ORIGINAL PETITION for mandamus.
On leave granted, petitioner, Donald M. Gregg, Judge of the County Court of Marshall County, filed his original petition in this court, praying for a writ of mandamus directed to the respondent as clerk of the probate court of Cook County, commanding him (a) to cease and desist from interfering with and preventing petitioner from discharging the duties of judge of, and from conducting, the probate court of Cook County, (b) to furnish petitioner a courtroom and chambers wherein petitioner might hold and preside over the probate court of Cook County, (c) to furnish petitioner a deputy clerk and other necessary attendants while sitting as such judge and holding said court, (d) to record in the records of said court all proceedings conducted and orders made by petitioner as judge of said court, (e) to enroll petitioner's name on his records as the judge holding said court and to certify his name as such to the county treasurer and county clerk of Cook County, and (f) to perform all other duties as required by law to assist the petitioner in holding and conducting the probate court of Cook County.
The respondent, as clerk of the probate court of Cook County, filed his answer to the petition denying the petitioner's right to a writ of mandamus, on the ground that under the facts alleged in the petition and answer the law did not vest petitioner with any title or right to the office of judge of the probate court of Cook County.
The basic facts giving rise to this proceeding are not in dispute, and the issue for decision by this court is primarily one of law.
Honorable William F. Waugh, the duly elected judge of the probate court of Cook County, passed away suddenly on March 6, 1953, at 2:45 P.M. At the time of his death, the unexpired portion of the term to which he had been elected was more than one year.
On March 6, commencing with the opening of court in the forenoon, and up to the time of Judge Waugh's death, petitioner was sitting and holding court in the probate court of Cook County at the request of Judge Waugh pursuant to the statute providing for the interchange of judges in the county and probate courts of Illinois. (Ill. Rev. Stat. 1951, chap. 37, pars. 297-298.) Upon the death of Judge Waugh, petitioner continued to sit as a judge of said court for the remainder of the day at the request of respondent as clerk of said probate court.
On the following Monday, March 9, respondent requested petitioner to continue to serve as a judge in said court, which petitioner did. The said probate court was officially closed on Tuesday, March 10, in memory of the late Judge Waugh and to permit attendance at his funeral. The next day, Wednesday, March 11, respondent told petitioner that he should continue to act on a temporary basis for a limited period of time until respondent determined what course of action he would follow with respect to designating and calling a county or probate judge to serve as judge in the probate court of Cook County pursuant to the statutory provisions in such cases made and provided. Ill. Rev. Stat. 1951, chap. 37, par. 325.
Petitioner thereupon proceeded to hold court until the close thereof on Friday, March 13. Late in the afternoon of that day, respondent advised the petitioner that his services were no longer required; that respondent had designated and called the county judge of Perry County to serve as judge of and to hold the probate court of Cook County, commencing Monday, March 16, together with the probate judge of Du Page County as an assistant; that petitioner's name had been removed from the records of the clerk as acting judge of the said court and that petitioner should not appear further to serve as such judge except upon the designation and call of respondent.
At that time petitioner advised the respondent that under the statute (Ill. Rev. Stat. 1951, chap. 37, par. 325,) petitioner was the only county or probate judge in Illinois authorized to hold said probate court of Cook County and to act as judge thereof until the election and qualification of a successor to the late Judge Waugh; that respondent had no right or power to terminate petitioner's rights as such judge, after requesting him to so serve; and that petitioner was willing to continue to so serve and would so present himself at all subsequent sessions of the said court.
On the following Monday, March 16, petitioner did present himself and attempt to hold court in the probate court of Cook County. However, respondent refused to furnish him with a courtroom or a clerk or other attendants necessary to carry out the court functions and to spread of record any order signed by petitioner on that date, although so demanded by petitioner. On the contrary, respondent installed and recognized the county judge of Perry County to serve as judge of the probate court of Cook County, furnishing him the necessary chambers, courtroom and court personnel, and recognized his orders, only, as the official orders of the court entitled to record. On the following day respondent installed the probate judge of Du Page County as an assistant or alternate to the county judge of Perry County as acting judge of the probate court of Cook County, and has continued to refuse to recognize petitioner as a judge of said probate court of Cook County.
During the court week which commenced March 9, 1953, respondent caused to be published and circulated in the course of his duties as clerk of the probate court of Cook County the claim docket of the court for the March term beginning March 23, on the cover and title page of which the petitioner was listed and described as "Acting Probate Judge" over the facsimile signature of respondent. Such claim docket had been prepared before the death of Judge Waugh, and on Monday, March 9, while petitioner was serving as judge of the probate court of Cook County under the circumstances above stated, the printer was advised by respondent to insert petitioner's name as it appeared thereon.
This proceeding involves the construction, and application to the facts here presented, of "An Act to authorize county and probate judges to perform the duties of the office of one another in certain cases" (Ill. Rev. Stat. 1951, chap. 37, par. 325,) which provides as follows: "In case of the death, resignation or inability of the judge of a county or probate court, of any county, the clerk of such court shall designate and call any county or probate judge to hold such county or probate court; and such county or probate judge, when so designated and called, may hold such county or probate court and perform all the duties of the judge thereof until the appointment or election of his successor, or until the disability to act ceases."
The petitioner's position is that the above facts constitute his being designated and called by the respondent under such statute to serve as judge of the probate court of Cook County, and upon his accepting and entering into his duties as such he thereby succeeded to the title and right to the office of judge of the probate court of Cook County, and that respondent as clerk of such court has no power under the statute to remove him.
Respondent's position is that there was no designation and call of petitioner by him as clerk as contemplated by the statute, and in the alternative that, if there was, petitioner did not thereby acquire title to the office, but was merely performing the duties of the judge, subject to change by the ...