People ex rel. Davis v. Nellis

Decision Date25 February 1911
Citation94 N.E. 165,249 Ill. 12
PartiesPEOPLE ex rel. DAVIS v. NELLIS.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Alexander County; W. W. Duncan, Judge.

Information by the People, on the relation of Frank E. Davis, against Fred D. Nellis. From a judgment sustaining a demurrer to respondent's plea, he appeals. Affirmed.Lansden & Lansden, for appellant.

Alexander Wilson, State's Atty., Angus Leek, and William S. Dewey, for appellee.

The state's attorney of Alexander county, in the name of the people, upon the relation of Frank E. Davis, by leave of court, filed an information in the nature of a quo warranto against Fred D. Nellis, who was acting as sheriff of said county, praying that he be ousted from said office. The case involves the legality of the action of the Governor in removing from the office of sheriff of Alexander county Frank D. Davis, the relator, on the 18th of November, 1909, and the legality of the appointment of Fred D. Nellis, the respondent, by the board of supervisors of said county on December 23, 1909, to fill the vacancy caused by such removal. The information was in the usual form and charged the respondent with usurping the office of sheriff of Alexander county. The respondent justified, and by three several pleas set up his title to the office of sheriff of said county. The grounds for the removal of the relator from the office of sheriff of said county by the Governor were that he suffered a mob to take from his custody, and to kill, two prisoners-one a negro and the other a white man-each of whom had been arrested and taken into custody by the relator, as sheriff of said county, upon the charge of murder. The negro, as averred in the first plea, was taken from the relator, as sheriff, by a mob on November 11, 1909, and killed. The second plea averred that a mob, on the night of November 11, 1909, broke into the county jail and took therefrom Henry Salzner, who was confined therein upon the charge of having murdered his wife, and hung and shot him to death. The third plea set out in detail the circumstances attending the taking of each of said prisoners from the relator, as sheriff, and killing them. The negro, William James, it was averred, was being taken by the relator, as sheriff, to some other place than Alexander county for safe-keeping and to avoid his being captured by a mob which was threatened and feared, and while the relator was thus moving his prisoner he was overtaken by a mob, who took the prisoner from him, returned with him to the city of Cairo, in Alexander county, and there killed him. Said plea further averred that the mob then proceeded to the jail where Henry Salzner was confined, broke into the jail, beat and broke down the cell in which he was confined, took him therefrom, and hung and shot him to death. Each of said pleas averred that on the 18th day of November, 1909, knowledge of such hanging having come to the Governor, he issued a proclamation, pursuant to the statute in such case made and provided, on that day, declaring the office of sheriff of Alexander county vacant and directing the coroner of said county to take possession of the office and execute the duties of sheriff of said county; that the coroner of said county thereupon, in the absence of the relator, took possession of the office rooms, books, papers, and records pertaining to the office of sheriff of said county; that afterwards, on the 18th day of November, 1909, said Frank E. Davis filed with the Governor a petition praying for reinstatement to said office; that he gave the notice required by statute for a hearing of said petition; and that the 1st day of December, 1909, was fixed by the Governor for said hearing, at which time Frank E. Davis appeared before the Governor with counsel and witnesses, and the matter of the right of said Frank E. Davis to be reinstated as sheriff of said county was then and there heard and considered by the Governor, who on the 6th day of December, 1909, found the said Frank E. Davis, as sheriff of said Alexander county, did not do all in his power to protect the lives of said James and Salzner, and then and there denied the prayer of the petitioner for his reinstatement. The pleas further aver that the Governor notified the county board of Alexander county, on December 14, 1909, that the office of sheriff in said county was vacant, and said board, on the 23d day of December, 1909, appointed the respondent, Fred D. Nellis, sheriff of the said county; that said Nellis gave bond, took the oath of office, and on the 24th day of December, 1909, received a commission from the Governor as sheriff of said county, and on that day the coroner and acting sheriff turned over to him the office rooms, books, records, and papers pertaining to the office of sheriff of said county, and he then and there entered upon the discharge of his duties as such sheriff, and by that warrant he held and executed said office. The respondent interposed a demurrer to said pleas and each of them. The court sustained the demurrer to each of said pleas, and, the respondent having elected to stand by his pleas, judgment was rendered against him, finding that he unlawfully usurped, held, and executed the office of sheriff of Alexander county and entered a judgment of ouster against him. The respondent has prosecuted an appeal to this court, and has assigned as error in this court that the trial court wrongfully held that he was not lawfully appointed sheriff of Alexander county, and a cross-error has been assigned challenging the constitutionality of the statute under which the Governor removed Frank E. Davis as sheriff of Alexander county.

HAND, J.

(after stating the facts as above). The trial court held, by propositions of law submitted to it at the time it disposed of the demurrers to said pleas, that the act of 1905, entitled ‘An act to suppress mob violence’ (Hurd's Rev. St. 1909, p. 802), was constitutional, and that the relator was lawfully removed by the Governor from the office of sheriff of Alexander county, but that the vacancy caused by such removal occurred on the day upon which the Governor issued his proclamation of removal, which was on November 18, 1909, which date was more than one year prior to the expiration of the relator's term of office, and that said vacancy could not be legally filled by the board of supervisors of Alexander county, and that the attempted appointment of the respondent by said board was illegal and void.

Two questions have been argued in the briefs filed by the respective parties in this court: First, is the act of 1905, under which the relator was removed, a constitutional enactment? And, secondly, did the vacancy caused by such removal take place on November 18, 1909, when the proclamation of removal was issued, or did it take place on December 6, 1909, the day the Governor denied the prayer of the petition of the relator to be reinstated sheriff of Alexander county?

The act involved was adopted by the Legislature and approved by the Governor in 1905. Its title is ‘An act to suppress mob violence.’ The first section defines what constitutes a mob. The second section defines the meaning of the term ‘serious injury’ to persons and property, as used in the act. The third section makes the persons who compose a mob with intent to inflict damage or injury upon the person or property of an individual charged with crime guilty of a misdemeanor and subject to a fine and imprisonment in the county jail. The fourth section makes it a felony for persons composing a mob to by violence inflict material damage upon the property or serious injury upon the person of another under pretense of exercising correctional powers over such person, and makes the penalty for said offense imprisonment in the penitentiary not exceeding five years. The last clause of said section provides that any person suffering material damage to property or injury to person by a mob shall have a right of action against the county or city in which the injury is inflicted for such damages as he may sustain, to an amount not exceeding $5,000. The fifth section gives a right of action to the surviving spouse, lineal heirs, or adopted children of a person who shall suffer death by lynching at the hands of a mob, against the county or city for damages in a sum not exceeding $5,000. The sixth section is as follows:

Sec. 6. If any person shall be taken from the hands of a sheriff, or his deputy, having such person in custody, and shall be lynched, it shall be prima facie evidence of failure on the part of such sheriff to do his duty, and upon the fact being made to appear to the Governor, he shall publish proclamation declaring the office of such sheriff vacant, and his office shall thereby and thereafter immediately be vacated, and the coroner shall immediately succeed to and perform the duties of sheriff until the successor of such sheriff shall have been duly elected or appointed, pursuant to the existing law providing for the filling of vacancies in such office, and such sheriff shall not thereafter be eligible to either election or reappointment to the office of sheriff: Provided, however, that such former sheriff may, within ten days after such lynching occurs, file with the Governor his petition for reinstatement to the office of sheriff, and shall give ten days' notice of the filing of such petition to the prosecuting attorney of the county in which such lynching occurred, and also to the Attorney General. If the Governor, upon hearing the evidence and argument, if any presented, shall find that such sheriff has done all in his power to protect the life of such prisoner and performed the duties required of him by existing laws respecting the protection of prisoners, then such Governor may reinstate such sheriff in his office and shall issue to him a certificate of reinstatement, the same to be effective on the day of such order of reinstatement, and the...

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