Opinion of the Court.

11th, 18th and 20th wards in said city. That no clerks were appointed for said polling places, nor were any clerks present at such places, nor were any poll books or other record kept, upon which were entered the names of the voters, so voting at such places, nor were any numbers placed upon the ballots so cast at such polling places.

"And he further avers, that all the ballots, so cast at said polling places, were counted by said judges of said polling places.

"And he further avers, that the judges of said polling places made returns of the ballots, so cast at said places, to the common council of the city of Chicago.

"And he further avers, that no clerks attested the returns of said judges of said polling places.

"And he further avers, that no poll lists or tally sheets were returned by said judges with the said returns, so made by them to the said common council.

"And he further avers, that said common council did canvass said pretended returns of the judges of the polling places in said 1st, 2d, 7th, 8th, 9th, 11th, 18th and 20th wards, and did count and allow the returns so made by the said judges of election in said wards last mentioned as having been cast at said pretended election in said wards.

"And he further avers, that the returns of said judges of election, in said wards last mentioned, so canvassed by said common council, showed a majority in favor of incorporating said city under said law of 1872, in said plea referred to, which majority exceeded the entire majority in favor of incorporating under said act, as found and declared by said common council to be the result of the election in all the wards of said city, to-wit: more than five thousand votes.

"And he further avers, that some ballots were cast at said pretended election, for, and some against, minority representation in the common council of said city.

"And he further avers, that at all the polling places in said city, to-wit: at the polling places of the 1st, 2d, 7th, 8th, 9th, 11th, 18th and 20th wards in said city, only one ballot box was

Opinion of the Court.

used by the judges of election at said polling places respectively, and that each voter was permitted to cast two ballots at his proper place of voting, and that many voters, to-wit, five thousand, actually cast two ballots at their respective polling places.

"And he further avers, that the said judges of election, at their respective polling places aforesaid, received two ballots from each of the voters so offering to cast two ballots, and that said judges, in said cases, deposited both ballots so cast in a single ballot box, so kept by said judges respectively, as aforesaid.

"And he further avers, that during the progress of said election, and subsequent thereto, large numbers of ballots were fraudulently inserted into the said ballot boxes at the voting places of the 1st, 2d, 7th, 8th, 9th, 11th, 18th and 20th wards in said city, which were not cast by any voter, and that after the closing of the polls, at the respective polling places in said wards, the said judges of election in said wards respectively, to-wit: the judges of election in said 1st, 2d, 7th, 8th, 9th, 11th, 18th and 20th wards, in making up their returns respectively, added to the actual count of votes in favor of said act of A. D. 1872, a large number, to-wit: two thousand votes, which were never cast, and which were never counted out of said ballot boxes.

"And he further avers, that all the returns, so made by said. judges of election, were canvassed by said common council, and the result was declared to be in favor of adopting said act of A. D. 1872.

"Without this, that a valid election was held in said city, in pursuance of said petition, resolution and notice, in manner and form as in said plea is alleged.

"And of this, he puts himself upon the country, etc."

The two other replications were like the sixth, except in the omission of one or more of the particulars of irregularity therein alleged.

The demurrers to the replications were special, assigning various causes of special demurrer.

Opinion of the Court.

The averments as to the casting of two ballots do not necessarily impute anything wrongful to the voters. There were two questions voted upon, of incorporation, and minority representation, and we do not understand the averment of the voters casting two ballots, to import anything more than that they cast a ballot upon each one of the two questions.

According to the averments of the sixth replication, there was gross irregularity in conducting the election in these specified wards, and fraud on the part of the judges of the election in those wards. But an election is not necessarily to be made void on such grounds, especially in the other wards of the city. The rules prescribed by the law for conducting an election, are directory, merely, not imperative. Piatt v. People, 29 Ill. 54.

There may be reason shown here for rejecting the returns made from the wards specified, as evidence of the votes cast in them, as in Knox County v. Davis, 63 Ill. 405, where it was held that the poll book and certificate of an election in one of the towns of the county were rightfully rejected as evidence of the vote of the town, because of fraudulent practices in the conducting of the election.

In support of the ruling of the court in sustaining the demurrers to these replications, we think it sufficient to say that the replications do not aver that the matters alleged affected the actual result of the election. The averment in that respect is, that the returns in these wards showed a majority for ineorporation which exceeded the entire majority in favor of incorporation, as found and declared by said common council to be the result of the election in all the wards of said city, to-wit, more than five thousand votes. It was not enough that the result of the election, as found and declared by the common council, should have been affected, but it must have been the actual result; the question being, whether a majority of the legal votes actually cast were in favor of adopting the law. The result, as found and declared by the common council, was but evidence of what was the actual result.

In one or more other wards of the city, there might have been equal irregularity affecting the returns of a like number

Additional opinion.

of votes against incorporation, counterbalancing the effect of the irregularities charged, as respects the actual result. The issue tendered in this respect should not have been upon the result as found and declared by the common council, but upon the actual result, or as to the majority of legal votes polled. We are of opinion that the demurrers were properly sustained to the replications.

It has not been necessary to consider whether this proceeding will lie against a municipal corporation as a body.

For error in sustaining the demurrer to the fifth plea, the judgment will be reversed and the cause remanded.

Mr. JUSTICE MCALLISTER:

Judgment reversed.

I concur, but go further than the above opinion. If the information was bad in substance, the demurrer of relators to defendant's special pleas should have been carried back and sustained to the information. I think the information was bad in substance, on the ground that neither at common law nor under our statute will an information in the nature of quo warranto upon the relation of private individuals, lie against a municipal corporation as a body. As I understand the English cases at common law, such an information against municipal corporations, on the relation of private individuals, will not lie. Rex v. The Corporation of Carmanthen, 2 Burrows, 869, S. C. 1 W. Blackstone, 187, The People v. Richardson, 4 Cow. 109, and cases there cited. This case is not within our statute. That includes private corporations only.

The recognition of such a doctrine would be fraught with danger to the rights and liberties of the people under local governments. If private individuals may institute and prosecute such cases against the city of Chicago as a body, they may, by parity of reasoning, against the county of Cook as a body, to test the validity of its organization. And if the proceeding will lie, then, by the default or mispleading of an attorney, judgment of ouster may go, and three-quarters of a

Additional opinion.

million of people be divested of all corporate rights and privileges under such local government. It would lead to confusion and disorganization of society, if not revolution. If it will lie as to cities and counties, why may it not as to States? Why may not individuals institute suits in the Federal courts, against the State of Illinois, to determine whether the constitution of 1870 was regularly adopted, and in the same way, by default, or the verdict of a jury, obtain a judgment of ouster? Such can not be the law. The usual and legal course is, to proceed against the individual officers who, it is claimed, have usurped the franchise as complained of. The court has not passed upon this question, by the above opinion. I think it is raised, and therefore express my express my views upon it.

For the reasons given, the demurrer of relators to the defendant's pleas should have been carried back to the information, and sustained to that, as bad in substance.

Mr. JUSTICE BREESE: I am disposed to think, an information in the nature of quo warranto by private individuals, will not lie against a municipal corporation as such, and that the demurrer to the special pleas should be sustained to the information.

Mr. JUSTICE WALKER: I incline to the opinion that the information can not be maintained against a city, town, village, county, township or other municipality, as a body, but it should be against the officers of the body; that an election for the adoption of the charter can not be contested in such a proceeding.