Blair v. People ex rel. Barber

• Decision Date: 19 October 1899
• Citation: 181 Ill. 460,54 N.E. 1024
• Parties: BLAIR v. PEOPLE ex rel. BARBER, Mayor.
• Court: Illinois Supreme Court

181 Ill. 460

54 N.E. 1024

BLAIR

v.PEOPLE ex rel. BARBER, Mayor.

Supreme Court of Illinois.

Oct. 19, 1899.

Appeal from appellate court, Second district.

Quo warranto, on the relation of Lester Barber, as mayor, etc., against H. H. Blair. From a judgment in favor of defendant, relator appealed to the appellate court, which reversed the judgment of the circuit court (82 Ill. App. 570), whereupon the defendant appealed. Affirmed.A. B. Coon, E. D. Shurtleff, and Botsford, Wayne & Botsford, for appellant.

V. S. Lumley, State's Atty., and R. K. Welsh, for appellee.

CARTWRIGHT, C. J.

In pursuance of leave granted, an information in the nature of a quo warranto was filed in the circuit court of McHenry county, on the relation of Lester Barber, mayor of the city of Marengo, against appellant, H. H. Blair, demanding that said defendant make answer to the people by what warrant he claimed to hold and execute the office of city marshal of said city. The defendant appeared,and by his plea claimed title to the office by virtue of the proceedings at a meeting of the city council of said city at which W. S. Eshbaugh, an alderman, was elected mayor pro tem., and appointed him city marshal, which appointment was confirmed by the city council, and under which appointment he qualified. The people demurred to this plea as not setting out a good title to the office, and, the court having overruled their demurrer, they stood by it. The court thereupon found the issues for the defendant, and entered judgment for costs against the relator. On appeal the appellate court reversed said judgment, and remanded the cause to the circuit court, with directions to sustain the demurrer to the plea, and to enter judgment of ouster against the defendant.

The city of Marengo was organized August 14, 1893, under the general law for the incorporation of cities and villages; and defendant's plea alleges that on May 7, 1895, in pursuance of said law, an ordinance was passed creating the office of city marshal, and providing for appointment by the mayor, with the approval of the city council, and that this ordinance was in force August 2, 1898, when the proceedings were had under which he claimed title to the office. His plea admitted that the mayor was present in the city of Marengo at the time of said proceedings, and the only averment of fact offered as a basis for the action of the city council in electing one of its number mayor pro tem. is the following: ‘And this respondent avers that the mayor of said city was temporarily absent from the said meeting during the entire time of the said meeting, and the said mayor was disabled from sickness from attending the said meeting.’ The question raised by this averment is whether the condition mentioned in the statute, under which a city council has a right to elect a mayor, existed. If the condition did not exist, the council had no right to elect Eshbaugh mayor, and he had no more power of appointment than any other alderman or citizen.

Article 2 of the act under which the city of Marengo was organized relates to the office of mayor, and it provides that he shall be the chief executive officer of the city. Starr & C. Ann. St. c. 24. Sections 2, 3, 4, and 5 provide for filling that office when there is a vacancy, either temporary or permanent. By section 2 a vacancy, when the unexpired term is one year or over, is to be filled by an election; and by section 3, if the vacancy is less than one year, the city council is authorized to elect the mayor. Section 5 provides that, if the mayor shall remove from the limits of the city, his office shall become vacant. And section 4, under which the defendant claims, is as follows: ‘During a temporary absence or disability of the mayor the city council shall elect one of its number to act as mayor pro tem., who, during such absence or...