People ex rel. Wellman v. Washburn

• Court: Illinois Supreme Court
• Writing for the Court: MAXWELL
• Citation: People ex rel. Wellman v. Washburn, 102 N.E.2d 124, 410 Ill. 322 (Ill. 1951)
• Decision Date: 27 November 1951
• Docket Number: No. 32011,32011
• Parties: PEOPLE ex rel. WELLMAN v. WASHBURN et al.

Page 124

102 N.E.2d 124

410 Ill. 322

PEOPLE ex rel. WELLMAN v. WASHBURN et al.

No. 32011.

Supreme Court of Illinois.

Nov. 27, 1951.

Walter C. Wellman, of Centralia, pro se.

Orville L. Wollard, and William C. Stephens, both of Centralia, for appellees.

MAXWELL, Justice.

This is an appeal from an order of the circuit court of Marion County dismissing an amended petition for a writ of mandamus filed by appellant, herein referred to as petitioner, to compel the city council of the city of Centralia to certify petitioner's name as a candidate for the office of police magistrate at the general municipal election, to redistrict the voting districts of the city, and to compel the city clerk to place petitioner's name on the official ballot, and, in the alternative, that if the cause not be finally determined prior to such election that a special election be called for the election of two police magistrates.

It appears from the petition that the city of Centralia was incorporated by a special act on February 18, 1859, which provided for the election of one police magistrate and that the charter was amended on February 22, 1861, to provide for one additional police magistrate. It further appears that at the time of its original incorporation, all of the territory embraced within the corporate limits was located in Marion County but that subsequently, in the year 1890, territory in Clinton County was annexed to the city.

While it is not alleged in the petition that a change has been made in the city's organization, the courts are required to take judicial notice of any change of incorporation of the city of Centralia from its original organization to incorporation under the general act for the incorporation of cities and villages. Ill.Rev.Stat.1949, chap. 24, par. 4-1; City of Rock Island v. Cuinely, 126 Ill. 408, 18 N.E. 753; Jones v Town of Lake View, 151 Ill. 663, 38 N.E. 688. The electors of the city did adopt the general act in 1893 and this court takes judicial notice of that fact. The city government was subsequently changed to, and now operates under, the commission form of government.

Petitioner argues that, since there were ten grounds specified for the motion to strike, the court below erred in entering the order sustaining the motion without specifying in its order the particular ground upon which the order was based. There is nothing in the statutes nor in the rules of this court requiring such a specification. The form of the order entered was entirely sufficient.

The substance of the question here is whether the office of police magistrate presently exists in the city of Centralia, which city is located in both the counties of Marion and Clinton.

We have no doubt but that the office of police magistrate was mandatory under the original incorporation of the city since the special act provided for the election of officers, designating them, and included in such designation was one police magistrate. It therefore becomes necessary to ascertain the effect of the change in the city's organization. After the adoption of the general act, the city was governed under the provisions of that act until the change to the commission form of government. The general act under which it operated provided: 'Laws in conflict with this Act shall no longer apply to such cities and villages. But laws not inconsistent with the provisions of this Act, shall continue in force and apply to any such city of village, the same as if the incorporation or change of incorporation had not taken place.' The above provision has been incorporated in the Revised Cities and Villages Act. (Ill.Rev.Stat.1949, chap. 24, par. 4-1.) The general act provided that a police magistrate 'may' be elected and was inconsistent with the mandatory provision of the special act so that, in effect, the special act was repealed. For the purposes of this suit, it is out opinion that we may consider the matter as through the city has never operated under any but the general act.

The statutes do not make the office of police magistrate mandatory either under the aldermanic or commission form of city government and that office is not included in the offices which must be filled. The statute provides that a police magistrate 'may' be elected. (Ill.Rev.Stat.1949, chap. 24, par. 9-73.) There is nothing in the record to indicate that the city has adopted an ordinance providing for the election of a police magistrate, which is the only means available for the city authorities to exercise their discretionary powers, and we must assume that no such ordinance has been adopted. It is our opinion that, under the statutory provisions, the election of a police migistrate was not mandatory and was within the discretion of the city council.

A somewhat similar situation came before this court from the city of Centralia in the case of People ex rel. Smith v. Rodenberg, 254 Ill. 386, 98 N.E. 764. In that case, a quo warranto proceeding was filed against the sitting judge of the city court calling upon him to show by what warrant he held the office of judge of a pretended city court. It was there held that the office was held without warrant or authority and thereby the rule was established that the act providing for the establishment of city courts could not be applied in the city of Centralia without infringing upon constitutional rights and destroying the rule of uniformity which must be observed in the creation of courts. This court, in the Rodenberg case, 254 Ill. at page 392, 98 N.E. at page 767 said: 'The authority to create city courts is subject to the condition that the organization, jurisdiction, powers, proceedings and practice shall be uniform. The different provisions of the Constitution must be construed together, and if a city court cannot be created in a particular city and such uniformity...