Olson v. Scully

• Decision Date: 15 February 1921
• Docket Number: No. 13595.,13595.
• Citation: 129 N.E. 841,296 Ill. 418
• Parties: OLSON v. SCULLY et al.
• Court: Illinois Supreme Court

296 Ill. 418

129 N.E. 841

OLSON

v.SCULLY et al.

No. 13595.

Supreme Court of Illinois.

Feb. 15, 1921.

Election contest by Edwin A. Olson against Thomas F. Scully and another. From a judgment in favor of the named contestee, contestant appeals.

Proceeding abated on account of death of named contestee.Appeal from Superior Court, Cook County; Charles M. Foell, judge.

W. F. Struckmann, George T. Buckingham, and Church, Shepard & Lynde, all of Chicago, for appellant.

Ira Ryner, of Chicago, and George B. Gillespie, of Springfield, amici curiae.

STONE, J.

At the November, 1918, election, Edwin A. Olson, appellant, Thomas F. Scully, and William A. Cunnea, appellee, were candidates on the Republican, Democratic, and Socialist tickets, respectively, for the office of judge of the county court of Cook county. The county canvassing board, on a canvass of the returns, proclaimed Thomas F. Scully elected by a plurality of 12,610 votes. Appellant filed his petition to contest the election, alleging various grounds as a basis for the petition. Cunnea answered, neither admitting nor denying the allegations of the petition. Scully filed his answer, denying the contestant's allegations. On September 11, 1919, during the pendency of this contest, Scully died, and counsel who had up to the time of his death represented him in said contest filed a motion in the superior court to abate the suit on account of the death of Scully. This motion was denied. Upon a final hearing on the petition the superior court found that the candidates had received votes as follows: Thomas F. Scully 172,342, Edwin A. Olson 166,397, and William A. Cunnea 25,255, and declared Scully elected. Appellant brings the cause here for review.

Counsel who appeared for Thomas F. Scully during his lifetime filed their motion in this court to be allowed to appear as amici curiae and to present a motion to abate the cause. The motion to appear as amici curiae was allowed, and the motion to abate the cause, and briefs filed therewith, were taken with the case. The motion of amici curiae that the suit abate is based upon their view of the law that the proceedings for the contest of an election to an office being governed entirely by statute, and there being no statute of the state of Illinois providing for the survival of an election contest upon the death of either the contestant or contestee, the contest thereupon abates.

[1][2] There was no provision under the common law for the election of an individual to office. Such matter is wholly statutory. There is no such thing as a common-law right to hold an office, but such right is purely statutory. The right to an office is not a property right. A public office is not property, nor are the prospective fees of office the property of the incumbent. An ‘office’ is a legal right to exercise a public function or employment. It is not the subject of sale, purchase, or incumbrance. The term ‘office’ implies a delegation of a portion of the sovereign power of the government to the person filling the office. It is erroneous to say that an incumbent owns an office or has any title to it. Bowen v. Russell, 272 Ill. 313, 111 N. E. 978;People v. Barrett, 203 Ill. 99, 67 N. E. 742,96 Am. St. Rep. 296;People v. Kipley, 171 Ill. 44, 49 N. E. 229,41 L. R. A. 775;Donahue v. County of Will, 100 Ill. 94.

[3] The right to contest an election is not a natural right and did not exist at common law. It exists in this state by statute and is neither an action at law nor in equity, though the proceeding is governed by rules of chancery practice. Brinkman v. Bowles, 280 Ill. 27, 117 N. E. 303; Bowen v. Russell, supra; Conway v. Sexton, 243 Ill. 59, 90 N. E. 203;Quartier v. Dowiat, 219 Ill. 326, 76 N. E. 371;Weinberg v. Noonan, 193 Ill. 165, 61 N. E. 1022;Rodman v. Wurzburg, 183 Ill. 395, 55 N. E. 688.

[4][5] The common-law rule was that the death of either party at any stage of a proceeding abated the action. People v. Western Life Indemnity Co., 261 Ill. 513, 104 N. E. 219, Ann. Cas. 1915A, 266; 5 Ency. of Pl. & Pr. 786 et seq.; 1 Comyn's Digest, 7173; Green v. Watkins, 6 Wheat. 260, 5 L. Ed. 256. Section 10 of the Abatement Act (Hurd's Rev. St. c. 1) provides that when there is but one plaintiff, petitioner, or complainant in an action at law or in equity, and he shall die before final judgment or decree, the cause shall not on that account abate if the cause of action survive to the heir, devisee, executor, or administrator of such decedent. Section 11 provides that where there is but one defendant in an action or proceeding at law or in equity, and he dies before final judgment or decree, the action shall not on that account abate if it might be originally prosecuted against the heir, devisee, executor, or administrator of such defendant. Section12 provides that where there are several plaintiffs or defendants in an action or proceeding at law or in equity the cause of which survives, and any of them die before final judgment or decree, the action, proceeding, or complaint shall not on that account abate but such death may be suggested on the record and the cause proceed at the suit of the surviving plaintiff or against the surviving defendant as if such persons had been originally the sole parties to the suit. Section 17 provides that where there are several parties complainant or defemdant in a suit or proceeding in chancery and any of them die, and the cause of action does not survive to the surviving complainant or against the surviving defendant, and in case other persons become interested in the cause in consequence of such decease, such suit or proceeding shall by reason of such death be abated only with respect to the deceased party, and the person or legal representative so becoming interested may be made a party to such suit or proceeding.

[6] It will be observed from these sections that even in actions or proceedings at law or in equity, of which this is neither, the test as to whether or not the death of a plaintiff abates the proceeding is whether or not the cause of action survives to his representative, and that in the case of the death of a sole defendant the test is whether or not the cause might be prosecuted as an original proceeding against the representative of such defendant; and likewise in case of the death of a part of the plaintiffs or defendants the test is whether or not the case of action by its nature survives either as against the remaining defendants or as against the legal representatives of the deceased defendant. These sections of the statute contain the only provisions with reference to the abatement of causes of action. It has been held by this court that where a right of action is so entirely personal that a person cannot by contract place it beyond his control the action will not survive; that as a general rule assignability and survivability of causes of action are convertible terms. Selden v. Illinois Trust & Savings Bank, 239 Ill. 67, 87 N. E. 860,130 Am. St. Rep. 180.

[7] Treating this proceeding as an action or proceeding at law or in equity is treated, so far as the question of abatement is concerned, the question here arises whether or not the contest against the deceased contestee is such as might be originally brought against his representatives. This language of the statute was apparently inserted by reason of the common-law rule which abated a cause on the death of either party, and in cases where the representatives of a deceased defendant might under the common law be liable in an original action, an original suit was required under the common law to be brought against them. This provision of the statute on abatement avoids the necessity of bringing an original suit, but the test of the survival of a cause of action where the defendant has died is whether or not an original action or proceeding can, under the nature of the case, be instituted against his personal representatives. If such be the situation, then the cause may proceed by suggesting the death of the defendant on the record and suing out summons against his representatives. Applying that test to the case at bar, the question is: Is this contest against the deceased, Scully, such as might upon his death be brought as an original action against his representatives? We think not. The duties of the office of county judge are such that they must be performed by the occupant and cannot be delegated to another. The contest, therefore, as to who shall perform those duties, is a personal contest. The only individuals having any interest in the office are the contending parties. The representatives of the deceased cannot succeed to the office. Salary is not, in a legal sense, involved in the case. Salary might follow as a result of the case, as an incident to the office, but not by force of the judgment itself which is to be rendered in the case. The court hearing the contest has no power to adjudge rights to salary. The only scope of this judgment is to declare who is entitled to the office. The contestant does not by his contest seek a judgment for salary paid to the contestee. As we have seen, the right to hold office is purely statutory. The methods by which it shall be acquired are likewise statutory, whether by election or by contest. This case not being such a proceeding as might be brought as an original action against the representatives of the deceased, Scully, it follows that it is not within the purview of the statute in relation to abatement.

[8] It is well settled in this state that a cause of action created by statute does not survive unless declared so to do by the statute itself or unless provision for its survival is made by some other statute. Selden v. Illinois Trust & Savings Bank, supra; People v. Western Life Indemnity Co., supra. The latter case arose on a petition for mandamus. The court held that an action in mandamus will not survive on the death of any of the parties to the action unless...