APPEAL from the Circuit Court of Lake County; the Hon. RALPH
J. DADY, Judge, presiding.
MR. CHIEF JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
This appeal brings before us a quo warrantor action which was commenced in the circuit court of Lake County to test the legality of the detachment of certain territory from Deerfield-Shields Township High School District No. 113, and the legal sufficiency of Community High School District No. 115 into which the detached territory was organized. The action was brought in the name of the People of the State of Illinois as the voluntary act of the State's Attorney of Lake County, and the defendants named were the individual members of the board of education of District No. 115. After a hearing, the circuit court entered a judgment in favor of the defendants, finding that District No. 115 was legally organized and that the individual board members were validly elected and entitled to hold their respective offices.
The only plaintiff, the People of the State of Illinois, did not appeal from the judgment, the State's Attorney, who brought and controlled the action, electing to abide by the judgment. However, Deerfield-Shields Township High School District No. 113, from which the territory comprising District No. 115 was detached, filed a notice of appeal and is the only appellant in this court, although heretofore not a nominal party to the action. Appellees have filed a motion in this court to dismiss the appeal, contending that District No. 113 is not a proper appellant. It is urged that only the People, through the Attorney General or State's Attorney, can appeal an adverse decision in a quo warrantor action involving solely public, as opposed to personal and private, rights and interests. The motion has been taken with the case and commands our first consideration.
Appellant suggests that, although not a party to the original proceeding, it is a proper appellant and is insured a review of the decision under the theory that it is a nonparty which has been adversely affected by the decision and would be benefited by its reversal, regardless of the fact that this is a quo warrantor proceeding involving only public rather than private interests. Relying upon the language used in section 7 of the Quo Warrantor Act, (Ill. Rev. Stat. 1951, chap. 112, par. 15,) and that contained in the last sentence of section 81 of the Civil Practice Act, (Ill. Rev. Stat. 1951, chap. 110, par. 205,) appellant urges that it is entitled to a review of the judgment by filing a notice of appeal under present practice because under prior practice in such cases, it could have obtained a review by writ of error. Appellees maintain, however, that appellant would not have had such a right under prior practice in a quo warrantor proceeding involving like parties and like interests, for the reason that only the People are entitled to a review in such case, due to the very nature of a quo warrantor proceeding involving matters of general public import, and for the further reason that the interests of an entity such as appellant would not cause it to be directly affected by a judgment adverse to the People or directly benefited by a reversal thereof.
Immediately prior to the enactment of the Civil Practice Act, the manner of review in quo warrantor proceedings was set forth in section 7 of the Quo Warrantor Act as follows: "Appeals and writs of error may be taken and prosecuted in the same manner and upon the same terms, and with like effect as in other civil cases." (Ill. Rev. Stat. 1933, chap. 112, par. 7.) Under the statute presently in force the same section reads: "The provisions of the Civil Practice Act, including the provisions for appeal, and all existing and future amendments of said Act and modification thereof, and the rules now or hereafter adopted pursuant to said Act, shall apply to all proceedings hereunder, except as otherwise provided in this Act." (Ill. Rev. Stat. 1951, chap. 112, par. 15.) The last sentence of section 81 of the Civil Practice Act, (Ill. Rev. Stat. 1951, chap. 110, par. 205,) makes the following provision: "The right heretofore possessed by any person not a party to the record to review a judgment or decree by writ of error shall be preserved by notice of appeal." It thus appears that in a quo warrantor proceeding, prior to our Civil Practice Act, a writ of error was an appropriate means of gaining a review in a proper case and that section 81 now applies to quo warrantor proceedings so as to make review possible by appeal whenever a writ of error would have been proper before. Consequently, the basic issue presented by the motion to dismiss is whether appellant would have had the right to prosecute a writ of error in an identical quo warrantor action prior to the advent of the Civil Practice Act.
In approaching the problem, some repetition of the fundamental characteristics of quo warrantor, of its origin and development, becomes necessary. These factors were ably described in Rowan v. City of Shawneetown, 378 Ill. 289, as follows:
"The ancient common law writ of quo warrantor was an original writ issuing out of chancery in the nature of a writ of right for the king against one who claimed or usurped any office, franchise or liberty, to inquire by what authority he asserted a right thereto in order that it might be determined. (Ames v. Kansas, 111 U.S. 449, 4 Sup. Ct. 437, 28 U.S. (L.ed.) 482; Rex v. Marsden, 3 Burr, 1817.) It was an exclusive prerogative of and could be availed of only by the Crown for the purpose of correcting public wrongs. It was never available for the correction of the private wrongs of the individual. This purely civil writ became obsolete at an early date, due partly to the complicated and cumbersome nature of the proceeding, and it was supplanted by the information in the nature of quo warrantor, which was properly a criminal prosecution instituted by the Attorney General to fine the usurper and to oust him from the office or franchise. (3 Blackstone's Com. 263.) The information, as any other criminal action, was under the exclusive and arbitrary control of the Attorney General. His discretion could not be coerced and leave of court to file the information was not required. A private citizen could no more prosecute such a proceeding than he could prosecute in his own name for any other crime.
"Early in the history of this State a statute was passed to regulate proceedings upon information in the nature of quo warrantor (Laws of 1833, page 506,) and by subsequent enactments the uses and purposes of quo warrantor were extended to the correction of certain wrongs done to the private rights of individuals. Section 1 of the Quo Warrantor act of 1874, and subsequent amendments thereto, abrogated the common law rule and provided that an information for quo warrantor could not be filed for the correction of wrongs done to either public or private rights except by leave of court on a showing of probable cause. Section 2 of the act of 1937 has changed the proceeding and now the Attorney General or the State's Attorney may file a complaint in quo warrantor without obtaining leave of court.
"A proceeding in quo warrantor prosecuted by such public official is now as it was at common law. Under the section of the statute referred to, however, a fundamental distinction exists between a quo warrantor proceeding brought to protect purely public interests involving no personal or individual rights differing from those of the general public, and a proceeding brought on the relation of an individual citizen to enforce a private right in which the citizen has a purely individual and substantial interest, differing from the general public, and in which the interest or concern of the State may be small or entirely theoretical. At common law the Attorney General, and, under the Quo Warrantor act of 1937, the Attorney General or the State's Attorney of the proper county, have an absolute, arbitrary discretion to determine whether they will institute quo warrantor proceedings or not, in all cases which are of purely public interest. No leave of court is necessary, and the discretion vested in the State's prosecuting officers can not be controlled, coerced, or reviewed by the individual citizen. People v. Fullenwider, 329 Ill. 65; People v. Hanson, 290 id. 370; People v. Healy, 231 id. 629; Porter v. People, 182 id. 516; People v. North Chicago Railway Co. 88 id. 537.
"These officers have no such arbitrary authority where the proceeding is to enforce individual rights. Under the Quo Warrantor act in force prior to 1937, where the individual citizen had a private and personal right, differing from that of the general public, to enforce which quo warrantor was the only remedy, he could apply to the State's attorney with a petition showing facts necessary to establish his interest, and on such showing it then became the duty of that official to institute quo warrantor proceedings, and if he refused to do so, he could be compelled by mandamus to perform that duty. (People v. Healy, supra.) Under that statute it became well settled that the interest which the individual relator must have in the question to support a quo warrantor proceeding and one in which he could mandamus the State's attorney to institute quo warrantor proceedings in his behalf, should be personal and peculiar to him, and not one shared in common by other members of the general public. The interest which an individual has as a taxpayer or as a member of the general public was held not to be sufficient. People v. Fullenwider, supra; Newman v. United States, 238 U.S. 537.
"Under the present Quo Warrantor act, in cases where individual rights are involved and the Attorney General and State's attorney refuse the request of the individual to bring a quo warrantor action, such individual does not have to mandamus that official to compel the filing of the action, but he may file a complaint on his own relation, provided he first obtains leave of court. The interest which the statute requires the individual to possess to authorize the granting of leave to file must be one that is personal to him and one that is not common to the public. The purpose and intent of the new statute was to make it possible for the individual who had been wronged in his private rights to have the writ on his own relation, and thus avoid the necessity of his resorting to a mandamus action against the Attorney General or State's attorney as was required under the prior act. The statute was not intended to place in the hands of the individual the right to a writ of quo warrantor to correct a wrong common to the public. It follows that one who has no interest except that which is common to every other member of the public is not entitled to use the name of the government in quo warrantor proceedings. The individual interest as a taxpayer, resident, or citizen was not a sufficient showing as to interest under the former act (People v. Fullenwider, supra; Newman v. United States, supra,) and for the same reasons such interest does not meet the requirements of the act of 1937."
From the foregoing, it may be observed that the changes wrought in the original writ of quo warrantor by various statutes have been directed mainly to giving individuals, who have distinct interests not common to the public, the opportunity to pursue the remedy of quo warrantor in order to establish and protect such personal rights. (People ex rel. Miller v. Fullenwider, 329 Ill. 65; Adair v. Williams, 407 Ill. 309.) However, where matters of purely public import touching no private interest are involved, the substantive requirements and limitations of the writ of quo warrantor as known to the common law have been largely preserved in our statutory information in the nature of a quo warrantor. (People ex rel. Barrett v. Gentile Cooperative Ass'n, 392 Ill. 393; Adair v. Williams, 407 Ill. 309.) The distinction which presently exists between a quo warrantor proceeding to protect purely public interests and one brought to enforce and protect a private right belonging to an individual citizen has generated some confusion. Some argument has been advanced that the statutory concessions made to individuals in order to protect private rights should be interpreted as changing the rule which gives to the People alone, speaking through the Attorney General or State's Attorney, the exclusive prerogative to prosecute and control quo warrantor proceedings concerning public interests involving no personal and private rights differing from those of the general public. We have, however, adhered to the established doctrine.
Where the proceeding is in fact a prosecution by the People inquiring solely into matters which, from a legal point of view, concern only the general public, we have repeatedly held that the Attorney General or State's Attorney has a complete, arbitrary and unfettered discretion as to whether a quo warrantor proceeding should be instituted. (People ex rel. Miller v. Fullenwider, 329 Ill. 65.) The same officers have an absolute right to initiate quo warrantor in such cases without obtaining leave of court, whether the action be brought on their own accord or on the relation of others. (People ex rel. Buchanan v. Mulberry Grove Community High School Dist. 390 Ill. 341; Rowan v. City of Shawneetown, 378 Ill. 289.) The Mulberry Grove case also holds that where only the interests of the People are involved, the Attorney General or State's Attorney alone completely controls the determination of whether an adverse decision shall be appealed, persons on whose relation the quo warrantor may have been filed having no right to appeal. An individual with no interest distinct from that of the public has no right to either institute or carry on quo warrantor proceedings. (People v. Kidd, 398 Ill. 405.) In like manner, a person who is unable to require the court to grant him leave to file a quo warrantor proceeding on his own relation for failure to show a private interest not common to the general public, has no right or power to initiate, to control or to appeal in quo warrantor Adair v. Williams, 407 Ill. 309.
No private interests are claimed or involved here. As stated, the quo warrantor proceeding was filed as the voluntary act of the State's Attorney to test the legality of the detachment of territory from the appellant school district and its formation into a new district. A school district is a quasi-municipal corporation or a minor subdivision of the State created to act as an administrative arm to carry out the establishment of free schools. (Leviton v. Board of Education, 374 Ill. 594.) The creation, division, and abolishment of school districts are controlled by and subject solely to the will of the legislature. That an inquiry of the nature presented by the quo warrantor action in this case involves matters purely public in nature, and is of concern only to the People in a legal dispute, has been firmly established by past decisions of this court. In Chesshire v. People ex rel. Harper, 116 Ill. 493, and again in People v. Kidd, 398 Ill. 405, it was held that a quo warrantor proceeding to test the legal existence of a school district concerns, in a legal point of view, the public alone, and it is wholly immaterial whether the State's Attorney prosecutes the same of his own accord or at the insistence of any individual relator. The opinion in People ex rel. Buchanan v. Mulberry Grove Community High ...