People ex rel. Oliver v. Knopf

Mr. Justice Cartwright delivered the opinion of the court: The People of the State of Illinois, on the relation of William Oliver, a legal voter of Cook county, filed the petition in this case in the circuit court of said county against Philip Knopf, county clerk, praying for a writ of mandamus directing said defendant to include in the notice of the election to be held on the Tuesday succeeding the first Monday in November, 1902, five judges of the superior court of said county, to be elected in accordanee with the provisions of ah act approved April 24, 1899; also three judges of said superior court and three judges of the circuit court of said county, to be elected under the provisions of an act approved May 10, 1901. The facts alleged in the petition are substantially as follows: That under statutes in force in 1898, Joseph E. Gary, Nathaniel C. Sears, George F. Blanke and John Barton Payne were at the election in November, 1893, elected judges of the superior court of Cook county for terms commencing on the first Monday of December, 1893, and continuing six years; that George F. Blanke died and Farlin Q. Ball was elected to fill his place; that John Barton Payne resigned and Marcus Kavanagh was appointed by the Governor to fill the vacancy, and that the terms of the four judges expired on the first Monday of December, 1899; that the act to provide for the election of judges of the superior court of Cook county, approved March 31, 1897, provided that four judges of said court should be elected at the election in November, 1899, and every six years thereafter, to fill said offices, and under the provisions of said statute the successors of said judges should have been elected at that time, but no judges were then elected; that at the election in November, 1895, Henry M. Shepard was elected a judge of said superior court for a term beginning on the first Monday of December, 1895, for a term of six years, and by said act of 1897 one judge was required to be elected at the November election in 1901 to fill said office, but no successor to said judge was then elected and he continues to occupy the office; that on April 24, 1899, there was filed with the Secretary of State an act of the legislature signed by the president of the Senate, the speaker of the House and the Governor, which was published as a law of the State of Illinois, providing that the twelve judges of the superior court of Cook county should be elected as follows: Six on the Tuesday after the first Monday of November, 1904, and every six years thereafter; four' on the Tuesday after the first Monday of November, 1902, and every six years thereafter; one on said. Tuesday after the first Monday of November, 1902, and every six years thereafter, and one on the first Monday of June, 1903, and every six years thereafter; that said provision for the election of four judges in November, 1902, applied fo the offices held by the judges Joseph E. Gary, Nathaniel C. Sears, Farlin Q.' Ball and Marcus Kavanagh, and the provision for the election of one judge at said time applied to the office held by Henry M. Shepard; that on July 14, 1900, the People of the State of Illinois, on the relation of Alexander J. Jones, filed in the circuit court of Cook county a petition for a writ of mandamus against Philip Knopf, county clerk, to compel him to include in the notice of the election to be held in November, 1900, four judges to succeed said Joseph E. Gary, Nathaniel C. Sears,,Farlin Q. Ball and Marcus Kavanagh; that by the petition in. said cause it was alleged that the terms of said judges expired on the first Monday in December, 1899, and their successors should have been elected in November of that year, under the act of 1897; that the act of 1899 never passed both houses of the legislature and never became a law; that the answer of the defendant, Philip Knopf, admitted the averments ©f the petition by the authority and at the request of the judges affected by the proceeding, and by such authority and request he consented that the writ of mandamus should be issue'd as prayed, and that judgment was entered and a writ issued, under which notice of election was given and said judges were elected as their own successors, and claim to hold office by virtue of said election; that an act was passed on May 19, 1901, in force July 1, 1901, providing for the election in November, 1902, of three additional judgés of the circuit court of Cook county for terms to expire on the first Monday of June, 1903, and three additional judges of said superior court to expire on the Tuesday after the first Monday of November, 1904. To the petition praying for the writ upon the facts so alleged the defendant made answer, admitting the election of the various persons as judges as set forth in said petition and the passage of the act of 1897, but denying that the act of April 24,1899, filed with the Secretary of State and published by him, ever became a law or was passed by. both houses of the legislature. He admitted the averments of the petition concerning the mandamus proceeding in 1900, and that the writ was issued and an election held in pursuance thereof in November, 1900. As to the office of judge of the superior .court occupied by Henry M. Shepard, he admitted the facts alleged and that no election was held in November, 1901, but averred that as no election was held at the proper time he was now without power or authority to give notice of an election. He admitted the passage of the act of May 10,1901, but alleged that it was in violation of the constitution in providing for an election of judges for a less term than that fixed by the constitution, and as to judges of the circuit court, at a different time. It was also claimed by the answer that the judgment in the mandamus proceeding of 1900 was res judicata as to the matters involved, and that the act of 1899 as passed was unconstitutional and void, as operating to extend the term of office of judges of the superior court. There were three demurrers by the relator. The first to so much of the answer as set up the unconstitutionality of the act of 1899, — and this demurrer the court overruled; second, to so much of the answer as alleged the act of 1901 to be unconstitutional, — and this demurrer was sustained; and third, to so much of the answer as alleged that the judgment in the mandamus proceeding of 1900 was res judicata as to the questions involved therein, — and this demurrer was also sustained. An issue of fact was made as to the passage of the act of April 24, 1899, by replication, averring that said act did pass both houses of the legislature and became a law. A jury was waived and that issue was tried by the court, resulting in ¿'finding that said act never passed both houses and never became a law. The prayer of the petition was granted so far as it related to the election of a judge to succeed Henry M. Shepard, three additional judges of the circuit court and three additional judges of the superior court, and it was refused as to the election of four judges to fill the offices occupied by Joseph E. Gary, Nathaniel O. Sears, Parlin Q. Ball and Marcus Kavanagh. The writ was awarded requiring the defendant, Knopf, to give notice of the election of a judge of .the superior court to fill the office now occupied by Henry M. Shepard, three additional judges of the superior court under the act of 1901, each for a term of six years, and three additional judges of the circuit court under said act', for terms from the election in November, 1902, to June, 1903. Both parties excepted to the decision and judgment and each prayed and perfected an appeal. The case is before us on these appeals of both parties. The first act of the legislature with which we are concerned in this proceeding is the act approved March 31, 1897, and this is conceded by both" parties to have been a valid enactment. It provided for the election of twelve judges of the superior court as set forth in the petition, one on the first Monday of June, 1897, and every six years thereafter; six in November, 1898, and every six years thereafter; four in November, 1899, and every six years thereafter, and one in November, 1901, and every six years thereafter. Each judge was to be elected for a term beginning on the first Monday of December next after his election and extending for a period of six years. (Laws of 1897, p. 216.) Under that act the terms of office pf Joseph E. Gary, Nathaniel C. Sears, Parlin Q. Ball and Marcus Kavanagh expired on the first Monday of December, 1899, and the term of office of Henry M. Shepard expired on the first Monday of December, 1901. The next act appeared in the published laws for 1899, and purported to be an act to provide for the election and time of election of judges of the superior court of Cook county and to have been approved April 24, 1899. The provisions of this act were, that the twelve judges of said superior court should be elected as follows: Six in November, 1904, and every six years thereafter; four in November, 1902, and every six years thereafter; one in November, 1902, and every six years thereafter, and one in June, 1903, and every six years thereafter, — the term of each of said judges to be from the first Monday of December after his election for a period of six years. (Laws of 1899, p. 152.) The court overruled relator’s demurrer to that part of the answer which set up the unconstitutionality of this act, and thereby held it to be in conflict with the constitution. Section 28 of article 4 of the constitution provides: “No law shall be passed which shall operate to extend the term of any public officer after his election or appointment.” So far as the act provided for the election Of six judges in November, 1904, and one judge in June, 1903, it was the same as the act of 1897, and the elections would take place at the proper time; but the provisions for the election of five judges in November, 1902, was an attempt to continue persons in office in violation of this provision of the constitution. The act would operate to extend the term of office of four judges from 1899 to 1902, and one judge from 1901 to 1902. The term of these officers was fixed by the constitution, and the legislature could neither extend nor diminish it and had no control over it. (Mechem on Public Offices and Officers, sec. 387.) The scope and purpose of those provisions were in direct conflict with the constitution. By them the legislature attempted to postpone elections from the times when the offices of the judges would expire, to a later date. They had no more power to continue the judges in office by this means than they would have had to provide that no election should be thereafter held, so as to continue the incumbents of the offices therein during their lives. On the trial of the issue of fact it was proved that the act was never passed by both houses of the legislature and that none of its provisions ever became the law. There was evidence to identify the journals of the two houses, the original bill, amendments, and the records in the office of the Secretary of State, from which these facts appear: A bill (No. 11) was introduced in the Senate which provided for the election of seven judges of the superior court in November, 1904, four judges in November, 1900, and one in November, 1902, each for a term of six years from the first Monday in December after his election. The bill was amended in the Senate, and as amended provided for the election of six judges in 1904, four in 1900, one in November, 1902, and one in June, 1903. The bill, as amended, was printed, and on March 28, 1899, was passed by the- Senate. A bill called Senate bill No. 11 was received in the House of Representatives and was regularly read on three separate days and passed without amendment. The bill was changed at some time unknown. As it came from the House the emergency clause, which was a part of the original bill, had disappeared, and the bill provided for the election of four judges in November, 1902, instead of 1900, as it passed the Senate. The bill passed in the Senate was not the same that passed in the House, and it was never returned to the Senate or passed by it. No other documents, papers or records pertaining to the bill were to be found in the office of the Secretary of -State, and it was proved that the bill never passed both houses in the form in which it was signed and approved and filed with the Secretary of State. Section 10 of article 4 of the constitution provides: “Each house shall keep a journal of its proceedings, which shall be published. In the Senate at the request of two members, and in the House at the request of five members, the yeas and nays shall, be taken on any question, and entered upon the journal.” Section 12 of the same article provides: “Bills may originate in either house, but may be altered, amended or rejected by the other; and on the final passage of all bills, the vote shall be by yeas and nays, upon each bill separately, and shall be entered upon the journal.” Section 13 of that article provides: “Every bill shall be read at large on three different days, in each house; and the bill and all amendments thereto shall be printed before the vote is taken on its final passage.” It is contended by relator that where the constitution is silent as to whether a particular act shall be entered on the journal it is left to the discretion of the Senate or House to enter it or not, and that the court must presume that such an act was done, unless the journal affirmatively shows that it was not done. On this ground it is urged that we should presume the bill introduced in the Senate was amended and printed i-n the form in which it appears in the published laws, and that said bill is the one on which the Senate voted on its final passage. The rule is, that an act which bears the signatures of the proper officers of the two houses and of the executive will be presumed to have become a law pursuant to the requirements of the constitution, but in Spangler v. Jacoby, 14 Ill. 297, it was decided this presumption may be overthrown; that if the facts essential to the passage of a law are not set forth in the journal the conclusion is that they did not transpire, and if the journal fails to show that the act was passed in the mode prescribed by the constitution the presumption is overcome and the act must fail. The same rule was declared in Turley v. County of Logan, 17 Ill. 151, where it was held the fact that a law appears on the statute book is not conclusive that it was passed by a constitutional vote, but the journal may be examined to ascertain the fact. In that case it was alleged that an act was not constitutionally passed, not having been read on three several days nor such reading dispensed with, and it was said that the journals should show the readings and the passage of the law by a constitutional vote. There was a question very like the one in this case in Prescott v. Board of Trustees, 19 Ill. 324. A bill which had passed the Senate was reported to the House, where it was taken up and read a first and second time and referred to a committee. It was reported back and ordered to a third reading, at which stage it was amended by striking out the third section. The bill, as amended, was passed. No further action was taken in the Senate, but the bill was laid before the Governor and approved by him and published as a law. The court said they would look behind a printed law to the journals, and that the whole act was a nullity, the remainder of the bill besides the third section having no vitality because it was not passed as amended. Again, a bill bearing the signatures of the presiding officers and the approval of the Governor was held in People v. Starne, 35 Ill. 121, not to be a law, because it did not appear from the journal of the House to have passed that body. There were two bills with precisely the same title but different provisions and numbers, and the journal of the House failed to show that the bill in controversy ever passed the House. These cases are decisive of the question, and the act having never been passed as required by the constitution was a nullity. The act of 1897 remained in force, and the terms of office of the judges of the superior court expired according to its provisions. The act approved May 10, 1901, in force July 1, 1901, entitled “An act to provide for additional judges of the circuit and superior courts of the county of Cook,” is as follows: “That, as it appears by a canvass of this State, commonly known as the Federal census, taken in the year A. D. 1900, pursuant to law, that the number of inhabitants of the county of Cook is over one million eight hundred thousand (1,800,000), and that thereby said county is entitled to additional judges by section 23 of article 6 of the constitution of this State; therefore, the number of judges of the circuit court of Cook county, be, and hereby is, increased from fourteen (14), its present number, to seventeen (17), and the number of judges of the superior court of Cook county, be, and hereby is, increased from twelve (12), its present number, to fifteen (15). On the Tuesday after the first Monday in November, A. D. 1902, there shall be elected three judges of the circuit court of said county of Cook, and three judges of the superior court of said county of Cook. The terms of office of the said additional judges of the said circuit court shall expire on the first Monday of June, A. D. 1903, upon the election and qualification of their successors in office, and upon said first Monday of June, A. D. 1903, and every six years thereafter, there shall be elected, at the same time and in the manner as the other judges of the circuit court, three judges of said circuit court, successors in office of the judg'es by this act authorized to1 be elected. The terms of office of the said additional judges of the said superior court shall expire on Tuesday after the first Monday in November, A. D. 1904, upon the election and qualification of their successors in office, and upon the said Tuesday after the first Monday in November, A. D. 1904, and every six years thereafter, there shall be elected, at the same time and in the same manner as the other judges of the superior court, three judg'es of said superior court, successors in office of the judges by this act authorized to be elected.” Laws of 1901, p. 130. The defendant, Philip Knopf, county clerk, refused to include in the notice of the election to be held in November, 1902, three judges of the circuit court to be elected for terms expiring in June, 1903, and three judges of the superior court to be elected for terms expiring in November, 1904, under said act, and this proceeding for mandamus is to compel him to include such judges in the notice of the election. The constitutionality of the act, so far as it provides for the election of judges of the circuit court for terms of about seven months and judges of the superior court for terms of two years, is therefore the only question involved in the case. The validity of the act in other respects is not involved in the question whether the relator has shown a legal right to the writ asked for, and this is the only question considered or decided. The provisions of the constitution on the subject are as follows: In section 12 of article 6 is this provision: “The terms of office of judges of circuit courts shall be six years.” Section 14 of that article is as follows: “The election for judges of the circuit courts shall be held on the first Monday in June, in the year of our Lord 1873, and every six years thereafter.” Section 23 of the same article is as follows: ' “The county of Cook shall be one judicial circuit. The circuit court of Cook county shall consist of five judges, until their number shall be increased, as herein provided. The present judge of the recorder’s court of the city of Chicago, and the present judge of the circuit court of Cook county, shall be two of said judgés, and shall remain in office for the terms for which they were respectively elected, and until their successors shall be elected and qualified. The superior court of Chicago shall be continued, and called the superior court of Cook county. The General Assembly may increase the number of said judges, by adding one to either of said courts for every additional 50,000 inhabitants in said county, over and above a population of 400,000. The terms of office of the judges of said courts hereafter elected, shall be six years.” Section 32 of said article has the following provision: “All officers provided for in this article shall hold their offices until their successors shall be qualified. * * * Vacancies in such elective offices shall be filled by election; but where the unexpired term does not exceed one year, the vacancy shall be filled by appointment, as follows: Of judges, by the Governor.” The plain and ordinary meaning of these provisions of the constitution, so far as they relate to judges of the circuit court of Cook county, seems to be that the term of office of such judges shall be six years; that the election for judges shall be held on the first Monday of June, 1873, and every six years thereafter; that at such election five judges shall be elected, unless the legislature shall see fit to increase the number based on increased population, and if so, the increased number shall be elected at such elections. _ Where the constitution fixes the time for holding an election a different time cannot be fixed by the legislature. (10 Am. & Eng. Ency. of Law, • — 2d ed. — 680.) By this act the legislature attempted to provide for an election at a different time and for a different term. The constitution establishes certain times for the election of judges of the circuit court for certain fixed périods of six years each, but the number to be elected above five was left to the discretion of the legislature, depending upon the population of the county. We think it clear that the people never intended that the legislature should have power to do more than increase the number of judges to be elected at the time fixed by the constitution. Relator relies upon the reasoning in the case of People v. Wall, 88 Ill. 75, to support the claim that the legisláture could provide for an increase of judges of the circuit court with a different term and to be elected at a different time from those fixed by the constitution. We do not regard that decision as applicable to the facts of this case nor its authority as sustaining the provisions of this act. The constitution provided that the State, exclusive of the county of Cook, should be divided into judicial circuits and one judge should be elected for each circuit, but by section 15 of article 6 it was provided that the legislature might substitute a new system by dividing the State into judicial circuits of greater population and territory, and providing- for the election therein of not exceeding four judges, who should hold the circuit courts in the circuits for which they should be elected in such manner as might be provided by law. There was no limitation upon the time when such new system, if adopted, should be put into operation.- The court said that the legislature were invested with discretionary power to adopt the new system, and as to the time when it might be established the constitution was silent. The existence of the power was not denied, and the court found no limitation as to^its exercise when the legislature might see fit. That is not so as to this matter, in which no discretion is left to the legislature, except to increase the number of judges to be elected when an election is to be held -under the constitution. The necessity for the adoption of a new system of judicial circuits might arise at any time, and the makers of the constitution must have had that fact in view; but an argument of that kind can have no force in this case, for the reason that the increase of judges might be made in the superior court whenever required. Counsel for relator also say that section 23 of the constitution is a special provision relating only to the circuit and superior courts of Cook county while the other sections mentioned are general, and that the special provision should prevail over those which are general. Conceding- the rule thus invoked, it is sufficient to say that said section 23, relating to said circuit and superior courts of Cook county, expressly provides that “the terms of office of the .judges of said courts, hereafter elected, shall be six years,” It thus appears that the length of the terms .of all judges of both courts of Cook county, elected under the provisions of that section, is definitely fixed at six years. No authority is found in either the general or special provisions warranting the legislature in fixing the length of the terms of the judges of either court differently, but, on the contrary, the power of the legislature in that regard is restricted by the express terms of both general and special provisions. Neither is the construction contended for necessary to make effective the power to increase the number of judges of said courts. No difficulty is perceived in adopting such legislation as would provide for the election of judges for the terms fixed by the constitution, and, so far as judges of the circuit court are concerned, at the time prescribed by that instrument. The provision of the constitution is, that the legislature may give to Cook county an additional judge for each increase of 50,000 inhabitants, and may do it by adding such judge either to the circuit court or to the superior court. The constitution does not fix the time when judges of the superior court may be elected, but simply fixes the term for which they are to be elected. As to judges of the circuit court it fixes both the time and the term. The addition of a judge to the superior court, if deemed wise, may be made at any time, provided the legislature do not interfere with the term fixed by the constitution, and that court has the same jurisdiction as the circuit court. Both are of the same class, differing only in name. People v. Raymond, 186 Ill. 407. The same conclusion is inevitable as to the provision of the act of 1901 for the election of three additional judges of the superior court for terms of two years. It is clearly and unmistakably opposed to the provisions of the constitution. The legislature had power to provide for an increase of judges of the superior court, based upon jm increase of population, whenever they might consider it necessary, and to provide when such additional judges should be elected. Both of these questions were committed by the people, in the adoption of the constitution, to the legislative discretion, but the term for which judges should be elected was not intrusted to such discretion and the legislature had no power over it. The people determined that question for themselves and fixed the term at six years. The legislature had no authority to inaugurate or put in effect a scheme opposed to that provision, by which judges should be elected for two years instead of six. Counsel for relator have also argued that the provision for the election of three judges of the superior court in November, 1902, is valid, notwithstanding the invalidity of the provision that their terms shall expire in November, 1904, and that the length of their terms would be regulated by the constitution, and they would hold for six years, contrary to the provisions of the act. They say the provision as to the term may be struck out and there would remain a complete and valid enactment, and the judg'es would be elected for the term of six years fixed by the constitution. To so hold would be to defeat the plain intention of the legislature as expressed in the act and to bring its provisions into conflict with each other. The legislative intention was that there should be an election, for the constitutional term of six years, on the Tuesday after the first Monday of November, 1904, and every six years thereafter; and that is the same time that six other judges of the superior court are required to be elected under other acts. It was as much a part of the legislative plan that judges should be elected in 1904 for six years as that there should be an election of judges in 1902. It is true that part of a statute may be unconstitutional and void and the residue constitutional apd valid, and if, when the unconstitutional portion is stricken out, that which remains_ is complete in itself and capable of being executed in accordance with the apparent legislative intent, it must be sustained; but in this case, if the provision as to the terms is stricken out and the constitutional provision substituted or made to control as to the terms, the remainder cannot be executed according to the legislative intent. In that case there could be no elections in November, 1904, and every six years thereafter, as intended by the legislature. The proceedings in mandamus in the circuit court in 1900, in pursuance of which the four judges were elected in November of that year, were set up in the answer, and the judgment was alleged to b'e res judicata as to the matters therein involved. The court sustained a demurrer to that part of the answer. It appears from the proceedings set forth at large in the.petition, that the case was one in which there was no issue of fact and no contest concerning the law. It was devised for the alleged purpose of compelling the county clerk to do that which, by his answer, he requested the court to require him to do. He answered that the judges interested requested him to admit the facts and consent to the issue of the writ, and he did so. There was no litigation in fact, and no contest, but the suit was instituted merely for the purpose of having the judgment entered. The proceeding was ostensibly on the part of the public, but nothing was litigated and there were not two sides to the controversy. The judgment is not binding upon the public, and it is therefore argued that the election held in November, 1900, under the writ of mandamus, was void. Generally speaking, the authority to hold an election at one time will not warrant an election at another, and an election must be held at the time fixed by the law or by some person authorized bjr the law to fix it. Laws fixing the time at which an election shall be held are matters of substance, and must be substantially observed or the election will be void. (Mechem on Public Offices and Officers, sec. 178.) Under the law the election should have been held in November, 1899, but the officers charged with the duty of giving notice of the election failed to give it. In such a case, where the duty is clearly obligatory and has been disregarded by the officer charged in láw with its performance, courts will interfere by mandamus tb compel the holding of an election. (People v. Town of Fairbury, 51 Ill. 149; 10 Am. & Eng. Ency. of Law,— 2d ed. — 805; High on Ex. Legal Rem. sec. 401.) The term of the judges was fixed by the constitution, and the time of the election, as, well as the term, was fixed by the act of 1897. The county clerk neglected to perform his duty, and mandamus would lié for the purpose of enforcing such performance. If mandamus would lie to compel the county clerk to include in the notice of the general election the election of judges, it could only be because he had the power and it was his duty to perform the act. If he could be compelled to give the notice, it was his duty to do so without the writ. The election in November, 1900, was a regular election provided b.y the statute. The judges in office were authorized by the constitution and law to hold over and discharge the duties of their offices temporarily, until judges should be elected and qualified to fill such offices. We do not see that it makes any difference whether persons are being continued in office by their own neglect to call an election, or whether they are kept in office by the action of some other person in failing to give notice of the election. In either case the paramount public interest would be disregarded and the officers be kept in power by their own act or the act of some other official in their interest. Public rights should not be sacrificed by the neglect of a public official to discharge his duty, and any construction of the law which would prevent the election of judges at the next regular election in the district would have that effect. ' We are of the opinion that the election of four judges in 1900, at a regular election fixed by law, was legal and valid, and that said judges were lawfully elected to fill the remainder of the term of six years fixed by law, beginning on the first Monday of December, 1901. Including the election of such judges in the notice at that time was the performance of a purely public duty resting upon the county clerk, which had before that time been neglected by him. Under the law their successors are to be elected at the November election in 1905. The neglect of the clerk would not operate to create a new term or extend the former one. The term of office of Henry M. Shepard expired on the first Monday of'December, 1901, when by the law a new term began, and the county clerk, in like manner, neglected the performance of his duty to include in the notice of the election to be held in November, 1901, the election of his successor. Our conclusion is, that the circuit court erred in awarding the writ so far as it required the defendant to give notice for the election of three additional judges for the circuit court and three additional judges for the superior court, and that the judgment was correct so far as it related to the election of a judge to fill the office now occupied by Henry M. Shepard. The judge so elected will hold his office for the remainder of the term of six years, which began on the first Monday of December, 1901. The judgment is reversed and the cause is remanded to the circuit court for further proceedings in accordance with the views herein expressed. Reversed and remanded.