124 Ill. 642 | Ill. | 1888
delivered the opinion of the Court:
On the 25th day of September, 1886, the Attorney General filed in the circuit court of Adams county, the same being then in session, a petition for leave to file an information in the nature of a quo warranto, against Thomas McFall and others, “requiring them to show by what authority they claim to have, use and exercise certain powers and privileges as members and officers of the board of education of the city of Quincy, in said county,” as set forth in the petition therewith presented. The information proposed to be filed, after setting out the incorporation of the board of education, its powers, duties, etc., proceeds to charge the members thereof with official misconduct and abuse of their franchises, by illegally and unjustly discriminating, in various ways, against the negro children and pupils within then- jurisdiction, on account of then: race and color. The affidavits of a number of colored persons were presented, tending to support those charges, but in many respects they were vague and unsatisfactory. Upon the showing made, the court, as it would seem, was disinclined, without further inquiry, to either allow or disallow the information to be filed, and therefore ordered a rule nisi to be entered against the respondents, requiring them to appear on a certain day of the then term of the court and show cause why the information should not be filed. A formal and full hearing was had under the rule, in open court, on the 14th day of October following, resulting in the entry of an order denying leave to file the information. On appeal from this order, the Appellate Court, in an exhaustive review of the various charges, and the evidence bearing upon them, affirmed the order.
On the present appeal the case is brought within very narrow limits. It is assigned for error that the Appellate Court erred in affirming, and in not reversing, the judgment of the circuit court. So far as this assignment of error questions the findings of the Appellate Court upon the facts, we can not review it. The only ruling of the circuit court complained of, and which is open to review here, is its refusal to allow the information to be filed on the ex parte showing of the Attorney General, its entering a rule nisi against respondents, and permitting them to file counter-affidavits. This very question was passed upon in The People ex rel. v. Moore et al. 73 Ill. 132, and decided adversely to the claim now made by appellant. In that case the trial court, against the objections of the State’s attorney, placed the respondents under a rule to show cause, as was done here, and this court sustained its action. The counterpart of this ruling is found in The People ex rel. v. Golden Rule et al. 114 Ill. 34, where it is held that the court may grant such leave without a rule nisi. Taking the two eases together, it follows that the court may or may not dispense with 'the rule nisi, as in its opinion the exigencies of the case demand. Of course, this rule could not be applied to a case of this kind, where the application is made, as it may be, to a judge in vacation, for a judge can exercise no judicial functions in vacation, unless expressly authorized to do so.
Upon the whole record, we think it clear there are no merits in the case, and that the judgment of the Appellate Court should therefore be affirmed.
Judgment affirmed.