| Ill. | Sep 15, 1870
delivered the opinion of the Court:
Appellants, on leave, through the State’s attorney, filed an information in the nature of a quo warranto against appellee. It set out the act of the legislature, adopted on the twenty-second day of February, 1867, (Private Laws, vol. 2, p. 483,) to organize a police force for the city of East St. Louis, and the amendatory act of the twenty-seventh day of March, 1869, (Private Laws, vol. 1, p. 911,) under which they claim to have been appointed police commissioners for the city, in pursuance of their provisions. And they claim that, under these enactments, they have the sole and exclusive authority, through such persons as they might appoint, to enforce the police regulations of the city. They also charge, that appellee had intruded into the place of a police officer of the city, and that he refused to obey their orders and commands, and was unlawfully usurping the right to exercise police powers without an appointment from them, and wholly without legal authority.
Appellee made return to the information, and relies on the thirteenth section of article eight of the city charter, adopted on the twenty-sixth of March, 1869, (Private Laws, p. 907,) under which he alleged that he was duly appointed marshal, filed bond, received his commission and took the prescribed oath of office; that by virtue of his commission, and in pursuance to the act of the legislature and ordinances of the city, and the powers of the city court, he had faithfully performed the duties of city marshal, and not otherwise. To this return a demurrer was interposed and overruled by the court, but it was sustained to the information, which was dismissed. The record is brought to this court and the rendition of the judgment assigned for error.
The question of the constitutionality of the act organizing the police force has been ably defended by appellants’ counsel, but we see no reason to arrive at a different conclusion from that announced in the case of Lovingston v. Wider, 53 Ill. 302" date_filed="1870-01-15" court="Ill." case_name="Lovingston v. Wider">53 Ill. 302. And in the view we take of this case, we regard it unnecessary to determine whether the entire act is invalid, or only such portions as authorized the police commissioners to issue certificates of indebtedness to bind the city. We can perceive no reason why appellee may not proceed to act in accordance with law, in the exercise of the powers and duties of city marshal, to the extent conferred by the city charter.
The general powers of the commissioners were granted to them in February, 1867, and appellee’s powers and duties were prescribed in the thirteenth section of the eighth art. of the city charter of 1869. By that section, he and his deputies are declared to be the executive officers of the city court, and he and his deputy or deputies are given the same power and authority to execute all process issuing from the city court, as the sheriff of the county has in executing similar process from the circuit court. This delegation of power is more than two years after the adoption of the act to organize the city police. If it conflicts with the provisions of the former act, then the latter must prevail as the latest expressed will of the legislature. His return shows that he was rightfully exercising the duties and powers of city marshal, and in doing so, infringed the rights of no other person.
The information fails to show in what manner, or in what class of cases appellee usurped the police power which had been entrusted to the commissioners.
The answer of appellee to the information presented a complete bar, and the court had the right, on overruling the demurrer, to render judgment for'the defendant. No leave was asked to traverse the return, or to amend the information, and in such a case the court could not do otherwise than render judgment for the defendant. Appellants failed to show, as the record stood, that they had any right to recover. There is, so far as we can see, no error in this record, and the judgment of the court below is affirmed.
Judgment affirmed.