Donahue v. the County of Will

• Citation: 100 Ill. 94,1881 WL 10599
• Parties: JOHN T. DONAHUEv.THE COUNTY OF WILL et al.
• Decision Date: 30 September 1881
• Court: Supreme Court of Illinois

100 Ill. 94

1881 WL 10599 (Ill.)

JOHN T. DONAHUE

v.THE COUNTY OF WILL et al.

Supreme Court of Illinois.

Filed at Ottawa May 14, 1881.Rehearing denied September Term, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Will county; the Hon. F. GOODSPEED, Judge, presiding.

Mr. GEO. S. HOUSE, for the appellant:

The action of the board was based entirely upon sec. 15, ch. 36, Hurd's Stat. 1877, which we insist is unconstitutional and void in this, that the legislature has thereby provided for the removal from office of a county treasurer in a mode and manner different from that established by the constitution, and in direct opposition to the mode and manner prescribed by the constitution.

Section 8 of article 10 of the constitution of 1870 creates the office of county treasurer, and fixes the term of his office at two years, and until his successor shall be elected and qualified. Section 15 of article 5 of the same constitution provides that the Governor and all civil officers of this State shall be liable to impeachment for any misdemeanor in office. Section 24 of article 4 of the same constitution provides for the mode and manner of impeachment, and the extent of the penalty to be inflicted upon conviction.

The constitution of this State creates the office of county treasurer, fixes his term, and establishes two modes by which the officer may be removed from his office,--the one by impeachment, the other upon conviction of a criminal offence. In the one case, the mode of procedure to be adopted is established and limited by section 24 of article 4 of the constitution. In the other case, the mode of procedure to be adopted is established and limited by the Bill of Rights. Either procedure is not inconsistent or conclusive of the other. Section 24 provides that “the party, whether convicted or acquitted, shall nevertheless be liable to prosecution, trial, judgment and punishment, according to law.”

If the organic law prescribes a term of office, it is beyond the power of the legislature to enlarge or abridge its duration, and if the constitution has defined a mode of removing the incumbent, that is the exclusive method. Faut v. Gibbs, 54 Miss. 396; Newson v. Cook, 44 Id. 352; Brady v. Howe, 50 Id. 607; Lowe v. Commonwealth, 4 Metc. (Ky.) 213; Commonwealth v. Gamble,62 Pa. St. 422; People ex rel. v. Dubois, 23 Ill. 547; State v. Douglass, 26 Wis. 428; Taft v. Adams, 3 Gray, 130; State v. McNeely, 24 La. Ann. 20; Field v. People, 2 Scam. 79; People v. Lippincott, 67 Ill. 337.

Again, it is insisted that the section relied upon is unconstitutional and void, in that it invests the county board with the exercise of judicial power.

In order to authorize the action of the county board under this section, the county board must of necessity find some one of the causes named in the act to exist. Clark v. The People, 15 Ill. 213; The People v. Higgins, 15 Id. 110.

And this of necessity involves the exercise of judicial powers which are prohibited to any body except the judiciary by article 3 of the constitution. State ex rel. v. Pritchard, 36 N. J. 101; Creote et al. v. City of Chicago, 56 Ill. 422.

Messrs. L. & P. TRUMBULL, also for the appellant:

The writ of certiorari in this case brings before the court the power of the board of supervisors of Will county to remove from office the county treasurer of said county in any case, and if it exists in any case, whether in the manner and for the causes set forth in the return to the writ in this case.

The want of constitutional power in the legislature to vest the power of removal in the county board, is so fully presented in the argument of Mr. House, associate counsel, that nothing further need be said upon that point, or upon the failure of the legislature to confer such power on the county board, if indeed it could be done.

If such power and jurisdiction could be and has been conferred on the county board in certain cases, the record shows that the facts necessary to confer jurisdiction did not exist in this case, and that the action of the board was arbitrary, illegal and void.

The proceedings of the board affirmatively show that the treasurer never did neglect “to render accounts and to make settlements, when required by law,” with the county board. The refusal to account, if any, was not in reference to county funds, but was in respect to funds of school districts, townships, cities and the State, over which the board had no jurisdiction.

The other complaint in the “whereas” is, that the county treasurer “has been, and is, in arrears, and in divers other matters, as disclosed by the reports on file and of record by sundry committees of the board.”

To whom had the treasurer been or was he in arrears? The “whereas” does not state. Unless it was to the county, the county board could not make it cause for removal. Upon this point the statute speaks. Its language reads: “is a defaulter, and in arrears with the county.”

This does not give the county board jurisdiction to remove the county treasurer, if it were true that he was in arrears to the State or some other municipality than a county, and then he must be both a “defaulter and in arrears.” Being “in arrears” does not necessarily imply that a person is a “““defaulter.” The terms are not in legal contemplation synonymous.

Mr. G. D. A. PARKS, and Messrs. HILL & DIBELL, for the appellees:

Offices are not held by grant or contract, nor has the incumbent a property or vested interest in them. Connor v. Mayor of New York, 1 Seld. 295; Hyde v. State, 52 Miss. 665; Bouvier's Law Dict. title, “Property;” Cooley's Const. Lim. 276.

The phrase “State officers,” or “officers of this State,” does not include county or other subordinate civil officers. Ex parte Wiley, 54 Ala. 226; Newson v. Cocke, 44 Miss. 362. The provision of a constitution fixing the duration of a term of office applies only to regular terms, and not to vacancies or exceptional cases. Hagarty v. Arnold, 13 Kan. 382; The People v. Wall, 88 Ill. 76.

Unless limited by constitutional restriction, the General Assembly may exercise all governmental power. The People v. Morgan, 90 Ill. 561; Richards v. Raymond, 92 Id. 612; The People v. Wall, 88 Id. 76; Cooley's Const. Lim. 89-168; Potter's Dwarris' Statutes, 62-64.

The removal of public officers is a question of sound policy. Even a constitutional provision for deprivation of office as a part of the punishment upon conviction of crime, does not preclude the legislature from prescribing a more summary method of removal, if public interests require. Clark v. The People, 15 Ill. 213; Dickson v. The People, 17 Id. 191; Holbrook v. The People, 22 Id. 539.

In the absence of any constitutional provision prescribing an exclusive method or form of removal of county officers, the board of supervisors, or any other body or officer may be clothed by law with the power of removal, and of appointing, temporarily at least, a person to fill the vacancy. State v. Frazier, 48 Ga. 137; Ex parte Wiley, 54 Ala. 226; Hyde v. State, 52 Miss. 665; State v. Prince, 45 Wis. 610; Kennedy v. McGarry, 21 Id. 496; McGregor v. Supervisors, 37 Mich. 388; Thompson v. Holt, 52 Ala. 496; State v. Pidgeon, 8 Blackf. 132.

Since the adoption of the constitution of 1870, this court has frequently recognized the power of removal of a county treasurer by the board of supervisors. Kilgore v. The People, 76 Ill. 550; Goodhue v. The People, 94 Id. 52; Cawley v. The People, 95 Id. 253; Stern v. The People, 96 Id. 478.

A school treasurer is an “officer,” within the meaning of that word in the constitution of 1870, ( School Directors v. The People, 79 Ill. 511,) yet such officers are removable by the township board of trustees almost at will. Holbrook v. Trustees, 22 Ill. 539.

Where the power of removal is committed to a board, or other like body, the exercise of its discretion will not be reviewed by the court. No written charges, notice or trial are necessary. The board is the judge of the fact as well as of the method of procedure. The People v. Higgins, 15 Ill. 110; The People v. Clark, 15 Id. 213; Wilcox v. The People, 90 Id. 204; State v. Prince, 45 Wis. 610; Kennedy v. McGarry, 21 Id. 496; Attorney General v. Brown, 1 Id. 513; The People v. Stout, 19 How. Pr. 171; State v. Doherty, 25 La. Ann. 119; Keenan v. Perry, 24 Tex. 253.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellant was elected county treasurer for Will county, gave the requisite bonds, qualified, and was commissioned and acting as such in the performance of the duties of the office. At the September meeting of the board of supervisors, which was extended into the month of October, 1880, a committee was appointed to settle with him and the sheriff. On an investigation, and, as they reported, on fair and careful settlement of appellant's accounts, he was found to be in arrears to the county for a considerable sum. The board, on the reception of the report, on the first day of October adopted this resolution:

“WHEREAS, upon an investigation of the accounts of John T. Donahue, county treasurer, in December, 1879, he was found to be delinquent in the sum of $806.01, which he had had in his hands, as such county treasurer, for considerable more than a year, and had not accounted for or reported; and whereas, afterwards, during the sessions of a committee appointed to further investigate his accounts, he accounted for and paid over to divers officers entitled thereto the further sum of $2089.98, which he had had in his hands from one to two years, and had not accounted for or reported, and which sum he should by law have paid to officers with whom he had settled at least once, and in most instances twice, after he received such sums, without paying them said moneys or reporting that he had the same; and whereas, afterwards, during the session of a new committee, appointed by the present board to further investigate his accounts, he has paid over to divers officers entitled thereto...