Marsh v. People

• Decision Date: 18 April 1907
• Citation: 80 N.E. 1006,226 Ill. 464
• Parties: MARSH v. PEOPLE.
• Court: Illinois Supreme Court

226 Ill. 464

80 N.E. 1006

MARSH

v.PEOPLE.

Supreme Court of Illinois.

April 18, 1907.

Error to Circuit Court, Moultrie County; W. G. Cochran, Judge.

Charles Marsh was convicted of assault with intent to murder, and he brings error. Reversed and remanded.

W. K. Whitfield and George A. Sentel, for plaintiff in error.

W. H. Stead, Atty. Gen., and A. W. Lux, State's Atty. (Joel C. Fitch and John E. Jennings, of counsel), for the People.

FARMER, J.

Plaintiff in error was tried and convicted in the circuit court of Moultrie county of an assault with intent to commit murder. The indictment upon which he was tried and convicted was found and returned into court by a grand jury selected by the board of supervisors of Moultrie county February 12, 1906. Before pleading plaintiff in error entered a motion to quash the indictment; one of the grounds of said motion being that where was no legal meeting of the board of supervisors at the time said grand jury was selected. This motion was supported by affidavit of the county clerk and of plaintiff in error, setting forth specifically the facts and the record of said board of supervisors relied upon in support of the motion. The records of said board of supervisors-and about this there is no dispute-show that the annual meeting of said board held in September, 1905, ‘adjourned to the 16th day of October, 1905, or on call of the chairman.’ No meeting was held on the 16th day of October, but a meeting was held the 24th of that month, and the record of that meeting recites that it was held in pursuance of a communication from the chairman of the board to the county clerk, under date of October 10th, notifying him of the call by the chairman of said board, of a special meeting to be held October 24th, and directing the county clerk to notify all members of the board of the time and place of said special meeting. Said special meeting adjourned October 24th ‘until the 15th day of November, 1905, or to the call of the chairman.’ The board met on said 15th day of November, 1905, and on that day ‘adjourned to December 12, 1905, or to the call of the chairman.’ The board met on said date, December 12th, and on the same day ‘adjourned until on Monday, the 15th day of January, A. D. [226 Ill. 466]1906, or to the call of the chairman.’ No meeting was held January 15th but one was held on the 18th of the month. The record of that meeting recited that it was held pursuant to a notice given the county clerk by the chairman calling a meeting for January 18th, and directing the clerk to notify all the members of said board. That meeting was ‘adjourned to call of the chairman or until Wednesday, the 14th day of February, 1906.’ No meeting of said board was held February 14th. The record shows the board met on the 12th of February and was in session that day and the day following, when it ‘adjourned to the call of the chairman or to the 15th day of March, A. D. 1906.’ The record of said meeting beginning February 12th and continuing to the 13th recites it was held in pursuance of a notice or communication by the chairman of the board to the county clerk; that in pursuance of the adjourning order of the meeting of January 18th he had called a special meeting of said board to convene February 12, 1906, and directed said clerk to notify all members of the board of the time and place of said meeting. The notice or communication from the chairman to the county clerk was dated January 29th, and stated that one of the objects of the meeting was to select a grand jury for the March term, 1906, of the Moultrie county circuit court. It was at this meeting, and on the 12th day of February, that the grand jury was selected which found and returned into court the indictment upon which plaintiff in error was tried.

By section 49 of chapter 34 (Hurd's Rev. St. 1905, p. 567) the annual meetings of the board of supervisors are required to be held on the second Tuesday of September. This record shows such annual meeting of the board of supervisors of Moultrie county was held at the time required by law. Counsel for defendant in error contend that, as neither the record of that meeting nor of any of the subsequent alleged special meetings shows a sine die adjournment, all meetings held subsequently to the annual September meeting are to be regarded as a continuation of the September session. It is not claimed any special meeting was legally called. If the record showed that on the adjournment at the September meeting, and each of the subsequent meetings, the adjournment was to a day fixed, and that on said day fixed the board met, and when it adjourned it adjourned to another day fixed, at which time it met again, and so on, this might amount to a continuation of the September session. But this record shows, as we have above set out, that all of the adjournments were to a date named ‘or at the call of the chairman.’ Why no meeting was held October 16th but was held October 24th instead does not appear from the record. The same is also true of the meeting of January 18th instead of the 15th, and the meeting of February 12th instead of the 14th. The board of supervisors, at its September meeting, fixed October 16th as the date when it would meet again, and adjourn to that date. The chairman of the board had no power to change the date the board had fixed to meet again. He doubtless assumed that, because the order of adjournment was to the 16th day of October ‘or on call of the chairman,’ he had the power and authority to change the date the board had fixed by informing the county clerk of the date he had elected to name and causing him to notify the members of the board of the date of the meeting selected by the chairman. His communication to the clerk of the change of the date is as follows: ‘I, B. W. Patterson, chairman of the board of supervisors of Moultrie county, Ill., do hereby call a special meeting of said board of supervisors to meet at supervisor's room in the Chapman Building, in the city of Sullivan, Ill., on the 24th day of October, A. D. 1905, at 1 o'clock p. m. of said day. * * * You will therefore notify all members of said board of the time and place of such meeting and govern yourself accordingly. This call is made in pursuance of the adjourning order of the board.’ He nowhere refers to the date the board itself adjourned to meet upon, nor is there any intimationin the writing that the meeting of October 24th is a continuation of the September meeting, but it is expressly said that it is to be a ‘special meeting.’ If the board of supervisors had power to keep its September meeting alive by adjourning to meet again October 16th, when it failed to meet on that date, its September session was as effectually ended as if it had adjourned in September sine die, and there was no power in either the board or its chairman to prolong the life of the September session by calling a special meeting for October 24th, even if said special meeting had been properly called. If it was the purpose of the board, when it adjourned in September to October 16th, to confer power upon the chairman of the board to change or alter that date, it was attempting to do something it had no power to do. It was, in effect, an attempt to authorize the chairman, if for any reason he did not wish the board to meet on the day named in the order of adjournment, to call a special meeting on some other date by notifying the county clerk of the date selected by him and causing the clerk to notify the members of the board thereof. On January 11, 1906, the chairman of the board gave or sent to the county clerk the...