People ex rel. German Ins. Co. v. Williams

• Decision Date: 31 March 1893
• Parties: PEOPLE ex rel. GERMAN INS. CO. v. WILLIAMS.
• Court: Illinois Supreme Court

145 Ill. 573

33 N.E. 849

PEOPLE ex rel. GERMAN INS. CO.

v.WILLIAMS.¹

Supreme Court of Illinois.

March 31, 1893.

Petition for mandamus by the people of the state of Illinois, on the relation of the German Insurance Company, to compel Thomas C. Williams to assume the duties of town clerk. Granted.J. A. Crain, for relator.

Rector C. Hitt, for respondent.

The other facts fully appear in the following statement by SHOPE, J.:

This is an original proceeding in this court for mandamus to compel the respondent, Thomas C. Williams, to accept, assume, and take upon himself, and execute the office of town clerk of the town of Mt. Morris, in the county of Ogle, in this state; to take and subscribe the oath of office; and to file such oath in the office of the town clerk. The petition shows that on the 31st day of March, 1891, the board of town auditors of the town of Mt. Morris, in said county, acting under a peremptory writ of mandamus issued from this court, audited and allowed to the relator in this proceeding the sum of $45,050, as indebtedness owing by said town upon its bonds belonging to the relator, and made a certificate thereof in conformity with the statute. It is then alleged that the town clerk of said town had absconded from the state of Illinois, and there being no town clerk of said town then present, and the justices of peace of said town, and the supervisor thereof, having failed and neglected to fill the vacancy in said office of town clerk by appointment, the said board of town auditors did not, nor could, deliver said certificate to the town clerk of said town, to be by him kept as required by law, and the aggregate amount thereof be certified by the town clerk to the county clerk of said Ogle county, as required by law in such cases. The petition then shows that at the annual town meeting held in 1891 a town clerk of said town was elected, but the person so elected neglected and refused to qualify as by law required. The petition alleges, further, that, after the failure of the elected town clerk to qualify as aforesaid, there was sued out of this court an alias peremptory writ of mandamus, directed, among others, to the supervisor of the town of Mt. Morris, the town clerk, the justices of the peace of said town, commanding them, as they had theretofore been commanded, that they immediately, without further excuse or delay, do every act and thing devolving upon them by law, as such officers, for the levy, collection, and payment of a tax sufficient to pay the amount of said claim, etc., and that they certify obedience, etc.; that said writ was served upon all of said officers, except the town clerk; that thereafter divers and sundry persons eligible to said office were, and have been by the said justices of the peace and supervisors of said town, duly and successively appointed to said office of town clerk of said town, and duly notified thereof, all of whom have neglected and refused to accept, qualify, and serve said office, as required by law; that no annual town meeting or election whatever has been held in said town since the annual election of 1891; that no town clerk has been elected, said office continuing vacant; that a pluries writ of mandamus issued, but that, said office of town clerk continuing and remaining vacant, said pluries writ cannot be served upon that officer, but remains in the hands of the sheriff, awaiting the filling and incumbency of that office, to be served. The petition shows that since the audit, allowance, and certification of said $45,050 was made, the said board of town auditors of said town have audited and allowed the further sum of $2,650 to the relator, as interest upon said bonds, in addition to said previous audit and allowance. The petition further alleges that, there being a vacancy in the office of town clerk of said town, on the 17th day of September, 1892, the justices of the peace of said town, and the supervisor thereof, again met on that day in said town, for the purpose of filling said vacancy in said office, and by their warrants, under their hands and seals, appointed one Thomas C. Williams, who for more than 10 years then last past had been a resident of said town, and who was on said day a legal voter, and had been for five years or over next before his said appointment; that said board of appointment forthwith notified him of his said appointment, but the said Thomas C. Williams has hitherto wholly neglected and refused to accept said office, and take and subscribe the oath required by law, whereby said office of town clerk has continued to be vacant. It is then alleged that, because of these being no town clerk of said town, the said certificate of audit so made by said board of town auditors cannot be delivered to the town clerk of said town, to be by him kept, etc., nor can the aggregate amount thereof be certified to the county clerk of said county at the same time and in the same manner as other amounts required to be raised for town purposes in said town, to be levied and collected as other town taxes, as is by law required, whereby the relator is unable to obtain the levy and collection of a tax upon the property of said town, wherewith to pay the amount so audited and allowed. The prayer is that, as ancillary to the original proceeding before mentioned, wherein the said several peremptory writs issued have proved unavailing, by reason of there being no town clerk upon which to serve the same, a writ of mandamus be now here awarded, commaning said Williams to accept, assume, and take upon himself said office, etc. The respondent filed a general demurrer to the petition.

SHOPE, J., (after stating the facts.)

The principal question presented is whether mandamus will lie to compel acceptance of a municipal office by one who, possessing the requisite qualification, has been duly elected or appointed to the same. It is stated by text writers that no case has arisen in this country involving this precise question, (Merrill, Mand. § 145; Dill. Mun. Corp. § 162; and in the researches of counsel, and our own examination, none have been found. There are, however, a number of cases where analogous questions, involving the same principle, have been elaborately discussed and determined in the state and federal courts. Very many English cases are found in which it has been held that it was a common-law offense to refuse to serve in a public office, to which one had been elected or appointed under competent authority, and that mandamus will lie in such case to compel the taking of the official oath, and entering upon the discharge of the public duty. It is objected that these cases do not show that mandamus would lie, for the refusal to accept public office, prior to the fourth year of James the First. If the contention be true, it is unimportant whether the particular remedy was by mandamus, by the ancient common law, or not. The important subject of inquiry is whether it was a common-law duty to accept and discharge the duties of a public municipal office. The writ of mandamus was in use as early as the fourteenth and fifteenth centuries. Rex v. University, Fortes. 202; Rex v. Dr. Gower, 3 Salk. 230. It appears from Dr. Widdrington's Case, (A. D. 1662), 1 Lev. 23, that mandamus had been in use as early as in the time of Edward II. and Edward III., between 1307 and 1377. Originally it was a letter missive from the sovereign power, commanding the party to whom it was addressed to perform the act or duty imposed. Later it obtained sanction as an original writ emanating from the king's bench, where, by fiction of law, the king was always present. But it does not seem to have been frequently used, nor adopted as the remedy to compel the acceptance of office, until late in the seventeenth century. In modern times the uses of the writ, and the purposes to which it will be applied, have been greatly enlarged, and it has come into general use wherever there is a legal duty imposed, and no other remedy is provided by law for a failure to discharge it; and in many other cases, against those exercising an office or franchise, where there may be another remedy, but it is less direct and effective. In this state, as in most if not all the states of the Union, the proceeding is regulated by statute. Chapter 87, Rev. St. The common law of England, so far as the same is applicable and of a general nature, and all statutes or acts of the British parliament made in aid of, and to supply the defects of, the common law, prior to the fourth year of James I., (excepting certainstatutes,) and which are of a general nature, and not local to that kingdom, are by our statutes made the rule of decision until repealed by the legislature. Thereby the great body of the English common law became, so far as applicable, in force in this state.

It is held in numerous English cases that by the common law it was the duty of every person having the requisite qualification, elected or appointed to a public municipaloffice, to accept the same, and that a refusal to accept such office was punishable at common law. The case of Rex v. Lone, 2 Strange, 920, was an indictment for refusing to execute the office of constable by one who had been chosen to it, and it was held that he was indictable by the common law. Rex v. Jones, Id. 1145, was anindictment for not taking upon himself the office of overseer of the poor. It was held that the offense was indictable upon the principles of the common law. See Rex v. Burder, 4 Term R. 778. Rex v. Larwood, (A. D. 1695,) 4 Mod. 270, was an information against the defendant for his refusal to take the office of sheriff, to which he had been duly appointed. The defense was that the defendant, being a dissenter, had not taken sacrament within a year before he was chosen, and so his appointment was void, under 25 Car. I, c. 2, 30 Car. I. c. 1, disabling papists, etc. It was held that it was the fault of the defendant not to have received...