People v. Garner
| Decision Date | 31 January 1868 |
| Citation | 47 Ill. 246,1868 WL 4971 |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, ex rel. COLEMAN GAINES.v.JOHN M. GARNER et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Logan county; the Hon. JOHN M. SCOTT, Judge, presiding.
The opinion states the case.
Messrs. STUART, EDWARDS & BROWN, for the plaintiffs in error. Messrs. PALMER & HAY, for the defendants in error.
This was a proceeding by quo warranto, in the Logan Circuit Court, upon an agreed state of facts; that at the October term, 1859, of the Logan County Court, the petition of fifty legal voters of the county was presented, praying that the court would cause to be submitted the question of township organization to a vote of the people at the ensuing November election; that the county court made an order and submitted the question to the voters of the county, but the order was not entered of record. Notices were given, the election was held, the vote returned and canvassed, and an abstract was prepared, which showed the total vote of the county cast at that election to have been 1426, and for township organization there were 973, and against the proposition there were cast 208 votes. At the December term of the county court the abstract was presented, and after being examined, it was decided and entered of record, that the question had been carried in the affirmative by the requisite number of votes, and the commissioners required by the law were duly appointed, but never acted or reported a division of the county into towns.
Afterwards, at the September term, 1865, a similar petition was presented, praying that the question of township organization should be again submitted at the ensuing November election; that the court again caused the question to be submitted to a vote by requiring the clerk to give the requisite notices, but no order or entry of their action requiring the notices was spread upon their record; that a vote was had on the question as required by the law, and there were cast 3054 votes, 1612 being in favor, and 700 opposed, to township organization. At the following December term the court decided that township organization had been adopted, and appointed, by order of the court, three commissioners to divide the county into towns. From this action of the county court six of the tax payers of the county appealed to the Circuit court, which appeal still remains on the docket of that court, undisposed of or determined; that in January, 1866, the persons who appealed from the county court, filed a bill for an injunction, to restrain the county court and commissioners from further proceedings to complete township organization. The writ was issued in accordance with the prayer, but, at the following October term the injunction was dissolved, and at the April term of the court the bill was dismissed on the hearing, and an appeal prayed and perfected to the Supreme Court. On the 29th of February, 1867, the commissioners filed their report with the county clerk, showing the manner in which they had divided the county into towns. The clerk thereupon gave the requisite notices for the holding of town meetings, designating the time and place, and for the election of town officers provided for by law; that the election was held, and the persons named as defendants in this proceeding were respectively elected supervisors from the different towns, and the election was held and conducted in the mode prescribed by law; that on the 17th day of May the supervisors, after being qualified, assembled at the court house at the county seat, and organized a board of supervisors, and elected John M. Garner as Chairman.
That at and since the time of such organization they have acted as a board, and as such have conducted the affairs of the county. After this organization the county court ceased to transact county business, but it has met regularly at the appointed terms as though the county had not adopted township organization. It was further agreed, that the registry of votes taken under the law preceding the election in November, 1865, showed in the county 3,868 voters, and that of those who voted at that election, 158 voted upon affidavits without having been registered. The agreement is substituted for pleadings in the case, and judgment rendered thereon as though formal pleadings had been filed and proof made. Also, that a pro forma judgment should be entered for respondents by the circuit court, that the case might be removed to the supreme court. The court rendered such a judgment, and the cause is brought to this court, and the rendition of the judgment is assigned for error.
The decision in this case depends upon the question whether the voters of Logan county have legally adopted township organization. Our constitution provides for county government in either of two modes. The first, and that which went into operation in all of the counties in the State on the adoption of that instrument, is provided for in the 19th section of article 5, which declares that the county judges, with such justices of the peace as may be designated by law, shall hold terms for the transaction of county business, and to perform such other duties as the general assembly may prescribe; provided, the general assembly may require two justices to be chosen by the qualified electors of each county, who shall act with the county judge in all cases. To carry this provision into effect, the act of 1849 established county courts in the several counties in the State, which continued in Logan county until the proceedings were had out of which this controversy has arisen.
The 6th section of article 7, provides for the mode of changing this county government to that of township organization, and declares that the general assembly shall provide, by a general law for such organization, under which any county may organize whenever a majority of the voters of such county, at any general election shall so determine, and whenever any county shall adopt such government, so much of the constitution as provides for the management of the fiscal concerns of the county, by the county court, may be dispensed with, and the affairs of the county may be transacted in such manner as the general assembly may provide. The general assembly, to give operation to this provision of the constitution, passed the act of 1849, which was repealed by the act of 1851, which, with its amendments, is still in force, and it provides for the manner in which the county may so organize, and prescribes the duties of the various county and town officers.
This latter act declares, “that at any general election that may be holden in the several counties in this State, the qualified voters in any county may vote for or against township organization in any county in this State.” The second section directs the county court, on the petition of fifty legal voters of the county, to cause the question to be submitted to the voters. In this case no question is made on the number or qualification of the persons signing the petition upon which the county court acted, or the power of the court to submit the question to a vote. It will also be observed that at the election in 1859, a large majority of those voting at that election were in favor of township organization, and that there was then no registry law, nor is there...
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