delivered the opinion of the court:
The State’s attorney of Pike county filed in the circuit court an information in the nature of a quo warranto, charging the plaintiffs in error with usurping and executing, without lawful authority, the office of commissioners of the McCraney Creek Drainage and Levee District, in said county. The plaintiffs in error filed a plea of justification, the People replied, and the plaintiffs in error filed a rejoinder, which was demurred to. The court sustained the demurrer, and, the plaintiffs in error electing to stand by their rejoinder, entered a judgment of ouster against them, to reverse which this writ of error is prosecuted.
The plea set out in detail the various proceedings in the county court of Pike county, under the Levee act, by virtue of which the McCraney Creek Drainage and Levee District was organized and the plaintiffs in error became the commissioners of the district. The replication to this plea alleged that the Sny Island Levee Drainage District was organized in 1880 and has been since exercising the functions of a corporation organized for agricultural and sanitary purposes under the Levee act; that it comprises about 110,000 acres of land in Adams, Pike and Calhoun counties; that after its organization the levee which had been previously built was repaired, and that at the time of such organization a stream, called the Sny Carte, traversed said district, which served as a drain for all waters coming into said district, and that a special assessment was thereafter made for the purpose of cleaning out, straightening, widening and deepening said Sny Carte, and that special assessments have been made on all the lands in said district, from time to time, for the purpose of improving the levee and the Sny Carte and have been expended for such purposes; that the said district is an existing corporation in successful and satisfactory operation, and that the commissioners thereof are in the peaceful possession of all the territory within said district and are exercising exclusive jurisdiction over the same for drainage and levee purposes; that the McCraney Creek Drainage and Levee District' is organized under the same Levee act and comprises about 7000 acres, about 6000 of which are located within the boundaries of the Sny Island Levee Drainage District and were at the time of the pretended organization of the said McCraney Creek Drainage and Levee District and for a long time prior thereto; that it is a part of the proposed plans of the McCraney Creek district to straighten said McCraney creek and to empty its waters into the Sny Carte at a point different from its present outlet; that the said McCraney creek is a silt-bearing stream, and will bear silt and debris into the Sny Carte and fill and obstruct it, and that there will be a conflict of authority between the commissioners of the Sny Island Levee Drainage District and those of the pretended McCraney Creek Drainage and Levee District relative to the right of such change and the emptying of the waters of McCraney creek into the Sny Carte, and as to all matters and things pertaining to the purposes for which said districts, respectively, were organized; that the county court was'without jurisdiction of the subject matter, and without authority of law to embrace within said pretended McCraney Creek Drainage and Levee District the lands thereof which are located within the Sny Island Levee Drainage District and subject to its control, jurisdiction and authority.
The rejoinder averred that the Sny Island Levee Drainage District was organized for the sole and exclusive purpose of repairing and maintaining the levee referred to in said replication and of improving and caring for the said stream called Sny Carte and for no other purpose whatsoever, and has existed and still exists with the powers and for the purposes above named and no other, and that said district has not, and never has had, any power or authority for drainage purposes except as above stated and has never exercised or attempted to exercise any other or different powers whatsoever, and that the said district has not the power or right or the duty to drain, improve and care for McCraney creek; that the McCraney Creek Drainage and Levee District was organized for the sole purpose of improving, deepening and otherwise caring for said McCraney creek, and that the powers and duties of the two drainage districts above named are entirely separate and distinct, and that neither of said districts has the legal power or duty to perform and do the drainage work for which the other was organized; that the McCraney Creek Drainage and Levee District does not propose to empty the waters of McCraney creek at a different point from the present outlet, but that it does propose to empty said waters into the Sny at one of the natural outlets at which said creek now enters said Sny, and that said outlet shall be improved in such manner as to protect the lands from overflow. The rejoinder admits the right of the Sny district to be consulted and satisfied as to the outlet into the Sny of Mc-Craney creek, and avers that there is and will be no conflict of authority between the two districts but that they can and will operate together to a common end.
It is first insisted that the court erred in permitting the information to be filed, but that question .is not the subject of review. _ Under our practice the court may enter a rule against the defendant to show cause why an information should not be filed, but it is entirely discretionary with the court whether such rule shall be entered or not. The court or judge may act upon the petition of the relator ex parte, and, if satisfied that there is probable cause, allow the information to be filed. (People v. Golden Rule,
The regularity of the proceedings in the county court for the organization of the McCraney Creek Drainage and Levee District is not contested. The objection made to the legality of its organization is, that a drainage district can not be organized out of territory included in a drainage district already organized. We so held in People v. Crews,
The work immediately in view when the Sny Island Levee Drainage District was organized pertained to the levee and the Sny Carte, but it was organized under the Levee act and had the powers granted to all districts so organized. It was the statute, and not the judgment of the court, which created the corporations, and their powers were derived from the legislature and not the court. (Blake v. People,
It is said that section 59, before the amendment of 1909, was ineffectual in many cases. It may have been so, but it indicates the intention of the legislature that the commissioners of a drainage district should have complete jurisdiction of questions of drainage of the lands of the district, and of every part of them, to the exclusion of other authority.
This case is not distinguishable from People v. Crews, supra. The plaintiffs in error were required to show a legal right. The county court had no jurisdiction of the lands within the Sny Island Levee Drainage District, and the record does not show a valid organization excluding those lands.
It has been suggested that there aré many cases in which drainage districts have been established within or partly within the territory of other districts and have issued bonds which have been sold to investors,, and have levied assessments, incurred liabilities and entered into contracts involving large amounts, and that great losses and great public inconvenience will be produced if all the districts which have been so established, and all their bonds, assessments, liabilities and contracts, are held void, as must be done if the principles involved in the affirmance of this judgment are adopted. This suggestion overlooks the rule that the remedy by an information in the nature of quo zvarranto is not a matter of absolute right but is a subject for the exercise of a sound judicial discretion, and that considerations of the public interest or convenience, as well as unreasonable delay or acquiescence on the part of the persons complaining, will justify a refusal to grant leave to file an information or to proceed to judgment. (People v. Hanker,
The judgment of the circuit court is therefore affirmed.
Judgment affirmed.