People ex rel. Oliver v. Knopf

• Citation: 198 Ill. 340,64 N.E. 842
• Parties: PEOPLE ex rel. OLIVER v. KNOPF.
• Decision Date: 18 October 1902
• Court: Illinois Supreme Court

198 Ill. 340

64 N.E. 842

PEOPLE ex rel. OLIVER

v.KNOPF.

Supreme Court of Illinois.

Oct. 18, 1902.

Appeal from circuit court, Cook county; M. F. Tuley, Judge.

Mandamus by the people, on the relation of William Oliver, against Philip Knopf. From the judgment awarding the writ in part as prayed for, both parties appeal. Reversed.

Magruder, C. J., and Wilkin, J., dissenting.

For dissenting opinion, see 64 N.E. 1127.Frank Asbury Johnson and George Mills Rogers, for petitioner.

Edwin W. Sims, County Atty., and Frank L. Shepard, Asst. County Atty. (John Barton Payne and Edwin M. Ashcraft, of counsel), for respondent.

CARTWRIGHT, J.

The people of the state of Illinois, on the relation of William Oliver, a legal voter of Cook county, filed the petition in this case in the circuit court of said county against Philip Knopf, county clerk, praying for a writ of mandamus directing said defendant to include in the notice of the election to be held on the Tuesday succeeding the first Monday in November, 1902, five judges of the superior court of said county, to be elected in accordancewith the provisions of an act approved April 24, 1899; also three judges of said superior court and three judges of the circuit court of said county, to be elected under the provisions of an act approved May 10, 1901.

The facts alleged in the petition are substantially as follows: That under statutes in force in 1893, Joseph E. Gary, Nathaniel C. Sears, George F. Blanke, and John Barton Payne were at the election in November, 1893, elected judges of the superior court of Cook county for terms commencing on the first Monday of December, 1893, and continuing six years. That George F. Blanke died, and Farlin Q. Ball was elected to fill his place; that John Barton Payne resigned, and Marcus Kavanagh was appointed by the governor to fill the vacancy; and that the terms of the four judges expired on the first Monday of December, 1899. That the act to provide for the election of judges of the superior court of Cook county, approved March 31, 1897, provided that four judges of said court should be elected at the election in November, 1899, and every six years thereafter, to fill said offices, and under the provisions of said statute the successors of said judges should have been elected at that time, but no judges were then elected. That at the election in November, 1895, Henry M. Shepard was elected a judge of said superior court for a term beginning on the first Monday of December, 1895, for a term of six years, and by said act of 1897 one judge was required to be elected at the November election in 1901 to fill said office, but no successor to said judge was then elected, and he continues to occupy the office. That on April 24, 1899, there was filed with the secretary of state an act of the legislature, signed by the president of the senate, the speaker of the house, and the governor, which was published as a law of the state of Illinois, providing that the 12 judges of the superior court of Cook county should be elected as follows: Six on the Tuesday after the first Monday of November, 1904, and every six years thereafter;four on the Tuesday after the first Monday of November, 1902, and every six years thereafter; one on said Tuesday after the first Monday of November, 1902, and every six years thereafter; and one on the first Monday of June, 1903, and every six years thereafter. That said provision for the election of four judges in November, 1902, applied to the offices held by Judges Joseph E. Gary, Nathaniel C. Sears, Farlin Q. Ball, and Marcus Kavanagh, and the provision for the election of one judge at said time applied to the office held by Henry M. Shepard. That on July 14, 1900, the people of the state of Illinois, on the relation of Alexander J. Jones, filed in the circuit court of Cook county a petition for a writ of mandamus against Philip Knopf, county clerk, to compel him to include in the notice of the election to be held in November, 1900, four judges to succeed said Joseph E. Gary, Nathaniel C. Sears, Farlin Q. Ball, and Marcus Kavanagh. That by the petition in said cause it was alleged that the terms of said judges expired on the first Monday in December, 1899, and their successors should have been elected in November of that year, under the act of 1897. That the act of 1899 never passed both houses of the legislature and never became a law. That the answer of the defendant, Philip Knopf, admitted the averments of the petition by the authority and at the request of the judges affected by the proceeding, and by such authority and request he consented that the writ of mandamus should be issued as prayed, and that judgment was entered and a writ issued, under which notice of election was given and said judges were elected as their own successors, and claim to hold office by virtue of said election. That an act was passed on May 19, 1901, in force July 1, 1901, providing for the election in November, 1902, of three additional judges of the circuit court of Cook county for terms to expire on the first Monday of June, 1903, and three additional judges of said superior court to expire on the Tuesday after the first Monday of November ,1904.

To the petition praying for the writ upon the facts so alleged the defendant made answer, admitting the election of the various persons as judges as set forth in said petition, and the passage of the act of 1897, but denying that the act of April 24, 1899, filed with the secretary of state and published by him, ever became a law or was passed by both houses of the legislature. He admitted the averments of the petition concerning the mandamus proceeding in 1900, and that the writ was issued and an election held in pursuance thereof in November, 1900. As to the office of judge of the superior court occupited by Henry M. Shepard, he admitted the facts alleged, and that no election was held in November, 1901, but averred that, as no election was held at the proper time, he was now without power or authority to give notice of an election. He admitted the passage of the act of May 10, 1901, but alleged that it was in violation of the constitution in providing for an election of judges for a less term than that fixed by the constitution, and, as to judges of the circuit court, at a different time. It was also claimed by the answer that the judgment in the mandamus proceeding of 1900 was res judicata as to the matters involved, and that the act of 1899 as passed was unconstitutional and void, as operating to extend the term of office of judges of the superior court.

There were three demurrers by the relator: The first, to so much of the answer as set up the unconstitutionality of the act of 1899,-and this demurrer the court overruled; second, to so much of the answer as alleged the act of 1901 to be unconstitutional,-and this demurrer was sustained; and, third, to so much of the answer as alleged that the judgment in the mandamus proceeding of 1900 was res judicata as to the questions involved therein,-and this demurrer was also sustained. An issue of fact was made as to the passage of the act of April 24, 1899, by replication averring that said act did pass both houses of the legislature and became a law. A jury was waived, and that issue was tried by the court, resulting in a finding that said act never passed both houses and never became a law. The prayer of the petition was granted, so far as it related to the election of a judge to succeed Henry M. Shepard, three additional judges of the circuit court, and three additional judges of the superior court, and it was refused as to the election of four judges to fill the offices occupied by Joseph E. Gary, Nathaniel C. Sears, Farlin Q. Ball, and Marcus Kavanagh. The writ was awarded, requiring the defendant, Knopf, to give notice of the election of a judge of the superior court to fill the office now occupied by Henry M. Shepard, three additional judges of the superior court under the act of 1901, each for a term of six years, and three additional judges of the circuit court under said act, for terms from the election in November, 1902, to June, 1903. Both parties excepted to the decision and judgment, and each prayed and perfected an appeal. The case is before us on these appeals of both parties.

The first act of the legislature with which we are concerned in this proceeding is the act approved March 31, 1897, and this is conceded by both parties to have been a valid enactment. It provided for the election of twelve judges of the superior court as set forth in the petition,-one on the first Monday of June, 1897, and every six years thereafter; six in November, 1898, and every six years thereafter; four in November, 1899, and every six years thereafter; and one in November, 1901, and every six years thereafter. Each judge was to be elected for a term beginning on the first Monday of December next after his election and extending for a period of six years. Laws 1897, p. 216. Under that act the terms of office of Joseph E. Gary, Nathaniel C. Sears, Farlin Q. Ball, and Marcus Kavanagh expired on the first Monday of December, 1899, and the term of office of Henry M. Shepard expired on the first Monday of December 1901.

The next act appeared in the published laws for 1899, and purported to be an act to provide for the election and time of election of judges of the superior court of Cook county, and to have been approved April 24, 1899. The provisions of this act were that the twelve judges of said superior court should be elected as follows: Six in November, 1904, and every six years thereafter; four in November, 1902, and every six years thereafter; one in November, 1902, and every six years thereafter; and one in June, 1903, and every six years thereafter,-the term of each of said judges to be from the first Monday of December after his election for a period of six years. Laws 1899, p. 152.

The court overruled relator's demurrer to that...