People ex rel. Hoyne v. McCormick

• Decision Date: 06 February 1914
• Citation: 261 Ill. 413,103 N.E. 1053
• Parties: PEOPLE ex rel. HOYNE, State's Atty., v. McCORMICK.
• Court: Illinois Supreme Court

261 Ill. 413

103 N.E. 1053

PEOPLE ex rel. HOYNE, State's Atty.,

v.McCORMICK.

Supreme Court of Illinois.

Dec. 17, 1913.

Rehearing Denied Feb. 6, 1914.

Appeal from Circuit Court, Cook County; Jesse A. Baldwin, Judge.

Quo warranto by the people on the relation of Maclay Hoyne, state's attorney, against Alexander A. McCormick, questioning the latter's title to office of commissioner of the county of Cook and president of the board of commissioners. From a judgment of dismissal, relator appeals. Affirmed.Maclay Hoyne, State's Atty., of Chicago (Charles H. Mitchell and Isaiah T. Greenacre, both of Chicago, of counsel), for appellant.

Miller, Starr, Packard & Peckham, of Chicago, for appellee.

DUNN, J.

This is an appeal from a judgment of the circuit court of Cook county dismissing an information in the nature of quo warranto questioning the title of the appellee to the office of commissioner of the county of Cook and president of the board of commissioners. There were four counts, many pleas, more replications, and numerous demurrers, but it will not be necessary to set them out in detail. The facts were admitted by the pleadings, and the only controversy was as to the eligibility of appellee. He had resided in Illinois more than one year and less than five years immediately preceding his election. The appellant contends that, under section 17 of article 6 of the Constitution, no person is eligible to the office of commissioner of Cook county who has not resided in this state five years next preceding his election, and that, under section 4 of the ‘act to revise the law in relation to the election of county commissioners in Cook county, and to fix their term of office’ (Laws of 1893, p. 92, Hurd's Rev. St. 1911, p. 633, c. 34, § 61b), no person is eligible unless he has been a resident of the county for five years next preceding his election.

[1]Section 17 of article 6 of the Constitution is as follows: ‘No person shall be eligible to the office of judge of the circuit or any inferior court, or to membership in the ‘board of county commissioners,’ unless he shall be at least twenty-five years of age, and a citizen of the United States, nor unless he shall have resided in this state five years next preceding his election, and be a resident of the circuit, county, city, cities or incorporated town in which he shall be elected.'

Section 6 of article 10 is as follows: ‘At the first election of county judges under this Constitution, there shall be elected in each of the counties in this state, not under township organization, three officers, who shall be styled ‘the board of county commissioners,’ who shall hold sessions for the transaction of county business as shall be provided by law. One of said commissioners shall hold his office for one year, one for two years, and one for three years, to be determined by lot; and every year thereafter one such officer shall be elected in each of said counties for the term of three years.'

Section 7 of article 10 is as follows: ‘The county affairs of Cook county shall be managed by a board of commissioners of fifteen persons, ten of whom shall be elected from the city of Chicago, and five from towns outside of said city, in such manner as may be provided by law.’

This is the first appearance in this state of a body exercising public authority and having the legal name of ‘the board of county commissioners.’ The Constitution of 1818, by section 4 of the schedule, provided for the election of three county commissioners in each county for the purpose of transacting all county business, whose term of service, powers, and duties should be regulated and defined by law. The first Legislature enacted that there should be established in each county a court of record, composed of the commissioners of the county, which should be called ‘the county commissioners' court.’ Laws of 1819, p. [261 Ill. 416]175. Its only object or authority was the management of the business of the county. Though called a court of record, it had no civil or criminal jurisdiction, and no power except in the conduct of the county's affairs. The county commissioners' courts continued until they were abolished by the Constitution of 1848, which provided for the transaction of the county's business by a county court composed of the county judge and two associate justices of the peace, and directed that the county commissioners' courts should continue in existence and exercise their jurisdiction until the county court provided for in the Constitution should be organized in pursuance of an act of the General Assembly to be passed at its first session. This Constitution required the General Assembly to provide by a general law for a township organization, under which any county might organize if it should so elect, in which case, the management of the fiscal affairs of the county by the county court might be dispensed with, and the affairs of the county transacted in such manner as the General Assembly might provide. The first Legislature passed an act of February 12, 1849, establishing county courts (Laws of 1849, p. 62), and on the same day an act to provide for township organization. Laws of 1849, p. 190. The latter act was repealed, and another act substituted for it by the next General Assembly. Laws of 1851, p. 35. After the enactment of these laws, there were no longer any county commissioners. In every county under township organization the county business was conducted by the board of supervisors; in every county not under township organization, by the county court, which had all the power, jurisdiction, and authority of the county commissioners' court. Cook county adopted township organization at an election held on November 6, 1849, and at the time the Constitution of 1870 was adopted, and long afterward, was under township organization. Most of the other counties in the state had adopted township organization,but there still remained and yet remain a number of counties which are not under township organization.

When the convention of 1870 met, there were no corporate authorities known as the board of county commissioners. By the adoption of the Constitution that name was given to a certain class of corporate authorities, that is, to the three officers elected in counties not under township organization and charged with the transaction of the county business. When the Constitution, in fixing the conditions of eligibility to certain offices, referred to the board of county commissioners, it is to be inferred that it meant the body lawfully bearing that name given to it by the Constitution itself. The words ‘board of county commissioners' in both section 17 of article 6 and section 6 of article 10 are in quotation marks. This is a circumstance worthy of some consideration in determining whether the expression in both places refers to the same thing. It is argued that the ordinary meaning of the words ‘board of county commissioners,’ used in section 17 of article 6 of the Constitution, includes a board of commissioners, who shall have charge of the county affairs of the county, as well as officers who shall be styled ‘the board of county commissioners,’ who shall hold sessions for the transaction of county business as may be provided by law. The words used are, ‘the board of county commissioners.’ The definite article ‘the’ is a demonstrative word which particularizes the noun before which it stands, and limits its meaning more definitely and particularly than the indefinite article ‘a.’ ‘The board of county commissioners' refers to a more definite conception than ‘a board of county commissioners,’ and the quotation marks add to the preciseness of expression, and indicate an exact transfer of the words from some other place. If the five years' residence had been intended to apply to any county commissioner, the language used would naturally have been like that used with referenceto the judges, and the section would have read, ‘no person shall be eligible to the office of judge of the circuit or any inferior court or county commissioner.’ The form of expression was changed, however, and the language limited to membership in the ‘board of county commissioners,’ a definite body having that legal name, and existing only in counties not under township organization. The board of county commissioners is a body of three members, elected by the whole county, one each year, for a three-year term, under constitutional provisions. It gets its name from the Constitution itself, and it is to that body that the phrase in section 17 of article 6 refers. The board of commissioners of Cook county is a body of 15 members, whose election is not by the whole county, but is left to the discretion of the Legislature, with no constitutional restriction except that 10 of them shall be elected from the city of Chicago and 5 from towns outside the city.

[2] Counsel for the appellant rely upon what they call the contemporaneous construction given to the phrase by the Legislature, the courts, and executive and administrative officers, and the appellee himself. This construction consists in the reference to the board of commissioners of Cook county in various acts of the Legislature, decisions of courts, and executive and official documents, as a board of county commissioners. There has been no construction of the phrases in question in any other way. No act done by any officer, court or any other body has been suggested based upon any construction of the...