Crook v. People Ex Rel. William Jayne.

• Citation: 1883 WL 10205,106 Ill. 237
• Parties: A. N. J. CROOKv.THE PEOPLE ex rel. William Jayne.
• Decision Date: 29 March 1883
• Court: Illinois Supreme Court

106 Ill. 237

1883 WL 10205 (Ill.)

A. N. J. CROOK

v.THE PEOPLE ex rel. William Jayne.

Supreme Court of Illinois.

Filed at Springfield Mar. 29, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. CHARLES S. ZANE, Judge, presiding.

Messrs. PALMERS, ROBINSON & SHUTT, for the appellant:

The adoption of the general law by the votes of the people was a repeal of the special charter of the city. The repeal abrogates all the offices, and determines the tenure of all officers who hold under the repealed act. ( People ex rel. v. Brown, 83 Ill. 85.) The substitution of another charter with inconsistent provisions, without a saving clause as to such rights, will have the same effect.

Section 3, of the general law of 1872, provides that upon its adoption “the city officers then in office shall thereafter exercise the powers conferred upon like officers in this act until their successors shall be elected and qualified.” The relator was not in office as mayor when the special charter of the city was abrogated and the general law substituted in its place. The office to which he was elected ceased with the law creating it, and the saving clause applies to the mayor then in office,--not the one just elected under the repealed charter.

If McCreery was a city officer then in office when the city became organized under the act of 1872, his right to continue in office was saved by the third section,--if not, the office of mayor was left vacant. This consequence could not have been intended. Jayne could not qualify merely until his successor should be elected and qualified. He could not qualify for one year, or for any definite term, for the special charter authorizing it was abrogated.

All the authorities concur in the rule that officers elected and qualified for fixed terms, may, after the expiration of the terms, exercise all the powers and perform the duties of their offices until their successors are elected and qualified. It is one of their duties, when their action is necessary, to order an election, to give notice, or do whatever may be necessary in order to the election of their successors. People ex rel. v. Trustees, 51 Ill. 144; People ex rel. v. Bartlett et al. 6 Wend. 422.

The right to hold the office after the expiration of the term is conferred for the sake of the public, and for that reason a public officer can not found a right to hold one upon his own breach of duty. Dillon on Mun. Corp. 160.

It being the duty of the city officers (the mayor and city council) in office when the organization under the general law took effect, to order an election for their successors, the election ordered by them was valid, and conferred upon the persons elected, when qualified, a perfect title to the offices. The act of 1881, amending section 1, article 1, of the act of 1872, does not change the law in this respect. Under it it is still competent to order the election to be held on some other day than the day of the annual municipal election. Messrs. MCCLERNAND & KEYES, Messrs. BRADLEY & BRADLEY, Mr. R. H. HAZLETT, Mr. T. C. MATHER, Mr. S. D. SCHOLES, Mr. CHARLES P. KANE, and Mr. J. OTIS HUMPHREY, for the relator:

It is contended that the adoption of the general law had the effect to abrogate the special charter, and legislate out of office all persons elected under the latter. The general law provides that “all laws and parts of laws not inconsistent with the provisions of this act, shall continue in force, and be applicable to any city or village organizing under it,” the same as if such change of organization had not taken place. Rev. Laws, 1877, p. 205, sec. 6. See, also, sec. 11.

It follows, then, that the charter, so far as it is not inconsistent with the general law, stands with and is a part of the latter, and the relator is ““successor,” in the terms and sense of the statute. Although the relator was not actually in office at the time of the adoption of the general law, yet he was an officer under the charter, as a part of that law, and had legal title to the office to which he was elected, which, in law, put relator in constructive possession of the same office.

The charter and ordinances of the city provide that “the persons having the highest number of votes for any office shall be declared elected.” The city council only announced the result of the vote, without declaring who was elected.

A board of canvassers, whose duties are ministerial, may, by mandamus, be compelled to receive and count votes rejected by it. Florida v. Gibbs, 13 Fla. 55; State v. County Judge, 7 Iowa, 186; Clark v. McKenzie, 7 Bush, 523; Kesler v. Cameron, 39 Ind. 488; State v. Dinsmore, 5 Brown, 145; Ellis v. County Commissioners, 2 Gray, 370.

The writ lies to compel the proper officers to give a certificate of election to the person entitled. State v. Judge, 13 Ala. 815; Strong, Petitioner, 20 Pick. 484; O'Farrell v. Colby, 2 Minn. 180; State v. Loomis, 5 Ham. 358. On quo warranto the respondent must show by what title he exercises an office. It is not enough to claim his election generally. 2 Potter on Corporations, 801, sec. 674; Clark v. People, 15 Ill. 217; Dillon on Mun. Corp. sec. 717.

The construction of appellant would make section 3 of the general law in conflict with the clause of the constitution inhibiting the passage of any law extending the term of any officer's office beyond that for which he is elected or appointed. Const. sec. 28, art. 4.

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

The information filed in this case is in the nature of a quo warranto, and was brought in the circuit court, in the name of the People, on the relation of William Jayne, against Ahaz N. J. Crook, to compel him to disclose by what authority he intruded himself into the office of mayor of the city of Springfield, and has since continued to exercise the duties and functions of such office. The facts of the case appear from the pleadings, and are not, therefore, a matter of contention. A concise statement will be necessary to an understanding of the legal questions discussed.

It is set forth in the information, that on the 4th day of April, 1882, and prior thereto, the city of Springfield was a municipal corporation, organized and existing under a special charter granted by the State, having such powers as are usually conferred on such municipalities; that the city, as such municipal corporation, was divided into six wards, by ordinance; that its city government consisted of one mayor and eighteen aldermen, being three from each ward, and such other officers as are usually appointed or elected by such municipalities; that on the 4th day of April, 1882, at an election for city officers under such special charter, the relator, William Jayne, received a majority of all the votes cast at such election for the office of mayor of the city; that on the same day (the 4th of April, 1882,) the legal voters of the city, in pursuance of a notice given as required by law, voted for and against the incorporation of the city under the act of 1872 in relation to ““cities and villages,” and that a majority of the votes cast at that election were “for organization under the general law;” that the relator, Jayne, afterwards gave a sufficient bond, as required by the ordinances, and took and subscribed the usual oath of office, and that by reason of such election and so qualifying as the law requires, the relator became and was entitled to have and hold the office of mayor, to which it is alleged he had been chosen in the manner as above stated, and from thence receive the emoluments attached to such office. It is further alleged that afterwards Ahaz N. J. Crook did, by reason of an illegal and pretended election, usurp and intrude himself into the office of mayor of the city, and has since unlawfully held, and is now holding, such office, without authority of law.

In the plea filed to the information exhibited against him by respondent it is in substance stated, that on the 4th day of April, 1882, the question was submitted to the voters of the city of Springfield of incorporating under the act of 1872 in relation to “cities and villages,” and that at such election a majority of the votes cast were in favor of “organization under the general law;” that afterwards, on the 13th day of April, in the same year, the city council, by ordinance, divided the city into seven wards, and on the 14th day of the same month, by an ordinance, ordered an election for such city officers as are provided for in the general law, to be holden on the 9th day of May next thereafter, and by the same ordinance fixed the places of voting in the several wards, and ordered notice of such election to be given, as the law requires. It was declared by the preamble to the latter ordinance such election was necessary to the purposes of the act of incorporation, the provisions of which had just been adopted by the voters. It is further averred in respondent's plea, that such election was held, as appointed, on the 9th day of May, 1882, and that at such election respondent, Crook, received the highest number of votes cast thereat for the office of mayor of the city, and that the votes cast at that election were duly canvassed by the city council, and that respondent was declared duly elected to the office of mayor of the city, and he proceeded to qualify as such officer, and at once entered upon the discharge of the duties pertaining to such office, and has continued to discharge the duties thereof, by virtue of such election and qualification, as he lawfully might. To the plea alleging these principal facts, and others of minor importance, with the usual formality and definiteness, the demurrer interposed by the relator was sustained by the circuit court, and judgment of ouster pronounced. That judgment was affirmed in the Appellate Court for the Third District, and responde...