90 Ill. 186 (Ill. 1878), Wilcox v. People ex rel. Lipe

Citation:90 Ill. 186
Opinion Judge:Mr. Justice Sheldon.
Party Name:SEXTUS N. WILCOX et al. v. THE PEOPLE ex rel. Clark Lipe et al
Attorney:Messrs. HAY, GREENE & LITTLER, and Mr. GEO. W. SMITH, for the plaintiff's in error. Messrs. LAWRENCE, CAMPBELL & LAWRENCE, and Mr. 'C. C. BONNEY, for the defendants in error.
Court:Supreme Court of Illinois

Page 186

90 Ill. 186 (Ill. 1878)

SEXTUS N. WILCOX et al.

v.

THE PEOPLE ex rel. Clark Lipe et al

Supreme Court of Illinois, Northern Grand Division

September, 1878

Page 187

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. W. K. McALLISTER, Judge, presiding.

Judgment reversed.

Messrs. HAY, GREENE & LITTLER, and Mr. GEO. W. SMITH, for the plaintiff's in error.

Messrs. LAWRENCE, CAMPBELL & LAWRENCE, and Mr. 'C. C. BONNEY, for the defendants in error.

OPINION

Mr. Justice Sheldon.

Page 188

This was a proceeding by information in the nature of a quo warranto, in the Criminal Court of Cook county, to try the title of the defendants to the office of West Chicago Park Commissioners.

On the 10th day of October, 1877, the Governor removed the relators from such office for incompetency, and on the next day appointed the defendants to succeed them.

The court below sustained a demurrer to defendants' rejoinders to relators' replications, and rendered judgment of ouster against the defendants. The relators sued out this writ of error for the reversal of the judgment.

It is sufficient to say, without setting out in detail the pleadings, that the question presented by the record is, the right of the Governor of this State to remove from office a member of the Board of West Chicago Park Commissioners.

The case presents for construction the 10th, 11th and 12th sections of the 5th article of the Constitution of 1870. They are as follows:

"§ 10. The Governor shall nominate, and by and with the advice and consent of the Senate, (a majority of all the Senators elected concurring by yeas and nays,) appoint all officers whose offices are established by this constitution, or which may be created by law, and whose appointment or election is not otherwise provided for; and no such officer shall be appointed or elected by the General Assembly."

"§ 11. In case of a vacancy during the recess of the Senate in any office which is not elective, the Governor shall make a temporary appointment until the next meeting of the Senate, when he shall nominate some person to fill such office; and any person so nominated, who is confirmed by the Senate (a majority of all the Senators elected concurring by yeas and nays), shall hold his office during the remainder of the term," etc.

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"§ 12. The Governor shall have power to remove any officer whom he may appoint, in case of incompetency, neglect of duty, or malfeasance in office, and he may declare his office vacant, and fill the same as is herein provided in other cases of vacancy."

Two questions are presented, depending upon the construction of the foregoing provisions. The first is: Do the members of the Board of the West Chicago Park Commissioners come within the foregoing constitutional provisions, so as to be removable by the Governor by virtue of such provisions?

The second is: If they do fall under these provisions, and are therefore removable by the Governor, can they be so removed without charges, without notice, and without opportunity of defense?

The act incorporating the West Chicago Park Commissioners, approved February 27, 1869, provides that, "seven persons, resident freeholders and qualified voters of said town (of West Chicago,) who shall be designated by the Governor of the State of Illinois, together with their successors, shall be and they are hereby constituted a board of public park commissioners for the town of West Chicago, to be known under the name of the West Chicago Park Commissioners."

The board is made a body politic and corporate, and among the powers given it are, to govern, manage and direct all parks authorized by the act; to lay out, regulate, make and improve the same, to pass ordinances for the government of the same, to levy special assessments on all property by them deemed to be benefited, to appoint a police force, etc., and generally, in regard to the parks, to possess all the power then possessed by the common council of the city of Chicago in respect to the public squares, places and streets in said city; to accept the service of such of the police force of the city of Chicago as might be placed at their disposal; to acquire by condemnation, or otherwise, the title in trust, etc., as public promenade and pleasure grounds, the lands required, the

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total cost of the parks to be assessed on the property benefited; to forbid any horse-racing, gambling or obnoxious business or amusements within 400 feet of the park; to borrow moneys and pledge the credit of the town of West Chicago for the repayment of the same.

Upon the organization of the board, the members were to decide, by lot, as to their respective terms of office, the person drawing the longest term to serve seven years from March 1, 1869, and so on down, the last of the commissioners serving for the term of one year from that time. All vacancies occurring in the board were to be filled as soon as might be thereafter, by the appointment of the Governor.

Section 18 of the act provides, that the commissioners or either of them, may be removed from office by the circuit court of Cook county after trial and conviction, upon the petition, with sworn charges presented by not less than ten reputable freeholders of the town of West Chicago, for any misdemeanor or malfeasance in office. It further provides, that upon such judgment of removal for such cause, the clerk of the court shall certify a copy of the final judgment to the Governor. Then follows a provision that the president and secretary of the board shall certify to the Governor all other vacancies arising or occurring in the same after the organization thereof.

It is contended, on the part of the relators, that the West Chicago Park Commissioners are not officers, in any proper sense of that word, but that they are mere trustees, created a corporation by the legislature for the purpose of taking and holding the title for public use of certain lands to be acquired as a park, and for the purpose, as such trustees, of improving and controlling said lands, deriving their means from taxes imposed by the town of West Chicago; that they are quasi corporate authorities, belonging to the municipality of West Chicago, and not to either of the three departments of government created by the constitution, which latter is the sense in which this court has held the term "officers" was used

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in the corresponding sections of the constitution of 1848, citing the case of Bunn v. The People, 45 Ill. 397.

The question in that case was, whether the State House Commissioners named by the act of 1867, providing for the erection of a new State House, were "officers" in the sense of the constitution; if they were so, then the constitution of 1848 forbade their appointment by the legislature. It was there said: "Therefore, when the constitution says that no office established by that instrument, or created by law, shall be filled by appointment or election of the General Assembly, the framers of it had direct and immediate reference and application only to such offices as were created for the purpose of administering the three departments of government organized by it." This is relied on, and it is asserted that these commissioners did not belong to either one of the three departments of government. Further on, in the same case, it was said: "It seems to us the term, 'such officer,' judging from the contemporaneous action and construction of the clause by the legislature, had reference alone to such officers as had some portion of the functions of government committed to their charge." It is manifest, upon the survey of the powers granted to this board, that some portion of the functions of government was committed to their charge, as, the power to pass ordinances for the government of the park; to levy special assessments; to appoint a police force; to have generally, in regard to the park, all the power then possessed by the common council of the city of Chicago in respect to public squares, places and streets in said city; to have power to forbid horse-racing, gambling or obnoxious business or amusements within a certain distance of the park, etc., etc. In City of Chicago v. Wright, 69 Ill. 318, it was said: "The heads of the police department of Chicago are not mere municipal officers, whose functions relate exclusively to that particular municipality, but they are State officers--that is, officers whose duties concern the State at large, or the general public, although exercised within defined territorial limits. The administration

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of justice, the preservation of the public peace and the like, although confided to local agencies, are essentially matters of public concern," citing Dillon Mun. Corp. § 33. The constitution of 1870 defines an office thus: "An office is a public position created by the constitution or law, continuing during the pleasure of the appointing power, or for a fixed time, with a successor elected or appointed. An employment is an agency for a temporary purpose, which ceases when that purpose is accomplished." Art. 5, sec. 24.

The members of the Board of West Chicago Park Commissioners are agents, by whom, in part, the people of the State carry on the government. Their functions are essentially political, and concern the State at large, although they are to be discharged within the town of West Chicago. By the decisions of this court, this board of park commissioners is held to be a quasi municipal corporation, a "corporate authority" in whom it was competent for the legislature to vest the power to assess and collect taxes within the park district created. And whether tested by the decision in the Bunn case, or by the...

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