88 Ill. 537 | Ill. | 1878
delivered the opinion of the Court:
Did the court err in refusing to allow the relator to file an information ?
The ruling of this court is, the granting of leave to file an information in the nature of a quo warranto, is'in the sound discretion of the court or judge to which the application is made. Leave, on the one hand, is not granted as a matter of right upon the part of the relator; and on the other hand, a court is not at liberty to arbitrarily refuse, but must exercise a sound discretion in accordance with principles of law. The People ex rel. v. Waite, 70 Ill. 25; The People ex rel. v. Callaghan, 83 id. 128.
It is here shown that Jones is an inhabitant of the town in which the road is being operated, and the owner of real estate therein; but it is not shown that he is, either specially as an individual or in common with all other citizens of the town, injured by the construction and operation of the road. The opposing affidavit is properly to be taken into consideration in determining whether the writ should have been issued, (The People ex rel. v. Waite, supra,) and it distinctly rebuts all inference that might arise from the mere conceded fact, of the construction and operation of the road, of either private or public injury, and shows also that the road was constructed long before Jones became the owner of his present property in the town; that it was constructed, and has since been operated “ at the earnest solicitation of inhabitants of the town—owners of property abutting upon the road and streets occupied; ” that “nti objection has ever been made to the operation of the railway so far as the officers of the company know, except as made” by Jones, and that it is the almost universal desire of the inhabitants of the town and those who travel on the railway that it should be operated by steam.
Where a corporation, by the exercise of powers not conferred by its charter, does no private injury, and commits an offense against the public alone, the State may punish or waive the right to do so, as in the judgment of those entrusted with the appropriate power in that respect may be deemed most in consonance with the public interest. If a wrong is done by the abuse of the franchise, it is a public wrong, and a proceeding by quo warranto must be by the public prosecutor or other authorized agent of the State; and a private citizen can not, in such' case, have the aid of this extraordinary remedy. High on Extraordinary Remedies, § 654, and cases cited; Angell & Ames on Corp. § 736; Murphy v. Farmers’ Bank, 20 Pa. St. 415. And it is also said (High on Extraordinary Remedies, supra), “ An exception, however, is recognized in cases affecting only private or individual rights, and which merely affect the administration of the corporate functions, without affecting the existence of the corporation, and in such cases it is held the courts may interpose on a proper showing.” But, since Jones has sustained no special injury affecting his private or individual rights, this principle is not involved in the case.
It is, however, contended, that Jones is entitled to file the information, whatever may have been his rights at common law, by virtue of the provisions of § 1, chap. 112, Rev. Stat. 1874, p. 787.
That section says: “ The Attorney General or State’s attorney of the proper county, either of his own accord or at the instance of any individual relator, may present a petition to any court of record of competent jurisdiction, or any judge thereof in vacation, for leave to file an information in the nature of a quo warranto in the name of the People of the State of Illinois; 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.”
There is nothing here that authorizes any one other than the Attorney General or State’s attorney to present a petition for leave to file an information. This, he may do either of his own accord or at the instance of any individual relator, but the language does not profess to obliterate the well recognized distinctions between informations in behalf of the public to enforce public rights, and those in behalf of individuals to enforce private rights. Nor does it assume to place the control of informations to enforce public rights in every individual who may choose to intermeddle.
The Attorney General or State’s attorney, if the information affects public rights only, may undoubtedly act at the instance of any individual who may furnish him the requisite proofs to authorize him to act, whom he may name relator, but he must act in his official capacity under a sense of official duty, and not merely lend his name for the use of a private party; and the proceeding must be official in fact, and not simply official in form but private in fact.
In all matters in which the public alone is concerned, the law has wisely placed the control of legal proceedings in its officers selected for that purpose, and it is never admissible that these proceedings shall be allowed to be used as mere instruments for the gratification of private malice, or the attainment of personal and selfish ends.
The petition here presented is not the petition of the Attorney General or State’s attorney, but of Jones, and it is Jones only, not the Attorney General or State’s attorney, that prays that leave may be given to file an information. True, it appears the State’s attorney presented the petition of Jones, and made the motion, but it is quite evident this was merely formal.
The appeal is prayed and prosecuted by Jones, and no complaint is made by the Attorney General or State’s attorney of the refusal of the court below to give leave to file the information; but errors are assigned and' argued by the private counsel of Jones alone.
The court below, in the exercise of its discretion, was authorized to take into consideration the circumstances showing the character of the proceeding, and if satisfied, as we think it was justified in being, that the purpose was merely to allow a private party to institute proceedings in a matter concerning the public alone, it was not only within its discretion, but likewise its duty to refuse to allow the information to be filed.
Finding no evidence in the record of abuse of discretion, the judgment is affirmed.
Judgment affirmed.