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People Ex Rel. Fitzsimmons v. Swailes

OPINION FILED MARCH 23, 1984.

THE PEOPLE OF THE STATE OF ILLINOIS EX REL. J. MICHAEL FITZSIMMONS, APPELLANT,

v.

LESTER R. SWAILES, APPELLEE.



Appeal from the Circuit Court of Du Page County, the Hon. Bruce R. Fawell, Judge, presiding.

JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 4, 1984.

In 1960, Lester R. Swailes, defendant and counter-plaintiff, was first elected as York Township assessor, Du Page County. Swailes has continued to hold that elected township position to date. In February of 1972, Swailes was also elected to the Du Page County Board of commissioners from the 2nd district, Du Page County. Swailes was sworn in as a county board member in April of 1972. The Du Page county board of commissioners is a 25-member body elected by district and headed by a chairman who is elected on a countywide basis.

In February of 1972, after Swailes was elected, but before he was sworn in, the Du Page County State's Attorney, William V. Hopf, requested an opinion from then Attorney General Scott as to the compatibility of the offices of township assessor and county board member. In his opinion, the Attorney General concluded that, since the two offices were in separate units of local government, there was no constitutional or statutory provision specifically stating incompatibility and there was no apparent conflict of interest between the two positions. Swailes therefore was sworn in as a county board member in April of 1972. Swailes has been continuously reelected to both positions to date.

In November of 1980, Swailes was again elected a member of the county board. He was sworn in on December 1, 1980. On April 7, 1981, Swailes was again elected as township assessor of York Township for a four-year term to run from January 1, 1982, until January 1, 1986. The swearing in for township assessor took place on April 28, 1981.

On September 17, 1981, Public Act 82-554 became effective (1981 Ill. Laws 2789-2809). That act, which amended section 2 of "An Act in relation to the simultaneous tenure of certain public offices" (Ill. Rev. Stat. 1979, ch. 102, par. 4.11), provided in pertinent part that no person could simultaneously hold the office of county board member and the office of township assessor (Ill. Rev. Stat. 1981, ch. 102, par. 4.11).

On April 7, 1982, State's Attorney J. Michael Fitzsimmons requested that Swailes resign his position of county board member based upon Public Act 82-554. Swailes refused to resign and State's Attorney Fitzsimmons filed a complaint in the nature of quo warrantor and for a judgment of ouster on April 14, 1982, in the circuit court of Du Page County. On June 8, 1982, Swailes filed a countercomplaint for declaratory judgment requesting that the court declare Public Act 82-554 unconstitutional.

On August 19, 1982, Public Act 82-948 became effective (1982 Ill. Laws 2284). That act, which again amended section 2, made it lawful for any township assessor in counties of less than 300,000 population to simultaneously hold the position of county board member. (Ill. Rev. Stat., 1982 Supp., ch. 102, par. 4.11.) Only Will, Cook, Lake, and Du Page counties, out of 102 counties in Illinois, have populations of over 300,000 persons. Public Act 82-948, to the extent that it irreconcilably conflicts with Public Act 82-554, is controlling. Section 6 of "An Act to revise the law in relation to the construction of the statutes" provides:

"Two or more Acts which relate to [the] same subject matter and which are enacted by the same General Assembly shall be construed together in such manner as to give full effect to each Act except in case of an irreconcilable conflict. In case of an irreconcilable conflict the act last acted upon by the General Assembly is controlling to the extent of such conflict." (Ill. Rev. Stat. 1981, ch. 1, par. 1105.)

Public Act 82-948, the last act acted upon, conflicts with Public Act 82-554 in that it provides that it is lawful to hold the two offices in question in counties of less than 300,000. Therefore, Public Act 82-948 is controlling. Since Swailes, the elected assessor of York Township, was again elected as a county board member for the 2nd district in the general election in November of 1982, Public Act 82-948, which was in effect at that time, applies to him. (See People ex rel. Petka v. Bingle (1983), 112 Ill. App.3d 73.) On December 1, 1982, the county was granted leave to file an amended complaint to allege a violation of Public Act 82-948. Swailes was also granted leave on that date to file an amended countercomplaint for declaratory judgment requesting that the court declare Public Act 82-948 unconstitutional. That act is the only act that is properly before us since it repeals Public Act 82-554 by operation of law to the extent that the two acts conflict.

On December 1, 1982, both Swailes and State's Attorney Fitzsimmons had also filed motions for summary judgment. On December 2, 1982, both parties appeared to argue their motions for summary judgment. Before oral argument on the motions for summary judgment, State's Attorney Fitzsimmons was granted leave to amend his complaint to add a second count to raise the common law question of incompatibility. State's Attorney Fitzsimmons argued that, even if Public Act 82-948 was not unconstitutional, the two offices were incompatible at common law. On that date, Swailes also asked for leave of court to file two affidavits "with respect to various factual allegations." Swailes' attorney stated: "I think that [the affidavits] may be informative for the Court and should be made part of the record." Swailes was granted leave to file the two affidavits. One affidavit was that of Charles G. Kaelin, who stated as follows: Du Page County has a population greater than 300,000. He had been the elected Winfield Township supervisor and an elected county board member since 1967. He had also been duly appointed to the position of member, board of review of Du Page County, pursuant to section 8 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 489). That appointment was made in June of 1974. At the time of the writing of the affidavit, November 29, 1982, Kaelin was chairman of the board of review. Kaelin further stated that, as a Du Page county board member, he was familiar with the powers, authority and duties imposed by law on county board members. Also, as Winfield Township supervisor he was familiar with the powers, authority and duties imposed by law on township supervisors and assessors. He stated:

"[A]ny and all business that is or may be conducted between a particular township and the county board is conducted thru the Supervisor and Board of Trustees of the township and the county board. The township assessor, as a township officer, is subject to the authority of the township trustees and would, under no circumstances known to him, have any direct or indirect governmental relationships, contractual or otherwise, with the county board of commissioners of Du Page County."

Kaelin further stated that he, as an elected county board member since 1967 and elected township supervisor since 1967, had never voted on any matter before the Du Page county board, nor was he aware of any matter that had come before the board, that either directly or indirectly related to the conduct or affairs of the various township assessors in Du Page County in general or York Township in particular.

The affidavit of the defendant, Swailes, was also admitted into evidence. In his affidavit, the defendant listed his history of office holding. He stated that he has been both the township assessor from York Township and a county board member from the 2nd District of Du Page County. He explained that prior to his first being sworn in as a county board member, the then Du Page County State's Attorney, William V. Hopf, requested a legal opinion from the Attorney General as to the compatibility of the offices of township assessor and county board member, since Swailes was township assessor and ...


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