People ex rel. Elliott v. Benefiel

• Decision Date: 22 March 1950
• Docket Number: No. 31358,31358
• Citation: 405 Ill. 500,91 N.E.2d 427
• Parties: PEOPLE ex rel. ELLIOTT, Attorney General v. BENEFIEL.
• Court: Illinois Supreme Court

Page 427

91 N.E.2d 427

405 Ill. 500

PEOPLE ex rel. ELLIOTT, Attorney General v. BENEFIEL.

No. 31358.

Supreme Court of Illinois.

March 22, 1950.

R. M. Shaw, Lackey & Lackey, McGaughey & McGaughey, Philip H. Lewis, Walker J. Henry, and Philip B. Benefiel, pro se., all of Lawrenceville, for appellant.

Ivan A. Elliott, Attorney General, of Springfield (Wayne R. Cook, Danville, and Charles H. Evans, Springfield, of counsel), for appellee.

DAILY, Justice.

This is an appeal from a judgment of ouster entered by the circuit court of Lawrence County in a quo warranto proceeding instituted by the Attorney General to test the right of appellant, Philip B. Benefiel, to hold the office of State's Attorney for that county. Since a construction of our State constitution is involved, the appeal comes directly to this court.

The gravamen of the complaint filed on February 5, 1949, was that the appellant was a usurper of the office and unqualified to hold it, in that he was not an attorney licensed to practice law in Illinois. Appellant's answer denied that he was a usurper or that he held his office unlawfully, but admitted that he was not a licensed attorney. To show that he lawfully held his office, it was alleged in justification that he had been nominated by his party as a candidate for the office at the primary election of April 6, 1948, and received a certificate of nomination; that he completed his law studies in September, 1948, and took the Illinois bar examination in mid-October. The answer further shows that before the result of the examination was known, he received a majority of the votes cast for the office at the general election of November 2, 1948, and was duly issued a certificate of election by the county clerk. Five days later he was notified that he had failed to pass a satisfactory examination to qualify him for admission to the Illinois bar. Subsequently it appears appellant took and filed his oath of office, furnished bond, was issued a commission for said office by the acting Governor of the State, and, on December 6, 1948, assumed the office of State's Attorney for Lawrence County. In conclusion the answer alleges that appellant had met and complied with all constitutional and statutory qualifications required of a person to enter into and qualify for the office of State's Attorney.

Based on the assertion that the answer was insufficient at law, the Attorney Gerneral, appellee here, moved for a judgment on the pleadings. Pursuant to the motion, the court, on April 14, 1949, ruled that the answer was insufficient at law, that it failed to establish justification, and entered a judgment of ouster. Seven days thereafter, appellant filed a motion praying that the judgment be set aside and that he be granted a new hearing. As grounds for the motion it was alleged that the judgment was contrary to law, and further that since the date of the judgment appellant had duly qualified and had been licensed to practice law in Illinois. An affidavit attached to the motion averred that appellant had written another bar examination on March 14, 15 and 16, 1949; that subsequent to the date of the judgment of ouster he was notified that he had passed; that he since had been duly approved for character and fitness, had taken the oath of an attorney, and received his license. Following arguments and deliberation, the court denied the motion. This appeal follows, with the appellant contending that both the judgment of ouster and the denial of his motion was error.

The important question presented is whether one elected to the office of State's Attorney in this State is disqualified by the fact that he is not an attorney licensed to practice law in Illinois. Despite appellant's protestations and interpretations to the contrary, we find that this question has already been answered in the case of People v. Munson, 319 Ill. 596, 150 N.E. 280. There it was held that a State's Attorney who was not licensed to practice law had no authority to appear before a grand jury. In discussing the need that such officer be a licensed attorney, the court considered the language of the constitution which created the office, (Const. of 1870, art. VI, sec. 22, Smith-Hurd Stats.) the statute enumerating the duties of a State's Attorney, (Smith's Stat.1925, p. 168,) and the provisions of the statute prohibiting the unauthorized practice of law. (Smith's Stat.1925, p. 164.) The result reached, simply expressed, was that while there is no express statutory or constitutional specification that a State's Attorney be a lawyer, both the term 'State's Attorney,' as it is understood in the law, and the duties of the office as prescribed by statute, imply that such officer be licensed to practice law. No changes have been wrought in the constitution or statutes now in effect, which would require us to reach a different conclusion. Without further detailing the language in the Munson case, we are of the opinion that it affirmatively establishes that a State's Attorney must be licensed to practice law. The fact that the Munson case was a criminal appeal rather than a quo warranto proceeding, could not, as appellant contends, make it any less determinative of the issue, which was squarely presented and squarely decided.

In his argument appellant has sought to distinguish the supporting decisions of other States cited in the Munson case, and has recalled to our attention the cases cited therein from jurisdictions which hold that a State's Attorney need not be licensed to practice law. The cases on the point are relatively few and for the most part were considered when the Munson decision was written, thus it could serve no useful purpose to pursue them further. We find nothing in the briefs of either party herein which could cause us to depart from the finding of the Munson case,...