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People Ex Rel. Petka v. Bingle

OPINION FILED FEBRUARY 16, 1983.

THE PEOPLE EX REL. EDWARD PETKA, STATE'S ATTORNEY OF WILL COUNTY, PLAINTIFF-APPELLEE,

v.

JAMES D. BINGLE, WILL COUNTY BOARD MEMBER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Will County; the Hon. Michael A. Orenic, Judge, presiding.

JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Defendant James D. Bingle appeals from the decision of the circuit court, in this quo warrantor proceeding, wherein the court ousted Bingle from his office as Will County Board member. The quo warrantor action had been brought by the Will County State's Attorney against Bingle, who, at the time of the action, held positions as county board member and as Du Page Township assessor, having been elected to both offices. The proceeding was originally brought on the basis of a common law incompatibility between the two offices, but the amended complaint relied upon Public Act 82-554, amending section 2 of "An Act in relation to the simultaneous tenure of certain public officers" (Ill. Rev. Stat. 1981, ch. 102, par. 4.11), which declared it unlawful for one person to simultaneously hold the offices of township assessor and county board member in one county. The circuit court, in entering summary judgment for the county, found that Bingle held both offices, in violation of Public Act 82-554. The court ordered that Bingle be ousted from his position as county board member, and it declared that office vacant. Judgment of ouster was stayed, however, pending appeal.

On appeal, the defendant Bingle argues that the court erred in entering summary judgment against him and in ousting him from his position as county board member. He argues: (1) that the legislature, in enacting Public Act 82-554, unconstitutionally changed the qualifications for a constitutional office, county board member; (2) that even assuming the constitutionality of the Act, the court erred in applying it to the defendant, where, as here, he held both offices prior to the effective date of the Act and no retrospective application was specified by the legislature; (3) that the court's decision interfered with the absolute right of the electorate to elect any person not disqualified by the constitution; and (4) that the court's decision damages the public interest and constitutes an abuse of discretion.

The facts, as disclosed in the record, are undisputed. James Bingle was elected to the Will County Board on November 7, 1978, being sworn in on December 4, 1978. He thereafter assumed his seat on the county board. On April 7, 1981, he was elected to the office of assessor for Du Page Township, Will County, Illinois. On May 4, 1981, he was sworn in to that office. At the time of his election and swearing in as assessor, there was no statutory prohibition in Illinois against one person simultaneously holding the offices of county board member and township assessor.

On July 28, 1981, the Will County State's Attorney, on the basis of an Illinois Attorney General's Opinion (Ill. Att'y Gen. Op. No. 81-021 (July 23, 1981)), requested Bingle's resignation from the county board. The opinion of the Attorney General had concluded that the offices of county board member and township assessor were incompatible under the common law, and therefore, acceptance of the second office constituted an ipso facto resignation from the first. Thereafter, on August 3, 1981, the State's Attorney filed a complaint in the nature of quo warrantor, praying for a judgment of ouster against Bingle as county board member. Then, on September 17, 1981, the Governor of the State of Illinois signed into law Public Act 82-554, which specifically provided that it was unlawful for one person to hold the office of elected county board member and elected township assessor at the same time. On the basis of the incompatibility of the two offices, and supported by the newly enacted Public Act 82-554, the county moved for summary judgment. The motion was granted by the circuit court, which found that the two offices held by Bingle were incompatible under the recently enacted statutory provision. The court then ordered that Bingle be ousted from his position as county board member. From entry of that summary judgment, Bingle appeals.

Appellant Bingle argues that Public Act 82-554 is unconstitutional in that through it the legislature has attempted to add a qualification to the office of county board member, which is a constitutional office. (Ill. Const. 1970, art. VII, sec. 3(a).) It is established that where the constitution declares the qualifications for an office, it is not within the power of the legislature to change or modify the qualifications, unless such amendatory power is granted in the constitution. (People ex rel. Hoyne v. McCormick (1914), 261 Ill. 413, 420-24, 103 N.E. 1053; People ex rel. Nachman v. Carpentier (1964), 30 Ill.2d 475, 197 N.E.2d 32.) The county responds to this argument, asserting (1) that Public Act 82-554 did not add any additional qualification to the office of county board member, but merely prohibited persons from holding that office and the office of township supervisor (Livingston v. Ogilvie (1969), 43 Ill.2d 9, 14, 250 N.E.2d 138), and (2) that Public Act 82-554 did not change the law, but was merely declaratory of the existing common law rule prohibiting the holding of incompatible public offices. (See People ex rel. Myers v. Haas (1908), 145 Ill. App. 283, 286.) The existence of a common law prohibition against holding both offices is also argued as a response to Bingle's contention that Public Act 82-554 was improperly applied retrospectively to him. Therefore, to the question of the existence of any common law incompatibility we now turn.

The appellate court, in the Haas case, concisely stated the rules with respect to incompatibility:

"Incompatibility, in this connection [the holding of two public offices], is present when the written law of a state specifically prohibits the occupant of either one of the offices in question from holding the other and, also, where the duties of either office are such that the holder of the office cannot in every instance, properly and fully, faithfully perform all the duties of the other office. This incompatibility may arise from multiplicity of business in the one office or the other, considerations of public policy or otherwise. Bacon's Abridgement Vol. 7, Tit. `Officers', K.; Rex v. Tizzard, 9 B. & C., 418; 1 Dillon on Mun. Corp., p. 308-9, secs. 225-7 and note 4; McCrary on Elec., secs. 336 et seq. 4th Ed.; Mechem on Pub. Off., sec. 429; Dickson v. People, 17 Ill. 191; People ex rel v. Hanifan, 96 Ill. 420; Packingham v. Harper, 66 Ill. App. 96. From these authorities it also appears that in case of incompatibility the acceptance of the second office is ipso facto a resignation of the first office. By his own action the officer expresses his voluntary resignation." (145 Ill. App. 283, 286-87.)

The common law prohibition against public officers holding two incompatible offices at the same time is of long standing, and well-established origin. (See 63 Am.Jur.2d Public Officers and Employees secs. 62, 73, 77 (1972); Annot., 89 A.L.R.2d 632 (1963).) Incompatibility, under the common law,

"* * * is to be found in the character of the offices and their relation to each other, in the subordination of the one to the other, and in the nature of the duties and functions which attach to them.

Incompatibility of offices exists where there is a conflict in the duties of the offices, so that the performance of the duties of the one interferes with the performance of the duties of the other. They are generally considered incompatible where such duties and functions are inherently inconsistent and repugnant, so that because of the contrariety and antagonism which would result from the attempt of one person to discharge faithfully, impartially, and efficiently the duties of both offices, considerations of public policy render it improper for an incumbent to retain both.

At common law, it is not an essential element of incompatibility of offices that the clash of duty should exist in all or in the greater part of the official functions. If one office is superior to the other in some of its principal or important duties, so that the exercise of such duties may conflict, to the public detriment, with the exercise of other important duties in the subordinate office, then the offices are incompatible. * * *." (63 Am.Jur.2d Public Officers and Employees sec. 73 (1972).)

The question of subordination of offices is relevant in the instant case, and pertinent thereto:

"One of the most important tests as to whether offices are incompatible is found in the principle that the incompatibility is recognized whenever one is subordinate to the other in some of its important and principal duties, and subject in some degree to the other's revisory power. Thus, two offices are incompatible where the incumbent of the one has the power of appointment to the other office or the power to remove its incumbent, even though the ...


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