People Ex Rel. John H. Dunham v. Morgan

• Decision Date: 30 September 1878
• Citation: 1878 WL 10207,90 Ill. 558
• Parties: THE PEOPLE ex rel. John H. Dunhamv.JAMES MORGAN et al.
• Court: Illinois Supreme Court

90 Ill. 558

1878 WL 10207 (Ill.)

THE PEOPLE ex rel. John H. Dunham

v.JAMES MORGAN et al.

Supreme Court of Illinois.

September Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Criminal Court of Cook county; the Hon. SAMUEL M. MOORE, Judge, presiding.

Mr. LUTHER LAFLIN MILLS, Mr. JAMES P. ROOT, and Mr. E. J. WHITEHEAD, for the appellants.

Mr. F. H. KALES, and Mr. R. S. THOMPSON, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an information in the nature of a quo warranto, exhibited in the court below against the defendants, charging them with usurping the office of South Park Commissioners. The question presented for determination arises on the sufficiency of the plea filed by defendants, in which they claim a legal title to the office. The relator demurred to the plea, but the court held it sufficient and overruled the demurrer, and rendered judgment in favor of respondents. To reverse that decision relator prosecutes this appeal.

The plea avers, that in February, 1869, the General Assembly passed an act authorizing the people of the three towns of South Chicago, Hyde Park and Lake to form a park district within their limits, to be governed by a corporate body, called the South Park Commissioners, in whom was vested the following, among other powers, viz: to locate and maintain a park within a district named; to assess and collect an annual tax of not exceeding, in any one year, $300,000, for the payment of interest on bonds to be issued, and for the improvement, maintenance and government of the park during the current year; to make special assessments; to issue bonds on the security of the park lands, and for which the three towns were also irrevocably bound; to exercise the right of eminent domain for the purpose of acquiring park lands; to exercise police powers over the park, and to administer the affairs of the corporation.

It was further provided, that the first board of park commissioners should be appointed by the Governer, and thereafter all vacancies should be filled by appointment of the judge of the circuit court of Cook county, when such vacancies should occur. By the provisions of the act it was left to the people of the three towns to decide, by vote, whether such corporation should be formed with corporate authorities thus appointed, and with the powers enumerated, or whether the act should be rejected.

On the 23d of March, 1869, an election was held, and resulted in each town in favor of the corporation, and the act was adopted. On the 16th day of the following April this election was confirmed by an act of the legislature, and soon thereafter the Governor appointed the first board, which organized in accordance with the park laws, the term of each member being determined by lot, as therein provided.

The first vacancy in the board occurred in March, 1870, by the expiration of the term of one of the commissioners, and the judge of the circuit court then filled the vacancy by appointing the same commissioner. In August, 1870, the present constitution, which provides for five judges of the circuit court of Cook county, was adopted, and ever since that time, all vacancies in the board have been filled, as it is averred in the plea, by each and every of the judges of the circuit court of Cook county who were such when the several vacancies occurred, and appellees were thus appointed. These are the material averments of the plea.

It is insisted that this plea fails to present a defense, because the circuit judge or judges of Cook county are prohibited, by article 2 of the constitution of 1848, which was in force when the park laws went into effect, from exercising the appointing power; that the judge, in making the appointment, was exercising executive or political power, and that article has prohibited a judge from exercising any but judicial functions. The constitution divides and distributes the powers of government into three departments, the legislative, the executive and the judicial, and prohibits any person or body of persons belonging to one department from exercising the powers confided to either of the others, except as directed or permitted by other portions of that instrument. This, it is urged, prevented the General Assembly from conferring or the judge of the circuit court from exercising the power of appointment, and hence all the appointments are void.

According to our theory of government, originally all power was vested in the people, and in the constitution of government the legislative became and is the supreme power of the State, as it directly represents and exercises the power of the people. It has been repeatedly held, and it is not controverted, that unless limited by constitutional restriction, the General Assembly may exercise all governmental power. But under our system of government it is limited by the establishment of the two other departments, and prohibited from the exercise of any powers confided to them. It then follows, that when an act passed by that body is challenged as being without constitutional authority, we must look to the State and Federal constitutions to determine whether it is inhibited. If no restriction is found, the act must be held valid and enforced as enacted. By reference to the article distributing the powers of government to the separate departments, it is manifest that it does not prohibit the legislature from establishing this park, nor from furnishing or designating the officers who shall exercise the powers and perform the duties, nor from naming the body, the officer or the person who may select and appoint them to the office. If there be any restriction it must be in some other clause of that instrument than the one referred to above.

That provision declares, only in general terms, that each department of the government shall be confined to the exercise of the functions of its own department. It does not undertake to define, in any specific manner, what are legislative, executive or judicial powers or acts. Like most other provisions of that instrument, the terms employed are of the most general and comprehensive character. We find no provision that declares that the appointment of a municipal officer, however extensive his powers, is the exercise of a legislative or executive power. To determine the character of the act we must look to other sources.

The executive power in a State is understood to be that power, wherever lodged, which compels the laws to be enforced and obeyed. And the instrumentalities employed for that purpose are officers, elected or appointed, who are charged with the enforcement of the laws. But the power to appoint is by no means an executive function unless made so by the organic law or legislative enactment. And in this case it is not so unless the power is thus conferred.

If it were conceded that these appointments were the exercise of political power, would it necessarily be violative of any provision of the constitution? The division and allotment of the powers are not into political, executive and judicial, but into legislative, executive and judicial. It was, no doubt, the exercise of political power, as that embraces all governmental powers and functions, whether exercised by one department or another, or the officers of one or the other. Political power is the policy of government or its administration, and may be exercised either in the formation or administration of government, or both. Hence it follows, that if it be a political power, that, of itself, in nowise militates against its exercise by a person belonging to the judicial department of the government. The word “political,” is defined by Bouvier to be, pertaining to policy or the administration of government. Political rights are those which may be exercised in the formation or administration of the government. And we understand the term “rights,” as used in this definition, as being synonymous with power. All three departments aid in the administration of government, but perform different functions. The elector who votes for an officer or measure exercises political power, yet no one would claim that because a judge was a person belonging to the judicial department, he was prohibited from thus voting. We, therefore, conclude, that if the power to appoint to office is a political function, this article of the constitution does not prohibit its exercise because the power is political, and if prohibited, it must be for some other reason, or by some other provision which, in terms or by necessary implication, prohibits such an exercise of the appointing power.

The three different constitutions under which our State government has been administered each contains articles making the same division and distribution of the powers, and the same prohibition on persons belonging to one department from...