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The People v. Kerner

OPINION FILED MAY 20, 1960.

THE PEOPLE EX REL. BENJAMIN S. ADAMOWSKI, STATE'S ATTORNEY, APPELLANT,

v.

OTTO KERNER, APPELLEE. — THE PEOPLE EX REL. GRENVILLE BEARDSLEY, ATTORNEY GENERAL, ET AL., PETITIONERS,

v.

EDWARD J. BARRETT, COUNTY CLERK, RESPONDENT.



No. 35744, APPEAL from the Superior Court of Cook County; the Hon. DONALD S. McKINLAY, Judge, presiding. No. 35761, ORIGINAL PETITION for mandamus.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:

This case involves the validity of the resignation of the county judge of Cook County and the writ of election issued by the Governor of Illinois setting June 6, 1960, as the date of the special primary election, and November 8, 1960, as the date of the special election of county judge of Cook County to fill the vacancy thus created.

On January 25, 1960, Otto Kerner, an announced Democratic candidate for Governor, wrote and delivered to Governor William G. Stratton a letter of resignation as county judge of Cook County effective at midnight, January 31, 1960, and on January 29, 1960, by letter to Governor Stratton, he purportedly withdrew his resignation upon the suggestion of the county clerk of Cook County. Thereafter, on February 29, 1960, Judge Kerner submitted his purported resignation to such clerk.

On February 3, 1960, the People of the State of Illinois, ex rel. Benjamin S. Adamowski, State's Attorney of Cook County, as plaintiff, filed a quo warrantor complaint in the superior court of Cook County against Otto Kerner, the purported judge of the county court of Cook County, as defendant. Kerner answered the complaint, and upon hearing on February 16, 1960, the court entered judgment in his favor. Notice of appeal was filed on February 17, 1960. Plaintiff filed brief and argument and defendant filed motion to transfer the cause to the Appellate Court, and brief and argument on the motion and on the merits of the case.

On February 23, 1960, Governor Stratton issued and caused to be transmitted to Edward J. Barrett, county clerk of Cook County, and ex officio clerk of the county court of Cook County, a writ of election. In this writ he set June 6, 1960, as the date of the special primary election of candidates for the office of county judge of Cook County and November 8, 1960, as the date of the special election of county judge to fill the vacancy caused by such resignation.

On March 1, 1960, the People of the State of Illinois ex rel. Grenville Beardsley, as Attorney General, and Benjamin S. Adamowski, as State's Attorney of Cook County, petitioners, filed motion in this court for leave to file an original petition for writ of mandamus against Edward J. Barrett, as county clerk and ex officio clerk of the county court of Cook County, respondent. On ex parte application we granted leave to file the petition, and the case came before us on petition, the respondent's answer, and briefs.

In the petition, petitioners prayed that this court issue its writ of mandamus commanding the respondent to do and perform every official act enjoined upon him by law in respect to holding and conducting the special primary election on June 6, 1960, and the special election on November 8, 1960, to fill the vacancy in the office of county judge of Cook County. On March 3, 1960, we entered an order consolidating the mandamus and quo warrantor proceedings and the cases were argued before us on March 11, 1960.

We are first confronted with the question of the effect of the resignation of Judge Kerner and of its purported withdrawal prior to its operative date. Respondent contends that the resignation was not accepted and that such withdrawal was proper and effective. The views in the various States are conflicting in regard to what constitutes acceptance of a resignation and whether an acceptance is required, (43 Am. Jur. par. 167, pages 23 and 24;) and similar lack of unanimity exists concerning the propriety of withdrawing a resignation and of its effect. The disparity of the authorities throughout the nation stems in part from the diverse provisions of the statutes of the various States pertaining to this subject.

The Illinois constitution provides:

"* * * All officers, where not otherwise provided for in this article, shall perform such duties and receive such compensation as is or may be provided by law. Vacancies in such elective offices shall be filled by election; but where the unexpired term does not exceed one year, the vacancy shall be filled by appointment, as follows: Of judges, by the governor; * * *." Const. of 1870, art. VI, sec. 32.

"In each county there shall be elected the following county officers, * * *. A county judge, * * *." Const. of 1870, art. X, sec. 8.

These constitutional provisions are implemented by the following statutes:

"Resignations of elective offices shall be made to the officer, court or county board authorized by law to fill a vacancy in such office by appointment, or to order an election to fill such ...


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