A supervisor, town clerk, or justice of the peace, although his
resignation is tendered to and accepted by the proper authority,
continues in office, and is not relieved from his duties and
responsibilities as a member of the board of auditors under the
township organization laws of the State of Illinois until his
successor is appointed, or chosen and qualified.
On the seventh day of January, 1875, the relators filed in the
Circuit Court for the Northern District of Illinois their petition
for a writ of mandamus against the plaintiffs in error, alleging
that, on May 7, 1874, they recovered, in said court, two judgments
at law against the Town of Amboy, a municipal corporation under the
township organization laws of the State of Illinois; that the
supervisor, town clerk, and justices of the peace of the town
constituted a board of auditors, not less than three being a
quorum, whose duty it was to convene on the Tuesday preceding the
second Tuesday of September, and on the Tuesday preceding the first
Tuesday in April, in each year, to examine and audit town accounts
that on the 29th of August, 1874, said board of auditors consisted
of Chester Badger, the supervisor, Charles E. Ives, the town clerk,
Lee Cronkrite, Oliver F. Warrener, Simon Badger, and William B.
Andrus, justices of the peace of said town; that the relators on
that day presented to said board a sworn statement that the
judgments were just and unpaid, and should be audited and allowed;
they also at the same time delivered to, and filed with, the clerk
of the said town, a certified copy of said judgments, which the
board neglected and refused to audit, and has refused ever since;
that Chester Badger, Ives, Warrener, and Andrus pretended to
Page 93 U. S. 600
resign their offices, and would not discharge the duties
thereof, but that no other person had been elected or appointed to
succeed them; that the other two justices, Simon Badger and
Cronkrite, to defeat the collection of said judgments, refused to
act as such auditors, or meet and associate with the collector and
assessor of said town to constitute a board of auditors, nor would
they by appointment fill said alleged vacancies; that the acts of
the parties aforesaid were to hinder and delay the collection of
the judgments; that by reason of their said acts, relators have
been unable to obtain the necessary levy and collection of taxes to
pay said judgments, and that no provision has been made for the
payment thereof by the said town. Relators pray for summons to
award a mandamus against said parties, to compel them to audit said
judgments.
The respondents filed their answer on the 2d of February, 1875.
They admit that on the 29th of August, 1874, Chester Badger,
supervisor, and Warrener and Andrus, justices of the peace,
resigned their respective offices and that on the 31st of the same
month, Ives, town clerk, also resigned. That, pursuant to the
provisions of sec. 4, art. 10, of the township organization act of
Illinois, Revised Laws 1874, p. 1079, said resignations were made
to and accepted by Cronkrite and Simon Badger, justices of the
town, who forthwith gave notice to the town clerk of the
resignation of Chester Badger, Andrus, and Warrener, and said clerk
made a minute thereof upon the records of said town before he
resigned his office. That the resignation of Ives, the town clerk,
was likewise duly accepted, on the said thirty-first day of August,
by said justices, and notice thereof entered upon the town records.
Respondents insist that their resignations were tendered and
accepted in good faith, and that thereby they ceased to be town
officers. They admit that no successors have been elected or
appointed, and that the remaining two justices of the peace will
not act as town auditors, or associate with the collector and
assessor of said town, nor have they filled said vacancies by
appointment.
The relators demurred to the answer; which demurrer being
sustained, and the respondents electing to stand by their answer,
the court gave judgment in favor of the relators, and ordered a
Page 93 U. S. 601
peremptory mandamus to issue as prayed for in their petition.
The respondents thereupon sued out this writ.
MR. JUSTICE HUNT delivered the opinion of the Court.
No part of the answer in our judgment requires consideration,
except that which raises the point of the legality of the
resignation of the parties named. If they had ceased to be officers
of the town when the mandamus was issued, there may be difficulty
in maintaining the order awarding a peremptory mandamus against
them. If they were then such officers, the case presents no
difficulty.
The alleged resignations of the supervisor and town clerk were
accepted by the justices of the town; but their successors had not
been qualified, nor, indeed, had they been chosen when the petition
was filed. Does a supervisor, town clerk or justice of the peace of
the State of Illinois cease to be an officer when his resignation
is tendered to and accepted by a justice of the peace, or does he
continue in office until his successor is chosen and qualified?
By the common law, as well as by the statutes of the United
States, and the laws of most of the states, when the term of office
to which one is elected or appointed expires, his power to perform
its duties ceases.
People v. Tilman, 8 Abb.Pr. 359; 30
Barb. 193. This is the general rule.
The term of office of a district attorney of the United States
is fixed by statute at four years. When this four years comes
round, his right or power to perform the duties of the office is at
an end, as completely as if he had never held the office. Rev.Stat.
sec. 769. A judge of the Court of Appeals of the State of New York,
or a justice of the supreme court, is elected for a term of
fourteen years, and takes his seat on the first day of January
following his election. When the 14th of January thereafter is
reached, he ceases to be a judicial officer, and can perform no one
duty pertaining to the office. Whether a successor has been
elected, or whether he has qualified, does not enter into the
question. As to certain town officers, the rule is different. 1
Rev.Stat. (N.Y.) 340, sec. 30.
Page 93 U. S. 602
The system of the State of Illinois seems to be organized upon a
different principle. Thus, the supreme court consists of seven
judges, who are required to possess certain qualifications of age
and of residence, and who are elected for the term of nine years
(Code of Illinois, 1874, pp. 69, 70), at which time it is provided
that the "term of office shall expire."
Circuit judges in like manner are elected for a term of six
years.
Id., p. 701. County judges and county clerks,
probate judges and state's attorneys, are elected for the term of
four years.
Id., pp. 71, 72.
As to all of these officers, including judges, it is provided in
the Constitution of Illinois that "they shall hold their offices
until their successors shall be qualified."
Id., p. 73,
sec. 32. They may thus hold their offices much longer than the term
for which they are elected.
The provisions as to town officers are of the same character. It
is enacted, art. 7, sec. 61, p. 1075, that, at the town meeting in
April of each year, there shall be elected in each town one
supervisor and one town clerk, who shall hold their offices for one
year, and until their successors are elected and qualified, and
such justices of the peace as are provided by law.
Of justices of the peace, it is enacted that there shall be
elected in each town not less than two nor more than five
(depending upon the population of the town), who shall hold their
offices "for four years, or until their successors are elected and
qualified." P. 637, sec. 1.
The qualifying so often spoken of is defined as to town officers
by art. 9, sec. 85:
"Qualifying. Every person elected or appointed to the office of
supervisor, town clerk, &c., before he enters upon the duties
of his office, and within ten days after he shall be notified of
his election or appointment, shall take and subscribe, before some
justice of the peace or town clerk, the oath or affirmation of
office prescribed by the constitution, which shall, within eight
days thereafter, be filed in the office of the town clerk."
Thus far it would seem plain that the office of a supervisor or
town clerk could not be terminated until his successor subscribed
and filed his oath of office, and that when the supervisor
Page 93 U. S. 603
and town clerk before us supposed that their offices were at an
end by their resignations, they were in error.
There are two other provisions, which, it is supposed, have some
bearing upon the point we are considering. Sec. 97, p. 1079,
provides that whenever a vacancy occurs in a town office by death,
resignation, removal from the town, or other cause, the justices
may an appointment which shall continue during the unexpired term,
and until others are elected or appointed in their places. By sec.
100, the justices of the town may, for sufficient cause shown to
them, accept the resignation of any town officer, and notice
thereof shall immediately be given to the town clerk.
A similar provision as to the elective officers of a higher
grade is found in the statutes. By c. 46, sec. 124
et
seq., p. 466, it is provided that resignations of elective
offices may be made to the officer authorized to fill the vacancy
or to order an election to fill it, and the various events which
may cause a vacancy are defined. Governors, judges, clerks of
courts, &c., are specifically referred to.
The provision as to these officers and as to the town offices
are parts of the same system. The resignations may be made to and
accepted by the officers named, but to become perfect they depend
upon and must be followed by an additional fact, to-wit, the
appointment of a successor, and his qualification. When it is said
in the statute that the resignation may be thus accepted, it is
like to the expiration of the term of office. In form, the office
is thereby ended, but to make it effectual, it must be followed by
the qualification of a successor.
Sec. 92 (p. 1078) is also referred to: "Town officers, except as
otherwise provided, shall hold their offices for one year, and
until others are elected or appointed in their places and are
qualified." The term "otherwise provided" has reference to the
original term fixed by law, and not to resignations or vacancies.
Thus, justices hold for four years, supervisors and constables for
one year, and should there be created or found to exist a town
officer, and no provision be made as to the duration of his office,
this section is intended to meet the case by fixing one year as
such term. It has nothing to do with the case before us, further
than it reiterates the rule
Page 93 U. S. 604
everywhere found in the statutes of Illinois, that such person
shall serve not only for one year, but until his successor shall
qualify.
People ex Rel. Williamson v. McHenry, 52 N.Y. 374, was
the case of
quo warranto to test the title to the office
of collector of the Town of Flatbush, Kings County, N.Y. The
defendant was elected such collector on the fifth day of April,
1870. On the fourth day of April, 1871, the relator was elected
collector of the same town, but did not take or file an oath of
office or execute the bond to the supervisors of the town. The
board of supervisors recognized the defendant as the legal
collector, and delivered to him the warrant for the collection of
the taxes of 1871. To settle the dispute, the relator brought the
suit referred to. The attempt of the defendant to sustain himself
under an act of the legislature, extending the term of office of
the collector of Kings County to three years, failed. The court
held the act to be unconstitutional as to existing collectors. The
defendant, however, succeeded in retaining the office, and had
judgment that he was the legal collector; for the reason that
although the relator was legally elected, he had failed to take the
oath of office. The statute of New York as to town officers was in
substance the same as that of the State of Illinois. It was as
follows: "Town officers shall hold their offices for one year, and
until others are chosen or appointed in their places, and have
qualified."
In 6 Bissell 308 is found the opinion of Judge Blodgett in the
case we have before us. He holds that a resignation does not
relieve a supervisor or town clerk from the responsibilities of his
office until a successor is appointed. We think such is the
law.
In
People v. Hopson, 1 Den. 574, and in
People v.
Nostrand, 46 N.Y. 382, it was said, that when a person sets up
a title to property by virtue of an office, and comes into court to
recover it, he must show an unquestionable right. It is not enough
that he is an officer
de facto, that he merely acts in the
office; but he must be an officer
de jure, and have a
right to act. So, we think, where a person being in an office seeks
to prevent the performance of its duties to a creditor of the town,
by a hasty resignation, he must see that he resigns not only
de
facto, but
Page 93 U. S. 605
de jure; that he resigns his office not only, but that
a successor is appointed. An attempt to create a vacancy at a time
when such action is fatal to the creditor will not be helped out by
the aid of the courts.
Judgment affirmed.
