People Ex Rel. the Ill. Midland Ry. Co. v. the Supervisor of Barnett Twp..
| Decision Date | 30 September 1881 |
| Citation | 100 Ill. 332,1881 WL 10625 |
| Parties | THE PEOPLE ex rel. The Illinois Midland Railway Companyv.THE SUPERVISOR OF BARNETT TOWNSHIP. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
This was an application to this court for an alias peremptory writ of mandamus, to compel the present supervisor of Barnett township to perform a duty which his predecessor in office had refused to perform, as indicated in The People ex rel. v. Supervisors of Barnett Township, 91 Ill. 422.
Mr. T. C. MATHER, Mr. S. D. SCHOLES, and Mr. GEO. H. ESTABROOK, for the relator.
Messrs. MOORE & WARNER, for the respondent.
A rule of this court, based upon an affidavit filed by the relator, was entered in this cause on January 13, 1881, against Lyman Barnett, to show why he should not be made party defendant to this suit, and why an alias writ of mandamus should not be issued to him, commanding him to perform the acts which his predecessor in office was, by the former writ in the case, ordered to perform, which was, to execute, on behalf of the town of which he was supervisor, certain bonds to the relator. The respondent made return to the rule, to which the relator has demurred.
The first cause shown in the return against the rule is, that neither the railway company nor its receiver has authorized this proceeding. It purports to be instituted by the railway company by its attorney, who is an attorney of this court, and the presumption of his authority in this regard will prevail over the bare statement, unsupported by affidavit, of the return to the contrary.
The second and third causes are, that there has before been issued and served one peremptory writ of mandamus to the supervisor of the town, and that no new party or amendments can now be made to the judgment and record, and that an alias writ of peremptory mandamus can not issue,--that the power of the court was exhausted by the issuing of the first writ.
We do not regard the relator as seeking by this rule to make a new party or any amendment, within any rule not allowing of amendments, but only as simply asking an alias writ like the first, directed against the supervisor of the town of Barnett, commanding the performance of this ministerial duty, which is a continuing duty upon the supervisor and his successors in office until it is performed. It is but asking for the repetition of the writ against the same party, represented by another person.
In High on Extraordinary Remedies, sec. 38, it is stated, where a continual and perpetual duty is incumbent upon certain public officers, the fact that the officers hold their tenure by annual elections will not prevent the court from interfering, since the duty being continuing in its nature, may be enforced against the officers generally, and their successors.
Section 8 of the Mandamus act provides, that “the death, resignation or removal from office, by lapse of time or otherwise, of any defendant, shall not have the effect to abate the suit, but his successor may be made a party thereto, and any peremptory writ may be directed against him.”
In Reece v. Watertown, 19 Wall. 117, where there had been three peremptory writs of mandamus issued by the circuit court in the case, it was remarked, in reference to such a writ, that it might be repeated as often as the occasion required. The fifth and last cause shown in the return is, that on June 2, 1879, respondent resigned his office of supervisor of the town, and his resignation was accepted, and that at the next election held in the town his successor was elected supervisor of the town.
Section 92 of the Township Organization act, Rev. Stat. 1874, p. 1078, provides, that “town officers, except as otherwise provided, shall hold their offices for one year, and until others are elected or appointed in their place, and are qualified.” This is the provision which applies here, there being no provision otherwise in respect to the supervisor's term of office. Section 61 reiterates the same provision--that they shall hold their offices for one year, and until their successors are elected, and qualified. Section 100 provides, that any two justices of the peace of a town may, for sufficient cause shown to them, accept the resignation of any town officer of their town. Section 85 provides, that every person elected or appointed to the office of supervisor, etc., before he enters upon the duties of his office, and within ten days after notification of his election or appointment, shall take and subscribe the oath or affirmation of office prescribed by the constitution, which shall, within eight days thereafter, be filed in the office of the town clerk....
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