statute provides that the Attorney General or state's attorney "may present a petition" to the court, or the judge thereof, for leave to file the information. The statute of Anne does not expressly require the officer of the crown to file the application for leave, and yet Rex v. Trelawney, 3 Bur. 1616, and Rex v. Wardroper, 4 Bur. 1964, hold that under that statute the officer is without discretion in the matter, but must apply at the instance of the private relator, and that the only discretion is in the court; and in State v. Elliott, 13 Utah, 200, 44 Pac. 248, it was said that "except when changed by statute the rule of procedure is practically the same in this country as in England" under the statute of Anne. * * *

It is, of course, true that in many cases where the individual relator has a private and personal interest in the suit which he seeks to set on foot the public also has a substantial interest therein. No injury can result to the public in such instances, however, by requiring the prosecutor to proceed, for the reason that the court, or the judge thereof, when the petition for leave to file the information is presented, is vested with a sound legal discretion to be exercised in determining whether leave to file the information should be granted, and the court or the judge thereof may, in the exercise of that discretion, fully protect the rights of the public, and may under some circumstances, where the public weal demands, refuse leave to file the information although the clear legal right of the relator is established. McPhail v. People, 160 Ill. 77, 43 N. E. 382, 52 Am. St. Rep. 306. The rights and interests of the public being thus fully protected by a sound legal discretion lodged in the court, or the judge thereof in vacation, it is manifest that there is no occasion for the exercise by the state's attorney or Attorney General of a discretion to be used for the same. purpose and for no other purpose.

The discretion possessed by the Attorney General at the common law is no doubt now possessed by the Attorney General or state's attorney in all cases which are, in fact, prosecutions on the part of the people and which involve no individual grievance of the relator. One such case is where the wrong is the usurpation of an appointive public office to which, in the event of judgment of ouster, no particular individual will have a right to succeed; and another example is where the object is to secure a judgment ousting a corporation from the enjoyment of all the franchises which it exercises. In cases, however, where the proposed relator has an individual and personal right, distinct from the right, if any, of the public, which is enforceable by a proceeding in quo warranto, and where he presents to the state's attorney a proper petition for his signature with evidence of the facts necessary to establish the right, it is the duty of that officer to apply for leave to file an information in the nature of a quo warranto, and, if he refuses when the matter is properly presented to him, he may be compelled by mandamus to sign and file the petition for leave.

The practice which may be followed by one who desires to become

relator is to present to the state's attorney a petition addressed to the court, or to the judge thereof in vacation, for leave to file an information in the nature of a quo warranto, which petition should be so drawn as to be ready for filing when the signature of the state's attorney is thereto attached. As was suggested in Cain v. Brown, supra, the affidavit or affidavits accompanying the petition must be full and positive and must be made by a person or persons knowing the facts, and be drawn in such manner as that perjury may be assigned thereon if any material allegation contained therein is false. The affidavit or affidavits accompanying the petition, after being inspected by the state's attorney, should, in case he sign the petition, be presented with it for consideration by the court, or judge thereof, in determining whether to grant the leave asked. The practice pursued by the state's attorney in this case is not a proper one. Upon the petition being presented to him, he caused the actual parties to the controversy, by their attorneys, to appear before him, and heard them on the proposition as to whether he should sign and file the petition. This practice has, we understand, been long pursued in certain counties of this state, and we have no doubt that the public prosecutor of Cook, in this particular instance, proceeded as he did believing in good faith that this practice was the correct one. In our judgment the law of this state does not authorize him in any case to conduct a hearing of this character, and he should not have considered the views of the respondent named in the petition or those of his attorneys. * * * 98

98 See People ex rel. Post v. Healy, 231 Ill. 629, 83 N. E. 453 (1908): “Two questions are involved in this case, both of which must be decided in order to determine whether the superior court erred in sustaining the demurrer and dismissing the petition. The first question is whether the appellee, as state's attorney, is possessed of an arbitrary and uncontrolled discretion to file or refuse to file a petition for leave to file an information in the nature of a quo warranto upon the application of an individual having a personal right enforceable by that proceeding; and the second is whether the mayor of the city of Chicago has power to remove from office members of the board of education. If a state's attorney has such discretion, he cannot be coerced by the writ of mandamus; and if the mayor has such power, the writ in this case would not be awarded, for the reason that the object sought would be unattainable and the writ useless. The first question was answered in the case of People ex rel. v. Healy, 230 Ill. 280, 82 N. E. 599, 15 L. R. A. (N. S.) 603. In the consideration and decision of that case we had the valuable aid of the exhaustive briefs and arguments of the counsel in this case, both printed and oral. We gave full consideration, at that time, to every authority and argument presented in this case, and we cannot add anything to that decision by a restatement here of the reasons on which it was based. It was there held that in all cases which are, in fact, prosecutions on the part of the people, involving no personal or individual right. the state's attorney is vested with the same discretion originally exercised by him at the common law, when an information in the nature of a quo warranto was solely a prerogative remedy of the crown; but under our stat ute, which has enlarged the scope of the remedy for the protection of individual rights, if an individual having a private and personal grievance for which the proceeding is the only remedy shall present a proper petition to the state's attorney, with evidence of the facts necessary to establish his right, it is the duty of such state's attorney to apply for leave to file an information, and if he refuses he may be compelled by mandamus to perform that duty."

SECTION 65.—APPEAL99

BOARD OF SUPERVISORS OF BUREAU COUNTY v. CHICAGO, B. & Q. R. Co.

(Supreme Court of Illinois, 1867. 44 Ill. 229.)

*

Mr. Justice BREESE delivered the opinion of the court.1 The appellees, in the attempted performance of the duty enjoined on them by these statutes, presented their list or schedule of their taxable property for 1863, owned by them in Bureau county, to the clerk of the county court, in all respects, as alleged by them, in strict compliance with the statute, which the clerk laid before the board of supervisors when they met to equalize the assessments in that county. This schedule presented an aggregate valuation of $282,383.27 of their property owned in Bureau county, which by the action of the board was increased to $395,336.57, being 40 per cent. above the valuation by the company.

99 There is no right to appeal from administrative orders to a court, unless given by statute. Brown v. District Council of Narragansett, 21 R. I. 503, 42 Atl. 270, 44 Atl. 932 (1899). See, also, Ohio & Miss. R. Co. v. Lawrence County, 27 Ill. 50 (1861); Karb v. State, 54 Ohio St. 383, 43 N. E. 920 (1896). A right to appeal was held to exist by implication in Sawyer v. State Board of Health, 125 Mass. 182 (1878). See, now, Rev. Laws Mass. c. 75, § 119. and Nelson v. State Board of Health, 186 Mass. 330, 71 N. E. 693 (1904).

An official power of supervision, etc., involves a right to entertain appeals (Magwire v. Tyler, 1 Black, 195, 202, 17 L. Ed. 137 [1861]), unless negatived by the course of legislation. See Butterworth v. United States, 112 U. S. 50, 5 Sup. Ct. 25, 28 L. Ed. 656 (1884). But as a rule there is no right to appeal from the head of a department to the chief executive. Memorial of Captain Meigs, 9 Ops. Attys. Gen. 462 (1860); Bollman's Case, 10 Ops. Attys. Gen. 526 (1863); Las Animas Grant, 15 Ops. Attys. Gen. 94, 100 (1876).

For a very comprehensive provision, giving a right of appeal, see Comp. St. Neb. 1909, § 7153 (Code Civ. Proc. § 580): "A judgment rendered, or final order made by a probate court, justice of the peace, or any other tribunal, board or officer, exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated, or modified by the district court."

So, also, there is a general right of appeal from decisions of the boards of county commissioners to the circuit courts in Indiana. See State ex rel. Reynolds v. Board of Com'rs of Tippecanoe County, 45 Ind. 501 (1874).

The General Administrative Act of Prussia (July 30, 1883) provides (section 127): Against police orders of local police authorities, unless expressly otherwise provided by law, there shall lie a remonstrance to [certain specified superior administrative officers]. Against the decision in the last resort of such administrative officers there shall lie an action in the supreme administrative court. The action can be founded only on the allegation: (1) That the contested decision violates the rights of the plaintiff by not applying or by misapplying the existing law or administrative regulations issued by the competent authorities; or (2) that the facts did not exist which would have justified the issuing of the order.

1 A portion of the opinion only is printed.

Availing of the act of 1861, by which an appeal is allowed to the circuit court from the action of the board of supervisors, the company took an appeal to the circuit court of Bureau county, and, by change of venue, the cause was transferred to La Salle county, in the circuit court of which county, at the March term, 1866, such proceedings were had as resulted in a deduction by that court of the per cent. thus imposed by the board of supervisors, leaving the schedule of the company as originally presented to the county clerk intact.

To reverse this judgment, the county of Bureau bring the case here by appeal, and assign various errors, which we have fully considered.

The first question they make is that the circuit court had no jurisdiction of the appeal, that it was a case not provided for by the fundamental law; and we are referred to that clause of the Constitution conferring judicial power in support of the position. Section 1 of article 5 declares that the judicial power of the state shall be vested in one Supreme Court, in circuit courts, in county courts and in justices of the peace; provided, that inferior local courts of civil and criminal jurisdiction may be established by the General Assembly in the cities of this state, but such courts should have a uniform organization and jurisdiction in such cities. By section 8 of the same article it is provided that there shall be two or more terms of the circuit court held annually in each county of this state, at such times as shall be provided by law; and said courts shall have jurisdiction in all cases at law and equity, and in all cases of appeal from all inferior courts.2

It is argued with great force and ability that, inasmuch as the board of supervisors is in no sense a court of any description, an appeal cannot lie to the circuit court from any of its determinations, and consequently the act of 1861, allowing an appeal by a railroad company from their determinations, is unconstitutional and void. Much ingenious, forcible and persuasive argument has been used by appellants here in support of this view, but we are not convinced by it. Even if we had a doubt of the power of the Legislature to make this enactment, we should be constrained, under repeated rulings of this court, to solve the doubt in favor of the Legislature; for this court has declared that it is only in a very clear case, where the violation of the Constitution is plain and palpable, that we will so pronounce. Lucas v. Harris, 20 Ill. 165; People ex rel. v. Auditor, 30 Ill. 434; City of Chicago v. Larned, 34 Ill. 203.

In considering the legislation of this state of a character analogous to this act of 1861, we are by no means convinced of the want of power in the Legislature to allow this appeal. It may be the board of supervisors of a county is not a court in the legal acceptation of that term, but it has power conferred upon it, by the wanton and

2 The Constitution of 1870 (article 6, § 12) says: "Such appellate jurisdiction as is or may be provided oy law."

unjust exercise of which the most vital interests of parties before it may be rendered totally valueless. Perilous indeed would be their condition, if those great interests were at the mercy of irresponsible men, bent, it may be, on inflicting injury for which they could not atone. It is going a great way to say that any act of the Legislature a co-ordinate department of the government, and whose speciality is the enactment of laws-that any one of their enactments has no foundation in the Constitution, an instrument which the lawmakers are sworn to support, and which we must not suppose they have violated, in the absence of the clearest proof. Hence courts have always approached this subject with great delicacy, and have ever manifested a disposition to sustain the law, in the absence of an entire conviction of its unconstitutionality. This much of respect is certainly due to that department of the government, and this court. has always most cheerfully extended it, and ever will.

To insist that a board of supervisors is not a court does not decide the question, as we think. In our legislation, several acts may be found giving an appeal to the circuit court in cases confessedly not originating in the exercise of judicial power by a court, as, for example, in the case of the trial of the right of property by a sheriff's jury. The case of Rowe v. Bowen, 28 Ill. 118, was such a case, in which we held that an appeal lies in many cases not growing out of judicial proceedings, as upon assessments of damages by commissioners for roads, or for city improvements. So, also, in the case of the establishment of a road by commissioners, as was held in the case of County of Peoria v. Harvey, 18 Ill. 364. So, where the statute gives an appeal from an assessment of damages for a right of way. Joliet & Chicago R. R. Co. v. Barrows, 24 Ill. 562. The case of Ohio & Mississippi R. Co. v. County of Lawrence, 27 Ill. 50, occurring before 1861, very distinctly intimates that legislative action was necessary to uphold the appeal, and if that existed the right to appeal was free from doubt. The act of 1861 gives an appeal in express terms.

In view of this legislation, and these judicial decisions, it is too late to urge a want of jurisdiction in the circuit court to try the appeal from the board of supervisors, and we must hold that the jurisdiction was complete under the act of 1861, and that statute is not in conflict with any provision of the Constitution, considered in the light of long-continued analogous legislation under it. In counties not adopting township organization, individual taxpayers had an appeal from the county assessor to the county court, and from that court, through the Auditor of Public Accounts, to the Supreme Court. Scates' Comp. 1040. Railroad companies are entitled to as much favor in this regard as individuals, and we have no difficulty in deciding the circuit court had full jurisdiction of the appeal. * * *