Tissier v. Rhein

• Decision Date: 31 October 1889
• Citation: 22 N.E. 848,130 Ill. 110
• Parties: TISSIER v. RHEIN, County Clerk.
• Court: Illinois Supreme Court

130 Ill. 110

22 N.E. 848

TISSIER

v.RHEIN, County Clerk.¹

Supreme Court of Illinois.

Oct. 31, 1889.

Hite & Dill

, for plaintiff.

M. W. Schaefer, F. G. Cockrell, and E. R. Davis, for defendant.

This is an original petition for mandamus filed in this court by Maurice F. Tissier against Philip Rhein, the county clerk of St. Clair county, to compel the latter to issue to the petitioner a certificate of election, certifying to the election of petitioner as a justice of the peace in the town and city of East St. Louis, in said county. The petition shows that in 1883 St. Clair county adopted township organization, and the township of East St. Louis was organized, and elected town officers; that in 1886 the city of East St. Louis adopted what is known as the ‘City Election Law,’ entitled ‘An act to regulate the holding of elections, and declaring the result thereof, in cities, villages, and incorporated towns in this state,’ approved June 19, 1885, in force July 1, 1885; that in 1888 the county board of said county, upon request, by resolution of the city council of East St. Louis, provided that the territory embraced in said city should be organized as a town, so that the limits of the town of East St. Louis are the same as the boundaries of the city of East St. Louis; that by ordinance of the city passed in 1888 the offices of city-clerk and town-clerk were consolidated into the latter office, and those of city treasurer and township collector were consolidated into the office of city treasurer, and the office of highway commissioners was abolished; that in August, 1888, the citizens of East St. Louis adopted the general law for the organization of cities; that, at the town election in the town of East St. Louis held in 1885, five justices of the peace and five constables were elected for terms of four years each, expiring April 2, 1889; that on March 20, 1889, the city council passed an ordinance that thereafter there should be elected in and for the town and city of East St. Louis two justices of the peace, one police magistrate, and three constables, and no more; that an election was held in said city and town on April 2, 1889, for mayor and other officers, the notice of election reciting that it was for ‘two justices of the peace for the township’ and other officers; that on the tickets were printed the words, ‘For justice of the peace,’ ‘Two to be elected;’ that at the election of April 2, 1889, there were eleven candidates for justice of the peace, and petitioner received 356 votes, ‘being the fourth highest in the list of candidates for said office, as shown by the official returns;’that the population of said city and town in 1880 was about 10,000, and in 1889, 13,561; that the board of election commissioners and the board of canvassers of said election canvassed all the votes for justice of the peace, and declared but two of the eleven candidates elected, they standing first and second on the list; that the returns showed the election of three others, including petitioner, if five were to be elected; that by section 1 of ‘An act to provide for the election and qualification of justices of the peace,’ etc., approved April 1, 1872, in force July 1, 1872, there shall be elected, in counties under township organization, on first Tuesday in April, 1885, and every four years thereafter, two justices of the peace and two constables, and one justice of the peace and one constable for every 1,000 inhabitants exceeding 2,000 inhabitants of such town: provided, the number in no one town shall exceed five justices and five constables; that on April 5, 1889, petitioner demanded a certificate of election from the city-clerk, ex officio town-clerk of East St. Louis, and the same was refused; that on the same day he made a similar demand upon the county clerk of said county, tendering an official bond, with responsible sureties, and the oath of office duly signed and sworn to; that said clerk accepted and filed said oath and bond, but refused to grant the certificate of election, etc. The defendant, Rhein, filed a general demurrer to the petition.

MAGRUDER, J., ( after stating the facts as above.)

The question in volved in the present case is this: Where a city and town occupy the same territorial limits, has the common council of such city the power to determine how many justices of the peace shall be elected in such city and town? Section 1 of the general law of the state in regard to justices of the peace, being chapter 79 of the Revised Statutes, provides that, in counties under township organization, there shall be elected in each town two justices of the peace, and one justice of the peace for every 1,000 inhabitants exceeding 2,000 inhabitants of such town: provided, that no more than five justices of the...