People Ex Rel. Andrew Lynch v. the Bd. of Supervisors of Lasalle County.

• Decision Date: 27 September 1881
• Citation: 1881 WL 10660,100 Ill. 495
• Parties: THE PEOPLE ex rel. Andrew Lynchv.THE BOARD OF SUPERVISORS OF LASALLE COUNTY.
• Court: Illinois Supreme Court

100 Ill. 495

1881 WL 10660 (Ill.)

THE PEOPLE ex rel. Andrew Lynch

v.THE BOARD OF SUPERVISORS OF LASALLE COUNTY.

Supreme Court of Illinois.

Filed at Ottawa Sept. 27, 1881.

OPINION TEXT STARTS HERE

There was a joint resolution passed by the Senate and House of Representatives of the Thirty-first General Assembly, which convened on the 8th day of January, 1879, as follows:

“ Resolved by the Senate of the State of Illinois, the House of Representatives concurring herein, That there shall be submitted to the voters of this State, at the next election for members of the General Assembly, a proposition to so amend the eighth (8)section of the tenth (10)article of the constitution of this State, so that the same may read as follows: ‘In each county there shall be elected the following county officers, at the general election to be held on the Tuesday after the first Monday in November, A.D. 1882: a county judge, county clerk, sheriff and treasurer; and at the election to be held on the Tuesday after the first Monday in November, A.D. 1884, a coroner, and clerk of the circuit court, (who may be ex officio recorder of deeds, except in counties having 60,000 or more inhabitants, in which counties a recorder of deeds shall be elected at the general election in 1884).Each of said officers shall enter upon the duties of his office, respectively, on the first Monday of December after his election, and they shall hold their respective offices for the term of four years, and until their successors are elected and qualified: Provided, that no person having once been elected to the office of sheriff, or treasurer, shall be eligible to reëlection to said office for four years after the expiration of the term for which he shall have been elected.’ ”

At the election for members of the General Assembly next succeeding the date of the passage of that resolution, a majority of the votes cast upon the question of the proposed amendment were in favor of its adoption, and it was, accordingly, by the board of canvassers declared adopted.

Section 8 of article 10 of the constitution of 1870, of which the foregoing is an amendment, provided that county treasurers, and sheriffs and coroners, should hold their offices for two years, and until their successors should be elected and qualified.

The Thirty-second General Assembly passed “An act to amend sections sixteen, seventeen, nineteen, twenty-one, twenty-two, twenty-three and twenty-four of an act entitled ‘an act in regard to elections, and to provide for filling vacancies in elective offices,’ ” approved April 3, 1872, in force July 1, 1872.The amendatory act was approved May 10, 1881, and in force July 1, 1881.

The amended section 16 provides: “The county judges and county clerks shall be elected on Tuesday next after the first Monday of November, 1882, and every four years thereafter.”* * *

Section 17: “The sheriffs shall be elected on Tuesday next after the first Monday of November, 1882, and every four years thereafter; * * * and coroners shall be elected on Tuesday next after the first Monday of November, 1882, who shall hold their offices two years, and on Tuesday next after the first Monday of November, 1884, and every four years thereafter, there shall be elected a coroner in each of the counties of this State.”* * *

Section 21: “The county treasurers shall be elected on Tuesday next after the first Monday of November, 1882, and every four years thereafter.”* * * This was a petition to this court in which it was represented, that by section 38 of an act entitled “An act to revise the law in relation to counties,” approved and in force March 31, 1874, it is made the duty of the county board of each county to fix the compensation of county officers at the meeting of such board next before the regular election of officers whose compensation is to be fixed.

Petitioner states that he is informed by counsel, and believes, that on the Tuesday after the first Monday of November, 1881, under the constitution and laws of this State, there will be held a regular election in said county for the following county officers, to-wit: County judge, judge of probate court, county clerk, clerk of probate court, and treasurer.

Petitioner further represents that said county board are at the time of this application in session, and that this is the meeting next preceding the regular election of said county officers, and it is therefore their duty to fix the salaries of said officers at their present meeting.

Petitioner further represents that on the 13th of September, 1881, the same being one of the days of the present meeting, a resolution was offered to proceed and fix the salaries, etc., as provided by law, which was by a majority voted down, and thereupon a resolution, declaring that under the constitution and laws of this State the next regular election would occur on the Tuesday after the first Monday of November, 1882, and that said board would not fix the salaries of said county officers until the meeting in September, 1882, was adopted.

Petitioner therefore represents that said county board do not intend to perform their duty of fixing the salaries of said county officers before the next regular election, but on the contrary they have refused and neglected, and will continue to refuse and neglect, the performance of that duty.

The prayer of the petition is, that said board of supervisors of LaSalle county may be duly summoned to answer, and that a writ of mandamus may be issued requiring them, before the first Tuesday after the first Monday of November, 1881, to fix the compensation of the county judge, judge of the probate court, county clerk, clerk of the probate court, and treasurer.

The question presented is, whether under the law, construed in the light of the amendment of section 8 of article 10 of the constitution of 1870, an election of county judges, county clerks and county treasurers shall be held in November, 1881, or whether the holding of such election shall be postponed until November, 1882.

This case, and the case of The People ex rel. Stinger v. Kingsley, County Clerk of Marshall County, next following, were argued together as one case, the questions in the two cases being of similar character.

Mr. JAMES MCCARTNEY, Attorney General, Mr. H. T. GILBERT, and Mr. CONSIDER H. WILLETT, argued the cases orally, in support of the view that the constitutional amendment of 1880, in appointing the election for county officers in November, 1882, did not operate to extend the terms of the present incumbents of those offices to that time, but that, notwithstanding the amendment, an election must be held in November, 1881.

Mr. JOHN M. PALMER, Mr. GEORGE HUNT, and Mr. L. W. BREWER, insisted upon the opposite view, contending that the effect of the amendment was to postpone the election of county officers to November, 1882, and that there can be no election for those offices in November, 1881.

Mr. JUSTICE DICKEYdelivered the opinion of the Court:

The questions arising upon the record in this case relate to the time fixed by law for the holding of the next general election for county judges, county clerks, county treasurers, and for the election of judges of probate and clerks of probate courts in LaSalle county and certain other counties.Inasmuch as by law such probate judges and clerks of probate courts are to be elected at the same time and in the same manner as that provided for the election of county judges and county clerks, it will be sufficient to ascertain and declare the law relating in this regard to the election of county judges, county clerks and county treasurers.

Does the law require or authorize a general election to be held for these county offices in November, 1881?On the determination of this question this case must turn.It must be confessed the question is not free from difficulty.We have been favored with a full and able discussion by counsel, yet we do not all take the same views of the questions involved.The proper solution of this controversy depends upon the legal effect of the adoption, in November, 1880, of an amendment to the 8th section of the 10th article of the constitution, and upon the legal effect of statutes passed since that time bearing upon the subject.

We are met at the threshold with the proposition that this amendment, from its very terms, does not become operative until November, 1882, and hence that this amendment is to be construed as though it were declared therein that it should become a part of the constitution at that time, and not before.It need not be denied that the inference sought to be drawn by the latter part of the proposition might well be deduced if the first part of the proposition be true.The 2d section, article 14, of the constitution, speaking as to the effect of the adoption of this class of amendments, says: “If a majority of the electors voting at said election shall vote for the proposed amendments, they shall become a part of this constitution.”If this language be construed as like words of the constitution,--relating to the adoption of certain articles of the constitution which were separately submitted in 1870,--were construed, it means that the amendment became a potential part of the constitution on the day on which the vote for its adoption was cast.In the absence of matter leading to a different conclusion it must be so held.The statute, however, under which this amendment was, by joint resolution, submitted for adoption, declared expressly that the same, if adopted, “shall, by the board of canvassers, be declared adopted, and from thence become a part of the constitution of this State.”(Laws 1877, p. 5.)

In view of the former rulings of this court, and in view of the words of the statute referred to, it seems plain that the General Assembly of 1879, in submitting the amendment for adoption, and the electors of November, 1880, in voting for its adoption, could not have intended or understood that this...