Appeal by plaintiff from the Circuit Court of Sangamon county;
the Hon. DE WITT S. CROW, Judge, presiding. Heard in this court
at the October term, 1951. Affirmed. Opinion filed November 6,
1951. Rehearing denied December 20, 1951. Released for
publication December 20, 1951.
MR. JUSTICE WHEAT DELIVERED THE OPINION OF THE COURT.
Rehearing denied December 20, 1951
Plaintiff, Joseph A. Teece, filed his complaint in the circuit court of Sangamon county, naming Adlai E. Stevenson, Governor of the State of Illinois, Leo M. Boyle, Adjutant General of the Illinois National Guard, Richard Smykal and Harry L. Bolen as defendants, and praying that the court enter judgment declaring illegal and void a certain order of the Military and Naval Department of the State of Illinois, issued February 3, 1950, signed by said Adjutant General and authorized by said Governor, purporting to relieve plaintiff of his duties as Commanding General of Troops, Illinois National Guard, and as Commanding General of the 44th Infantry Division and placing him on the retired list as Lieutenant General of the Line.
The complaint alleges that if the order complained of was invalid, no vacancies existed in the offices to which defendants Smykal and Bolen were appointed subsequent to issuance of the order and they were accordingly made parties defendant. On his own motion, Governor Stevenson was dismissed by the court as an unnecessary party defendant. Thereafter, defendants' motion to dismiss the complaint, on the ground that the action could not be maintained against the Executive Branch of the Government, and that declaratory judgment was not a proper action in which to try title to office, was overruled and the trial court took jurisdiction of the cause.
The complaint further alleges, and the answer admits, the following: plaintiff was appointed Major General of the Line of the Illinois National Guard on September 10, 1946. He thereafter qualified and entered upon the duties of that office and received federal recognition of his appointment as Major General of the Line.
At the time of plaintiff's appointment, chapter 129, section 108 of the Illinois Revised Statutes [Jones Ill. Stats. Ann. 80.106] provided as follows:
"Except where otherwise specified herein, all officers hereafter elected or appointed shall hold their respective offices until they are vacated by death, resignation or retirement, or by acceptance of another commission in the State Military or Naval Service or by sentence of a general court-martial or finding of a board of officers under Article XIV, Section 8, hereof: Provided, however, that no officer below the grade of lieutenant colonel shall be permitted to remain in service longer than five years without re-examination, both physical and professional; And, further, provided, that any commander having reason to believe that an officer of his command has become physically unfit for duty may require such officer to take a physical re-examination, though no officer may be required to stand re-examination oftener than once a year."
Thereafter, by act effective July 24, 1947, the foregoing was amended to read as follows: "Except where otherwise specified herein, all officers other than the Adjutant General and officers of the State Staff on full time duty, now in active service or hereafter appointed shall hold their respective offices until they are vacated by death, resignation or retirement, or by acceptance of another commission in the State Military or Naval Service, or by sentence of a general court-martial, or finding of a board of officers under Article XIV, Section 8 hereof: Provided, however, that all Major Generals of the Line shall be appointed for three years and Brigadier Generals of the Line shall be appointed for five years, the terms of office of aforesaid to commence from the date of appointment, and officers so appointed shall be ineligible for reappointment in the same grade. The term of office for a Colonel of a Regiment or a Colonel serving as a Commanding Officer of a separate organization, or serving as Chief of Staff or other Staff officer of a line organization shall be seven years from the date of his appointment and he shall be ineligible for reappointment. The term of office of all commissioned officers shall be subject to the age-in-grade policy of the War Department and no commissioned officer shall be retained on duty after he reaches the age so prescribed as the maximum for his grade. And further provided that any commission in the National Guard of Illinois shall be subject to such rules and regulations as may be prescribed by the Secretary of War for a commission in the National Guard of the United States. Federal recognition with commission in the National Guard of the United States is established as a requirement for holding commission in the active National Guard of the State of Illinois; the commission of an officer in the National Guard of Illinois will be terminated upon his failure to obtain or retain Federal recognition."
It being further admitted that plaintiff did not vacate his office as a result of the happening of any of the contingencies mentioned in the statute in force at the time of his appointment, the issue before the trial court was whether or not plaintiff's tenure of office was affected by that part of the Amendatory Act of 1947, which provides:
". . . All Major Generals of the Line shall be appointed for three years . . . the terms of office of aforesaid to commence from the date of appointment and officers so appointed shall be ineligible for reappointment in the same grade."
Plaintiff alleged that the order complained of, purporting to be issued in conformity with the Amendatory Act, is void because that Act has no application to him. Defendants denying these allegations, alleged that the Amendatory Act lawfully limited plaintiff's term of office to three years and that computation of the three-year period dates from the time of plaintiff's appointment. The trial court, rejecting the views of both plaintiff and defendant, held that plaintiff's term was subject to the three-year limitation imposed by the Amendatory Act, but that the three-year period was to be computed as commencing, not on the date of his appointment, but on the effective date of the Act.
As the issue before the trial court was primarily a question of law, plaintiff rested on the pleadings. Defendants introduced evidence apparently intended primarily to show an administrative construction of the Amendatory Act, and the intention of the legislature in passing it.
The evidence included testimony of General Charles C. Haffner, who stated that prior to passage of the amendment he was also a Major General in the Guard, and that he thought the Amendment applied to him, fixing his tenure at three years, beginning from the date of his appointment. In its judgment order the trial court found, however, that no certain administrative construction of the Amendatory Act, applicable in the circumstances, had been shown, and was further unable to find that this testimony of Haffner was of any controlling force in construing the Act. Thus, the trial court in effect agreed with plaintiff's contention that there is no competent evidence in the record to prove an administrative construction of the Act, and as defendants have not perfected a cross-appeal from the judgment of the trial court, it appears unnecessary to consider in detail whether, as plaintiff contends, the trial court erred in admitting evidence bearing on this question. The same is true of the trial court's ruling on defendants' motion to dismiss the complaint.
Plaintiff's primary contention is that the Act, by its own unambiguous terms, does not apply in his case, and there is accordingly neither necessity nor authority for resorting to judicial construction. The crux of plaintiff's argument is simply that the word "shall," appearing in the proviso referring to the term of appointment of Major Generals, is a word of futurity and that accordingly ...