« ForrigeFortsett »
(145 N.E.) repeal that part of Revenue Act 1898, 24, The essential point in the case is stated by providing for 1 year term, but not to repeal the appellant in his brief to be whether or not provision in section 24 for beginning term on the term of office of the assessor begins at 1st day of January following election.
the time of his election and qualification, as 6. Towns 58–Failure to take oath of office required by the Township Organization Act
within time prescribed by statute held not to (Rev. St. 1874, c. 139), or on the 1st day of defeat title to office.
January succeeding his election, in accordWhere respondent who was elected to of- ance with section 24 of the Revenue Act of fice of town assessor did not take or file the 1898 (Laws Extra Sess. 1898, p. 44). He constitutional oath of office within the time claims that this section is unconstitutional. prescribed by Township Organization Act, art. Before 1898 a township assessor was requir9, $$ 2, 3, but did take and file the oath required by Revenue Act of 1898, $ 4, before en. ed by section 1 of article 7 of the Township tering on his official duties, and before any Organization Act (section 61) to be elected in action had been taken under Township Organi- every town for a term of 1 year and until his zation Act, art. 10, § 1, to declare office vacant, successor was elected and qualified. The act held that respondent thereby perfected title to of 1898 recognized the existence of the office the office.
of assessor in every township, and made no
provision for their election, but by section 24 Appeal from
Circuit Court, Winnebago provided that their terms of office, which had County; Earl D. Reynolds, Judge.
previously begun immediately following their Information in the nature of quo warranto election and qualification, should begin on the by the People, on the relation of Frank H. 1st day of January following the election. Hall, against Lawrence E. Pearson. From a This act was attacked immediately after its judgment of dismissal, relator appeals. Af passage as being in violation of constitutional firmed.
limitations, but in People v. Commissioners William Johnson, State's Atty., and J. E. of Cook County, 176 111. 576, 52 N. E. 334, Goembel, both of Rockford, for appellant.
it was held not subject to any of the objecLarge & Reno, of Rockford, for appellee.
tions then advanced. It was again brought
in question in People v. Knopf, 183 Ill. 410, DUNN, J. The state's attorney of Winne- 56 N. E. 155, and was held invulnerable to bago county, on the relation of Frank H. the objection that it was passed in disregard Hall, by leave of court filed an information of section 13 of article 4 of the Constitution, in the nature of quo warranto against Law- which provides that, rence E. Pearson, charging him with the "No law shall be revived or amended by refusurpation of the office of assessor of the erence to its title only, but the law revived, or town of Rockford, and calling upon him to the section amended, shall be inserted at length
in the new act." show by what warrant he claimed to hold and execute that office. The respondent filed a [1-3] In this case the constitutional objecplea of justification, setting forth his election tion is made not to the whole act but only to
to the office of assessor on April 4, 1922, his section 24, and is also based upon secțion 13 • qualification by filing the bond required by of article 4, but not upon the same provision
law, and his entrance upon the duties of his as in the Knopf Case. The objection urged office on January 1, 1923. The plea also set here is that the section of the statute violates forth the election of the respondent as as the provision of the section of the constitusessor on the first Tuesday of April, 1916, and tion referred to, that "no act hereafter passon the first Tuesday of April in 1918 and ed shall embrace more than one subject, and 1920, his entering upon the duties of the office that shall be expressed in the title." on the 1st day of January following each of The title of the Revenue Act of 1898 is “An said elections and continuing in office until act for the assessment of property and prothe day of filing the plea. A replication was viding the means therefor, and to repeal a cerfiled, 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 there is nothing in this title to show that it the court, and judgment was rendered against was in any way intended to change the date the relator for costs, from which he has ap- of taking of office of the assessor, whose elecpealed.
tion and qualification were provided for by The relator was elected assessor at the an- the Township Organization Act. It is not nual town meeting in April, 1924, was noti- essential, in order to comply with the refied of his election on April 12, and on April quirement mentioned, that the title of an act 15 filed with the town clerk his oath of office, shall be a synopsis of its provisions or an and with the county clerk the bond required index to the contents of each section. The by law. He demanded of the respondent the title is intended to indicate the general subbooks and papers of the office, but the re-ject of the legislation contained in the act, spondent refused to deliver them to him, and and whatever provisions may be regarded as was proceeding to make the assessment in tending to effect the purpose of the act are the town.
within the title. The act provided for a
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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 va. ly matters falling within the words of the cant and filled accordingly, and it was held title. The subject of the act—the assessment that immediately upon the expiration of the of property and providing the means there- 20 days without the filing of the bond the offor--naturally included the officers who fice became vacant, and could only be filled by should make the assessment, their selection an election; that the execution or filing of and term of service, and the time and man- the bond afterward could not operate to inner in which they should make the assess- vest title to the office which had become vament, and any provisions on these matters cant. The appellee says that that case is not were germane to the purpose of the act and in point, because by its express terms, not included within the title, though the particu- only was the office to be considered vacant lar provisions were not mentioned in detail and required to be filled, but it was provid. in the title. The provisions of section 24 ed that the person elected should not be perwere therefore a valid part of the act and ef. mitted afterward to qualify or take the of. fective to establish the beginning of the as fice. In City of Chicago v. Gage, 95 Ill. 593, sessor's term of office on the 1st day of Jan- 35 Am. Rep. 182, a suit was brought on the uary following his election.
treasurer's bond of the city of Chicago, and [4, 5] In 1909 a law was enacted changing it was insisted that the failure to file the the term of the assessor's office from 1 year bond within 15 days after the official canvass to 2. Laws 1909, p. 470. It is claimed that of the election, in accordance with the prothis law repealed section 24 of the act of visions of the charter, vacated the office and 1898. It did not expressly repeal that sec- terminated the liability on the bond. It was tion, and a repeal by implication extends only held that failure to file a bond in time did to such provisions of the prior act as are not of itself avoid the title to the office but so irreconcilably repugnant to the later azt merely rendered it defeasible, and that, if that both cannot be given effect. There is the officer filed the bond afterward, and it such a repugnancy between the provision of was accepted and approved, his title was a 2-year term in the act of 1909 and of a thereby perfected. The case of People v. Per1-year term in that of 1898, and the latter is cells, supra, was not mentioned, but the therefore repealed, but there is nothing in the court, after a somewhat elaborate consideraact of 1909 inconsistent with the beginning tion of the question, and after citing the deof the term on January 1 after the election, cisions of other states, arrived at the conand this provision is therefore not repealed. clusion that the particular time of filing the
 By sections 2 and 3 of article 9 of the bond was directory and not mandatory, and Township Organization Act (Smith-Hurd Rev. that upon the execution and approval of the St. 1923, c. 139, 88 84, 85) every person elected bond before any action taken to declare the to the office of assessor is required, within office forfeited the officer's title became in10 days after he has been notified of his elec- defeasible. This decision was approved and tion or appointment, to take and subscribe followed in Massey v. People, 201 Ill. 409, 66 . the oath of office prescribed by the Constitu- N. E. 392, and besides the cases cited in the tion, and within 8 days thereafter to file it in opinion are supported by Knox County v. the office of the town clerk, and a neglect to Johnson, 124 Ind. 145, 24 N. E 148, 7 L. R. A. comply with these provisions is deemed a re- 684, 19 Am. St. Rep. 88; State v. Ruff, 4 fusal to serve. By section 1 of article 10 of Wash. 234, 29 P. 999, 16 L. R. A. 140; Speake the Township Organization Act it is provided v. United States, 9 Cranch, 28, 3 L. Ed. 615, that, when any person elected to any town of- and other cases. fice shall fail to qualify, it shall be lawful It was shown that after the election in 1922 for the justices of the peace of the town, to the appellee, on March 27, 1923, took and gether with the supervisor and town clerk, filed the oath required by section 4 of the to fill the vacancy by appointment for the un- Revenue Act of 1898. This oath, though long expired term. The appellant insists the ap after his election, was taken before he enterpellee has not shown that he took and filed ed upon the duties of his office, and it conhis official oath within the time required by tains the constitutional oath of office required the statute, and that because of his failure to by the Township Organization Act. No acdo so he has not shown a title de jure, as he tion had been taken to declare the office vamust do to justify in a quo warranto proceed cant before the perfecting of the appellee's ing In support of this proposition the ap- title by the taking and filing of this oath. pellant cites People v Percells, 3 Gilman, 59. Since his term of office will not expire until In that case a statute required a justice of January 1, 1925, the judgment of the cir. the peace, within 20 days after his election, to cuit court was right, and it will be affirmed. file a bond, and provided if he did not do so Judgment affirmed.
(146 N.E.) (314 Ill. 445)
limits on the south to the property of the PEOPLE ex rel. SHANER et al. v. CHICAGO, Western Illinois State Teachers' College on
B. & Q. R, CO, et al. (No 15464.) the north. Jackson streetwhich crosses (Supreme Court of Illinois.
Ward street, is paved with brick and is the Dec. 16, 1924.)
main highway between Macomb and Col1. Municipal corporations 657 (2) - Public chester. West of Ward street it is 16 feet interest served by vacation of street.
narrower than it is east of Ward street. Public interest is served in vacating street Washington street extends east from Ward when city is relieved from expense of main street. Two blocks south of Washington taining street used by only small portion of street is Piper street, which is the first street public and from liability for injuries sustained south of Jackson street that crosses Ward by traveling public because of defects in unim- street. Extending across the south end of proved street.
the vacated portion of Ward street is the 2. Constitutional law 70(3)-Courts have right of way of the Chicago, Burlington &
no right to inquire into motive for, or wis- Quincy Railroad Company, Occupied by the dom of legislation.
main line from Chicago to Kansas City and Courts have no right to inquire into mo- by a switch track which parallels the main tives of legislative body nor into wisdom or line on its north side. A short distance north expediency of its acts.
of this switch track is a loading track ex. 3. Municipal corporations em 657 (2) - Ordi- tending across the vacated portion of Ward
nance vacating street not void merely be- street into the yards of the Macomb Sewer cause serving some private interests. Pipe Works, which maintains a factory on
Ordinance vacating street is not void mere- the tract of land lying west of Ward street ly because some private interest may be served and between Jackson street and the railroad and other private interests damaged, but it right of way. The tract of land immediate. must further appear that no consideration of ly east of the vacated portion of Ward street public interest could have led to enactment is occupied by the stables and the ware yard of ordinance.
of the pipe works. Sewer pipes are stored 4. Municipal corporations en 657 (2)-Evidence in piles along both sides of Ward street and
held to show public interest served by va- freight cars occupy the loading track the cating street.
greater part of the time. Ward street is In suit to set aside ordinance vacating an unimproved street, and that portion of part of street, evidence held to justify finding it which is vacated by the ordinance has of city council that public interest was served not been graded by the city for many years, by vacation thereof.
is unlighted, and is not improved with sideAppeal from Circuit Court, McDonough
walks, drainage ditches, water mains, or sew
ers. County; Walter C. Frank, Judge.
Twelve or 15 trains pass across the
south end of this vacated strip each day, and Suit by the People, on the relation of Be- the traffic at the north end of the strip on nona Shaner and others, against the Chicago, Jackson street, which is the only paved thorBurlington & Quincy Railroad Company and oughfare in this section of the city, is heavy. others. From decree for plaintiffs, defend [1-4] When the question of vacating this ants appeal. 'Reversed.
street was presented to the city council, five J. A. Connell, of Chicago, and Gumbart & of the six members of the council made a per. Grigsby, of Macomb, for appellants.
sonal inspection of the locality. The ordiAndrew L Hainline, State's Atty., T. Mac- nance, which consists of but one sentence and Downing, and George A. Falder, all of Ma- which merely declares the portion of Ward comb, for appellees.
street hereinbefore described vacated with
out explanation, was unanimously adopted by PER CURIAM. This is a proceeding in the city council and was signed by the mayor. equity begun in the name of the people, on Several of the aldermen testified in this case the relation of certain property owners, to that it was their opinion that this portion set aside an ordinance vacating that portion of the street was not suitable for public travof Ward street, one block long, extending el and that the railroad crossings and the from the south side of Jackson street to the intersection at Jackson street were danger. north side of Washington street, in the city ous. The evidence shows that few people live of Macomb, and to enjoin the obstruction of in the immediate neighborhood of this vasaid street. The master in chancery to whom cated street and that there is a public street the cause was referred heard evidence and open for travel across the railroad right of filed his report recommending that a decree way one block east of it. While the relators be entered in accordance with the prayer of and other witnesses called by them testithe bill. Such a decree was entered and fied that many people used Ward street at this appeal followed.
this point and that it was necessary for the Ward street is a north and south street, public convenience, their testimony does not which at the point in question forms the show that the public interests will not be western city limits. It extends from the city served by the vacation of the street. The
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
public interest is served when the city is, stating that by reason of such resignation varelieved from the expense of maintaining a cancy "now exists," held not invalid because of street that is used by only a small portion recital that resignation took place December 5. of the public (People v. Benson, 294 111. 236. 1924, in view of other writ subsequently issued 128 N. E. 387), and when the city is freed by Governor designated "writ of election to corfrom liability for injuries sustained by the in original,” showing resignation to have been
rect typewriter error in date of resignation traveling public by reason of defects in an
on December 5, 1923. unimproved street (People v. Elgin, Joliet & Eastern Ry. Co., 298 111. 574, 132 N. E. 3. Elections 227(1)-Rule as to effect on 201). This court has repeatedly held that
election of noncompliance with statute stated. courts have no right to inquire into the mo
Nonperformance of duties imposed on offi tives of a legislative body nor into the wis- cials by statute invalidates election where statdom or expediency of legislative acts. The
ute expressly so provides, but, if statute simauthority of the courts is limited to an in-ply provides that certain acts shall be done at
particular time or in particular manner, and vestigation of the question whether the legis- does not declare their performance essential lative acts are beyond the scope of the legis- to validity of election, they will be regarded lative power.
It is presumed that public as mandatory if they do, and directory if they officials act honestly and patriotically and do not, affect the actual merits of the election. discharge their duty to the public. Vaca.
4. Elections en 44 Special election void, tion ordinances are seldom passed without where not called by Governor, as required by some private individual being benefited, and statute. the ordinances are usually passed at the sug Special 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 Cabill'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 5. Elections Com 36mCounty clerk on receipt clearly appear that no consideration of pub
of writ of election regular on its face must lic interest could have led to its enactment. obey writ and call election. Wolbach v. Rubens, 307 III. 186, 138 N. E.
County clerk on receipt of writ of election 521; People v. Atkins, 295 Ill. 165, 128 N. issued by Governor under Cahill's St. 1923, E. 913; Murphy v. Chicago, Rock Island c. 46, $ 145, regular on its face, must obey writ & Pacific Ry. Co., 247 Ill. 614, 93 N. E. 381 ; ; and call election, being a ministerial officer. City of Amboy v. Illinois Central R. Co., 236 Farmer and Thompson, JJ., dissenting. Ill. 236, 86 N. E. 238; Meyer v. Village of Teutopolis, 131 Ill. 552, 23 N. E. 651. There Mandamus by the People, on the relation 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
William G. Wise, of Chicago, for relators. under the authorities cited this court is pre
Weymouth Kirkland, Henry A. Berger, and cluded from making further inquiry with re- Joseph B. Fleming, all of Chicago, for respect to the reasons for its passage. The
spondents. ordinance is not void, and the court erred in entering its decree.
STONE, J. Relators, John J. Dever, as The decree of the circuit court is there a qualified elector of Cook county, and Wilfore reversed.
liam V. Brothers and Worth E. Caylor, as Decree reversed.
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 incum(314 Ill. 330)
bents, on leave being granted, filed in this PEOPLE ex rel. DEVER et al. v. SWEITZER, court their original petition praying that a County Clerk, et al. (No. 16470.) writ of mandamus issue against the respond
ents, as county clerk of Cook county and (Supreme Court of Illinois. Dec. 16, 1924.)
board of election commissioners, requiring 1. Constitutional law Enw 70(3)-Duty of courts that they print or cause to be printed the is to construe laws as they are.
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.
electors of Cook county for the offices of 2. Elections 36–Writ of election held not judge of the circuit court of Cook county and invalid because of typographical error.
judge of the superior court of Cook county, Writ of election issued by Governor under respectively, at the election to be held on NoCahill's St. 1923, c. 46, § 145, calling special vember 4, 1924; that Sweitzer, the county election for November 4, 1924, to fill vacancy clerk, be required to print or cause to be created by resignation on December 5, 1924, / printed the statutory notice of a special elec
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(146 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
The facts are as follows: On August 11, Governor was later received in the office of 1924, Gov. Len Small issued a writ of elec- Sweitzer on the 10th of October, less than 30 tion calling a special election on November days before the election on November 4, 4 to fill the office of judge of the superior which showed the resignation of McDonald to court of Cook county made vacant by the have taken place on December 5, 1923. resignation of Hon. Charles A. McDonald The question involved in the case is wheththerefrom, 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 clude the names of Brothers and Caylor in vacancy in the office of circuit judge of Cook the notice and on the ballots. The detercounty caused by the death of Hon. John mination of this question necessarily involves K. Prindiville, a judge of said court. Pur- a determination of the question whether the suant thereto the Republican party of Cook | election of June 2, 1924, to fill these vacancounty called a convention, which was held cies was a valid election, for, if so, there on the 29th day of September, 1924, at which was no vacancy to be filled on November 4. time Brothers and Caylor were nominated
The power to call an election to fill vato fill the vacancies in the circuit and su- cancies is prescribed by the statute. Section perior courts, respectively. On the 1st day 145 of chapter 46 (Cahill's Stat. 1923) proof October the certificate of such nomination vides as follows: was filed in the office of the secretary of "When a vacancy shall occur in the office of state, who thereafter issued a certificate to judge of the Supreme Court, judge of the cirthe county clerk of Cook county certifying cuit court, judge of the superior court of Cook the nomination of Brothers and Caylor as county, or judge of the county court, the clerk candidates at a special election to be held on
of the court in which the vacancy exists shall November 4 for the purpose of filling the ra- notify the Governor of such vacancy. If such cancies herein referred to. It also appears expiration of the term of the office made va
vacancy shall occur within one year before the from the petition and the answer of Sweit- cant, the Governor shall fill such vacancy by zer that Brothers and Caylor called upon appointment; but if the unexpired term exceeds Sweitzer and reminded him that the certifi- one year, the Governor shall issue a writ of cate of nomination had been sent to him, election, as in other cases of vacancies to be and that he had issued an election notice filled by election." which did not contain the offices of judge of the circuit court and judge of the superior  This court held in People v. Czarnecki, court to be filled at a special election called 312 Ill. 271, 143 N. E. 840, and in Stephens as herein referred to, and demanded that he v. People, 89 Ill. 337, that the time of a prepare an election notice in accordance with special election to fill vacancies in such offices the statute. It appears that Sweitzer gave as circuit and superior court judges must be them no answer at the time, saying that he fixed and the election called by the Governor. desired to consult his attorney. It appears Neither the county clerk nor the clerk of also from his answer, and it is admitted by the court in which the vacancy occurs has the demurrer, that the records of the office any such power. It is argued earnestly that, of Sweitzer show that an election was held unless the power be vested elsewhere, the to fill the vacancies in the circuit and su- Governor may, by refusing to call a special perior courts caused by the death of Hon. election to fill a vacancy, prevent the funcJohn K. Prindiville and the resignation of tioning of different departments of the governHon. Charles A. McDonald, for June 2, 1924; ment, or by waiting until the unexpired por