Appeal from the Circuit Court of Macoupin County; the Hon.
SAMUEL O. SMITH, Judge, presiding. Reversed and remanded with
Rehearing denied May 8, 1964.
Upon leave of court and in pursuance of the provisions of the Quo Warrantor Act (Ill. Rev Stats 1961, c 112), the Circuit Court of Macoupin County, on August 31, 1962, after notice, granted leave to Edward Henderson, L.C. Martin, James P. Gallagher, Fred Raffini and William D. Seymour, to file a complaint in quo warrantor, which prayed that defendant, Hal Redfern, show by what authority he is holding the office of County Superintendent of Highways of Macoupin County. In addition to Redfern, the Board of Supervisors of Macoupin County and W.J. Payes, Jr., as Director of the Department of Public Works and Buildings of the State of Illinois, were named as defendants. This complaint was thereafter dismissed on motion of defendants, and on October 11, 1962, an amended complaint was filed, which, on separate motions of defendants, Board of Supervisors and William J. Payes, Jr., was, on April 7, 1963, dismissed as to these defendants. On March 27, 1963, Redfern filed his separate verified answer to this amended complaint and demanded a jury trial.
On the same day the order was entered dismissing the complaint as to the defendants other than Redfern, the State's Attorney of Macoupin County filed his motion for leave to file an intervening petition in this case. This motion was granted, and on April 29, 1963, this intervening petition was filed, and on May 1, 1963, Redfern filed his answer thereto.
The Record on Appeal (p 75) contains a copy of a letter by the clerk, dated June 30, 1963, advising counsel that "motion to dismiss the amended complaint would be heard on July 18, 1963." Page 76 of the Record is a motion by Redfern to dismiss the second amended complaint because the allegations thereof "do not state a cause of action which can be determined by this court." Pages 80 and 81 of the Record on Appeal show the filing, by leave of court, on June 24, 1963, of a second amendment to complaint, and on pages 77, 78 and 79 of the record appears an answer of defendant, Redfern, to second amended complaint. There is nothing in the record indicating that the letter of the clerk of June 30, 1963, to counsel, the motion by defendant to dismiss second amended complaint, and the answer of defendant to second amended complaint were ever filed.
With the record in this condition, the trial court, on August 12, 1963, entered this judgment order:
"This cause coming on to be heard upon the Motion to Dismiss the `Second Amendment to Complaint' filed by the plaintiffs and it appearing to the Court that all parties had due notice, and the Court having heard arguments of counsel for plaintiffs and defendant in open Court, and the Court having examined and considered the exhibits and depositions and all pleadings in this case, and now being fully advised in the premises, Doth Find:
"1. Defendant's Motion to Dismiss, in view of the exhibits filed by defendant in his Answer to Complaint of Intervening Plaintiff, should be treated as a paragraph 45 (Civil Practice Act) motion or a motion for summary judgment and it is so treated.
"2. Defendant has shown by what authority he holds the office of County Superintendent of Highways of Macoupin County.
"3. Chapter 121, Paragraph 5-201, Illinois Revised Statutes 1961, sets up the qualifications for the office of County Superintendent of Highways and the procedure for such appointment to said office and said Statute has been complied with by defendant i.e. the exhibits of defendant establish that:
"The defendant's name was submitted by the Board of Supervisors of Macoupin County to the Department of Public Works and Buildings. The Department determined that the defendant met the qualifications of the Statute; the questionnaire submitted by defendant in accordance with the statutory provisions was analyzed by the Department; the Department certified that defendant was eligible for appointment as County Superintendent of Highways of Macoupin County; the Board of Supervisors of Macoupin County passed a resolution appointing defendant County Superintendent of Highways of Macoupin County.
"4. The Legislature delegated to the Department of Public Works and Buildings the determination of the qualification of persons seeking the appointment by the Board of Supervisors to the office of County Superintendent of Highways.
"5. The Statute nowhere provides for a review of the determination of qualifications and experience of applicants and eligibility by the Department and the Department's determination is conclusive; the defendant passed the examination given by the Department.
"6. The Legislature has delegated the determination of like questions to agencies, departments and administrative boards of State government in licensing doctors, lawyers, beauty shops and others. This procedure has previously been approved by the Courts. The Courts cannot control the method of performance of the Department or its final results unless ...