III. ACCEPTANCE OF OFFICE AND QUALIFICATION.

1. Obligation to Accept.

PEOPLE EX REL. INSURANCE COMPANY V. WILLIAMS.

Supreme Court of Illinois. 1893.

145 Ill. 573.

This is an original proceeding for mandamus to compel the respondent, Thomas C. Williams, to accept, assume and take upon himself and execute the office of town clerk of the town of Mount Morris, in the county of Ogle, in this State, to take and subscribe the oath of office, and to file bond, as required by law.

Mr. Justice SHOPE delivered the opinion of the Court:

The principal question presented is, whether mandamus will lie to compel acceptance of a municipal office by one who, possessing the requisite qualifications, has been duly elected or appointed to the same.

It is stated by text writers that no case has arisen in this country involving this precise question (Merrill on Mandamus, sec. 145; Dillon on Mun. Cor., sec. 162), and in the researches of counsel, and our own examination, none have been found. There are, however, a number of cases where analogous questions, involving the same principle, have been elaborately discussed and determined in the State and Federal courts. Very many English cases are found, in which it has been held that it was a common law offense to refuse to serve in a public office, to which one has been elected or appointed under competent authority: and that mandamus will lie in such case to compel the taking of the official oath, and entering upon the discharge of the public duty.

The common law of England, so far as the same is applicable and of a general nature, and all statutes or acts of the British Parliament made in aid of and to supply the defects of the common law prior to the fourth year of James I. (excepting certain statutes), and which are of a general nature and not local to that kingdom, are, by our statutes, made the rule of decision until repealed by the Legislature. Thereby the great body of the English common law became, as far as applicable, in force in this State.

It is held in numerous English cases, that by the common law it

was deemed the duty of every person having the requisite qualification, elected or appointed to a public municipal office, to accept the same, and that a refusal to accept such office was punishable at common law.

SO

Citation from cases will not be necessary; uniformly has the doctrine been maintained, that there is a legal duty to accept an office when duly elected or appointed, in a public or municipal corporation, at common law, and that mandamus is an appropriate remedy in cases of refusal, that it is accepted by all the text writers.

It follows, necessarily, that if to refuse the office is a common law offense, and punishable as such, that a legal duty attaches to the person to take upon himself the office, which may now be enforced by mandamus.

While offices of this class, in England, were accepted as a burden. they have not been generally so regarded in this country. Under our system of local government, even the smallest offices are generally accepted, either because they are supposed to lead to those which bring higher honors and greater emoluments, or because of a sense of duty. To this fact, and perhaps to the prevalent but mistaken idea, that one holding a public office may resign at will, may be attributed the want of decisions in this country upon the precise question at issue.

The reason assigned in Rex. v. Larwood, 1 Salk, 168, for the public duty is, "that the King hath an interest in every subject and a right to his service, and that no man can be exempt from the office of sheriff but by act of Parliament or letters patent." Under our form of government, the principle applies with even greater force than under a monarchy. In a republic the power rests in the people, to be expressed only in the forms of law. And if the duty. representative of the common welfare, is disregarded, society may suffer great inconvenience and loss, before, through the methods. of legislation, the evil can be corrected. Upon a refusal of officers to perform their functions, effective government, pro tanto, ceases. All citizens owe the duty of aiding in carrying on the civil departments of government. In civilized and enlightened society men are not absolutely free. The burden of government must be borne. as a contribution by the citizen in return for the protection afforded. The sovereign, subject only to self-imposed restrictions.

and limitations, may, in right of eminent domain, take the property of the citizen for public use. He is required to serve on juries, to attend as witness, and without compensation, is required to join with posse comitatus at the command of the representative of the sovereign power. He may be required to do military service at the will of the sovereign power. These are examples where private right and convenience must yield to the public welfare and necessity. It is essential to the public welfare, necessary to the preservation of the government, that public affairs be properly administered; and for this purpose civil officers are chosen, and their duties prescribed by law. A political organization must necessarily be defective, which provides no adequate means to compel the observance of the obvious duty of the citizen, chosen to office, to enter upon and discharge the public duty imposed by its laws, and necessary to the exercise of the functions of government.

It is admitted by the demurrer, that the respondent was legally appointed town clerk of the town of Mount Morris. The office is connected with, and necessary to, the levy of taxes to carry on the municipal concerns of the town and administration of its local jurisdiction. It is shown, that there was a public necessity, as well as that relators had a private interest in the performance of the duties of that office. No election had been held in the town since the annual town meeting of 1891. Numerous persons had been appointed to said office, but it remained vacant, and the duties consequently, undischarged. It is admitted by the demurrer, also. that claims against the town, in favor of the relator, to a large amount, had been audited by the board of town auditors of said town, and allowed, and certificate thereof duly made, as provided by law, but that the same could not be delivered to or filed with the town clerk, because of such vacancy in said office, nor could the aggregate amount therefor be certified to the county clerk of said county, to be levied and collected as other town taxes. It is conceded, that the respondent was eligible to the office; that a vacancy therein existed; that he was appointed conformably to the law, and duly notified thereof.

It is insisted, that the Legislature having provided a penalty for the refusal to accept the office, that that remedy is exclusive, and that a payment of the penalty imposed was intended to be in lieu of the service. We cannot concur in this view. The purpose of imposing the penalty, was to enforce the acceptance of the office and performance of its duties, and the statute cannot be construed as

intending that the person chosen should be discharged from the duty by payment of the penalty, and thereby the purposes of the creation of the office frustrated, and the public duty remain unperformed. Authorities supra. It is to be presumed that, had the Legislature intended that the payment of the fine should be in lieu of the service, they would have so enacted, and not having done so, the duty remains, notwithstanding, the imposition of the fine or penalty. High, Ext. L. Rem., 334, and supra.

We are of opinion that the respondent ought to be required to accept the office of town clerk of said town, to which he has been duly and legally appointed, to take and file the oath as such town clerk, as provided by law, and to discharge the duties of said office, and a peremptory writ of mandamus is awarded accordingly. Peremptory writ awarded.

2. How Acceptance of Office is Manifested.

STATE EX REL. CARPENTER V. THE SUPERVISORS OF THE TOWN OF BELOIT.

Supreme Court of Wisconsin. June, 1866.

21 Wisconsin 282.

Application for a mandamus.

A rule having been granted in this cause, requiring the supervisors of the town of Beloit to show cause why they should not be compelled to levy a certain tax, Charles Peck, as chairman of said board, answered that at the annual town meeting in April, 1865. one Ruble and one Parish were elected supervisors of said town; that each of them neglected and refused to qualify, and declined. and refused to accept the office; that neither of them had since said. election ever qualified, accepted or entered upon the discharge of the duties of said office, or acted or assumed to act as such supervisor: that at the time of the service of said rule to show cause, said Peck was and from thence continued to be, the only supervisor of said town; and that he had no authority to levy any tax. Demurrer to the answer.

DIXON, C. J. It is of the very essence of this proceeding that

there be some officer or officers in being, having the power and whose duty it is to perform the act. If there be no such officers, it is obvious that the writ cannot go, nor the mandate of the court be enforced. It is conceded that the chairman alone cannot levy the taxes; but it is claimed that the other two persons elected, but who neglected to qualify, became supervisors de facto by virtue of such election, and can be compelled to act as such in the performance of the duty enjoined by the writ. To this point the case of Coles County v. Allison, 23 Ill. 437, is cited. That case holds no more than this: that the acts of officers de facto are valid as respects the public and third persons having an interest in them, and that they cannot be collaterally impeached. The trustees there elected at the second election, though irregularly perhaps, were held to be officers de facto, inasmuch as they had, in the language of the report, "qualified, and ever since exercised the functions of their office." That was sufficient, in the opinion of the court, to show a valid organization of the town. In this case, however, the other two supervisors elected not only failed to qualify, but it does not appear that they have ever assumed to act as such in any manner whatever. The statute declares that every office shall become vacant on the refusal or neglect of the incumbent to take his oath of office, or to give or renew his official bond, or to deposit such oath or bond within the time prescribed by law. R. S. ch. 14, sec. 2. The other two persons elected are, therefore, neither supervisors de jure nor de facto; and the offices are vacant.

By the Court.-Peremptory writ refused.

As to effect in vacating an office of the failure of the one entitled to such an office to file his bond within the time designated by statute see Chicago v. Gage, 95 Ill. 593; Stephens v. Crawford, 1 Ga. 574; People v. Johr, 22 Mich. 461, infra.

SPEED V. COMMON COUNCIL OF DETROIT.

Supreme Court of Michigan. October, 1893.
97 Michigan 198.

MONTGOMERY, J. On September 30 last, the relator filed his petition in this court for mandamus to compel the respondent to approve a bond which relator had filed with respondent, as city counselor. An order to show cause was issued, and respondent's answer is now filed.