatally defective. It should by name, location or by the termini of the various roads, have apprised appellants of the place where the offense was charged to have been committed.
Another reason for requiring at least this degree of certainty, is that if a suit should be again brought for either of the penalties claimed in the declaration, appellants would have the right to plead a former recovery. If such a suit were brought, we are at a loss to perceive how this judgment could be interposed as a bar, inasmuch as the crossing at which any of these offenses are charged to have been committed is not specified by a description of the road or otherwise.
It is likewise urged that this suit was improperly brought. That it should have been under the 42d section of the act, (Scates’ Comp. 948) in the name of the people alone, and instituted by the State’s Attorney. Section 38 imposes the duty, and declares the penalty. It provides, that if the road fails to sound the whistle or ring the bell, as therein required, it shall forfeit a penalty of fifty dollars, one-half to the informer and the other half to the State. It is declared by the 42d section that all penalties imposed by the act, may be sued for by the State’s attorney, and in the name of the people of the State. It is insisted, that the word may in this act must be construed to mean shall. That such is its meaning in all cases where the public, alone, have an interest, or the duty is imposed upon a public officer, there seems to be no question. Also where the public or a private individual has a claim de jure, that the power should be exercised. This is the rule announced in the case of Schuyler County v. Mercer County, 4 Gilm. 20, and it has ever since been adhered to by this court.
We, however, do not perceive that the rule applies to this case. The public do not, alone, have a right to this penalty, unless they shall, first sue for its recovery. If an informer sues, he acquires an equal right with the public. If the people sue they acquire a right to the whole recovery. But the rights of each are fixed by being the first to institute proceedings for the recovery. If the forty-second section had contained the only provision for bringing suit then it would have to be brought by the State’s attorney, and in the name of the people. But under the 88th section a common informer may sue, in the common law mode, in his own name, as well as on behalf of the people. In the case of Schuyler County v. Mercer County, the law had provided no other court in which a county could be sued, but the Circuit Court of the county sued, and hence it was held the word may could only be construed as being imperative. But in this case two modes of bringing suit are provided. The judgment must be reversed and the cause remanded.
Judgment reversed
