Freeman v. People ex rel. Higgins

• Decision Date: 26 October 1909
• Parties: FREEMAN v. PEOPLE et rel. HIGGINS.
• Court: Illinois Supreme Court

242 Ill. 152

89 N.E. 667

FREEMAN

v.PEOPLE et rel. HIGGINS.

Supreme Court of Illinois.

Oct. 26, 1909.

Appeal from Appellate Court, Fourth District, on Appeal from Circuit Court, Richland County; J. R. Creighton, Judge.

Information, in the nature of quo warranto, by the People, on the relation of George Higgins, against J. S. Freeman. A decree of ouster was affirmed by the Appellate Court, and respondent appeals. Reversed and remanded, with directions.

John A. MacNeil and H. G. Morris, for appellant.

W. J. McCann, State's Atty., R. B. Witcher, and H. T. Dewhirst (R. S. Rowland, of counsel), for appellee.

CARTER, J.

April 10, 1908, the state's attorney of Richland county filed an information in the nature of quo warranto in the name of the people, upon the relation of George Higgins, against J. S. Freeman. May 14, 1908, an amended petition was filed, in which it was charged, among other things, that Freeman unlawfully held without warrant or right the office of supervisor in the Second ward of the city of Olney, in said county. A general and special demurrer to the information was overruled and judgment entered pro confesso against appellant, and a decree of ouster was entered against him, ordering that he deliver up said office of supervisor to the said Higgins. On appeal to the Appellate Court the judgment of the lower court was affirmed, and the case has bee appealed to this court.

It appears from the record that the city of Olney is acting under a special charter, which was granted to it in 1867. 1 Priv. Laws 1867, p. 824. It has never adopted the general city and village act. Section 1 of [242 Ill. 154]article 8 of that special charter provides that ‘the legal voters in the several wards in the city of Olney shall be entitled to elect, annually, one supervisor in each ward in addition to the township supervisor to which the township of Olney is now entitled, and the several supervisors so elected shall be members of the board of supervisors of Richland county, and shall have, possess and enjoy all the rights, powers and privileges that now or hereafter shall be possessed and enjoyed by the several township supervisors of the said county of Richland.’ The second section of this article provides that each ward at the time fixed for city elections shall elect one supervisor, the returns of the election as to said supervisor to be made to the town clerk of the town. It further appears that at an election held in the Second ward of said city on April 9, 1907, appellant, Freeman, and the relator, Higgins, were opposing candidates for supervisor. The county of Richland is under township organization.

The chief contention of appellant is that the special provision of the charter of the city of Olney as to the election of supervisor has been repealed, by implication, by the general township law of 1874, and especially by section 1 of article 7 of that law as now amended (Hurd's Rev. St. 1908, p. 2149, c. 139, § 61), and section 1 of an act of 1889, with reference to the election of supervisors (Hurd's Rev. St. 1908, p. 2158, c. 139, § 143). If this contention be upheld, it practically disposes of the entire case, and will therefore be considered first.

When the township organization law was revised by the act of 1874, there was plainly an attempt to make a Code, as it were, for township matters, and to collect in that Code all laws touching township organization. By section 1 of article 7 it was clearly intended to make a general provision as to the election of township supervisors. Laws of 1873-74 (Myers' Ed.) p. 280. It will be seen, however, from an examination of this section as originally passed, that different provisions were made with reference to different towns and cities, depending upon their size and their then method of electing supervisors. This section was amended in 1887 (Bradwell's Laws of 1887, p. 220), still leaving, however, different provisions for various classes of cities and towns. This section was amended again in 1901, and is still in force as then enacted, and reads as follows: ‘At the annual town meeting in each town, there shall be elected by ballot, one supervisor (who shall be ex-officio overseer of the poor) one town clerk, one assessor and one collector, who shall severally hold their offices for one year, and until their successors are elected and qualified: * * * Provided, that in any town or city not included within the limits of any town (except in Cook county) having 4000 inhabitants, there shall be elected one additional supervisor, to be styled assistant supervisor; in towns having 6500 inhabitants, there shall be elected two assistant supervisors; and so for every additional 2500 inhabitants, there shall be elected one additional supervisor,’ etc. In 1889 an independent act of three sections, with reference to the election of supervisors, became a law. Section 1 of that act reads: ‘That the supervisors elected at the annual town meetings, in their respective towns in the counties now under township organization, on the first Tuesday of April, 1890 (except in the county of Cook), * * * shall, at the first regular or special meeting of the county boards of such counties thereafter be divided into two classes, to consist of one-half of the members of such board, as near as may be. The supervisors so to be classified to be selected by lot: Provided, that the supervisors of any town having a representation of two or more members shall be separately selected and classified by lot, so as to be divided among the two classes as near equally as may be. The first class of supervisors shall serve for the period of one year, and the second class for the period of two years, or until their successors are elected and qualified: Provided, that where such county board is constituted of odd numbers, the smaller fraction of such board shall constitute such second class, and thereafter at the expiration of the term of each supervisor his successor shall be elected and serve in such county board for the term of two years, or until his successor shall have been duly elected and qualified, in the manner now provided by law.’ Hurd's Rev. St. 1908, p. 2158, c. 139, §§ 143-145.

While repeals by implication are not favored (Lang v. Friesenecker, 213 Ill. 598, 73 N. E. 329), yet, when the repugnance between two statutes is so plain that they cannot be...