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(145 N.E.)

repeal that part of Revenue Act 1898, § 24, providing for 1 year term, but not to repeal provision in section 24 for beginning term on 1st day of January following election.

6. Towns 58-Failure to take oath of office within time prescribed by statute held not to defeat title to office.

Where respondent who was elected to office of town assessor did not take or file the constitutional oath of office within the time prescribed by Township Organization Act, art. 9, §§ 2, 3, but did take and file the oath required by Revenue Act of 1898, § 4, before entering on his official duties, and before any action had been taken under Township Organization Act, art. 10, § 1, to declare office vacant, held that respondent thereby perfected title to

the office.

Appeal from Circuit Court, Winnebago County; Earl D. Reynolds, Judge.

Information in the nature of quo warranto by the People, on the relation of Frank H. Hall, against Lawrence E. Pearson. From a judgment of dismissal, relator appeals. Affirmed.

E.

The essential point in the case is stated by the appellant in his brief to be whether or not the term of office of the assessor begins at the time of his election and qualification, as required by the Township Organization Act (Rev. St. 1874, c. 139), or on the 1st day of January succeeding his election, in accordance with section 24 of the Revenue Act of 1898 (Laws Extra Sess. 1898, p. 44). He claims that this section is unconstitutional. Before 1898 a township assessor was required by section 1 of article 7 of the Township Organization Act (section 61) to be elected in every town for a term of 1 year and until his successor was elected and qualified. The act of 1898 recognized the existence of the office of assessor in every township, and made no provision for their election, but by section 24 provided that their terms of office, which had previously begun immediately following their election and qualification, should begin on the 1st day of January following the election. This act was attacked immediately after its passage as being in violation of constitutional limitations, but in People v. Commissioners of Cook County, 176 Ill. 576, 52 N. E. 334, it was held not subject to any of the objections then advanced. It was again brought in question in People v. Knopf, 183 Ill. 410, 56 N. E. 155, and was held invulnerable to the objection that it was passed in disregard of section 13 of article 4 of the Constitution, which provides that—

"No law shall be revived or amended by reference to its title only, but the law revived, or the section amended, shall be inserted at length

in the new act."

William Johnson, State's Atty., and J. Goembel, both of Rockford, for appellant. Large & Reno, of Rockford, for appellee. DUNN, J. The state's attorney of Winnebago county, on the relation of Frank H. Hall, by leave of court filed an information in the nature of quo warranto against Lawrence E. Pearson, charging him with the usurpation of the office of assessor of the town of Rockford, and calling upon him to show by what warrant he claimed to hold and execute that office. The respondent filed a plea of justification, setting forth his election to the office of assessor on April 4, 1922, his • qualification by filing the bond required by law, and his entrance upon the duties of his office on January 1, 1923. The plea also set forth the election of the respondent as assessor on the first Tuesday of April, 1916, and on the first Tuesday of April in 1918 and 1920, his entering upon the duties of the office on the 1st day of January following each of said elections and continuing in office until the day of filing the plea. A replication was filed, the cause was heard by the court with-tain act therein named," and it is urged that out a jury, the information was dismissed by the court, and judgment was rendered against the relator for costs, from which he has appealed.

The relator was elected assessor at the annual town meeting in April, 1924, was notified of his election on April 12, and on April 15 filed with the town clerk his oath of office, and with the county clerk the bond required by law. He demanded of the respondent the books and papers of the office, but the respondent refused to deliver them to him, and was proceeding to make the assessment in the town.

[1-3] In this case the constitutional objection is made not to the whole act but only to section 24, and is also based upon section 13 of article 4, but not upon the same provision as in the Knopf Case. The objection urged here is that the section of the statute violates the provision of the section of the constitution referred to, that "no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title."

The title of the Revenue Act of 1898 is "An act for the assessment of property and providing the means therefor, and to repeal a cer

there is nothing in this title to show that it was in any way intended to change the date of taking of office of the assessor, whose election and qualification were provided for by the Township Organization Act. It is not essential, in order to comply with the requirement mentioned, that the title of an act shall be a synopsis of its provisions or an index to the contents of each section. The title is intended to indicate the general subject of the legislation contained in the act, and whatever provisions may be regarded as tending to effect the purpose of the act are within the title. The act provided for a

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cant and filled accordingly, and it was held that immediately upon the expiration of the 20 days without the filing of the bond the office became vacant, and could only be filled by

change in the method of assessment, in the | within such time that he should not be perduties of the assessor, in the time of making mitted after that time to qualify or take his the assessment. All these things were clear-office, but the office should be considered valy matters falling within the words of the title. The subject of the act-the assessment of property and providing the means therefor-naturally included the officers who should make the assessment, their selection an election; that the execution or filing of and term of service, and the time and manner in which they should make the assessment, and any provisions on these matters were germane to the purpose of the act and included within the title, though the particular provisions were not mentioned in detail in the title. The provisions of section 24 were therefore a valid part of the act and effective to establish the beginning of the assessor's term of office on the 1st day of January following his election.

[4, 5] In 1909 a law was enacted changing the term of the assessor's office from 1 year to 2. Laws 1909, p. 470. It is claimed that this law repealed section 24 of the act of 1898. It did not expressly repeal that section, and a repeal by implication extends only to such provisions of the prior act as are so irreconcilably repugnant to the later act that both cannot be given effect. There is such a repugnancy between the provision of a 2-year term in the act of 1909 and of a 1-year term in that of 1898, and the latter is therefore repealed, but there is nothing in the act of 1909 inconsistent with the beginning of the term on January 1 after the election, and this provision is therefore not repealed.

[6] By sections 2 and 3 of article 9 of the Township Organization Act (Smith-Hurd Rev. St. 1923, c. 139, §§ 84, 85) every person elected to the office of assessor is required, within 10 days after he has been notified of his election or appointment, to take and subscribe the oath of office prescribed by the Constitution, and within 8 days thereafter to file it in the office of the town clerk, and a neglect to comply with these provisions is deemed a refusal to serve. By section 1 of article 10 of the Township Organization Act it is provided that, when any person elected to any town office shall fail to qualify, it shall be lawful for the justices of the peace of the town, together with the supervisor and town clerk, to fill the vacancy by appointment for the unexpired term. The appellant insists the appellee has not shown that he took and filed his official oath within the time required by the statute, and that because of his failure to do so he has not shown a title de jure, as he must do to justify in a quo warranto proceeding In support of this proposition the appellant cites People v Percells, 3 Gilman, 59. In that case a statute required a justice of the peace, within 20 days after his election, to file a bond, and provided if he did not do so

the bond afterward could not operate to invest title to the office which had become vacant. The appellee says that that case is not in point, because by its express terms, not only was the office to be considered vacant and required to be filled, but it was provided that the person elected should not be permitted afterward to qualify or take the office. In City of Chicago v. Gage, 95 Ill. 593, 35 Am. Rep. 182, a suit was brought on the treasurer's bond of the city of Chicago, and it was insisted that the failure to file the bond within 15 days after the official canvass of the election, in accordance with the provisions of the charter, vacated the office and terminated the liability on the bond. It was held that failure to file a bond in time did not of itself avoid the title to the office but merely rendered it defeasible, and that, if the officer filed the bond afterward, and it was accepted and approved, his title was thereby perfected. The case of People v. Percells, supra, was not mentioned, but the court, after a somewhat elaborate consideration of the question, and after citing the decisions of other states, arrived at the conclusion that the particular time of filing the bond was directory and not mandatory, and that upon the execution and approval of the bond before any action taken to declare the office forfeited the officer's title became indefeasible. This decision was approved and followed in Massey v. People, 201 Ill. 409, 66. N. E. 392, and besides the cases cited in the opinion are supported by Knox County v. Johnson, 124 Ind. 145, 24 N. E. 148, 7 L. R. A. 684, 19 Am. St. Rep. 88; State v. Ruff, 4 Wash, 234, 29 P. 999, 16 L. R. A. 140; Speake v. United States, 9 Cranch, 28, 3 L. Ed. 645, and other cases.

It was shown that after the election in 1922 the appellee, on March 27, 1923, took and filed the oath required by section 4 of the Revenue Act of 1898. This oath, though long after his election, was taken before he entered upon the duties of his office, and it contains the constitutional oath of office required by the Township Organization Act. No action had been taken to declare the office vacant before the perfecting of the appellee's title by the taking and filing of this oath. Since his term of office will not expire until January 1, 1925, the judgment of the circuit court was right, and it will be affirmed. Judgment affirmed.

(314 III. 445)

(145 N.E.)

[blocks in formation]

1. Municipal corporations 657 (2) — Public interest served by vacation of street.

Public interest is served in vacating street when city is relieved from expense of maintaining street used by only small portion of public and from liability for injuries sustained by traveling public because of defects in unimproved street.

2. Constitutional law 70 (3)-Courts have no right to inquire into motive for, or wisdom of legislation.

Courts have no right to inquire into motives of legislative body nor into wisdom or expediency of its acts.

3. Municipal corporations 657 (2) - Ordinance vacating street not void merely because serving some private interests.

Ordinance vacating street is not void merely because some private interest may be served and other private interests damaged, but it must further appear that no consideration of public interest could have led to enactment of ordinance.

4. Municipal corporations ~657(2)—Evidence held to show public interest served by vacating street.

In suit to set aside ordinance vacating part of street, evidence held to justify finding of city council that public interest was served by vacation thereof.

Appeal from Circuit Court, McDonough County; Walter C. Frank, Judge.

Suit by the People, on the relation of Benona Shaner and others, against the Chicago, Burlington & Quincy Railroad Company and others. From decree for plaintiffs, defendants appeal. Reversed.

limits on the south to the property of the Western Illinois State Teachers' College on the north. Jackson street, which crosses Ward street, is paved with brick and is the main highway between Macomb and Colchester. West of Ward street it is 16 feet narrower than it is east of Ward street. Washington street extends east from Ward street. Two blocks south of Washington street is Piper street, which is the first street south of Jackson street that crosses Ward street. Extending across the south end of the vacated portion of Ward street is the right of way of the Chicago, Burlington & Quincy Railroad Company, occupied by the main line from Chicago to Kansas City and by a switch track which parallels the main line on its north side. A short distance north of this switch track is a loading track extending across the vacated portion of Ward street into the yards of the Macomb Sewer Pipe Works, which maintains a factory on the tract of land lying west of Ward street and between Jackson street and the railroad right of way. The tract of land immediate. ly east of the vacated portion of Ward street is occupied by the stables and the ware yard of the pipe works. Sewer pipes are stored in piles along both sides of Ward street and freight cars occupy the loading track the greater part of the time. Ward street is an unimproved street, and that portion of it which is vacated by the ordinance has not been graded by the city for many years, is unlighted, and is not improved with sidewalks, drainage ditches, water mains, or sewers. Twelve or 15 trains pass across the south end of this vacated strip each day, and the traffic at the north end of the strip on Jackson street, which is the only paved thoroughfare in this section of the city, is heavy. [1-4] When the question of vacating this street was presented to the city council, five

sonal inspection of the locality. The ordi

J. A. Connell, of Chicago, and Gumbart & of the six members of the council made a perGrigsby, of Macomb, for appellants. Andrew L. Hainline, State's Atty., T. Mac-nance, which consists of but one sentence and Downing, and George A. Falder, all of Macomb, for appellees.

PER CURIAM. This is a proceeding in equity begun in the name of the people, on the relation of certain property owners, to set aside an ordinance vacating that portion of Ward street, one block long, extending from the south side of Jackson street to the north side of Washington street, in the city of Macomb, and to enjoin the obstruction of said street. The master in chancery to whom the cause was referred heard evidence and filed his report recommending that a decree be entered in accordance with the prayer of the bill. Such a decree was entered and this appeal followed.

Ward street is a north and south street, which at the point in question forms the western city limits. It extends from the city

which merely declares the portion of Ward street hereinbefore described vacated without explanation, was unanimously adopted by the city council and was signed by the mayor. Several of the aldermen testified in this case that it was their opinion that this portion of the street was not suitable for public travel and that the railroad crossings and the intersection at Jackson street were dangerous. The evidence shows that few people live in the immediate neighborhood of this vacated street and that there is a public street open for travel across the railroad right of way one block east of it. While the relators and other witnesses called by them testified that many people used Ward street at this point and that it was necessary for the public convenience, their testimony does not show that the public interests will not be served by the vacation of the street. The

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stating that by reason of such resignation vacancy "now exists," held not invalid because of recital that resignation took place December 5. 1924, in view of other writ subsequently issued by Governor designated "writ of election to corin original." showing resignation to have been rect typewriter error in date of resignation on December 5, 1923.

public interest is served when the city is, relieved from the expense of maintaining a street that is used by only a small portion of the public (People v. Benson, 294 Ill. 236. 128 N. E. 387), and when the city is freed from liability for injuries sustained by the traveling public by reason of defects in an unimproved street (People v. Elgin, Joliet & Eastern Ry. Co., 298 Ill. 574, 132 N. E. 204). This court has repeatedly held that courts have no right to inquire into the motives of a legislative body nor into the wisdom or expediency of legislative acts. The authority of the courts is limited to an in-ply provides that certain acts shall be done at

3. Elections 227 (1)-Rule as to effect on election of noncompliance with statute stated. Nonperformance of duties imposed on officials by statute invalidates election where statute expressly so provides, but, if statute simparticular time or in particular manner, and does not declare their performance essential to validity of election, they will be regarded as mandatory if they do, and directory if they do not, affect the actual merits of the election. 4. Elections 44 Special election void, where not called by Governor, as required by statute.

5. Elections

36-County clerk on receipt of writ of election regular on its face must obey writ and call election.

vestigation of the question whether the legislative acts are beyond the scope of the legislative power. It is presumed that public officials act honestly and patriotically and discharge their duty to the public. Vacation ordinances are seldom passed without some private individual being benefited, and the ordinances are usually passed at the sugSpecial election to elect circuit and sugestion of some interested person. Because perior court judges to fill vacancies not callsome private interest may be served and oth-ed by Governor under Cahill's St. 1923, c. 46, er private interests damaged by the vacation § 145, is void, since only the Governor has audoes not render a vacation ordinance void. thority to call such election. Before such an ordinance is void it must clearly appear that no consideration of public interest could have led to its enactment. Wolbach v. Rubens, 307 Ill. 186, 138 N. E. 521; People v. Atkins, 295 Ill. 165, 128 N. E. 913; Murphy v. Chicago, Rock Island & Pacific Ry. Co., 247 Ill. 614, 93 N. E. 381; City of Amboy v. Illinois Central R. Co., 236 Ill. 236, 86 N. E. 238; Meyer v. Village of Teutopolis, 131 Ill. 552, 23 N. E. 651. There is abundant evidence in this record which of John J. Dever and others, against Robert justifies the finding of the city council that M. Sweitzer, County Clerk, and others. Writ the public interest is served by vacating this awarded. portion of Ward street for one block, and under the authorities cited this court is precluded from making further inquiry with respect to the reasons for its passage. ordinance is not void, and the court erred in entering its decree.

The

County clerk on receipt of writ of election issued by Governor under Cahill's St. 1923, c. 46, § 145, regular on its face, must obey writ and call election, being a ministerial officer.

Farmer and Thompson, JJ., dissenting.

Mandamus by the People, on the relation

William G. Wise, of Chicago, for relators. Weymouth Kirkland, Henry A. Berger, and Joseph B. Fleming, all of Chicago, for respondents.

STONE, J. Relators, John J. Dever, as The decree of the circuit court is there- a qualified elector of Cook county, and Wil

fore reversed.

Decree reversed.

(314 I11. 330)

PEOPLE ex rel. DEVER et al. v. SWEITZER,
County Clerk, et al. (No. 16470.)

(Supreme Court of Illinois. Dec. 16, 1924.)

1. Constitutional law 70(3)-Duty of courts is to construe laws as they are.

liam V. Brothers and Worth E. Caylor, as nominees at a republican convention for the offices of judge of the circuit and superior courts, respectively, to fill vacancies caused by death and resignation of former incumbents, on leave being granted, filed in this court their original petition praying that a writ of mandamus issue against the respondents, as county clerk of Cook county and board of election commissioners, requiring that they print or cause to be printed the names of William V. Brothers and Worth

It is court's duty to construe laws as E. Caylor on the ballots to be voted by the they are.

2. Elections 36-Writ of election held not invalid because of typographical error.

Writ of election issued by Governor under Cahill's St. 1923, c. 46, § 145, calling special election for November 4, 1924, to fill vacancy created by resignation on December 5, 1924,

electors of Cook county for the offices of judge of the circuit court of Cook county and judge of the superior court of Cook county, respectively, at the election to be held on November 4, 1924; that Sweitzer, the county clerk, be required to print or cause to be printed the statutory notice of a special elec

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(145 N.E.)

tion to fill such offices, and cause the same that nominations were made for said offices to be delivered to the sheriff for posting, as by the Democratic party; that Frank Comerrequired by the statute. The respondents ford was nominated for the office of judge appeared and filed their answers. The mem- of the circuit court and John J. Kelly was bers of the board of election commissioners nominated for the office of judge of the suanswered, in effect, that they stood ready to perior court to fill vacancies occasioned by make the necessary certificates and print the such death and resignation; that said elecnames of Brothers and Caylor on the ballots tion was held on June 2, 1924, at which when the same are certified to them by Sweit- Comerford and Kelly received a plurality of zer, as required by the statute. The county all votes cast at that election for the offices clerk answered, denying that he had refused of judge of the circuit and superior courts, to include the names of Brothers and Caylor respectively; that the Republican party did in the notice of the election or in the cer- not nominate candidates to fill such vacantificate to the board of election commission-cies for the election on June 2. Sweitzer by ers. By his amended answer, however, he his amended answer also avers that the writ states that he is advised that no proper writ of election issued by the Governor is void of election was issued by the Governor, and on its face, for the reason that it calls an that therefore it is not his duty to include election for November 4 to fill an alleged vathe names of Brothers and Caylor on the bal- cancy caused by the resignation of Hon lots for the election November 4. The amend- Charles A. McDonald, which the writ itself ed answer was demurred to, and the ques- states to be on December 5, 1924; that a new tion of its sufficiency is thus presented. and different writ of election issued by the Governor was later received in the office of Sweitzer on the 10th of October, less than 30 days before the election on November 4, which showed the resignation of McDonald to have taken place on December 5, 1923. The question involved in the case is wheth

clude the names of Brothers and Caylor in the notice and on the ballots. The determination of this question necessarily involves a determination of the question whether the election of June 2, 1924, to fill these vacancies was a valid election, for, if so, there was no vacancy to be filled on November 4.

The power to call an election to fill vacancies is prescribed by the statute. Section 145 of chapter 46 (Cahill's Stat. 1923) provides as follows:

The facts are as follows: On August 11, 1924, Gov. Len Small issued a writ of election calling a special election on November 4 to fill the office of judge of the superior court of Cook county made vacant by the resignation of Hon. Charles A. McDonald therefrom, at the same time issuing a writer or not it was the duty of Sweitzer to infor a special election on November 4 to fill the vacancy in the office of circuit judge of Cook county caused by the death of Hon. John K. Prindiville, a judge of said court. Pursuant thereto the Republican party of Cook county called a convention, which was held on the 29th day of September, 1924, at which time Brothers and Caylor were nominated to fill the vacancies in the circuit and superior courts, respectively. On the 1st day of October the certificate of such nomination was filed in the office of the secretary of state, who thereafter issued a certificate to the county clerk of Cook county certifying the nomination of Brothers and Caylor as candidates at a special election to be held on November 4 for the purpose of filling the vacancies herein referred to. It also appears from the petition and the answer of Sweitzer that Brothers and Caylor called upon Sweitzer and reminded him that the certificate of nomination had been sent to him, and that he had issued an election notice which did not contain the offices of judge of the circuit court and judge of the superior court to be filled at a special election called as herein referred to, and demanded that he prepare an election notice in accordance with the statute. It appears that Sweitzer gave them no answer at the time, saying that he desired to consult his attorney. It appears also from his answer, and it is admitted by the demurrer, that the records of the office of Sweitzer show that an election was held to fill the vacancies in the circuit and superior courts caused by the death of Hon. John K. Prindiville and the resignation of Hon. Charles A. McDonald, for June 2, 1924;

"When a vacancy shall occur in the office of judge of the Supreme Court, judge of the circuit court, judge of the superior court of Cook county, or judge of the county court, the clerk of the court in which the vacancy exists shall If such notify the Governor of such vacancy. expiration of the term of the office made vavacancy shall occur within one year before the cant, the Governor shall fill such vacancy by appointment; but if the unexpired term exceeds one year, the Governor shall issue a writ of election, as in other cases of vacancies to be filled by election."

[1] This court held in People v. Czarnecki, 312 Ill. 271, 143 N. E. 840, and in Stephens v. People, 89 Ill. 337, that the time of a special election to fill vacancies in such offices as circuit and superior court judges must be fixed and the election called by the Governor. Neither the county clerk nor the clerk of the court in which the vacancy occurs has any such power. It is argued earnestly that, unless the power be vested elsewhere, the Governor may, by refusing to call a special election to fill a vacancy, prevent the functioning of different departments of the government, or by waiting until the unexpired por

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