People ex rel. White v. Butler

• Decision Date: 16 May 1946
• Docket Number: No. 28915.,28915.
• Citation: 66 N.E.2d 388,393 Ill. 395
• Parties: PEOPLE ex rel. WHITE v. BUTLER, County Clerk, et al.
• Court: Illinois Supreme Court

393 Ill. 395

66 N.E.2d 388

PEOPLE ex rel. WHITE

v.BUTLER, County Clerk, et al.

No. 28915.

Supreme Court of Illinois.

March 20, 1946.

Rehearing Denied May 16, 1946

Appeal from Circuit Court, Montgomery County; James G. Burnside, judge.

Mandamus proceeding by the People, on the relation of Robert C. White, against Edward R. Butler, County Clerk, wherein the County of Montgomery was permitted to intervene as a defendant, to compel the county clerk to issue orders or warrants for payment of relator's salary as county judge. From a judgment in favor of the relator, the defendants appeal.

Judgment affirmed.Alan S. Windels, of Hillsboro, and H. B. Tunnell, of Litchfield, for appellants.

Omer Poos, of Hillsboro, for appellee.

SMITH, Justice.

This is an appeal from a judgment of the circuit court of Montgomery county, awarding the writ of mandamus. The complaint was filed in the circuit court in the name of the People on the relation of Robert C. White, against Edward R. Butler, as county clerk. He filed an answer to the complaint. The County of Montgomery was later permitted to intervene as a defendant. It also filed an answer to the complaint.

A stipulation of facts in the record, on motion of appellee, was ordered stricken by this court because it had not been properly preserved in the record. From the allegations of the complaint, which are either admitted or not denied by the answers, however, the following undisputed facts appear.

At the general election held in November, 1942, relator was elected county judge of Montgomery county, for the term beginning on the first Monday in December, 1942, and ending on the first Monday in December, 1946. He qualified by taking the oath of office, and was duly and regularly commissioned as such county judge. He entered upon the performance of the duties of such office on the first Monday in December, 1942. On June 18, 1943, he was inducted into the United States Army as a private. His salary as county judge was paid by the county regularly up to January 1, 1944. At that time, appellant, as county clerk, refused to issue an order or warrant for the payment of relator's salary. He based his refusal on the ground that relator had accepted and, since his induction into the army, was holding an office of honor or profit under the government of the UnitedStates which, he claimed, vacated relator's office as county judge.

At the annual meeting of the county board of Montgomery county in September, 1943, it made an appropriation and levied taxes for the payment of the salary of the county judge for the fiscal year beginning September 1, 1943, and ending August 31, 1944. At the time this suit was filed, sufficient funds had been raised from said tax levy and were on hand in the treasury of the county to pay the salary of county judge for said fiscal year. The county clerk having refused to issue orders or warrants for the payment of relator's salary for the first six months of 1944, demand in writing for the payment of such salary was served on the county clerk on July 1, 1944. Payment was refused. This suit was then brought. The prayer of the complaint was that a writ of mandamus issue, directing the county clerk to issue orders or warrants for the payment of relator's salary for the six months' period ending June 30, 1944.

The sole defense raised by the answers was that relator having been inducted into the United States Army as a private, had accepted an office of honor or profit, and thereafter held such office under the United States Government; that he thereby vacated his office as county judge, under section 3 of article IV of the constitution, Smith-Hurd Stats. The trial court, upon a hearing, awarded the writ as prayed. This constitutional question, having been raised by the pleadings in the trial court, gives us jurisdiction on direct appeal.

The parties in this court have devoted their arguments solely to the constitutional question of whether a private in the United States Army is holding an office of honor or profit under the United States Government, within the meaning of section 3 of article IV of the constitution. Nevertheless, at the threshold of the inquiry, we are met with another question which, we think, is decisive of the case. As already indicated, it is undisputed in the record that relator was duly elected, qualified and commissioned to the office of county judge for the term of four years, beginning on the first Monday in December, 1942. The question arises as to what right the county clerk, who is a ministerial officer, had to determine that respondent had vacated his office and was not entitled to receive the salary as such officer.

In Burgess v. Davis, 138 Ill. 578, 28 N.E. 817, we said that the enjoyment of the fees, profits and advantages of an office are so connected with the proper discharge of the duties of the office itself that they cannot be separated. The identical question here involved was decided by this court in People ex rel. Jonas v. Schlaeger, 381 Ill. 146, 45 N.E.2d 30, 35. In that case the relator had been lawfully appointed to the office of judge of the superior court of Cook county. The county clerk refused to issue an order or warrant for the payment of that portion of his salary payable out of the county treasury. The clerk of the superior court and the executive committee refused to assign to the relator a court room, or provide him with a docket to enable him to discharge his duties as judge. The ground for their refusal was that his term of office had ended and that he was no longer lawfully holding the office. Thereupon, an original petition for mandamus was filed in this court by the relator, on leave granted, to compel the county clerk to issue orders or warrants for relator's salary and the county treasurer to pay the same; to compel the clerk and the executive committee of the superior court to assign him a court room and a docket to enable him to discharge the duties of the office to which he had been lawfully appointed, qualified and commissioned. It was admitted that he had been duly appointed, qualified and commissioned, but it was contended that his term had expired. In that case, we pointed out that where relator's lawful appointment and qualification to the office is shown, he is entitled to hold and enjoy the...