People ex rel. Martin v. Vill. of Oak Park

• Decision Date: 12 December 1939
• Docket Number: No. 25241.,25241.
• Citation: 24 N.E.2d 571,372 Ill. 488
• Parties: PEOPLE ex rel. MARTIN v. VILLAGE OF OAK PARK et al.
• Court: Illinois Supreme Court

372 Ill. 488

24 N.E.2d 571

PEOPLE ex rel. MARTIN

v.VILLAGE OF OAK PARK et al.

No. 25241.

Supreme Court of Illinois.

Dec. 12, 1939.

Proceeding by the People, on the relation of Milo V. Martin, against the Village of Oak Park and others for a writ of mandamus directing village trustee to draw lots to determine the three trustees who should serve for two years and the three trustees who should serve for four years, and directing village president, clerk and trustees functioning as the board to take necessary steps to hold regular biennial election to elect three village trustees. From a judgment for relator, the respondents appeal.

Reversed and remanded with directions.Appeal from Circuit Court, Cook County; Harry M. Fisher, judge.

John F. Tyrrell and Robert C. Barney, both of Chicago, for appellants.

Joseph Imburgio Bulger, of Chicago, for appellee.

MURPHY, Justice.

This is an appeal from a judgment of the circuit court of Cook county awarding a writ of mandamus. Therein it was ordered: (1) That the six trustees of the village of Oak Park should draw lots to determine the three to serve for two years and the three to serve four years. In event of the refusal of any trustee or trustees to obey the mandate, the president of the village board was ordered to make the drawing. (2) The village president, clerk and trustees functioning as the board, were ordered to take the necessary steps to hold the regular biennial election on the first Tuesday of April, 1939, for the purpose of electing three village trustees.

By an amendment of the Cities and Villages Act, made in 1933, Laws 1933, p. 254, and effective July 5 of that year, section 8 of article 11 thereof was amended to read, in part: ‘The trustees elected to succeed those whose terms expire in 1934, shall hold their offices for one year and the successors of trustees whose terms expire in 1935, shall be elected on the first or third Tuesday in April of such year, as the case may be, and biennially thereafter, to hold for a term of two years and until their successors are elected and qualified.’ Smith-Hurd Stats. c. 24, § 146. Section 13 of this amendatory act provided for the election of all village trustees in April, 1934, and in each odd numbered year thereafter. Smith-Hurd Stats. c. 24, § 154. The amendatory act further provided that successors to the trustees, whose terms expired in 1934, should only serve for one year. The result of the amendment was that the terms of office of all the trustees expired at the same time in 1935. At the regular election in 1935, the six trustees were elected for a two-year term.

After the regular village election in April, 1935, the Fifty-ninth General Assembly adopted two amendatory acts to the Cities and Villages act, each of which set forth the whole of section 8 of article 11, respectively, as amended. The first, House Bill 239, Laws 1935, p. 512, approved June 29, 1935, effective July 1, 1935, provided, in part: ‘The term of office of trustees shall be the same as is provided for aldermen in cities.’ Smith-Hurd Stats.1935, chap. 24, § 146. This amendatory act also amended section 3 of article 3 by changing the term of office of aldermen elected after July 1, 1935, from two to four years, and made provision for the drawing of lots to determine who should serve the short and who the long term. Ill.Rev.Stat.1939, c. 24, § 34. The second amendatory act of 1935, House Bill 1058, Laws 1935, p. 279, fixed the term of office of trustees at two years, and was, as to all matters material to this suit, a reenactment of the amendatory act of 1933. It was approved by the Governor after July 1 of the year in which it was passed, and became effective on the date of its approval July 3, 1935. People v. Kramer, 328 Ill. 512, 160 N.E. 60;Board of Education v. Morgan, 316 Ill. 143, 147 N.E. 34.

A general rule of construction is that if an act or section of an act be amended, and the amendment does not entirely repeat the original act or section, such portions not repeated are repealed without any specific expression for that purpose. The omitted portion cannot be legislated into existence by judicial construction. The portions of the old act or section retained, either literally or substantially in the amendment, are regarded as a continuation of the old law and not a new enactment. Merlo v. Johnston City & Big Muddy Coal & Mining Co., 258 Ill. 328, 101 N.E. 525;People v. Baltimore & Ohio Southwestern Railroad Co., 366 Ill. 318, 8 N.E.2d 655. Another well-recognized rule which should be used in construing both amendatory acts of 1935 is that two acts passed at the same session of the legislature are not to be construed as inconsistent, if it is possible to construe them otherwise; but when it is impossible to give effect to both acts, the later one in point of time will prevail. People v. Baltimore & Ohio Southwestern Railroad Co....