Brundage v. Brady

• Decision Date: 19 April 1922
• Docket Number: No. 14480.,14480.
• Citation: 302 Ill. 576,135 N.E. 87
• Parties: PEOPLE by BRUNDAGE, Atty. Gen., v. BRADY et al.
• Court: Illinois Supreme Court

302 Ill. 576

135 N.E. 87

PEOPLE by BRUNDAGE, Atty. Gen.,

v.BRADY et al.

No. 14480.

Supreme Court of Illinois.

April 19, 1922.

Information in the nature of quo warranto by the People, by Edward J. Brundage, Attorney General, against Francis P. Brady and others. A judgment of the circuit court, sustaining demurrers to the information, was affirmed by the Appellate Court, and petitioner appeals.

Affirmed.

WILSON. Since party committeemen, selected under the Primary Law, are not public officers, the franchise and prerogatives of the state are not involved in a determination of the right to hold such position, and therefore the Attorney General cannot maintain quo warranto to test the right of claimants to such positions.

Appeal from First Branch Appellate Court, First District, on Appeal from Circuit Court, Cook County; F. R. De Young, Judge.

Edward J. Broundage, Atty. Gen. (Frederick A. Brown, of Chicago, of Counsel), for appellant.

Samuel A. Ettelson, of Chicago, George B. Gillespie, of Springfield, and James W. Breen and Chester E. Cleveland, both of Chicago, for appellees.

THOMPSON, J.

This appeal is prosecuted to review the judgment of the Appellate Court for the First District confirming the judgment of the circuit court of Cook county, sustaining the general demurrers of appellees to an information in the nature of quo warranto filed by the Attorney General, charging the appellees are usurping and unlawfully holding and executing the offices of precinct, ward, and district committeemen of the Republican party in Cook county.

Appellees were elected at the primary election held on April 13, 1920, and it is charged that they were elected pursuant to the provisions of the Primary Election Act of 1919 (Laws of 1919, p. 475, et seq.), which was subsequently declared to be unconstitutional. People v. Fox, 294 Ill. 263, 128 N. E. 505. There are several questions presented by the assignments of error, but holding, as we do, that appellees are not public officers and that their right to serve the members of the political party who selected them cannot be tested by quo warranto, it will be unnecesary to consider any other question.

The Primary Election Act of 1919 being void, no office could be created by that act (People v. Knopf, 183 Ill. 410, 56 N. E. 155) and it will be necessary to refer to the Primary Election Law which was in force and effect at the time the election of April 13, 1920, was held and at the time the information in this cause was filed, in order to determine whether committeemen of political parties are public officers. This was the Primary Act of 1910 and amendments thereto. Harker's Stat. p. 1952 et seq. This act clearly distinguishes between state and municipal officers who exercise some portion of the sovereign power of the state, and officers of political parties who represent those who affiliate themselves with the respective parties. Section 1 of the act provides for the nomination of candidates for certain elective state and municipal offices and for the election of precinct, ward, and state central committeemen by all political parties. Section 4 of the act defines certain words and phrases

PEOPLE ex rel. KIPPER ‘county officer,’ ‘city officer,’ and ‘town officer’ as officers to be voted for by the qualified electors of the entire county, the entire city, and the entire town, respectively. Precinct, ward, and district committeement are not in any section of the act referred to as officers. The committeemen are not nominated at the primary election, but they are elected to serve their respective political parties as managers of the campaign conducted subsequent to the primary, to elect the candidates nominated by the respective political parties at the regular election held to select the officers of the state and its subdivisions. The act plainly indicates that the General Assembly was not creating new public officers to whom it delegated part of the sovereign power of the state, but it was simply recognizing the existence of the managing committees of the several political parties and regulating the manner in which the members of these committees should be selected and the manner in which the powers, long exercised by such committees, should be exercised. Paragraph 6 of section 9 specifically provides that each committee and its officers shall have the powers usually exercised by such committees and by the officers thereof, not inconsistent with the provisions of the act. Paragraph 7 of the same section provides that:

‘The various political party committees now in existence are hereby recognized and shall exercise the powers and perform the duties herein prescribed until committeemen are chosen, in accordance with the provisions of this act.’

Among the duties prescribed is the duty to meet and organize as a county convention, and that such county convention in Cook county shall nominate the candidates of the respective political parties for the offices of judge of the circuit court and Judge of the superior court. Harker's Stat. p. 1991.

Appellant contends that these committeemen are public officers because the statute authorizes them to exercise certain powers and requires them to perform certain duties. The state, as a sovereignty, does not nominate candidates for public office. The right to nominate candidates for public office is vested in the legal voters of the state, and the General Assembly cannot deprive them of this right. The manner in which this right to nominate candidates shall be exercised may be regulated by general law so long as the regulations do not deprive the individual member of a political party of his right to participate in a free and equal election, secured to him by the bill of rights. For the purpose of nominating candidates, the legal voters may associate themselves with a political party and participate in the nomination of candidates as candidates of the respective parties, or they may organize themselves into a group for other than partisan reasons and nominate their candidates by petition. The state is interested in the manner in which this right to nominate candidates shall be exercised, and a political party or other group renders a great service to the state when the right is honestly and conscientiously exercised. The state is also interested in the manner in which the individual voter shall exercise his right to vote, and the voter serves his state well when he exercises the right to vote, if he exercises it honestly and conscientiously. The Primary Election Act did not confer the power to nominate candidates for office on members or representatives of members of political parties. It simply recognized the right already existing in them and prescribed the manner in which that right should be exercised. This did not make the committeemen and officers of political parties public officers any more than laws regulating the manner of exercising the right to vote makes each voter a public officer. The county convention of the Democratic party in Cook county nominates candidates of the Demorcratic party for judges...