People ex rel. Rudman v. Rini

• Decision Date: 01 October 1976
• Docket Number: Nos. 48194,48232,s. 48194
• Citation: 356 N.E.2d 4,1 Ill.Dec. 4,64 Ill.2d 321
• Parties: , 1 Ill.Dec. 4 The PEOPLE ex rel. Martin RUDMAN, State's Attorney, Appellee, v. Dominic RINI et al., Appellants. The PEOPLE ex rel. Dorothy J. CRAIG, Appellee, v. Wesley T. HARDIN, Appellant.
• Court: Illinois Supreme Court

Page 4

356 N.E.2d 4

64 Ill.2d 321, 1 Ill.Dec. 4

The PEOPLE ex rel. Martin RUDMAN, State's Attorney, Appellee, v. Dominic RINI et al., Appellants.

The PEOPLE ex rel. Dorothy J. CRAIG, Appellee, v. Wesley T. HARDIN, Appellant.

Nos. 48194, 48232.

Supreme Court of Illinois.

Oct. 1, 1976.

Cirricione, Block & Krockey, P.C., Joliet (Joseph M. Cernugel, Joliet, of counsel), for appellant Dominic Rini.

George S. Bellas and Thomas R. Wilson, Asst. State's Attys., Joliet, for appellants Will County Board, and others.

Winstein, Kavensky, Wallace & Doughty, Rock Island (Stewart R. Winstein, and Franklin S. Wallace, Rock Island, of counsel), for appellant Wesley T. Hardin.

Martin Rudman, State's Atty., Joliet (Nicholas E. Sakellariou, Asst. State's Atty., of counsel), for appellee Martin Rudman.

Katz, McAndrews, Durkee & Telleen, Rock Island (Stuart R. Lefstein, Rock Island, of counsel), for appellee Dorothy J. Craig.

KLUCZYNSKI, Justice:

Public Act 79--118 (Laws of 1975, at 366) became effective July 8, 1975. It amended, Inter alia, section 25--11 of the Election Code (Ill.Rev.Stat.1973, ch. 46, par. 25--11), which provided for the selection of county officers in counties of less than 500,000 population whenever a vacancy occurred between elections, and section 9 of 'An Act relating to the composition and election of county boards in certain counties' (Ill.Rev.Stat.1973, ch. 34, par. 839; Laws of 1974, at 789--90 and 1495--96), which provided a method of appointing county board members to fill vacancies that occurred between elections. These sections, prior to their amendment, authorized the county board to appoint an individual to any vacancy that occurred in county offices when the filling of that vacancy was not otherwise provided for by law. If a county board vacancy occurred, the county board president would, with the consent of the county board, appoint a qualified individual for the remainder of the term or until the next election. Sections 1 and 2 of the new act apply to county board members of counties of less than 3 million population and no county officers of non-home-rule counties. These sections basically purport to transfer that appointment power to the respective county central committees of the political party of which the incumbent was a candidate at the time of his election. The only restrictions on the appointment are that the appointee be a member of the same political party as was the incumbent and that he meet the qualifications required for the particular office. If the incumbent was an independent then the county board president would appoint a qualified individual subject to the advice and consent of the county board.

In cause No. 48194, People ex rel. Rudman v. Rini, the undisputed facts were as follows: On June 14, 1975, a vacancy on the Will County Board was created by the death of one of its members. The deceased was a Republican, and the Republican County Board District Committee for District No. 2 appointed William Loucks to fill the vacancy on July 15. On the following day, the Will County Board appointed Dominic Rini to fill the same vacancy. Rini took the oath of office, held the contested seat, and served on several committees. The State's Attorney of Will County notified the board that failure to seat Loucks as a board member was contrary to law. The board refused to comply, and the State's Attorney filed suit in the circuit court of Will County, naming Rini, the Will County Board and Loucks as defendants. The State's three-count complaint sought: (1) ouster of Rini by Quo warranto; (2) a declaratory judgment as to the rights of all the parties involved; and (3) a mandate commanding the Will County Board to seat Loucks. Rini and the Will County Board moved to dismiss, contending that Public Act 79--118 did not apply to vacancies occurring prior to July 8, 1975 (the effective date of the Act), and that the Act was unconstitutional. The motion was denied. The trial court granted the plaintiff's motion for judgment on the pleadings, and a judgment order was entered. The court found that the Act was constitutional and applied to vacancies which occurred prior to July 8, 1975, if such vacancies still existed after the Act became effective. The order ousted Rini, declared his appointment invalid, and commanded the Will County Board to seat Loucks as a board member. The trial court stayed the judgment order pending final disposition on appeal.

In cause No. 48232, People ex rel. Craig v. Hardin, plaintiff, Dorothy Craig, was appointed recorder of deeds by the Rock Island County Board of Supervisors on July 15, 1975, to fill the vacancy created by the death of the incumbent, a Democrat, who had died June 16. The Rock Island County Democratic Central Committee appointed defendant, Wesley T. Hardin, to fill the vacancy on August 7. Hardin took office and performed the duties. Plaintiff filed a complaint in the circuit court of Rock Island County, and defendant counterclaimed, each claiming to be the duly appointed recorder of deeds. The trial court granted plaintiff's request to oust defendant from the recorder's office and held that plaintiff's appointment was made pursuant to section 25--11 of the Election Code (Ill.Rev.Stat.1973, ch. 46, par. 25--11) without application of section 1 of Public Act 79--118, since the vacancy occurred before the Act came into effect (June 16, 1975). The court did not pass on plaintiff's alternative claim that the new act was unconstitutional. Both causes come before this court on direct appeal pursuant to Supreme Court Rule 302(b) (Ill.Rev.Stat.1975, ch. 110A, par. 302(b)), and because of the similarity of the contested issues of law, are consolidated for opinion.

These causes present two issues for this court's consideration: (1) whether Public Act 79--118, as it amends section 25--11 of the Election Code (Ill.Rev.Stat.1973, ch. 46, par. 25--11) and section 9 of 'An Act relating to the composition and election of county boards in certain counties' (Ill.Rev.Stat.1973, ch. 34, par. 839), applies to these causes, and (2) assuming Public Act 79--118 applies, whether it is constitutional.

The vacancies in the present appeals occurred during the existence of the old law, while the appointments filling the vacancies were made after the effective date of the amendment. The issue raised was which law applied, and therefore the question of the applicability of the amendment is before us. In Board of Education v. Nickell, 410 Ill. 98, 103, 101 N.E.2d 438, this court, in applying the principle established under section 4 of 'An Act to revise the law in relation to the construction of the statutes' (Ill.Rev.Stat.1975, ch. 131, par. 4), determined that the enactment of an amendment which repealed a remedial statute without a saving clause made that amendment applicable to that case if final relief had not been granted before the repeal went into effect. We find that the holding in Nickell pertains to the present causes and that the amendment applies. See Lincoln Community High School District No. 404 v. Elkhart Community High School District No. 406, 414 Ill. 466, 111 N.E.2d 532; Dolan v. Whitney, 413 Ill. 274, 109 N.E.2d 198; see also Ogdon v. Gianakos, 415 Ill. 591, 114 N.E.2d 686. In testing the validity of Public Act 79--118, we need to determine whether the appointment power granted in the Act is a proper delegation. The power to appoint public officers is the sovereign power of the State. (People v. Pollock, 306 Ill. 358, 363, 137 N.E. 820; Lasher v. People, 183 Ill. 226, 233, 55 N.E. 663; State Board of Agriculture v. Brady, 266 Ill. 592, 597, 107 N.E. 781.) The sovereign power of the State cannot be conferred upon a private person or group but must be delegated, if at all, to some public agency such as a municipal corporation, commission, local board or public officer. (See Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160; People ex rel. Chicago Dryer Co. v. City of Chicago, 413 Ill. 315, 323, 109 N.E.2d 201; Rouse v. Thompson, 228 Ill. 522, 81 N.E. 1109.) The claim that the political party committees for the counties are now on a par with public officers and can be delegated sovereign authority by the General Assembly since they are controlled by statute is incorrect. Sections 7--7 and 7--8 of the Election Code (Ill.Rev.Stat.1975, ch. 46, pars. 7--7, 7--8), which provide minimal control over these party committees, neither pertain to nor affect the authority granted to the respective committees in section 1 of Public Act 79--118. Focusing on this particular act, we find that the appointing committees are indistinguishable from private individuals. The committees do not carry the badge of public office. They are not accountable to the public, they give neither oath nor bond, and they do not separately substantially represent the populace of the area affected by the appointment. (See People ex rel. Kell v. Kramer, 328 Ill. 512, 519, 160 N.E. 60; Telcser v. Holzman, 31 Ill.2d 332, 336, 201 N.E.2d 370.) It is not the political party but the People that have the real...