delivered the opinion of the Court:
Our statute, in relation to informations in the nature of a quo warranto, is a substantial, if not a literal copy of 9 Anne, chap. 20, on the same subject. The granting of leave to file such informations, has uniformly been held, both in this country and in England, to be within the sound discretion of the court. Leave is not given as a matter of course, but a court ought not arbitrarily to refuse leave, but should exercise a sound discretion, according to law. Dillon on Mu. Cor., sec. 722; State v. Tehoe, 7 Rich. 246; Commonwealth v. Arrison, 15 Serg. & Rawles, 133; The People v. Sweeting, 2 Johns. 183; King v. Hythe, 6 Barn. & Cres. 247; King v. Peacock, 4 Term R. 684; King v. Stacy, 1 Term R. 1.
The mode for instituting such proceedings is, usually, as pursued in the case at bar. The State’s attorney submitted a motion, based on affidavit, for leave to file an information in the nature of a quo warranto. A rule nisi was laid on defendant to show cause why the information should not be filed. Respondent answered the rule by counter affidavits. This practice 'is warranted by the authorities. The People v. Shaw, 14 Ill. 476; The King v. Symons, 4 Term R. 221; The People v. Tibbitts, 4 Cowen, 383; The People v. Richardson, 4 Cowen, 103 and notes.
For cause shown, the court no doubt has a discretion to grant or refuse the leave asked, according to the circumstances.
Relator claims, he was, in a legal manner, elected school trustee for township 38, and that respondent has usurped that office, and now holds it, and is exercising its functions without authority of law. The affidavit shows respondent was, himself, elected to that office, by the qualified voters of the town. It is insisted, however, the election was void, for the reason it was not held at the place designated in the notices required by law to be posted prior to holding the election.
The counter affidavits show relator participated in the election he now seeks to have declared void, by voting thereat, and was himself an opposition candidate to respondent. Relator knew then, as well as now, what irregularities had intervened in the conduct of the election, and he ought not to be permitted to disturb the public welfare by having an election declared void, in which he participated with a full knowledge of all irregularities that existed. A sound public policy forbids it. The only informality charged is, the election was held at an improper place. This fact was known to relator. He uttered no complaint at the time, but submitted his claims to the office to the voters of the town voting at that place, and claimed the right to and did have his own vote recorded. These facts make it inequitable that he should have the remedy sought, and the court, in the exercise of a sound, legal discretion, properly discharged the rule.
The judgment must therefore be affirmed.
Judgment affirmed.