73 Ill. 132 | Ill. | 1874
delivered the ojnnion of the Court:
The general rule is, that leave to file an information is not granted of course, but it depends on the sound discretion of the court upon the circumstances of the case.
The present statute provides that the proper officer “ may present a petition to any court of competent jurisdiction, or any judge thereof, in vacation, for leave to file an information, etc., and if such court or judge shall be satisfied that there is probable ground for the proceeding, the court or judge may grant the petition and order the information to be filed, and process may issue.” It is contended, that by this statute the former practice of making a rule to show cause why the information should not be filed, has been abrogated and can not he now followed; that if "probable ground for the information is shown on the face of the petition, then the court must grant the petition, the word “ may ” in the statute to be taken as meaning “ must.”
Doubtless the court or judge may grant the petition, without any rule to show cause; and it may be the statute contemplates, as the usual course, that the court or judge should act in view of what appears on the face of the petition, on the ex parte application. But we do not perceive any substantial ground for complaint in the course which the court saw fit to pursue in the present instance. It does not appear that the court was satisfied that there was probable ground for the proceeding, so as to require it to order the information to be filed. There would not appear to have been any injurious delay caused by the course adopted.
The petition was presented July 9, 1874, the rule to show cause made at the same time, and returnable July 13, the answer filed July 18, and the rule brought on to be heard July 22, 1874.
The petition alleged that the appellees claimed and were exercising their offices under and by virtue of an illegal election. The answer disclosed the fatal objection to the application, that the relator was present and took part in the election. The People, etc. v. Waite, 70 Ill. 25; The King v. Trevenen, 2 B. and A. 339.
The fact was not denied, but admitted by the appellant by the motion to amend the petition for the attempted purpose of obviating the effect thereof. But we see nothing in the proposed amendment that would do so. It offered to show that the relator was ignorant, at the time, of the existence of the by-laws of the church providing for the election of trustees, etc. But the by-laws sustained, not invalidated, the election. It is not perceived how ignorance of anything going to sustain the election would in any way relieve from the effect of participation in it. The whole case made by the petition, is one of illegality in the election, as being contrary to the rules, regulations, customs and usages of the church. To amend by averring ignorance of the by-laws would seem to be inconsistent.
The proposed amendment was to show, further, that the relator, at the time he participated, did not know of the unlawful character of the meeting at which the election was held. Of what avail would that be, if the meeting was lawful, as shown by the answer and affidavits. Ignorance is not averred of any fact tending to show the meeting to have been unlawful or the election invalid.
We perceive no merit in the offered amendment, and think the court properly refused it.
It, then, not appearing to the court below that there was probable gi’ound for the proceeding, the motion for leave to file the information was properly denied.
Perceiving no error in the rulings of the court the judgment is affirmed.
Judgment affirmed.