Hinze v. People ex rel. Halbert

Mr. Justice Scholfield delivered the opinion of the Court: Before proceeding to the real point in controversy here, it is necessary to pass upon certain preliminary objections that have been urged against the jurisdiction of the circuit court. It is contended that court had no jurisdiction because the existence of the office, and not the right simply to hold the office, is questioned. The statute (Rev. Stat. 1874, p. 787, § 1,) provides that the writ shall lie, as well where any person unlawfully holds or executes any office or franchise, as where any person shall usurp or intrude into any office or franchise. If the law by which it is claimed the office is created is invalid and of no effect because in contravention of the constitution, any person who assumes to hold or execute such office must necessarily do so unlawfully, and therefore come literally within the language of the statute,—that is, “ unlawfully hold and execute such office.” Whether there can, legally speaking, be a usurpation or intrusion, when there is no lawful office, is not, therefore, a material inquiry. Although there may have been no unlawful usurpation or intrusion, there was an unlawful holding and executing of an office, if the law by which it is claimed to have been created is unconstitutional. It is also contended that the court erred in refusing to strike the information from the files because of the amendments made after it was filed. Even if we should regard it as material, it is sufficient here to say that it does not appear that the amendments were not made with the knowledge and approbation of the Attorney General. His name appears, in connection with other attorneys, at the commencement of the proceeding, and, in the absence of. evidence to the contrary, we must assume that all subsequent steps in the cause were taken with his knowledge and approbation. We regard all the amendments as more formal than substantial. Whether Halbert or Bowman should be relator was of no manner of consequence to the defendants, and the reason for charging that the defendants “ unlawfully held and exercised ” the office of police commissioners, etc., is obviously no part of the charge. Informations were amendable at common law. Rex v. Wilkes, 4 Burrows, 320, (2527;) Truitt v. The People, 88 Ill. 518. The amendments were clearly within the discretion of the court, under the very liberal provisions of our statute in that regard, and it can not be held error to refuse to strike the information from the files after they were made. The real contest here is in regard to the constitutionality of the “Act to establish a police force for the city of East St. Louis,” in force February 22, 1867, (Priv. Laws of 1867, vol. 2, p. 483,) and of the act amendatory thereof, in force March 27, 1869, (Priv. Laws of 1869, vol. 1, p. 911.) The first section of the first named act declares that no ordinance theretofore passed, or that may thereafter be passed by the city council of East St. Louis, shall in any manner conflict or interfere with the powers or the exercise of the powers of the board of police commissioners of the city of East St. Louis, as thereinafter created, and prohibits the city and any officer or agent thereof, or of the mayor, from in any manner impeding, obstructing, hindering or interfering with “ the said board of police, or any officer or agent or servant thereof or thereunder.” By the second section, so much of the city charter and ordinances as authorized the mayor and city council to appoint, pay and arm the police of said city, and protect the said police in the discharge of their duty, is repealed. The third section establishes a board of police within and for the city of East St. Louis, to be called the “ Police Commissioners of the City of East St. Louis,” prescribes their qualifications and amount of salary, and fixes their term of office, etc. The fourth section directs that such commissioners shall be appointed by the Governor, by and with the advice and consent of the Senate. The fifth section confers ample powers for all purposes of police within the city. The sixth section, to enable them to discharge the duties enjoined by the fifth section, authorizes and requests the board to “appoint, enroll and employ a permanent police force for the city,” and to arm and equip them as they shall deem necessary. The seventh section prescribes the officers of the police force to be so appointed and enrolled, etc. The eighth and ninth sections relate to the amount of compensation to be paid to policemen and officers. The tenth section provides for the filling of vacancies in the police force, removals, etc. The eleventh section prohibits policemen from receiving any gratuity or compensation for service without the consent of the board. The twelfth section authorizes the board to provide themselves with offices, furniture, etc., to have a common seal, and to divide the city into police districts. The thirteenth section makes it the duty of the sheriff of St. Clair county, whenever called upon by the board for that purpose, to act under their control for the preservation of the public peace. It also confers power on the board to assume the control and command of all cqnservators of the peace of the city of East St. Louis, whether sheriff, marshal, constable, policeman or others, and imposes penalties for refusal to submit to such subordination, etc. The fourteenth section makes it the duty of the board, at its first meeting, to inform the city marshal, captain of police and other officers of the police force of the city of East St. Louis that they require their attendance upon them and obedience to their orders. And from and after such first meeting of the board, the whole of the then existing police force of the city of East St. Louis is required to pass under the exclusive management and control of said board, and shall continue, subject to removal or suspension at the discretion of the board, and with power in the board to fill vacancies, until the board shall publicly declare that the organization of the police force created by that act is complete. And thereafter “all ordinances of the city of East St. Louis are annulled and declared void, so far as they conflict with this act or assume or confer upon the mayor or any other person the power to appoint, dismiss, or in any way or to any extent employ or control any police force organized or to be organized under such ordinances or any of them; and from and after such pub-lie declaration, as aforesaid, the police force organized, or which may be organized under such ordinances or any of them, shall cease to exist, and all it’s functions and powers to be at an end.” The fifteenth section provides for the enforcement of the authority of the board. The sixteenth section makes it the.duty of the board, with all convenient speed, after qualifying, etc., “and annually thereafter, to estimate what sum of money will be necessary for each fiscal year, to enable them to discharge the duties ” by the act imposed upon them, and requires that they certify the same to the city council of the city of East St. Louis, who are thereby required in the first appropriation ordinance of the fiscal year to set apart and appropriate the amount so certified, out of the general fund of the said city of East St. Louis; and in case the city council shall fail to make such appropriation, or the disbursing officer or officers shall not forthwith pay over the amount of such requisition, as made and required, it is made the duty of the board to issue certificates of indebtedness, in the name of the city of East St. Louis, in such amounts as they may deem advisable, for the amount of such requisitions respectively, bearing interest, etc.,—which certificates are declared to be as binding upon the city and “ as recoverable against it as if the city council of East St. Louis had authorized ” them. And the city council of the city of East St. Louis is denied power to levy or collect any tax or appropriate any money for the payment of any police force other than that to be organized and employed under the provisions of the act; and the officers of the city are prohibited from making any payments to any other police force, etc., etc. The seventeenth section requires the board to keep a journal of their proceedings, and report to the city council, etc. The eighteenth section repeals all acts and parts of acts and charter provisions, and all ordinances of the city of East St. Louis, conflicting with that act. The first section of the amendatory act of Marph 27, 1869, relates to the times at which the officers of the police force shall be entitled to receive payment. The second section applies the provisions of section fifteen to every member of the city council, etc. The.third section relates to the circulation of the certificates provided to be issued by the sixteenth section of the original act, and makes them receivable for dues to the city at their par value. The fourth section declares the police commissioners and the officers and policemen appointed by them to be public officers, and makes resistance to them punishable under the criminal code, as resistance to other officers is. The fifth section authorizes the board to appoint a turnkey . or doorkeeper at each police station and fix his compensation, etc. The sixth section relates to the certificates theretofore issued by the board and declares them valid. The seventh section confers power upon the board and makes it their duty to abate nuisances, etc. The eighth section repeals all conflicting acts, and declares that this, and the act to which it is an amendment, shall be public acts. The validity of different provisions of these acts has been several times discussed before this court and decisions rendered affecting them. The first case was Lovingston v. Wider et al. 53 Ill. 302. A bill was filed by a tax-payer setting forth the substance of the first act and averring that the city council had refused to recognize the authority of the police commissioners, and that they had issued large amounts of certificates and sold them at twenty cents on the dollar, and were continuing to do so. The bill alleged the unconstitutionality of the law, and prayed an injunction against the commissioners, who were made defendants. The cause was heard on demurrer to the bill, and the court below sustained the demurrer and dismissed the bill. This court affirmed that decree solely upon the ground that the complainant was not injured by the action of the police commissioners, no tax having been levied for the payment of the certificates and it being impossible that such tax could be levied by any authority other than that of the city council. The court, nevertheless, decided the main question, because the pleadings were designed to present it, and it was deemed highly important to the people of the city of East St. Louis that it should be decided. It was then said: “The validity of this act can hardly be considered an open question in this court since the decision of The People ex rel. McCagg v. The Mayor of Chicago, 51 Ill. 17, The People ex rel. Wilson v. Salomon, id. 37, The People ex rel. South Park Commissioners v. The Common Council of Chicago, id. 58, and Harward v. St. Clair Drainage Company, id. 130.” And after giving the gist of those decisions, it was added: “These cases, in our judgment, are conclusive against the validity of the act under consideration. These police commissioners are not the corporate authorities of East St. Louis, and, therefore, can have no power of taxation. They are not elected by the people of that city, nor appointed in any mode to which the people have given their assent. The act creating them has never been accepted by the people or by the city council, but, on the other hand, as alleged in the bill, the council has constantly denied the authority of the commissioners. So far from being corporate authorities, in the sense in which this court has construed that phrase, these commissioners, by the act in question, are forced upon the people of this municipality, without reference to their wishes or consent, to hold over them the tremendous power of unlimited taxation, and in the exercise of this power, to be placed entirely beyond the reach of those whose property is at their mercy. For the reasons given in the cases cited, such legislation can not be reconciled with the constitution.” The next ease was, The People ex rel. v. Canty, 55 Ill. 33. There an information was filed by the State’s attorney, in the nature of a quo warranto, upon the relation of Wider, Schall and Barrowman, police commissioners, in which it was charged that Canty had unlawfully usurped police powers in the city of East St. Louis, pretending to be authorized thereto by certain ordinances of the city council, and that he was acting under the direction of the mayor of the city, and had intruded into the office of police officer, etc. Canty relied, in his return, upon an appointment by the city council to the office of city marshal, and an act of March 26, 1869, entitled “ An act to reduce the charter of the city of East St. Louis and the several acts amendatory thereof into one act, and to revise the same,” and certain ordinances of the city council pursuant thereto. To this return a demurrer was filed, which was sustained to the information, and the proceeding dismissed with costs. The court was asked, in argument, to review and overrule its decision in Lovingston v. Wider, supra. But the decision of the court below was affirmed, and it was said: “ The question of the constitutionality of the act organizing the police force has been ably defended by appellant’s counsel, but we see no reason to arrive at a different conclusion from that announced in the case of Lovingston v. Wider, 53 Ill. 302.” The next case was Wider et al. v. The City of East St. Louis, 55 Ill. 133. In that case, Wider and others, claiming to act as police commissioners, filed their bill in chancery in the court below against the city of East St. Louis to enjoin the city from appointing policemen, or from paying them, or granting to them orders on the city treasury for pay for such services. A demurrer was sustained to the bill, by the court below, and that decree Avas here affirmed. The court re-endorsed Lovingston v. Wider, supra, and held that the provisions to create a police force fell with those to create charges on the city to sustain such force. The last case was City of East St. Louis v. Witts, 59 Ill. 155, which was an action of debt brought against the city on a certificate of indebtedness issued by the police commissioners. It was held, following the previous cases, that the certificate was void and created no charge against the city, and consequently that there could be no recovery. Appellants’ counsel seem to lay some stress on language used by the judge, by way of argument, in People ex rel. McCagg v. The Mayor, etc., 51 Ill. 17. He said: “ However strong the argument in favor of so construing it, there nevertheless may be cases where the legislature, without the consent of the corporate authorities, might impose taxes, local in their character, if required by the general good government of the State, because such taxes would not be merely and only for corporate purposes, as, if one of the cities of the State should be insurgent, requiring the interposition of the military power, it will not be denied the State, on quelling the insurrection, could impose taxes upon the city to defray the expenses of a resort to military power. So, if the police department of a city should fail to furnish reasonable security to life and property, the State, undoubtedly, might provide such force, and assess the city for the expenses.” It is to be observed there was no question of the liability of a municipality for expenses incurred in suppressing insurrection or in furnishing ’security to life aud property when this language was used. As before observed, its use was in argument only, and the cases put were merely supposed for the purpose of illustrating and aiding in the argument. The question was not one that had been argued, aud the objections that might have been urged were not noticed. But this language was quoted by counsel for Wider and others, in Wider et al. v. City of East St. Louis, supra, for precisely the same purpose that it is here, and it was thus answered, and the answer is equally pertinent aud conclusive now as then: “ It is perfectly obvious that this ease does not fall within the first of these supposed contingencies, as there is and can be no pretense that any military force was employed to suppress an insurrection. In this case, the legislature has not levied a tax, even if the municipal authorities have failed to furnish a police force adequate to the protection of life and property, and the good order of the city, but, on the contrary, have required the appointment of commissioners, who are entrusted with the police government of the city, and empowered them to incur the expense of the same, to be imposed upon the city, to be paid by the issue of certificates of indebtedness to be redeemed by taxation: These commissioners, not being corporate officers, and the law not having been submitted to and approved by the people of the city, or the corporate authorities, the case of The People ex rel. v. Mayor of Chicago, supra, must govern.” It is contended, however, that although these acts are to be regarded as unconstitutional in so far as they impose burdens upon the municipality to be discharged by taxation, yet, in all other respects, they are free of constitutional objection, and, it is said, this is settled by Wider v. The City of East St. Louis, supra, in which the court said: “We have no doubt that the police force organized by appellants have a legal right to act, if they choose to do so gratuitously, unless they have been discharged or disbanded by appellants. To that extent the law under which they claim to act may be upheld.” It will be remembered that the acts had been condemned, because of their imposition of burdens to be discharged by taxation, in Lovingston v. Wider, supra; and that in Wider et al. v. City of East St. Louis the purpose of the bill was to enjoin the city from appointing policemen and from paying them. Mow, we have seen, by the analysis of the acts that ave have given, the appointment of policemen by the city is prohibited by the acts, in language equally as unambiguous and positive as that by Avhich the police commissioners are called into being. An indispensable part of the system was that the police commissioners were to have exclusive charge of the appointment, control, etc., of the police force. To that end, not only was power expressly given, but all acts conferring poAver on the city council, etc., in regard to the appointment and control of the police, were repealed. It was held that inasmuch as the law was unconstitutional which gave to the police commissioners power to fix the compensation and provide for the payment of policemen, so that must be unconstitutional which gave to the commissioners exclusive control of the appointment and control of the police force. It was said, (p. 138): “We must look to the intention which moved the legislature to make the enactment. We see the contro ling motive was to give the city a police force, and, we may fairly presume, a more efficient body than it had, or was likely to obtain under their charters. It was not their purpose to leave the police they were attempting to create without compensation, or the city without a police force, for this is negatived by the entire law then adopted; and as practical men, understanding the influences under which men act, they could never have supposed that a body of policemen could ever be obtained to act, beyond a limited period of time, Avithout compensation ■ and they could not have designed, in the event that the provision for the compensation of the police they Avere then attempting to organize should fail, that the city should be deprived of the power to afford security to life and property. * * * “ Suppose the Governor had failed to obtain the consent of these men, or others, to act as commissioners under this act, does any one suppose that the power of the city to appoint and pay a police force would have ceased ? And it is because the General Assembly manifestly did not intend to leave the city without such protection. And when so much of that act is held to be inoperative as to render the entire act nugatory, in Avhat consists the difference? * * * Having failed to provide such means,” (i. e. other equal or more efficient means of preserving the good order of the city,) “ we must hold that this provision of the act to create the police force has fallen with the others.” Here, then, is an express decision that the provision creating the police force is unconstitutional. The remarks quoted are not obiter dicta, for if the provisions creating the police act are valid the appellants were entitled to their injunction. ■The city council, in that event, was not authorized to appoint or pay policemen. It would seem too plain a proposition to need the aid of argument that the unmistakable intent of the legislature was to provide an entire system to take the place of the then before existing police system. The two were repugnant to and utterly inconsistent with each other,—and it is impossible to suppose that it was ever intended by rational men that parts of such incongruous systems were to be blended together. No man can be compelled to give his time and labor, any more than his tangible property, to the public without compensation; and, since there is no mode by which policemen appointed by the commissioners can be compensated, it follows that no one, even after accepting their appointment, can be compelled to perform any police duties. But there can be no legal right in an individual to hold an office or trust, unless there is also a corresponding legal right in the public to compel performance of the duties with which the office or trust is charged. This would seem to. be a legal truism and to need no demonstration. • If the 'appointment must be vain and fruitless, the right to appoint must be equally so. It is not reasonable to suppose that a legislature would call ■into being a board of police commissioners, merely for the purpose of investing it with such a mere shadow,—especially where the municipality is already supplied with a police force whose action can be coerced to meet the public necessities. The rule quoted from Cooley’s Constitutional Limitations, in The People ex rel. v. Cooper et al. 83 Ill. 595, is conclusive. as to the unconstitutionality of these entire acts: “If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as °to the other; but if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fall, unless sufficient remains to effect the object without the aid of the invalid portion; and if they are so mutually connected with and dependent on each other as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue independently, then if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them.” What was intended by the language quoted and relied upon by appellants’ counsel was, simply, that the acts of such policemen would be good as those of de faeto officers. It was not intended to say that the police commissioners had a legal right to act and make appointments of policemen under a law which was held to be unconstitutional. Waiving the question just discussed, however, it is contended the previous decisions based their objection of unconstitutionality upon the ground that the acts creating the board of police commissioners were never accepted by the people or the city council, and that had there been such acceptance, a different conclusion would have been reached;—whereas the pleas here aver that the corporate authorities of the city of East St. Louis passed a resolution requesting the Governor to appoint such commissioners pursuant to the two acts relating to that subject, and that, in compliance with tlia-fc request the Governor did, on the 11th day of January, A. D. 1878, appoint such commissioners,—and it is averred that ever since this appointment the corporate authorities have in all things recognized said defendants and their appointees ” etc., etc. And this, it is contended, is an acceptance by the proper municipal authority of the acts. But this is not a local option law. Its vitality is not made to depend upon the acceptance or rejection of the local municipality, but, as we have-seen, it purports to become effective, notwithstanding the will of the municipality. It Avas either valid or invalid Avhen enacted—and, since Ave have seen it was invalid then, it can not become valid by any future action of the municipality. In the cases referred to by counsel for appellants either the acts contained provisions that were valid, notwithstanding the invalidity of others, or the unconstitutional objection here urged was obviated by vesting the power of laying the burdens to be discharged by taxation directly on the corporate authorities of the municipality—which was not done here. We are, moreover, of opinion that since the adoption of the present constitution it is not competent for a city, town or village to adopt a local or special law, and thus make it a part of its charter, which had been enacted by the General Assembly prior to the adoption of the present constitution, but not, prior to that time, adopted by the city, town or village. Such laws, in our opinion, are, by implication, repealed by the present constitution. See People ex rel. v. Cooper, 83 Ill. 585; Guild, Jr. v. Chicago, 82 id. 473. The pleas do not allege an adoption of the acts before the 8th of August, 1870—the day the present constitution went into force. We see no cause to disturb the judgment below, and it is, therefore, affirmed. Judgment affirmed.