Morgan v. Du Page Cnty.

• Decision Date: 05 April 1939
• Docket Number: No. 24775.,24775.
• Parties: MORGAN v. DU PAGE COUNTY.
• Court: Illinois Supreme Court

371 Ill. 53

20 N.E.2d 40

MORGAN

v.DU PAGE COUNTY.

No. 24775.

Supreme Court of Illinois.

Feb. 15, 1939.

Rehearing Denied April 5, 1939.

Appeal from Circuit Court, Du Page County; William J. Fulton, judge.

Action by Royal T. Morgan against the County of Du Page for salary and expenses allegedly due plaintiff as assistant county superintendent of schools, wherein the defendant filed counterclaims. From the judgment, plaintiff appeals.

Affirmed.Richard F. Locke, of Glen Ellyn, and S. S. Du Hamel, of Springfield, for appellant.

Russell W. Keeney, State's Atty., of Naperville (Lee E. Daniels, of Elmhurst, Joel Baker, of Glen Ellyn, and William E. Hooper, of Downers Grove, of counsel), for appellee.

GUNN, Justice.

Royal T. Morgan filed a complaint in the circuit court of DuPage county, in which he asked judgment against the county for salary and expenses claimed to be due him as an assistant county superintendent of schools. He asserts that on April 1, 1932, the board of supervisors reduced his salary as such assistant from $250 to $200 per month, in violation of section 11 of article 9 of the constitution, Smith-Hurd Stats., which provides that the salary of a municipal officer who is elected or appointed for a definite term of office shall not be increased or diminished during said term. The complaint also alleges plaintiff was entitled to $20 a month in addition to the $30 a month allowed for traveling expenses from April 1, 1932. The answer of the defendant (appellee) denies most of the allegations of the complaint and that its action violated the constitution, for the reason that the appellant did not have a definite term of office. The further defense was made that the appellant had filed monthly claims for, and accepted, the lower salary and expense money for more than three years, and was estopped to now sue the county. The cause was tried before a court without a jury. The court found for the appellee and entered judgment against the appellant, for costs. The appellee filed a counter-claim alleging that from 1928 to 1931 appellant's salary had been increased $50 a month, aggregating $1643.56, which appellee would be entitled to recover if appellant was such an officer as came under the constitution, and a second counter-claim amounting to $870, based upon allowance of expenses not authorized by the board of supervisors. No disposition was made of the counter-claims by the trial court and no assignment of cross-errors is filed by appellee.

The statute provides for the appointment of an assistant superintendent of schools, and authorizes the county superintendent of schools ‘to employ, with the approval of the county board, such assistant or assistants as he needs for the full discharge of his duties. Such assistants shall be persons of good attainments, versed in the principles and methods of education, familiar with public school work, and competent to visit schools.’ Ill.Rev.Stat.1937, c. 122, § 16, subd. 8. It also provides: ‘The county superintendent of schools in each county shall appoint a county truant officer who shall be an assistant county superintendent of schools and who shall possess the qualifications required in this Act.’ Ill.Rev.Stat.1937, c. 122, § 301(d). Such assistants, when appointed, both have their compensation fixed by the board of county commissioners or board of supervisors, as the case may be, together with his necessary traveling expenses to be paid out of the county treasury. Ill.Rev.Stat.1937, c. 122, § 230, subd. 5, and section 301(d). All of the above provisions of the statute are a part of the act entitled, ‘An Act to establish and maintain a system of free schools. (Approved June 12, 1909. L.1909, p. 342.)’ Section 11 of article 9 of the constitution, Smith-Hurd Stats., among other things, provides: ‘The fees, salary or compensation of no municipal officer who is elected or appointed for a definite term of office, shall be increased or diminished during such term.’ The principal question for determination is whether an assistant county superintendent of schools is such an officer as comes within the provision of the constitution. We regard this question settled by the case of Quernheim v. Asselmeier, 296 Ill. 494, 129 N.E. 828, 829. This case involved the salary of a county truant officer. The county board had authorized such an officer and fixed the salary, and later revoked the authority. The county superintendent of schools nevertheless appointed a truant officer and upon the refusal of the county board to appropriate and pay the salary, a mandamus suit was brought to compel such action, it being claimed that the truant officer came within the provisions of section 11 of article 9 of the constitution. In passing upon this contention the court says: ‘The above provision of the Constitution does not apply to any municipal officer who is not elected or appointed for a definite term of office. The section of the statute providing for the appointment of a truant officer does not fix any definite time for which the appointment is to be made, and there is no provision of our laws which does fix the term of such officer. Where an office is filled by appointment and a definite term is not fixed by constitutional or statutory provision, the office is held at the pleasure of the appointing...