Ahern v. Bollam

• Decision Date: 19 October 1899
• Parties: PEOPLE ex rel. AHERN v. BOLLAM.
• Court: Illinois Supreme Court

182 Ill. 528

54 N.E. 1032

PEOPLE ex rel. AHERN

v.BOLLAM.

Supreme Court of Illinois.

Oct. 19, 1899.

Appeal from circuit court, Cook county; John Gibbons, Judge.

Proceeding by quo warranto by the people, on the relation of D. J. Ahern, against James A. Bollam. From a judgment for defendant, the people appeal. Reversed.Chas. S. Deneen, State's Atty. (Joseph A. McInerney and T. A. Coffey, of counsel), for the People.

F. A. Woodbury, for appellee.

This is a proceeding by information in the nature of quo warranto in the name of the people of the state, filed in the circuit court of Cook county on September 16, 1898, by the state's attorney of that county, charging that the defendant, James A. Bollam, for a space of over one month then last past, and more, during the year 1898, unlawfully held, and still does hold and execute, without any warrant or right whatsoever, the office of constable in and for the township of Bloom, in the village of Columbia Heights, Cook county, and, during all of said time had usurped, and still does usurp, the rights, privileges, and duties of the office of constable title to the office of constable in and for said township in said village. On September 30, 1898, an amended information was filed, which was the same in every allegation as the original information, except that the village of Steger was substituted for the village of Columbia Heights. To this amended information the defendant, Bollam, pleaded justification,setting forth that on April 25, 1898, he was duly and legally appointed to of office of constable by the president and board of village trustees of the village of Steger, in said township and county, under and by virtue of section 11, art, 11, pt. 1, of the city and village act (1 Starr & C. Ann. St. [2d Ed.] p. 791); that after his appointment he took the oath of office, and gave bond as required by law, and received from the clerk of the village of Steger a certificate of appointment and qualification, and under section 12 of said article 11 (Id. p. 792) became and was entitled to hold and execute the duties and privileges of the office of constable in and for the entire county of Cook, as well as of the village of Steger, in said township of Bloom; and that by his said warrant he still holds and executes the said office of constable. By stipulation, all further pleadings were waived, and the cause was heard by the court on the amended information and the answer thereto, and on an agreed statement of facts in writing, signed by the respective parties. By the stipulation, propositions of law were to be offered by the people and the defendant, to be held or refused or modified by the court, and the cause proceeded to be heard upon the constitutionality of said sections 11 and 12. It was therein stipulated that the title to the office of constable, held by the defendant, should be determined by the decision of the question as to the constitutionality of said sections. Upon the trial, counsel for the people requested the court to hold, as matter of law, that said sections 11 and 12 were in conflict with section 21 of article 6 of the constitution of the state of Illinois, and therefore null and void. The proposition of law so submitted by the people was refused by the court, and counsel for the people excepted. Counsel for the defendant below (appellee here) requested the court to hold, as matter of law, that said sections 11 and 12 were not in conflict with the constitution of the state. This proposition was held by the court as offered, and exception was taken by the counsel for the people. The court below declined to hold the defendant guilty in manner and form as charged in the information, and dismissed the information at the relator's costs. Exception was taken by the people to this judgment of the circuit court, and the present appeal is prosecuted from said judgment.

MAGRUDER, J. (after stating the facts).

The only question involved in this case is whether sections 11, 12, art. 11, pt. 1, of the city and village act, are constitutional or not. Those sections, so far as they relate to the office of constable, are as follows:

‘Sec. 11. The president and board of trustees may appoint * * * a village constable and such other officers as may be necessary to carry into effect the powers conferred upon villages, to prescribe their duties and fees, and require such officers to execute bonds as may be prescribed by ordinance.

‘Sec. 12. The village constable shall have the same powers to make arrests, execute process, and perform other official acts, as other constables under the general laws of the state, together with such other powers as may be conferred on him by ordinance.’

The provision of the constitution with which these sections are alleged to be in conflict is section 21 of article 6 of the constitution of 1870. Section 21 of article 6 of the constitution is as follows:

‘Justices of the peace, police magistrates, and constables shall be elected in and for such districts as are, or may be, provided by law, and the jurisdiction of such justices of the peace and police magistrates shall be uniform.’

Sections 11 and 12 provide for the appointment of a village constable by the president and board of trustees of the village, and that such constable shall have the same powers to make arrests, execute process, and perform other official acts as other constables, under the general laws of the state. The constitution, on the contrary, provides that constables shall be elected in and for such districts as are or may be provided by law. It would seem to be clear that where a statute of the state directs a...