Bunn v. People of State Ex Rel. Matthew Laflin.

CourtSupreme Court of Illinois
Writing for the CourtBREESE
Citation45 Ill. 397,1867 WL 5299
Decision Date30 September 1867

45 Ill. 397
1867 WL 5299 (Ill.)


Supreme Court of Illinois.

September Term, 1867.

WRIT OF ERROR to the Superior Court of Chicago.

This was a proceeding by information in the nature of a quo warranto, instituted in the court below by the defendant in error, against the plaintiffs in error, Jacob Bunn, John W. Smith, James H. Beveridge, James C. Robinson, William T. Vandeveer, Phillip Wadsworth and William L. Hambleton, to test the constitutionality of the act of the legislature of 1867, providing for the erection of a new State house, upon the ground that the commissioners appointed under said act (plaintiffs in error) were “officers,” within the meaning of the Constitution, and, being such, the mode of their appointment was in conflict with section 12, article 4 of the Constitution of this State. A demurrer was filed to the information, upon which issue was joined, and thereupon, the court pronounced a judgment of ouster against the respondents, to reverse which the case is brought to this court by writ of error.

Messrs. BECKWITH, AYER & KALES, Mr. E. A. STORRS, Messrs. PALMER & HAY and Messrs. STUART, EDWARDS & BROWN, for the plaintiffs in error.

Messrs. ARRINGTON & DENT, for the defendant in error.

[45 Ill. 399]

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

The only question presented by this record is this: Are the commissioners appointed by the act of February 25, 1867, entitled “An act to provide for the erection of a new State house,” officers, within the meaning of the twelfth section of the fourth article, and of the twenty-third section of the fifth article, of the Constitution of this State?

Section 12 is as follows: “The governor shall nominate, and, by and with the advice and consent of the senate (or majority of all the senators concurring), appoint, all officers whose offices are established by this Constitution or which may be created by law, and whose appointments are not otherwise provided for; and no such officer shall be appointed or elected by the general assembly.”

Section 23 of article 5 is as follows: “The election of all officers, and the filling of all vacancies which may happen by death, resignation or removal, not otherwise directed or provided for by this Constitution, shall be made in such manner as the general assembly shall direct; provided, that no such officer shall be elected by the general assembly.”

The question has been argued with great ability on both sides, and we submit the conclusions to which we have arrived, with some of the reasons therefor.

A solution of the question is attempted by the counsel for relator, by reference to definitions of the term “office” as found in law writers and dictionaries, in which there is not entire harmony. It is not pretended that the plaintiffs in error are officers whose offices were created by any law in force prior to the passage of the act in question, but the complaint is, that by the law defining the employment, and designating the persons who are to be employed, in the act itself, was, in effect, the appointment of those persons to an office, the employment being of such a nature as to render it continuous, and it exists apart from the incumbents, the place remaining though the

[45 Ill. 400]

person that fills it may be removed. It is, say counsel, a place that may be filled or may be vacant; it is a place in fact permanent, since no limit in time has been fixed by law for its termination; a bond is required before they enter upon the performance of their duties, and an oath must be taken for faithful performance, and the place has emoluments, the compensation being fixed at five dollars per day for time of actual service; therefore, they say, the corollary results, that the employment or agency of these commissioners is a continuing one, which concerns the public, and is exercised on behalf of the government, and the rights, powers and duties of which are defined by law.

Books of high authority, Blackstone's and Kent's Commentaries, are referred to, giving the definition of an office, both of which definitions counsel admit are faulty in predicating fees or emoluments as attributes of office. Other definitions, by other law writers, are also given, but the best description of an office, in the judgment of counsel, to be found in the books, is that in Carthew's Reports, 478, 479. There it is said, “The word officium principally implies a duty, and, in the next place, the charge of such duty; and it is a rule, that, where one man hath to do with another man's affairs against his will, and without his leave, that is an office, and he who is in it is an officer.” “Every man is a public officer who hath any duty concerning the public, and he is not the less a public officer when his authority is confined to narrow limits; because it is the duty and nature of that duty which make him a public officer, and not the extent of his authority.”

References are then made to adjudged cases supposed to be in harmony with the definitions and with logical corollaries from them.

We do not propose to go over the whole ground occupied by the counsel on either side, or comment very much on the authorities produced supposed to bear on the question, but shall content ourselves with giving a few reasons why we cannot hold the plaintiffs in error to be officers within the meaning of the Constitution, and that the practice under the Constitution

[45 Ill. 401]

for a long series of years, unchallenged and unquestioned, can be resorted to as affording strong evidence of the meaning of any phrase or term used in it.

Under the first Constitution of this State, nearly all the important offices of government were filled by an election on joint ballot of the two houses, -- that is, by the action of the general assembly alone. The evil produced was, that the legislature became the great appointing power, giving rise to injurious combinations affecting the purity of legislation. The passage of a law, or its defeat, might be made to depend on the election of a particular individual to a particular office. When the convention was called by which the present Constitution was framed, one of the great objects to be effected by the call was to deprive the legislature of the power to elect or appoint such officers as had been appointed by that body under the old Constitution, such as judges of the Supreme, Circuit and inferior courts, the auditor and treasurer of State and many others, whose functions were directly connected with some one or more of the departments of government which the Constitution had established, and who were to aid in carrying on the government.

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 we establish by reference to the repeated appointment, by the general assembly, to places of public employment, of individuals on whom the appointment devolved by the law itself. A full list of such legislative acts, furnished by the counsel for plaintiffs in error, showing a contemporaneous and continuous action of the general assembly in the appointment of persons to employments or positions not designed to aid either department of the government in exercising its functions, affords strong evidence of the meaning of the term “such officer,” as used in the Constitution. Such appointments commenced with the

[45 Ill. 402]

first session, held in 1849, under this Constitution, and have been repeated at almost every session since, and they, too, of every grade of importance, from the appointment of commissioners to locate State roads, in relation to the Supreme Court rooms, in relation to public buildings, to complete the present State house, appointing commissioners to take evidence in relation to claims against the State, to appoint commissioners to build a house for the governor, -- in short, for very many public purposes, including the act to locate and build an additional penitentiary, in which the commissioners were named as in the act in question, and provision made for filling vacancies.

These acts, passed by legislatures, and approved by governors of different political sentiments, many of whom were sound constitutional lawyers, and all of them of approved patriotism, and who had been sworn to support the Constitution in all its purity, is strong evidence that such appointees were not “such officers,” as they were inhibited by that instrument from appointing.

But it is said by defendant's counsel, that these appointments were of a transient, evanescent character, terminating when the object was accomplished -- that there were no continuous duties devolved on them, no vacancies to be filled.

The opinion of that most eminent jurist, Chief Justice MARSHALL, clarum et venerabile nomen! delivered on the Circuit, in the case of the United States v. Maurice, reported in 2 Brockenbrough, 103, is cited as a full illustration of this idea. We have read this opinion with great profit, and have endeavored to fashion this in accordance therewith. It may be said of that most distinguished man, “now to the grave gone down,” that, no matter what the subject might be, howsoever intricate or discolor'd, when committed to the wonderful alembic of his mind, drops of purest, brightest distillation, were the uniform result! That case was an action of debt on the official bond of Maurice, who had been appointed agent of fortifications, and his sureties, and they raised the question by demurrer, that such an agent was not an officer. The chief justice, in answer to the question, is the agent of fortifications

[45 Ill. 403]

an officer of the United States...

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