People ex rel. Stuckart v. Knopf

• Decision Date: 12 January 1900
• Citation: 183 Ill. 410,56 N.E. 155
• Parties: PEOPLE ex rel. STUCKART, Township Assessor, v. KNOPF, County Clerk.
• Court: Illinois Supreme Court

183 Ill. 410

56 N.E. 155

PEOPLE ex rel. STUCKART, Township Assessor,

v.KNOPF, County Clerk.¹

Supreme Court of Illinois.

Jan. 12, 1900.

Appeal from circuit court, Cook county; E. F. Dunne, Judge.

Mandamus by the people, on relation of Henry Stuckart, township assessor of South Chicago, against Philip Knopf, county clerk. From an order dismissing the petition, relator appeals. Affirmed.

Shope, Mathis & Barrett and Darrow, Thomas & Thompson, for appellant.

Robert S. Iles and Frank L. Shepard, for appellee.

CARTWRIGHT, C. J.

The people of the state of Illinois, on the relation of Henry Stuckart, township assessor of the town of South Chicago, in Cook county, filed a petition in the circuit court of said county, alleging that the relator was elected assessor of said town at the annual town election on the first Tuesday of April, 1899, and on May 1, 1899, demanded of Philip Knopf, county clerk of said county, the books and blanks for the assessment of property in said town for the year 1899, under the provisions of sections 69 and 70 of the revenue law in force prior to 1898, and praying for a writ of mandamus to compel said county clerk to deliver the books and blanks aforesaid to the relator. The defendant answered with a denial of the election and qualification of the relator as assessor of said town, and averred that on April 1, 1899, he delivered the necessary books and blanks for the assessment of property in Cook county to certain persons alleged to have been elected and qualified as the board of assessors of said county under and pursuant to an act of the legislature entitled ‘An act for the assessment of property and providing the means therefor, and to repeal a certain act therein named,’ in force July 1, 1898. A replication was filed, alleging that the relator was the regularly elected and qualified assessor of the town of South Chicago. The defendant, admitting the replication to be true, then moved the court to dismiss the petition upon the face of the pleadings. The court sustained the motion, and dismissed the petition at the cost of the relator. The case involved the question of the validity of the above-mentioned act of 1898, creating a board of assessors, and authorizing them to assess property, and taking the power from the township assessor, and an appeal is therefore taken directly to this court for the determination of that question.

The averments of the answer that the persons named therein had been elected and qualified as the board of assessors of Cook county, and that defendant had delivered the books to them, were not denied by replication, and were, therefore, admitted. On the basis of these facts it is argued that, having delivered the books to officers de facto, the act of the defendant could not be questioned; that the assessment made by such board of assessors for the year 1899 would be conclusive and binding upon all persons, and have the same credit and effect as if the board were officers de jure, and that there can be no relief for the relator, whether the act of 1898 is ralid or void. This argument is unsound, in railing to distinguish between cases where there is an existing office to be filled and one where there is not. An unconstitutional act cannotcreate an office. If the law under which the board of assessors of Cook county were elected and qualified is unconstitutional and void, then there was no such office known to the law as a board of assessors, and there could be no officer de facto of that kind. Prior to the act of 1898, there was the town office of township assessor, and this office is retained in express terms by that act. That officer is left to discharge every duty before imposed upon him, except the assessment of property in certain specified localities. It is admitted that the relator filled that office in the town of South Chicago. This board of assessors were not filling or claiming to fill that office, but the creation of the board was the creation of a new office. Where an office exists by law, an act providing for filling it may be void, and yet one who is in occupancy of the office, holding it under color of title, and discharging its duties, is an officer de facto. The acts of such an officer will be binding upon the public and third persons, but, if the office itself never existed, there can be no officer in fact. The authorities in support of this rule are very numerous, and need not be referred to at length. The rule is stated in Dillon on Municipal Corporations (section 76) as follows: ‘In this country the doctrine is everywhere declared that the acts of de facto officers, as distinguished from acts of mere usurpers, are valid, and the principle extends not only to municipal officers generally, but also to those composing the council, or legislative or governing body of municipal corporations. But, in order that there may be, within the meaning of the above rule, a de facto officer, there must be a de jure office; and the notion that there can be a de facto office has been characterized as a political solecism, without foundation in reason, and without support in law; and therefore a person cannot claim to be a de facto officer of a municipal corporation when the corporation or people have, in law, no power, in any event, to elect or appoint such an officer.’ The case of Leach v. People, 122 Ill. 420, 12 N. E. 726, which seems to be relied upon by counsel, does not hold the contrary. In that case the real cause of complaint was said to be ‘that the office legally existing was illegally filled.’ The legislature had attempted to change the composition of the board of supervisors of Wayne county, but, as the court said, ‘there was all the while the legally established office or official body of the board of supervisors of Wayne county.’ If no such office as the board of assessors of Cook county was lawfully created, the members of the board were not officers de jure or de facto, and any action of such board would be illegal and void. The question whether they were proceeding to make, or whether they have made, an assessment of property in Cook county, would be immaterial, and neither confer any right nor impose any duty. If the office was not created, the delivery to that board would be no justification for the refusal of the county clerk to deliver books and blanks to the relator. No matter what may have been done in the way of an assessment by a board of assessors, it is our duty to consider the questions presented as to the constitutionality of the act creating the board.

In the case of People v. Cook County Com'rs, 176 Ill. 576, 52 N. E. 334, we considered various objections made to the assessment act of 1898, which is now assailed, and held that it was not subject to any of those objections. The questions then determined are not open to further consideration, and counsel in this case have refrained from discussing any of them, but present to the court new and different objections to the act. The first of these objections is that the act is purely amendatory of existing laws for the assessment of property, and that it was passed by the legislature in disregard of section 13 of article 4 of the constitution, which provides that ‘no law shall be revived or amended by reference to its title only, but the law revived, or the section amended, shall be inserted at length in the new act.’ The title of the act of 1898, which has been already given, does not indicate that the act is amendatory of any existing law, nor does the act itself profess, in terms, to amend another law by reference to its title or otherwise. So far as the title goes, the act purports to be a complete law in itself, and to make provision for the assessment of property throughout the state, and to provide the means therefor. If it can be held to be such a law, constituting a complete and entire act of legislation on the subject which it purports to deal with, it will be deemed good, and not subject to the constitutional prohibition, notwithstanding it may repeal by implication or modify the provisions of prior existing laws. On the other hand, if the act is merely an attempt to amend the old law for the assessment of property by intermingling new and different provisions with the old ones, or by adding new provisions, so as to create out of the existing laws and this act together an act for the assessment of property, then the act is clearly amendatory of the old law, and the requirement of the constitution is that the law so amended must be inserted at length in the new act. The character of the act in this respect must be determined, not by the title alone, nor the question whether the act professes to be an amendment of existing laws, but by an examination and comparison of its provisions with prior laws which are left in force. An examination of the act, in connection with the very forcible argument of counsel against its validity, raises most serious questions whether it is not merely amendatory of prior existing laws for the assessment of property. These questions are, however, to be looked at in the light of the rule that an act within the legislative power is to be sustained as constitutional if it can reasonably be done, and the reason for giving the rule its utmost force in this case is especially cogent on account of conditions which are plainly apparent to every one. Under all the circumstances the act should be sustained, if possible, as independent legislation,and not as amendatory in character. The mere fact that portions of the old law are left in force, so that the statutes present the aspect of what has been called ‘patchwork legislation,’ as they undeniably do, should not render the act void, if it can be said that the act is reasonably complete and sufficient in itself upon distinct branches of the general subject.

In the case of ...