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Peo. Ex Rel. Monument Co. v. Rosehill Co.

OPINION FILED MAY 24, 1954

THE PEOPLE EX REL. J.H. ANDERSON MONUMENT COMPANY, APPELLANT,

v.

ROSEHILL CEMETERY COMPANY, APPELLEE.



APPEAL from the Superior Court of Cook County; the Hon. JAMES J. McDERMOTT, Judge, presiding.

MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:

Per CURIAM:

This is a quo warrantor action filed in the superior court of Cook County by the People, on the relation of J.H. Anderson Monument Company, a corporation, hereinafter referred to as plaintiff, against Rosehill Cemetery Association, a corporation, hereinafter referred to as defendant. The plaintiff appeals from the judgment of the superior court dismissing the complaint and entering judgment for defendant on the pleadings. The appeal is properly directed to this court since a franchise is involved.

After refusal of the Attorney General of Illinois and the State's Attorney of Cook County to file a complaint in the nature of quo warrantor, plaintiff filed its petition in the superior court for leave to file such complaint, pursuant to the statute. (Ill. Rev. Stat. 1953, chap. 112, par. 10.) Leave was granted plaintiff to file over defendant's objection.

The complaint alleged that since 1949 defendant had engaged in the business of selling monuments, markers, tombstones and memorials for profit, and that it was thereby exceeding and violating its charter powers and called upon it to show by what warrant it exercised such powers. After denial of its motion to dismiss the complaint, defendant filed its answer admitting the sale of monuments, memorials and markers for use and installation within the cemetery operated by it, denying that it sells any memorials for use and installation elsewhere, and set up its charter.

Plaintiff's reply denied generally the affirmative allegations of the answer and, while it did not question the statement that sales were for use or installation only within defendant's cemetery, it did challenge defendant's contention that Rosehill had the right to make such sales as a service incident to the carrying out of its objects and purposes as contemplated by the charter.

The court then granted defendant's motion for judgment on the pleadings on the ground that the reply was substantially insufficient in law, denied permission to file an amended reply, and ordered the complaint dismissed at the cost of plaintiff. The judgment of the court was in effect an adjudication that defendant was within its charter authority in selling memorials for erection and use in its cemetery.

Before passing upon the primary question, it is necessary to examine the contention made by defendant that plaintiff has no such interest in defendant's charter powers which would entitle it to maintain this action in the name of the People and consequently has no right to appeal. This question was raised before the trial court in the answer to the petition for leave to file the complaint and in a motion to dismiss the complaint. Defendant assigns as cross errors the court's order authorizing the filing of the complaint and its refusal to dismiss the complaint. In addition to the assignment of cross errors, defendant has here filed a motion to dismiss this appeal, with suggestions, upon the theory that plaintiff had no right to maintain a quo warrantor proceeding in the first instance and consequently has no right of appeal from an adverse decision. This motion was denied by this court March 9, 1954.

Section 2 of the Quo Warrantor Act (Ill. Rev. Stat. 1941, chap. 112, par. 10,) provides that quo warrantor proceedings shall be brought in the name of the People by the Attorney General or State's Attorney of the proper county or by any citizen having an interest in the question on his own relation after request to and refusal or failure by such officials so to do, upon giving proper notice and getting leave of court. All necessary jurisdictional steps were here taken and the sole question presented on this point is whether plaintiff has such an interest in the question as to permit it to maintain this action.

We have had numerous occasions to construe the Quo Warrantor Act of 1937 with respect to the right of private citizens to maintain actions thereunder. Our holdings have consistently been that the interest of an individual must be one that is personal to him and not common to the public. It must be of such a nature that the usurpation of a public grant, franchise or office has trespassed upon or injured his private, legal or equitable rights as differentiated from the injury to the general public. Rowan v. City of Shawneetown, 378 Ill. 289; People ex rel. Buchanan v. Mulberry Grove Community High School Dist. 390 Ill. 341; Adair v. Williams, 407 Ill. 309; People v. Wood, 411 Ill. 514.

It is alleged by plaintiff's pleadings that it is engaged in the business of selling tombstones, monuments and markers for graves and memorials, that its principal place of business is located across the street from the main entrance to the Rosehill Cemetery, that a major portion of its business is derived from lot owners and relatives of deceased persons buried in that cemetery, that since the year 1949 when defendant began to sell in competition that plaintiff's business has declined approximately 50 percent and that if defendant continues to engage in such business plaintiff will be compelled to discontinue its business with a consequent loss of its large investment built up during the years.

From the facts alleged, which for the present purpose must be taken as true, it appears that plaintiff does have a sufficient individual interest in the question to maintain a quo warrantor action on its own relation. Its location across from defendant's cemetery, peculiar to it so far as the record shows, and the fact that a majority of its business is derived from owners of lots in such cemetery make its interest different not only from that of the general public but its individual interest differs even from others engaged in a like business. We find no error in the trial court's rulings on this point and the motion to dismiss the appeal was properly denied.

The substantive question is whether the sales of markers and memorials for use in its cemetery were ultra vires acts and not authorized by its charter.

Rosehill Cemetery Company was incorporated in 1859 by a special act of the General Assembly. The charter granted it the right to operate and maintain a cemetery. It was therein authorized to purchase land, to lay out, arrange and dispose of burial lots on such terms and in such conditions for permanent care and preservation as they may agree upon with the purchasers, to erect such buildings, tombs, enclosures or other structures as the board of managers deemed advisable, to ornament the grounds for cemetery purposes and to receive trust funds and apply them for the improvement of the cemetery or for the erection, repair, preservation or renewal of any tomb, monument, ...


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