Kaufman v. People ex rel. Bonnefoi , 185 Ill. 113 ( 1900 )

Mr. Justice Carter

delivered the opinion of the court:

The superior court overruled appellant’s QIaufman’s) demurrer to the information^ and rendered judgment of ouster against him and for a fine of $100 and costs of suit. The Appellate Court has affirmed the judgement, and Kaufman took his further appeal to this court.

The case differs somewhat from People v. O’Toole, 164 Ill. 344, but it must be governed by the principles there announced. "Kaufman has held over from 1895 without appointment, and claims the right to continue to hold the office of justice of the peace, because, as he says, no successor to him has been appointed. In the O’Toole case we held that the office held by each justice of the peace was distinct from every other, and that the power and duty of the judges to recommend fit and proper persons for appointment to such office included the designation of the particular office, and that the Governor had no power to change the designation as to successorship made by the judges; that he could only appoint as recommended, or reject. Appellant contends, in an elaborate and able argument, that the views we there expressed are erroneous and should be recalled. We have fully considered all that has been said on the subject and see no reason to depart from the conclusion reached and announced in that case, where the question was carefully considered after exhaustive arguments, both oral and written.

It follows, that when Bonnefoi was recommended to the Governor by the judges of Cook county, in 1895, to succeed Kaufman, the Governor had no power to make the change attempted and to appoint him to an office for which he was not recommended. In the O'Toole case we held that it took the three agencies of government,—the judges to recommend, the Governor to appoint and the Senate to confirm,—to constitute, in the manner provided by law, a justice of the peace in the city of Chicago, and that all these agencies must join in the manner provided by the constitution. It is to be observed that the judges recommended Bonnefoi, in 1895, to succeed himself, but that the Governor sent his name to the Senate as one appointed to succeed one Sampson, another justice of the peace of said town, and the Senate confirmed the appointment and Bonnefoi was commissioned a justice of the peace of the town of Lake View. Kaufman continued to act as a justice holding over until his successor should be appointed. Four years later, in 1899, the judges, in their recommendations to the Governor for appointment, recommended Bonnefoi to succeed himself and to hold the office held by Kaufman on the first day of June, 1895, and he was so appointed by the Governor and confirmed by the Senate, and was commissioned as a justice of the peace of the town of Lake View by the Governor. Of course, if it be true, as contended, that the judges’ power was exhausted when they recommended to the Governor five fit and competent persons for appointment as justices of the peace of the town of Lake View, and that they could not designate or recommend any one to any particular successorship, then the recommendation of Bonnefoi to succeed Kaufman amounted to nothing more than a recommendation that he be appointed one of such justices, and the designation of successorship might have been properly wholly disregarded. But we think the law is otherwise, and, as before said, it was so held in People v. O’Toole, supra.

It is, however, contended by counsel for Kaufman, that even if the O’Toole case be applicable to the case at bar, the effect of the recommendation of Bonnefoi in 1899 was to make him his own successor, only, and not the successor of Kaufman, and that therefore Kaufman is still “a good justice” and cannot be ousted in this proceeding. The contention is that the judges had no power to make a double designation, and to recommend Bonnefoi not only to succeed himself but to hold the office of Kaufman, when they, Bonnefoi and Kaufman, had both been acting as justices of the peace for the preceding four years; that the powers of the judges were exhausted when they recommended him to be his own successor, and that the further recommendation that he be appointed to hold the office held by Kaufman in 1895 was unauthorized and void. This reasoning is more plausible than sound, and implies that in 1899 Bonnefoi and Kaufman lawfully held two of the five distinct and separate, lawfully created, offices of justice of the peace of the town of Lake View, and that the judges recommended Bonnefoi as a fit and competent person to fill both of them. It must be presumed that the judges, the Governor and Senate, all of whom united in using this alleged double designation in the appointment, intended to appoint Bonnefoi to one office only, and that one a lawfully created office. Doubt was cast upon the title of Bonnefoi in his appointment in 1895 because of the change in the designation of successorship made by the Governor, and also, as well, upon the title of Kaufman as a hold-over justice after that date. But there was no doubt that Kaufman was both a defacto and a de jure officer on the first day of June, 1895, and it was clearly the intention to appoint Bonnefoi to that office, and thus supersede Kaufman and end the confusion which had arisen in these offices. That was the office to which Bonnefoi was recommended in 1895, and, whether duly appointed to it or not, he had acted as a justice and doubtless kept a record of his acts as provided by law, and if the appointing power regarded him as having been lawfully appointed as Kaufman’s successor in 1895 notwithstanding the change made by the Governor, and therefore considered that in re-appointing him to the same office he would be his own successor and entitled to retain his records, the use of that part of the designation “to succeed himself” would be explained. At all events, in view of all of the circumstances there is no uncertainty in the meaning of the designation in the recommendation and appointment of Bonnefoi, in 1899, to succeed himself and to hold the same office held by Moritz Kaufman on June 1, 1895. Nor was it an attempt to appoint him to two offices. If, in fact or law, the office of justice, as Bonnefoi’s successor, and the office held by Kaufman in June, 1895, were two distinct offices, still the special designation of the office as the one so held by Kaufman in June, 1895, must control the more general one of successorship. The terms used by the judges, the Governor and the Senate in making the appointment, when considered in the light of the circumstances surrounding them at the time, leave it sufficiently certain that Bonnefoi was appointed to fill the office held by Kaufman on the first day of June, 1895, and that is the only question that can concern appellant in this case, it being immaterial to him here whether Bonnefoi was lawfully appointed in 1895 or not.

The judgment of the Appellate Court will be affirmed

Judgment affirmed.