Johnson v. State Electoral Bd.

• Decision Date: 30 November 1972
• Docket Number: No. 45387,45387
• Citation: 290 N.E.2d 886,53 Ill.2d 256
• Parties: Roger H. JOHNSON et al., Appellants, v. The STATE ELECTORAL BOARD et al., Appellees.
• Court: Illinois Supreme Court

Page 886

290 N.E.2d 886

53 Ill.2d 256

Roger H. JOHNSON et al., Appellants, v. The STATE ELECTORAL BOARD et al., Appellees.

No. 45387.

Supreme Court of Illinois.

Nov. 30, 1972.

Heyl, Royster, Voelker, & Allen, Peoria, for appellants.

William J. Scott, Atty. Gen., Springfield, Robert S. Culkins, State's Atty., Peoria, Robert H. Rice, State's Atty., Belleville, and John H. Ward, State's Atty., Taylorville (Warren K. Smoot, Asst. Atty. Gen., Richard A. Hollis, Asst. State's Atty., Thomas Londrigan, Springfield and Eugene H. Widman, Belleville, of counsel), for appellees.

KLUCZYNSKI, Justice:

Plaintiffs, incumbent circuit court clerks of Warren, Woodford and Fulton counties, filed an action in the circuit court of Sangamon County seeking to enjoin the State Electoral Board and several county clerks from certifying the names of those candidates seeking election to the office of circuit court clerk in the November 1972 election. They further sought relief as representatives of the class of all incumbent circuit court clerks. The trial court entered judgment denying injunctive relief and dismissed the complaint. Plaintiffs appealed to this court (50 Ill.2d R. 302(b)), and on October 2, 1972, we issued an order affirming the circuit court judgment. We now express our reasons for such order.

The constitution of 1870 specifically established that the county office of circuit court clerk was to be filled by election. (Art. X, sec. 8.) In 1962 the Judicial Article of this constitution was amended to empower the General Assembly to provide by law for the judicial appointment of circuit court clerks or their election. (Art. VI, sec. 20, effective January 1, 1964.) Thereafter the General Assembly adopted the latter option by requiring that 'one clerk of the circuit court of each county shall be elected as provided by law, and shall severally hold their offices until their successors are elected and qualified.' (Ill.Rev.Stat.1971, ch. 25, par. 1, as amended by act approved August 24, 1965.) In accordance with this statute and the pertinent provision of the Election Code (Ill.Rev.Stat.1971, ch. 46, par. 2--15, as amended by acts approved August 9, 1963), plaintiffs, and those similarly situated, were elected in 1968 for a term of four years. To retain their offices they would be required to be candidates in the November 1972 election.

Plaintiffs, however, argue that the 1970 constitution did not specifically designate the circuit court clerk as a county officer as did the 1870 constitution in article X, section 8. Thus, they assert the aforementioned statutory provisions (Ill.Rev.Stat.1971, ch. 25, par. 1; ch. 46, par. 2--15) are inapplicable for they were enacted pursuant to the 1870 constitution, as amended, which no longer is viable.

They further argue that under article VI, section 18(b) of the 1970 constitution, which states 'The General Assembly shall provide by law for the election, or for the appointment by Circuit Judges, of clerks * * * of the Circuit Courts * * *', the General Assembly is mandated to adopt a selection procedure. (While legislation to effectuate this provision was introduced (see 77th G.A., S.B.1257), it has not been enacted.) Therefore they conclude that they should retain their offices because of the final sentence of section 9 of the Transition Schedule of the 1970 constitution which provides, 'All officers filling any office by election or appointment shall continue to exercise the duties thereof, until their offices shall have been abolished or their successors selected and qualified in accordance with this Constitution or laws enacted pursuant thereto.' They construe this provision as requiring that incumbent officers be retained until their successors are qualified in accordance with appropriate legislation enacted pursuant to the new constitution.

Conversely, defendants basically rely upon the second sentence of said section 9 of the Transition Schedule which provides, 'All laws * * * not contrary to, or inconsistent with, the provisions of this Constitution shall remain in force, until they shall expire by their own limitation or shall be altered or repealed pursuant to this Constitution.' They conclude that the pertinent statutory provisions heretofore mentioned are not in conflict with the 1970 constitution and carry over into effect, thereby requiring candidates for the office of circuit court clerk to be selected at the November 1972 election.

The issues formed are whether the failure of our present constitution to specifically designate the clerk of the circuit court as a county officer affects the validity of the aforementioned statutes, and whether section 9 of the Transition Schedule requires the incumbent office holders to seek re-election.

Consideration of the new constitution's failure to designate the circuit court clerk as a county officer is immaterial. The general principles applicable to the construction of statutes similarly apply in the construction of constitutional provisions. (Peabody v. Russell,301 Ill. 439, 443, 134 N.E. 148.) Where two statutes are irreconcilable, the one which was more recently adopted will abrogate the earlier to the extent that they are inconsistent. (Grenier & Co. v. Stevenson, 42 Ill.2d 289, 294, 247 N.E.2d 606.) Section 20 of article VI of the 1870 constitution, as amended, is irreconcilable with section 8 of article X of that document to the extent that the latter adopted provision granted the General Assembly an alternative in the selection procedure of circuit court clerks. Section 8 of article X was therefore impliedly repealed, as it pertained to the selection procedure of circuit court clerks, by the 1962 amendment to the Judicial Article. After examination of the election law (Ill.Rev.Stat.1971, ch. 25, par. 1) which was enacted pursuant to this amendment, we find that it was proper under our old constitution.

The next question presented is whether this statute and the pertinent provisions of the Election Code (Ill.Rev.Stat.1971, ch. 46, par. 2--15) carry over after...