People ex rel. Iddings v. Dreher

• Decision Date: 22 February 1922
• Docket Number: No. 14445.,14445.
• Citation: 134 N.E. 22,302 Ill. 50
• Parties: PEOPLE ex rel. IDDINGS v. DREHER et al.
• Court: Illinois Supreme Court

302 Ill. 50

134 N.E. 22

PEOPLE ex rel. IDDINGS

v.DREHER et al.

No. 14445.

Supreme Court of Illinois.

Feb. 22, 1922.

Petition by the People, on the relation of Samuel Iddings, for writ of mandamus against Otto Dreher and others, members of the City Council of Atlanta, and city officials, to permit petitioner to perform the duties of Mayor of the City of Atlanta. On demurrer to defendants' answer.

Writ awarded.

Harold F. Trapp and McCormick & Murphy, all of Lincoln, for petitioner.

E. W. Montgomery, of Atlanta, and Covey & Woods, of Lincoln, for respondents.

STONE, C. J.

The relator, on leave, filed in this court an original petition for mandamus, setting out that he had been elected mayor of the city of Atlanta; that said city was organized under the general laws of this state, and that respondents were elected members of the city council and other officials of said city, as set out in the petition; that the relator and respondents qualified for the particular positions to which they had been elected. The petition also alleges that on the 5th day of September, 1921, there were presented to the city council by one of the members thereof certain charges against him as mayor, charging that he willfully neglected and refused to discharge the duties of his office, and had been guilty of improper conduct in the discharge of his official duties in accordance with certain specifications set out in the written charges filed. The first was that he had refused to sign three warrants of the city treasurer of the city of Atlanta for bills duly allowed and by the city council ordered paid; second, that he, as mayor, was served with process of summons in a certain suit brought against the city by Frank Cheek for $160, and refused and neglected to report the same to the council, but permitted judgment to be rendered against the city, and made no defense, and did not appeal from said judgment, and did not report the judgment to the city council, as he was required by law to do; third, that he caused to be paid from the city treasury a claim not presented to or allowed by the city council, or by it ordered paid; fourth, that he caused to be dismissed a complaint issued in favor of the city against Francis Steinaker on a charge of gaming, without the consent of the city council, and that Steinaker was afterward indicted by the grand jury of Logan county on the same charge under the state law, and entered a plea of guilty thereto in the circuit court; fifth, that the relator, contrary to law, took charge of the city waterworks system, and refused to allow the person ordered by the city council to operate the same, but caused the waterworks plant to be locked up, and thereby caused a water famine to the inhabitants, so that good drinking water could not be obtained for a space of two days, and that by his conduct as mayor he had demonstrated that he was incompetent to discharge the duties of mayor of the city. A committee was appointed to determine whether or not the charges were well founded and to report back to the city council. The committee reported that the charges as filed were sustained by proof, and recommended that the matter be heard by the city council. On the 15th day of September the city council found that the charges as specified were sustained against the relator, and by resolution declared that he be removed from the office of mayor of the city of Atlanta and the office declared vacant. The prayer of the petition for mandmus is that the writ issue commanding the members of the city council and the city officials to permit the relator to perform the duties of mayor of the city of Atlanta; to preside at meetings and exercise the rights and perform the duties of mayor without interruption; to make appointments provided by law to be made; to sign warrants and claims, and to perform without interference the duties and exercise the rights of the office of mayor.

The answer admits the election and qualification of the relator as mayor, and that charges were preferred against him, and a resolution passed removing him from office, as alleged in the petition. The answer denies, however, that the relator in qualified to act as mayor, but avers that the charges set out in the specifications filed before the city council are true; that he has on divers occasions disgraced the respectable inhabitants of the city and has interfered with the transaction of the business of the city. Numerous cases of alleged misconduct are set up in the answer. The relator demurred to the answer, and the cause comes on for hearing on the petition, answer, and demurrer.

[1] As a general rule, title to a public office cannot be adjudicated on an application for mandamus. People v. Cover, 50 Ill. 100;People v. Head, 25 Ill. 325;People v. Matteson, 17 Ill. 167. Mandamus is, however, a proper remedy to restore a party to the possession of an office from which he has been illegally removed. Delahanty v. Warner, 75 Ill. 185, 20 Am. Rep. 237; Street v. Gallatin County, Breese, 50; 26 Cyc. 260. So it has been held that mandamus will issue in a proper case to compel a city council to desist and refrain from interfering with a public officer, such as mayor, in the discharge of his duties. Commonwealth v. Reid, 265 Pa. 328, 108 Atl. 829. The question in the case is whether or not the city council may, for the misconduct of a mayor, remove him from office.

Articles 2 and 3 of the Cities and Villages Act set out the various duties of the offices of mayor and aldermen. From that act it will be seen that the functions of city government are under the control of the mayor, city council and other officers elected. Respondents contend that by article 3 (Hurd's Stat. 1917, p. 315) express power is given to the city council to remove a mayor from office; also that the city council has such power by necessary implication from and incidental to the express powers granted. Governmental powers reside primarily with the people. The Constitution of this state is a limitation upon the powers placed thereon by the people themselves. The powers not thus taken away or limited...