66 N.E.2d 388 | Ill. | 1946
This is an appeal from a judgment of the circuit court of Montgomery county, awarding the writ of mandamus. The complaint was filed in the circuit court in the name of the People on the relation of Robert C. White, against Edward R. Butler, as county clerk. He filed an answer to the complaint. The county of Montgomery was later *396 permitted to intervene as a defendant. It also filed an answer to the complaint.
A stipulation of facts in the record, on motion of appellee, was ordered stricken by this court because it had not been properly preserved in the record. From the allegations of the complaint, which are either admitted or not denied by the answers, however, the following undisputed facts appear.
At the general election held in November, 1942, relator was elected county judge of Montgomery county, for the term beginning on the first Monday in December, 1942, and ending on the first Monday in December, 1946. He qualified by taking the oath of office, and was duly and regularly commissioned as such county judge. He entered upon the performance of the duties of such office on the first Monday in December, 1942. On June 18, 1943, he was inducted into the United States Army as a private. His salary as county judge was paid by the county regularly up to January 1, 1944. At that time, appellant, as county clerk, refused to issue an order or warrant for the payment of relator's salary. He based his refusal on the ground that relator had accepted and, since his induction into the army, was holding an office of honor or profit under the government of the United States which, he claimed, vacated relator's office as county judge.
At the annual meeting of the county board of Montgomery county in September, 1943, it made an appropriation and levied taxes for the payment of the salary of the county judge for the fiscal year beginning September 1, 1943, and ending August 31, 1944. At the time this suit was filed, sufficient funds had been raised from said tax levy and were on hand in the treasury of the county to pay the salary of county judge for said fiscal year. The county clerk having refused to issue orders or warrants for the payment of relator's salary for the first six months of 1944, demand in writing for the payment of such salary *397 was served on the county clerk on July 1, 1944. Payment was refused. This suit was then brought. The prayer of the complaint was that a writ of mandamus issue, directing the county clerk to issue orders or warrants for the payment of relator's salary for the six months' period ending June 30, 1944.
The sole defense raised by the answers was that relator, having been inducted into the United States Army as a private, had accepted an office of honor or profit, and thereafter held such office under the United States Government; that he thereby vacated his office as county judge, under section 3 of article IV of the constitution. The trial court, upon a hearing, awarded the writ as prayed. This constitutional question, having been raised by the pleadings in the trial court, gives us jurisdiction on direct appeal.
The parties in this court have devoted their arguments solely to the constitutional question of whether a private in the United States Army is holding an office of honor or profit under the United. States Government, within the meaning of section 3 of article IV of the constitution. Nevertheless, at the threshold of the inquiry, we are met with another question which, we think, is decisive of the case. As already indicated, it is undisputed in the record that relator was duly elected, qualified and commissioned to the office of county judge for the term of four years, beginning on the first Monday in December, 1942. The question arises as to what right the county clerk, who is a ministerial officer, had to determine that respondent had vacated his office and was not entitled to receive the salary as such officer.
In Burgess v. Davis,
"In People ex rel. Cummings v. Head,
"Relator having shown lawful evidence of his title, the power to question his right to hold the office is vested exclusively in the people and can only be exercised through their proper officers. Respondents had no right and no lawful authority to interfere with relator in the exercise of the duties of the office to which he was lawfully appointed and qualified. To permit any individual, or official, or group of individuals, or officials, to arbitrarily determine that his term of office has terminated and to effectually oust him from the discharge of the duties of that office, without any semblance of a hearing, or lawful warrant, would establish a rule condemned by the principles of our form of government, and universally denied by the decisions of our courts. The effect of the admitted acts of respondents was to remove relator from the office to which he had the lawful title."
That case is conclusive here. There is no difference on the facts or in the applicable rules of law. For the reasons there pointed out, the same conclusion must be reached. *400
The cases of Fekete v. City of East St. Louis,
In the case of People ex rel. Miller v. Hotz,
In view of the rule announced in the above cases, the question whether the relator had vacated the office was an issue which could not be tried in this mandamus suit against the county clerk to compel the payment of relator's salary. This conclusion makes it unnecessary to give consideration to the constitutional questions raised. The court will not pass upon a constitutional question if the case may be disposed of on other grounds. (People
v. Chiafreddo,
The judgment of the circuit court of Montgomery county, awarding the writ, is affirmed.
Judgment affirmed.