People Ex Rel. Edward Phillips v. Lieb

• Decision Date: 30 June 1877
• Citation: 85 Ill. 484,1877 WL 9596
• Parties: THE PEOPLE ex rel. Edward Phillipsv.HERMAN LIEB, County Clerk, etc.
• Court: Illinois Supreme Court

85 Ill. 484

1877 WL 9596 (Ill.)

THE PEOPLE ex rel. Edward Phillips

v.HERMAN LIEB, County Clerk, etc.

Supreme Court of Illinois.

June Term, 1877.

OPINION TEXT STARTS HERE

This was an application for a mandamus in this court.

Messrs. HAINES & TRIPP, and Messrs. BARGE & DIXON, for the relator.

Mr. M. F. TULEY, and Mr. EDWARD S. ISHAM, for the respondent.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This is a petition, filed June 6, 1876, for a writ of mandamus to Herman Lieb, county clerk of Cook county, to require him to deliver to the petitioner the books and blanks prepared by such clerk for the assessment of the real and personal property of the town of South Chicago, for the year 1876, petitioner claiming to be assessor of said town, elected as such at the annual election on the 4th day of April, 1876. The county clerk, in his answer filed June 14, 1876, among other things, sets up, that on the 15th day of April, 1876, the justices of the peace of the town of South Chicago and the supervisor and town clerk of the town, at a meeting by them held, determined that there had been a failure by said town to elect an assessor of the town at the annual town meeting on April 4, 1876, and that they thereupon, by warrant under their hands and seals, appointed one William B. H. Gray assessor of the town; that the same was duly certified to the respondent as county clerk; that said Gray took the oath of office prescribed by law, and filed the same in the office of the town clerk of the town; that afterward, before the commencement of the suit, and before May 1, 1876, (the time limited for the delivery of the books,) Gray, as such assessor, called upon the respondent and demanded such books and blanks; whereupon he, believing that petitioner had not been elected assessor of the town, and that Gray was the lawful assessor, and had been lawfully appointed such, did deliver all said books and blanks to the said Gray, as the assessor of the town; that Gray ever since has held the same, and that since the first day of May, 1876, he has been actively engaged as such assessor, in making the appraisement of property in the town, using the books and blanks in so doing; that he has a large part of the assessment now made, and, as respondent is informed and believes, will have the entire assessment of the town completed on or before the first day of July, 1876--the day fixed by law for the return of the assessment; that respondent has no control or power over said books and blanks; that to prepare new books and blanks for the assessment of property in the town would require at least six weeks, and that the same could not be done in time to deliver to the petitioner before the time required by law to make return of the assessment, and that it would be physically impossible to make out new assessment books and have a new assessment of property in said town, for the purposes of taxation for the year 1876.

The answer is demurred to.

The provision of the statute under which the appointment of Gray was made, is as follows:

“ Board of Appointment.] Whenever any town shall fail to elect the proper number of town officers to which such town may be entitled by law, or when any person elected to any town office shall fail to qualify, or whenever any vacancy shall happen in any town, from death, resignation, removal from the town, or other cause, it shall be lawful for the justices of the peace of the town, together with the supervisor and town clerk, to fill the vacancy by appointment, by warrant under their hands and seals; and the persons so appointed shall hold their respective offices during the unexpired term of the persons in whose stead they have been appointed, and until others are elected and appointed in their places, and shall have the same powers and be subject to the same duties and penalties as if they had been duly elected or appointed by the electors.” Rev. Stat. 1874, p. 1079, § 97.

We do not see but what the county clerk has performed his duty in the premises. He has already made delivery of the assessment books, etc., to an assessor appointed to such office by the lawful appointing power. Whether the board of appointment rightly or not found that there had been a failure to elect an assessor, which has been so prominently discussed in the argument, we do not conceive to be involved in this proceeding. We regard the only question here to be, upon the fact of appointment, not upon the rightfulness of the appointment. The board of appointment here did expressly find that there had been a failure to elect an assessor, and filled the vacancy so found, by appointment made in legal form. A similar question arose in Wood v. Peake, 8 Johns. 69, where three justices of the peace had made an appointment of constable under a statute authorizing such appointment to be made in the case of a refusal to serve by a constable elected. In an action of trespass against such appointee, for taking goods as constable under an execution, the lower court admitted proof that there had been no refusal to serve by the officer elected. This was held, in the Supreme Court, to be error, and the judgment for the plaintiff below was reversed because of the admission of such evidence to impeach the appointment. The same point was made there, as here, that it was only in the case of refusal to serve, that the appointing officers had jurisdiction to appoint, and on it being shown there was no refusal to serve, that there was no jurisdiction, and the appointment was void. It was there said: “This appointment is a judicial act, for the justices must first determine and adjudge that there is a vacancy in the office, and that the town neglected to fill it up. It is not traversable in such a collateral action. The appointment remains valid until it be set aside, or quashed in the regular course upon certiorari. It is certainly sufficient to justify the constable. He comes to the...