Deneen v. Martin

• Decision Date: 16 March 1899
• Citation: 53 N.E. 309,178 Ill. 611
• Parties: PEOPLE ex rel. DENEEN, State's Atty., v. MARTIN.
• Court: Illinois Supreme Court

178 Ill. 611

53 N.E. 309

PEOPLE ex rel. DENEEN, State's Atty.,

v.MARTIN.

Supreme Court of Illinois.

March 16, 1899.

Appeal from circuit court, Cook county; Frank Baker, Judge.

Quo warranto on relation of C. S. Deneen, the state's attorney for Cook county, against James A. Martin. From a judgment dismissing the information, relator appeals. Reversed.

C. S. Deneen, State's Atty. (Charles S. Cutting and Green & Pringle, of counsel), for appellant.

John P. Wilson, for appellee.

BOGGS, J.

The appellant filed in the circuit court of Cook county an information in the nature of quo warranto, upon the relation of the state's attorney for the county of Cook, in which it was alleged the appellee, without legal right or warrant so to do, holds and executed the office of town clerk of the town of Cicero, and praying said appellee be required to answer by what warrant he claims the right to discharge the duties of the said office. A demurrer interposed by the relator to the plea filed by the appellee to the information was overruled. The appellant elected to abide the demurrer, and judgment was entered dismissing the information.

The ultimate question arising upon the record is whether the plea disclosed lawful authority in the appellee to hold the office and discharge the duties of clerk of the said town of Cicero. In substance, the averments of the plea were that the county of Cook adopted the system of township organization about the year 1857, and has since maintained the same, and that under such system township 39 N., range 13 E. of the third P. M., was organized under the general township organization laws of the state as the town of Cicero; that afterwards, on the 28th day of February, 1867, a special act was adopted by the general assembly, whereby the inhabitants and residents of the said territory of said town of Cicero were declared a body corporate and politic under the name and style of ‘The Town of Cicero,’ the boundaries whereof were the same as said town of Cicero under township organization; and that on the 25th day of March, 1869, a further act was passed to revise the charter of the said town of Cicero, and giving additional corporate powers to said incorporated town; that on December 1, 1898, in pursuance of an act of the legislature entitled ‘An act to provide for the division of incorporated towns,’ approved June 13, 1891, a petition was presented to the county judge of Cook county to disconnect certain territory from the said town of Cicero, and to organize the same as the town of Berwyn, and that, in further pursuance of the same last-mentioned act, another petition was afterwards presented to the said county judge for the disconnection of certain other described territory of the said town of Cicero, and to organize the same as the town of Grant, and also still later another petition for the disconnection of still other territory of the town of Cicero, and for the organization of the same as the town of Oak Park, was presented to the said county judge; that the questions of the disconnection of the territory mentioned in said petitions, respectively, in pursuance of said act of June 13, 1891, were submitted to the legal voters of the town of Cicero at an election held on the 20th day of December, 1898, and that a majority of the votes cast at said election in said incorporated town of Cicero, as well as the majority of the votes cast in the territory sought to be disconnected by each of said petitions, were in favor of such disconnections, and of each of them, and that said towns of Berwyn, Grant, and Oak Park thereby became legally organized towns under the township organization laws of the state, in pursuance of the provision of said act of 1891; that, as required by said act, the county judge of the said county called an election to be held, for the election of one supervisor, one assessor, one town clerk, three highway commissioners, two justices of the peace, and two constables in each of the said towns of Berwyn, Grant, and Oak Park, at which election one Jacob R. Drent was duly elected to the office of town collector in and for the said town of Berwny, and that said Drent accepted the said office, and qualified as collector of the said town, and is acting in that capacity; that said Drent, at the time of the disconnection of that part of the town of Cicero which was so organized as the town of Berwyn, was the duly elected, lawfully qualified, and acting town clerk of the said town of Cicero; that he then resided, and has since resided, and does now reside in the said town of Berwyn, and by the disconnection of the said territory composing the town of Berwyn, and the organization of that town, the said Drent ceased to be a resident of the town of Cicero, and that an order was entered by the trustees of the said town of Cicero, and also by the town authorities of the said town, declaring the office of town clerk of the town of Cicero vacant, for the reason the said Drent, the incumbent of said office, had ceased to be a resident of the said town, and appointing the appellee town clerk of said town of Cicero to fill said vacancy; that appellee accepted the said appointment, and qualified as required by law, and thereby became and was, and is, the legal incumbent of the said position.

It may be conceded that the acts and proceedings set forth in the plea as having been had and taken for the purpose of disconnecting territory from the incorporated town of Cicero, and erecting such territory into corporations known as towns under the township organization system, were in full compliance with the provisions of said act of 1891, but our investigation of the subject has resulted in the conclusion that act is not in harmony with the provisions of the constitution of 1870. As the first step in the process of determining the validity of the act, we may ascertain the character of the incorporated town of Cicero. Prior to the year 1867, it was a town under the township organization act. In that year an act was adopted by the general assembly creating the incorporated town of Cicero, and in 1869 that act was revised, and provisions added conferring additional powers upon the corporation. It is therefore unnecessary to refer to the first of these laws. The act of 1869 will be found on page 666 of volume 3 of the Private Laws enacted by the legislature at the session of that year. Its provisions substantially are that the inhabitants and residents of the town of Cicero are constituted a body politic and corporate, by the name and style of ‘The Town of Cicero’; that the boundaries of the town shall include the territory known as the town of Cicero, in the county of Cook; that the officers of the town shall consist of the same officers provided by law to be elected in a town under township organization (except highway commissioners), and also, in addition thereto, four trustees and a police magistrate. The act provides for the election of four trustees of the town, and that the supervisor, assessor, and collector shall be ex officio trustees, making a board of seven trustees, in whom are vested ‘the government and corporate powers' of the town; that the town clerk shall be clerk of the board, and the supervisor of the town ex officio treasurer, with power to receive and hold all moneys belonging to the town ‘arising from general or special tax, special assessments, fines, penalties, or otherwise’; that the offices of highway commissioners be abolished; that the board of trustees shall have general management and control of the finances and property of the town, and shall have power to pass ordinances to restrain, prohibit, regulate, and license gambling, sale of liquor, billiard halls, etc.; to prevent riots, suppress disorderly houses, control and regulate the streets and public places, abate nuisances, prohibit indecent exhibitions, control the location of houses for the storage of combustible, inflammable, and offensive material and substances; to preserve the peace; to punish all who resist the officers; to appoint watchmen and policemen; to provide a place of imprisonment for persons charged with or convicted of violations of the ordinances; to open and lay out streets, build sidewalks, construct sewers and aqueducts; and to levy and collect special assessments to pay for such improvements; and to exercise the power of eminent domain, if necessary, in making such improvements; and other powers which need not be here enumerated. The effect of this act was to confer on the new corporation created by it the powers possessed by the town of Cicero as a town under the township organization laws, as an agency of the general state and county government, and those possessed by incorporated cities and villages as municipal corporations proper for the promotion of the local and private advantage and convenience of its inhabitants. The powers and functions of the town meeting (except as to the election of officers) of the board of auditors, the highway commissioners, and many of the powers and functions of the supervisor of the former town of Cicero, were transferred by the act to, and vested in, the board of trustees of the new corporation. The acts expressly abolished the board of highway commissioners, and the legal effect was to abrogate the town meeting (except as to elections) and the board of auditors of the town, and vest the incorporated town of Cicero with powers wholly foreign to towns under township organization. The acts of 1867 and 1869 revised the whole law with reference to the legal status of the town of Cicero as a town under township organization, and necessarily operated to abrogate such provisions of the general law under which it had been organized as were inconsistent with their provisions. Andrews v. People, 75 Ill. 605. The town of Cicero, as a town under township organization, was merged in the new corporation created by those enactments, and its existence as a...