People v. Reynolds

• Decision Date: 31 December 1848
• Citation: 10 Ill. 1,1848 WL 4108,5 Gilman 1
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, ex rel. ALBERT G. CALDWELLv.JOHN REYNOLDS.
• Court: Illinois Supreme Court

5 Gilman 1

10 Ill. 1

1848 WL 4108 (Ill.)

THE PEOPLE OF THE STATE OF ILLINOIS, ex rel. ALBERT G. CALDWELL

v.JOHN REYNOLDS.

Supreme Court of Illinois.

December Term, 1848.

MOTION for a peremptory mandamus to John Reynolds, recorder of deeds for the county of Gallatin and State of Illinois, to require him to enter upon the records of said county certain deeds tendered to him for that purpose by the relator in this case. The motion was predicated upon certain facts set forth in the petition of the relator, which are substantially as follows:

That on the first Monday of August, 1847, Gallatin county was included within certain limits defined by law and so recognized; that by an act of the general assembly, approved January 26, 1826, the county seat was located at Equality; that on said first Monday of August, there was an election for public officers of said county, and among them a recorder; that at such election, one John Reynolds was duly elected for the term of two years, etc., and was subsequently commissioned and qualified, and performed the duties of said office at said Equality; that by virtue of an act of the general assembly, entitled “An act to divide the county of Gallatin and to form out of the same the county of Saline,” approved Feb. 25, 1847, the electors of said county, by a vote upon the question, cast a majority of their votes in favor of the division of the county, and the said John Reynolds, then being such recorder, fell within the limits assigned to Gallatin county by the provisions of said act.

The petition then went on to allege that said act was unconstitutional and void, and that said Reynolds continued to be the recorder of the original county of Gallatin, not having resigned his said commission; that the relator, believing him to be the proper recorder of said original county, presented certain deeds (describing them) to him for record, concerning certain lands lying within the limits of said original county, and within the limits defined by said act as the county of Saline; that said Reynolds refused to receive and record said deeds, as requested.

The respondent answered the petition, and stated that the relator exhibited to him his petition for a mandamus and notices of his intention to move for the same, addressed to and served upon the counties of Gallatin and Saline by filing the same with the acting clerks of the county commissioners' court; that he waived all preliminary process in the case, and entered his appearance accordingly, and submitted the question in controversy to the decision of the court, in the same manner as if an alternative mandamus had been issued.

The facts stated in the petition were admitted by respondent, but he further alleged, that on the day of said election, Shawneetown received a majority of the votes for the county seat of Gallatin, as divided; that the respondent retained his office at Equality, the old county seat, awaiting the direction of the law; that the county commissioners of said Gallatin county thus newly formed, on the third day of October, 1848, vacated said respondent's office and ordered a new election of recorder for the county thus formed; that, at such election, he was elected recorder of such county, but had not as yet qualified, nor acted as such, or resigned his original commission; that the order aforesaid vacating said office was prior to the presentation of the deeds aforesaid for record; and finally, that in consequence of all these proceedings, he was embarrassed and undecided as to what course to pursue, and therefore declined to record said deeds as requested by the relator.

H. W. MOORE, for the Relator:

The court will entertain and decide this case upon the merits, as it is presented, without process of law. The People v. Fletcher, 2 Scam. 482; The People v. Wren, 4 Scam. 269.

The court will so decide this case, involving as it does the constitutionality of a State law, in a matter wherein the mere recording of deeds is to be required to be done or not done. The first case in which the Supreme court of the United States, after solemn investigation, declared a law of congress to be unconstitutional, was one upon which arose the propriety of the delivery of a commission to a justice of the peace. Marbury v. Madison, 1 Cranch, 137.

The facts present the single question, whether John Reynolds, recorder of Gallatin county, elected under its old organization, and whose commission has not expired, shall continue to act as such recorder, irrespective of the pretended act of the general assembly of Illinois, of February, 1847, for the creation of the county of Saline from a portion of such county of Gallatin.

From an examination of that act, the recorder of old Gallatin county should so record, as that act is void.

I. Because it is in direct conflict with the constitution existing at the time of its supposed enactment.

1. By the constitution, “the legislative authority of this State shall be vested in a general assembly,” etc. By the act cited, it is sought to be vested in the people of the county of Gallatin. See the parallel cases and acts of Pennsylvania and Delaware, cited in the Western Law Journal, January and June numbers, 1848, [Rice v. Foster, and Parker v. the Commonwealth,] and the decisions of the Supreme courts of those States, there reported, declaring those acts unconstitutional.

2. By the terms of the act in question, it is not an expression of the legislative will, but is to be operative only at the will of the people of the county, thereby enabling them to repeal the former solemn and positive act of the general assembly, mentioned in the application of the relator, and is not a municipal law prescribed, etc. Ibid.; 1 Black. Com. 45-6.

3. Delegated authority cannot be delegated. 5 Peters, 390; 3 Peters' Dig. 275.

II. Because it is against the genius, the nature, and the spirit of the State government, of our republican institutions, and of the guaranty of the United States' constitution, and is revolutionary and destructive. Journals before cited; also, Calder v. Bull, 1 Peters' Cond. R. 174.

1. No State shall have other than a republican form of government. Art. IV. § 4, Const. U. S.

2. Frequent recurrence to fundamental principles of civil government is indispensable to its preservation. Art. VIII. of the late constitution.

3. Civil liberty requires a surrender of sundry original rights. 1 Black. Com. 6, 125, 261; 1 Story's Com. 255; Law Journals before cited; Woodeson's Lectures; 1 Peters' Cond. R. 174.

4. To alter the form of government, a mode is authorized in article VII. of the late constitution of Illinois, and to effect the partial reform of government contemplated in the act in question, would be revolutionary and anarchical, and subversive of the intention “to establish justice, promote the welfare, and secure the blessings of liberty,” expressed in the preamble by the framers of that instrument. See, also, the analogy to be drawn from the example mentioned in 1 Story's Com. 303; Rice v. Foster, decision in 1848 in Delaware, at the end, and at page 409, of the Law Journal.

III. Two or three examples of similar acts of this State, suffered to operate without question before a judicial tribunal, will not suffice to “sanctify error or perpetuate usurpation” in the governmemt of this State; nor, in the language of the Supreme court of Pennsylvania in 1848, in the case of Parker v. The Commonwealth, would they “justify us in declining to express the conclusion that the legislature has transcended its authority.” See Story's Com. 390.

IV. Nor will the doctrine, that in the creation of private corporations, the assent of the corporators is necessary to effect the organization, furnish an analogy upon which to predicate the necessity of a like assent subsequent to the enactment, the case of public corporations, as counties, etc. Angell & Ames on Corp. 9, 25-26.

V. Whatever may be the case in other countries, in this there can be no doubt, that every act of the legislature, repugnant to the constitution, is absolutely void, and it will be the duty of the court to adhere to the constitution, and to declare the act null and void. 3 Peters' Dig. 555-6; 1 Peters' Cond. R. 183, 283, 308, 421; 1 U. S. Dig. 553, and the cases there cited; 1 Story's Com. 347, 349; Bacon's Abr. (“Statute,” H.); Kent's Com. Lect. 14, p. 277.

VI. A due regard to the permanence of our State government, under the new constitution, and to the tranquility and prosperity of those who live and are to live within its influence, requires that the general assembly should exercise the sole legislative power, except as specially permitted in that instrument; lest the practice should at last creep into the legislature of waiving the exercise of their power, (under proper previous instruction,) to make absolute laws, and submitting every delicate measure, general or special, for the enactment of the people in their primary and aggregate capacity; thus convulsing them with frequent and exciting and angry elections, establishing a ““pure democracy,” by degrees, with all its confusion and violence, and, without the forms newly prescribed, sapping and overthrowing the fabric of republican, representative government which the favored people of this State, with so much care, have recently established.

R. F. WINGATE, for the Respondent:

1. The legislature has the power to create, change, modify, or destroy municipal corporations. The People v. Wren, 4 Scam. 269.

2. That if the section of the act submitting the division of the county of Gallatin to a vote of the people is unconstitutional, it does not follow that the whole act is void and unconstitutional. Edwards v. Pope, 4 Scam. 465.

3. That the county commissioners' court had a right to vacate the office of said defendant, if he neglected or refused to move his office, with the records thereof, to Shawneetown, Shawneetown having been established as per act, the county seat of...