Smith v. People of State

CourtIllinois Supreme Court
Writing for the CourtWALKER
Citation44 Ill. 16,1867 WL 5085
Decision Date30 April 1867
PartiesARTHUR A. SMITHv.THE PEOPLE OF THE STATE OF ILLINOIS, on the relation of DAVID H. FRISBIE.

44 Ill. 16
1867 WL 5085 (Ill.)

ARTHUR A. SMITH
v.
THE PEOPLE OF THE STATE OF ILLINOIS, on the relation of DAVID H. FRISBIE.

Supreme Court of Illinois.

April Term, 1867.


APPEAL from the Circuit Court of Bureau county; the Hon. E. S. LELAND, Judge, presiding.

This was an information in the nature of a quo warranto, by James A. McKenzie, State's attorney for the tenth judicial circuit, on the relation of David H. Frisbie, of Knox county, against Arthur A. Smith, judge of said tenth judicial circuit.

The first count of the information charges that on the 19th day of February, 1867, Arthur A. Smith, at the county of Knox, unlawfully usurped the office of judge of the tenth judicial circuit, and did then and there enter upon and exercise the duties and powers of the office of judge, and enjoy the privileges and immunities of said office, to the great injury of the relator and other citizens of Knox county, and said tenth judicial circuit. The second count charges substantially the same as the first, with the addition that on the 19th day of February, 1867, Arthur A. Smith unlawfully usurped the office of judge “well knowing that he had not been a resident of the State of Illinois for the term of five years next preceding said 19th day of February, 1867, and next preceding the date of the filing of this information.” It was stipulated on the part of the State's attorney and appellant, that the information might be presented at the March Term, A. D. 1867, of the Bureau Circuit Court; that no special pleas need be filed; that any and all legal defenses might be made without pleas; that the only point at issue should be whether or not appellant had been for the last five years a resident of this State.

That no question should be raised as to the fact that the governor, under the power vested in him by law, did commission appellant as judge of the tenth judicial circuit aforesaid, on the 19th day of February, 1867, and that he took the oath of office required by law, the only question in the case being that of residence. It was further stipulated that either party might use the affidavits of persons who would be competent to be sworn as witnesses in the cause, and that such affidavits should be entitled to the same weight as though the persons making them had sworn to the same matter in open court.

To maintain the issues on his part, appellant proved by John Becker, that he was a citizen of Knox county, Illinois; that he had known appellant in Knox county for the last twenty years; that he had frequent conversations with appellant after his return from the army in July, 1865, and before his return to Tennessee in August of that year; that he and appellant had discussed the question whether it would be possible for a northern man to live south; that witness had visited Tennessee where appellant was stationed during the war; that he was pleased with the country and climate, but had doubts about the temper of the people. Witness had some notion of removing to Tennessee himself, and freqently discussed the propriety of the step with appellant after his return from the army; that appellant always stated to him that his return to Tennessee would be an experiment; that he thought there would be a good opening to make money there for a year or two after the close of the war, and while the military occupied the country; and that, if society should become settled so that the life and property of a northern man would be safe there, he might purchase property and make it his home; that it was arranged between witness and appellant that appellant should go south and try the experiment of living there, and if he should become satisfied, after remaining there a reasonable time, that a northern man could live there unmolested and in peace, he was instructed to purchase property for witness, in or near Clarksville, Tennessee, with a view to witness' removal to that place; that appellant had not been gone more than a month before he informed witness by letter that he was satisfied that he could not live in safety in Tennessee, and that he intended to return to Illinois as soon as he could close up his business; that appellant did return to Galesburg, Illinois, where he had resided before the war and has resided ever since; that appellant returned about the middle of March, A. D. 1866. Appellant then proved by Elias Benner, a citizen of Knox county, Illinois, that he had known appellant in said county for the last twelve years; that appellant entered the military service of the United States in the month of August, 1862, and was absent from Illinois, in said service, nearly three years, returning to his home in said county in July, 1865; that appellant was stationed a part of the time, during the military service aforesaid, at Clarksville, Tennessee, and while there stationed had his family with him, and that his family returned to Illinois with him, when he was mustered out of service in July, 1865.

That soon after appellant's return he told witness, that his business relations had been broken up by his absence in the army, and that, as there was a prospect that business would be very dull in the north for some time after the close of the war, he had decided to go back to Tennessee, where he had been in command, and engage in the claim and law business for a time, and if he found it safe for him to live there, he might buy property and make it his home; but if he found it otherwise, he should return to Illinois.

That in the month of August, 1865, appellant did go with his family to Clarksville, Tennessee; that previous to his departure, appellant sold a part of his household goods and left the remainder in witness' possession for safe keeping; that appellant rented his dwelling-house, and authorized witness to collect the rent; that witness acted as agent of appellant, both while he was in the army and during his second absence in Tennessee, appellant being the son-in-law of witness.

That appellant had not been absent, as aforesaid, more than a month, when he wrote witness, that he had tried the experiment of living south, and found, that he could not safely make it his home on account of the unsettled state of society and the hostility of the citizens against him, and that he had determined to return to Illinois as soon as he could close up his business and as soon as the river was navigable, it being then so low that boats could not run; that appellant did return to Galesburg,...

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16 practice notes
  • Maksym v. the Bd. of Election Commissioners of The City of Chicago, No. 111773.
    • United States
    • Supreme Court of Illinois
    • January 27, 2011
    ...this approach. 406 Ill.App.3d at 13, 347 Ill.Dec. 536, 942 N.E.2d 739. The court acknowledged that in Smith v. People ex rel. Frisbie, 44 Ill. 16 (1867), this court used an intent-based approach in determining a candidate residency question, but found this unpersuasive because a different s......
  • Maksym v. the Bd. of Election Commissioners of The City of Chicago, No. 1–11–0033.
    • United States
    • Illinois Appellate Court
    • January 24, 2011
    ...adopting, or directly addressing this approach. The only cited supreme court case to approach the issue is Smith v. People ex rel. Frisbie, 44 Ill. 16 (1867), a quo warranto action decided under the presumption that the candidate had a right to the office to which he had been appointed and ......
  • Collier v. Anlicker
    • United States
    • Supreme Court of Illinois
    • February 20, 1901
    ...premises. Removal for several months, when no residence is acquired, does not forfeit residence for the purpose of voting. Smith v. Peopel, 44 Ill. 16; City of Beardstown v. City of Virginia, supra; Kreitz v. Behrensmeyer, supra. But, if it be admitted that Kerrick was an illegal voter, the......
  • Palmer v. Riddle
    • United States
    • Supreme Court of Illinois
    • June 19, 1902
    ...intention remains conditional. Potts v. Davenport, 79 Ill. 455;Wilkins v. Marshall, 80 Ill. 74;Hayes v. Hayes, 74 Ill. 312;Smith v. People, 44 Ill. 16;City of Beardstown v. City of Virginia, 81 Ill. 541;Imhoff v. Lipe, 162 Ill. 282, 44 N. E. 493. We think the evidence in this record amply s......
  • Request a trial to view additional results
16 cases
  • Maksym v. the Bd. of Election Commissioners of The City of Chicago, No. 111773.
    • United States
    • Supreme Court of Illinois
    • January 27, 2011
    ...this approach. 406 Ill.App.3d at 13, 347 Ill.Dec. 536, 942 N.E.2d 739. The court acknowledged that in Smith v. People ex rel. Frisbie, 44 Ill. 16 (1867), this court used an intent-based approach in determining a candidate residency question, but found this unpersuasive because a different s......
  • Maksym v. the Bd. of Election Commissioners of The City of Chicago, No. 1–11–0033.
    • United States
    • Illinois Appellate Court
    • January 24, 2011
    ...adopting, or directly addressing this approach. The only cited supreme court case to approach the issue is Smith v. People ex rel. Frisbie, 44 Ill. 16 (1867), a quo warranto action decided under the presumption that the candidate had a right to the office to which he had been appointed and ......
  • Collier v. Anlicker
    • United States
    • Supreme Court of Illinois
    • February 20, 1901
    ...premises. Removal for several months, when no residence is acquired, does not forfeit residence for the purpose of voting. Smith v. Peopel, 44 Ill. 16; City of Beardstown v. City of Virginia, supra; Kreitz v. Behrensmeyer, supra. But, if it be admitted that Kerrick was an illegal voter, the......
  • Palmer v. Riddle
    • United States
    • Supreme Court of Illinois
    • June 19, 1902
    ...intention remains conditional. Potts v. Davenport, 79 Ill. 455;Wilkins v. Marshall, 80 Ill. 74;Hayes v. Hayes, 74 Ill. 312;Smith v. People, 44 Ill. 16;City of Beardstown v. City of Virginia, 81 Ill. 541;Imhoff v. Lipe, 162 Ill. 282, 44 N. E. 493. We think the evidence in this record amply s......
  • Request a trial to view additional results

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