Franklin v. Westfall

Mr. Justice Duncan

delivered the opinion of the court:

Appellant, Dean Franklin, filed in the circuit court of McDonough county, against appellee, Josie Westfall, and Albert B. Fuhr, a petition to contest the election of said Josie Westfall as judge of the city court of Macomb at an election held in said city June i, 1914. Fuhr was defaulted and appellee answered the petition. A trial was had upon the issues made by the petition and the answer. The circuit court entered its decree holding that the appellee had been duly elected as judge of said city and dismissed the petition. This appeal was thereafter prosecuted.

The names of the candidates, party titles and votes cast at said election are shown by the following tabulation:

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It is clear that if the votes cast by the women at said election are to be held as legal votes -appellee was elected as city judge, but, on the other hand, if they are held as illegal votes then appellant was elected by a plurality of twenty-one votes. This case is therefore to be determined upon the proposition whether or not women can legally vote for a candidate for the office of judge of a city court.

Appellee bases her claim that the women’s votes were legally cast and counted for her at said election upon what is known as the Woman’s Suffrage act, which, in its main provisions was held to be a valid act by this court in the case of Scown v. Czarnecki, 264 Ill. 305. Section 1 of that act, so far as it is material to the issues in this case, provides “that all women, citizens of the United States, above the age of twenty-=one years, having resided * * * shall be allowed to vote * * * for all officers of cities, villages and towns (except police magistrates,)” etc. Appellant argues that judges of city courts are not city officers within the meaning of said act; that judges of city courts are constitutional officers, and that it is not within the power of the legislature to confer upon women the right to vote for candidates for the office of city judge.

A judge of a city court is a city officer. This was virtually decided by this court in the case of People v. Olson, 245 Ill. 288, in this language: “There is no substantial or material difference between the terms ‘city court’ and ‘municipal court,’ both of which are courts of the municipality in which they are established.” An officer of the court is therefore an officer of the municipality. State officers are officers that may be voted for by all the electors of the State, county officers are those that may be voted for by the electors of the county, only, and city officers are the officers that may be voted for only by the electors of the entire city.

In the case of People v. English, 139 Ill. 622, this court had under consideration the act of the legislature entitled “An act to entitle women to vote at any election held for the purpose of choosing any officer under the general or special school laws of this State,” approved June 19, 1891. It was decided in that case that women were not entitled to vote for a county superintendent of schools because mention is made of said officer in section 5 of article 8 of the constitution in this language: “There may be a county superintendent of schools in each county, whose qualifications, powers, duties, compensation, and time and manner of election, and term of office, shall be prescribed by law.” On page 628 of that opinion the court said: “It is thus perceived that mention is made in the constitution, of the county superintendent of schools, and that it is indicated therein that he or she is to be selected at an ‘election.’ We may assume that said 'provisions for such officer, and for his or her election, did not become operative by force of the constitution itself and without aid from an act of the legislature. But the legislature having in 1872, under and in furtherance of this constitutional provision, enacted a statute which provided for such an officer as a county superintendent of schools in each and every county of the State, it must be regarded that such county superintendent is to all intents and purposes a constitutional officer. The constitution having thus made provision for such officer and for his or her ‘election,’ and having prescribed, in section 1 of article 7, the qualifications essential to entitle a person to vote at ‘any election,’ it must be presumed that it was and is the true intent and meaning of that instrument that no person should have the right to vote for a county superintendent of schools who does not possess such qualifications.” It was in that case recognized that the office of county superintendent of schools was not, in fact, provided for by the constitution, but that, inasmuch as the constitution mentioned his name and indicated he was to be selected at an election, he was, at least for the purposes of his election, to be regarded as a constitutional officer, and being such an officer for such purpose, by the express provisions of said section 1 of article 7 of the constitution, only males could vote for such officer. This court laid down the rule in that case that women could not be empowered by the legislature to vote for any officer named in the constitution, and in which it is indicated that he is to be selected at an election, unless there is to be also found in the constitution some provision that indicates an intention otherwise. The rule laid down in that, case has been followed by this court in every case since decided wherein that question was involved. Plummer v. Yost, 144 Ill. 68; People v. Czarnecki, 265 id. 489; Scown v. Czarnecki, supra.

Section 1 of article 6 of the constitution provides as follows: “The judicial powers, except as in this article is otherwise provided, shall be vested in one supreme court, circuit courts, county courts, justices of the peace, police magistrates, and such courts as may be created by law in and for cities and incorporated towns.” Section 17 of said article provides: “No person shall be eligible to the office of judge of the circuit or any inferior court, or to membership in the ‘board of county commissioners,’ * * * nor unless he shall have resided in this State five years next preceding his election, and be a resident of the circuit, county, city, cities or incorporated town in which he shall be elected.” The last two sentences of section 32 of said article 6 provide: “All officers, where not otherwise provided for in this article, shall perform such duties and receive such compensation as is or may be provided by law. 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; of clerks of courts, by the.'court to which the office appertains, or by the judge or judges thereof; and of all such other offices, by the board of supervisors or board of county commissioners in the county where the vacancy occurs.”

Article 6, aforesaid, of the constitution covers the whole judicial power of the people of the State and is the source of all legislative authority respecting courts. (People v. Olson, supra.) Therefore the legislature of this State can create no court, and cannot fix the term of office of a judge of any court, nor prescribe the manner of selection or election of any such judge, unless authorized by said article 6. If the constitution clearly indicates that a judge is to be selected at an election the legislature cannot empower women to vote for such a judge. The instant case is therefore clearly controlled by the rule laid down in the case of People v. Bnglish, supra. Section iy of said article, as above quoted, expressly names judges of inferior courts,—that is, judges of city courts and of incorporated towns,—and expressly provides that no such judge is eligible to such an office unless he has resided five years in the State next preceding his election and is also a resident of the city or incorporated town “in which he shall be elected.” The whole article indicates clearly that all judges except as is therein otherwise specifically provided are to be elected, justices of the peace of Chicago and appellate judges being the expressed exceptions. We hold, therefore, that women cannot legally vote for a city judge and that only the votes cast by men at said election can be legally counted.

Our attention is called to the fact that this court in the case of People v. Olson, supra, held that the constitution does not provide for city' courts but simply provides for their creation by the legislature, and that the well known rule is, that where an office is created by legislative action it is wholly within the control of the legislature creating it, and that the legislature is competent to declare the manner of filling it, and to change, from time to time, the mode of election or appointment. This court was there announcing the general rule and it is there stated correctly. This court did not there hold that the legislature had the power to make the office of city judge appointive or that women could be empowered by it to vote for a city judge. Those questions were neither up for decision in that case nor decided. It was decided that city judges were not provided for by the constitution, and that, therefore, their terms of office were not fixed by section 32 of said article 6 and that the legislature had power to fix their terms of office. The Olson case is in no way overruled by this opinion. It must be understood, however, that the general rule that where an officer is not provided for by the constitution the legislature may provide either for his appointment or election, is qualified by the further provision that the constitution does not specifically indicate the manner in which he is to be selected. It is not necessary for an officer to be a constitutional officer or one provided for by the constitution, to be classed with constitutional officers for the purposes of election. It is sufficient if the constitution names such an officer and clearly indicates that he is to be elected, although it empowers the legislature to create the office, fix the term and salary and to enumerate his duties as such officer. In other words, the constitution controls whenever and in whatever particular it expressly places a limitation on the legislature. This is so because it is the instrument adopted by the express consent and votes of the people of the State and stands as a positive limitation upon the legislature to make any law contrary to its provisions, and no judge can honorably hold a statute a valid law when he reaches an honest conclusion that it is positively against the express provisions of the constitution. Every member of the legislature, every judge of a court in this State and every man elected Governor of this State is positively required to take an oath to support the constitution before he can qualify for his office.

The objection of appellee that the circuit court had no jurisdiction to hear and determine this case is not tenable. Misch v. Russell, 136 Ill. 22; Baker v. Shinkle, 249 id. 154.

The further contention of appellee that the appellant is not eligible to hold the office is not sustained by the proof. Moreover, the question is not one properly raised in an election contest. That question is a proper subject of inquiry by quo warranto. Edgcomb v. Wylie, 248 Ill. 602; Dilcher v. Schorik, 207 id. 528.

The decree of the circuit court is reversed and the cause is remanded, with directions to enter a decree finding that appellant was duly elected to the office of judge of the city court of Macomb.

Reversed and remanded, with directions.