People ex rel. McDougall v. O'Toole , 60 Ill. App. 534 ( 1895 )

Mr. Justice Waterman

delivered the opinion of the Court.

The constitution of this State contains the following:

Article VI, Section 28. “All justices of the peace in the city of Chicago shall be appointed by the governor, by and with the advice and consent of the senate (but only upon the recommendations of a majority of the judges of the Circuit, Superior and County Courts), and for such districts as are now, or shall hereafter be provided by law. They shall hold their offices for four years, and until their successors have been commissioned and qualified, but they may be removed by summary proceeding in the Circuit or Superior Court, for extortion or other malfeasance. Existing justices of the peace and police magistrates may hold their offices until the expiration of their respective terms.”

The letter and spirit of the constitution and laws of this State are such that officials of all kinds are either elected or appointed to office for short terms only. A frequent opportunity for selecting new men to hold official position is universally given. While as to all judicial officers-it is provided in the constitution that they shall hold “ their offices until their successors shall be qualified,” it is not thereby meant to deprive the people of the right to elect, or the appointing power of the opportunity to appoint successors for such officers, to take office upon the expiration of the fixed period of time for which, under the constitution, officials are elected or appointed. Any practice tending to, as well as any construction looking toward, depriving the people or the appointing power of such right, is to be avoided. In pursuance of the constitutional provision before quoted, the law of this State made it the duty of the judges of the Circuit, Superior and County Courts of Cook County, on or before the 1st day of June, in the year 1895, “to recommend to the governor ” “ five fit and competent persons to fill the office of justice of the peace in the town of Lake, it being within the city of Chicago.” This duty they discharged by, on the 19th day of April, in that year, recommending, John M. Moore to succeed himself; Henry G. Schulte to succeed Peter Caldwell; James J. O’Toole to succeed himself; John J. Fitzgerald to succeed J. J. Hennessy, and Edwin J. Phoades to succeed George W. Hotaling.

At the time the foregoing recommendation was made the justices of said town were John M. Moore, Peter Caldwell, James J. O’Toole, J. J. Hennessy and George W. Hotaling.

Only two of these, Moore and O’Toole, were recommended for re-appointment.

The legislature of this State was at this time in session and so continued until June 14, 1895.

The statute, after prescribing, as aforesaid, that the judges shall on or before the 1st day of June recommend, continues : “ The persons thus recommended, the governor shall nominate and by and with the advice and consent of the senate (a majority of the senators elected concurring by yeas and nays) appoint justices of the peace in and for each of said towns, respectively, and in case the governor rejects any person recommended, or the senators refuse to confirm any person nominated, the governor shall give notice of such rejection or refusal to the said judges, who shall, within ten (10) days after the receiving of such notice, recommend some other fit and competent person for such appointment; provided, such person or persons so recommended shall be electors in the town in and for wrhich they are to be appointed such justices of the peace.”

The governor took no action upon the recommendation of the judges until the 14th day of June, upon which day, as by joint resolution of the two houses had some time previous been agreed, the senate finally adjourned. Upon the last day of the session he sent to the senate a message informing that body that in and for the town of Lake he nominated:

Henry G-. Schulte to succeed Peter Oaldwell;

Edwin J. Rhoades to succeed James J. O’Toole;

John Fitzgerald to succeed John M. Moore.

These nominations were by the senate confirmed on the same day, and on that day the governor issued his commissions to Henry Gr. Schulte to succeed Peter Caldwell; Edwin J. Rhoades to succeed James J. O’Toole, the defendant, and John Fitzgerald to succeed J. M. Moore.

The governor did not, until after the adjournment of the senate, notify the judges of Cook county that he, as governor, had rejected the names of James J. O’Toole and John M. Moore to be justices of the peace in and for the town of Lake.

The senate having adjourned, the judges declined to take any action upon such notification.

There is neither in the constitution nor statutes of this State any provision giving to the governor power to designate whom any person by him nominated or appointed as justice of the peace shall succeed. He has the power to nominate only persons recommended to him by the judges, and also power to reject any or all of such recommendations; but he is nowhere authorized to nominate or commission any one as the successor of any particular justice.

Section 29, article 6, Constitution of Illinois, 1870 (p. 66, Hurd’s Revised Statutes, 1893), is as follows: “ All judicial officers shall be commissioned by the governor. All laws relating to courts shall be general, and of uniform operation; and the organization, jurisdiction, powers, proceedings and practice of all courts of the same class or grade, so far as regulated by law, and the force and effect of the process, judgments and decrees of such courts severally, shall be uniform.”

Section 21, article 6, Constitution of Illinois, 1870 (p. 66, Hurd’s Rev. Stat. 1893), is: “Justices of the peace, police magistrates and constables shall be elected in and for such districts as are, or may be, provided by law, and the jurisdiction of such justices of the peace and police magistrates shall be uniform.”

By section 2 of the act under which justices of the peace for the city of Chicago are appointed, as amended by an act in force May 7, 1891, such justices are made subject to the same rules and regulations, etc., as justices of the peace elected. That section is as follows :

“ Justices of the peace appointed under this act shall be commissioned by the governor, and hold their office for four years and until their successors have been commissioned and qualified, and shall have the same qualifications for holding office, the same jurisdiction, power and authority, and be subject to the same liabilities, and shall execute bonds, and be sworn and be governed by the same rules and regulations as justices of the peace elected.”

What are the rules and regulations controlling elected justices % Sec. Ill, Chap. 79 (p. 915, Hurd’s Revised Stat., 1893), is as follows: “"Upon the application of any person who shall be elected to the office of justice of the peace in any town or precinct in this State, to the county clerk, to become qualified to hold said office, by filing his bond, according to law, it shall be the duty of said clerk to determine who such justice of the peace shall succeed in office in the town or precinct where he was elected, and enter his name upon the list of justices of the peace that is required by law to be kept, as such successor, and shall'draw an order upon the justice of the peace whose term of office shall have expired, to deliver over all books and papers, as required by this act, to such successor in office: provided, that whenever any person shall be re-elected to said office, he shall be his own successor.”

Section 1 of the Justice Act, Hurd’s E. S., 1895, p. 899, provides for the election of two or more justices of the peace in every town under township organization.

Although five justices of the peace may be elected in a town, yet a re-elected justice is his own successor.

As justices in the city of Chicago, appointed, are governed by the same rules and regulations as justices of the peace elected, it seems that a justice of the peace re-appointed must be his own successor; and as save in the case where a justice being re-elected succeeds himself, upon the county clerk is devolved the power and duty of determining, upon application of any person elected to the office of justice, whom he shall succeed, so too, to the county clerk is given power and authority to determine whom of the various justices of the peace in the towns of the city of Chicago, the various justices newly appointed shall respectively succeed; a reappointed justice succeeding himself.

It must be borne in mind that justices of the peace in the city of Chicago, although recommended, nominated, confirmed and appointed, as hereinbefore set forth, are yet township and not city officers; they are appointed as officers of the various towns in which they live, and not as residents or citizens of the city of Chicago.

Their term of office, jurisdiction and powers, as well as the practice and proceedings before them, are the same as those of elected justices in other portions of the State. The appointed justices being subject to the same liabilities, required to execute the same bonds, sworn and governed by the same rules and regulations as justices of the peace elected; are-appointee succeeds himself, and it is the duty of other appointees to apply to the county clerk to determine whom they shall succeed in the town for which they a,re appointed, and call úpon the county clerk to draw an order upon the justice of the peace whose term has expired and whom he succeeds, to deliver over Ms books and papers, as required by law, to Ms successor, so determined.

As the people do not, in electing not to exceed five justices of the peace in any town or precinct, determine whom they shall succeed in office, neither does the appointing power, whether considered as one or three bodies, determine whom the appointees shall succeed. There is nothing in constitution or statute giving, in this regard, to the appointing power an authority not intrusted to the people when selecting justices of the peace. The entire act concerning justices of the peace regards all appointed and elected when so chosen as subject to and governed by the same rules and regulations. The convenience of the public is thus served, as not only is uniformity of regulation secured, but any person can at any period of time, by inspection of the records of the county clerk’s office, ascertain in whose custody the books and papers once kept by any justice of the peace are now to be found.

The governor had no power, either singly or in conjunction with the senate, to designate whom any appointee should succeed. His designation of Edwin J. Ehoades to succeed J ames O’Toole was nugatory. But three of the five persons recommended by the judges were appointed by the governor; each of these three was a new justice. To determine what justices they were to succeed was, by the law, made the duty of the county clerk. The county clerk has not designated a successor to the defendant, James O’Toole, and none has been qualified; he is, therefore, under the provisions of the constitution, a justice of the peace in and for the town of Lake.

The judgment of the Circuit Court is affirmed. '