MacAluso v. West

352 N.E.2d 382, 40 Ill. App. 3d 392, 1976 Ill. App. LEXIS 2779
CourtAppellate Court of Illinois
DecidedJuly 22, 1976
Docket75-493
StatusPublished
Cited by6 cases

This text of 352 N.E.2d 382 (MacAluso v. West) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MacAluso v. West, 352 N.E.2d 382, 40 Ill. App. 3d 392, 1976 Ill. App. LEXIS 2779 (Ill. Ct. App. 1976).

Opinion

PER CURIAM:

Plaintiff, Charles W. Macaluso, was appointed to a 4-year term as Supervisor of Assessment of Perry County by the County Board of Commissioners on November 12, 1970. On April 29, 1974, the County Board passed an ordinance suspending plaintiff from office without pay for 30 days and scheduled a hearing to be held on the matter on May 29, 1974. On May 17, 1974, plaintiff filed a complaint in three counts seeking relief from the action taken by the County Board and prohibiting any further action in the matter by the County Board. The members of the County Board, defendants herein, filed a motion to dismiss the complaint on June 18, 1974; and, on August 29, 1975, the complaint was dismissed.

The hearing which had been scheduled by the County Board was never held. Apparently plaintiff remained out of office for the remainder of his term, and he was not reappointed at the end of that term.

The first count of plaintiff’s complaint requested temporary and permanent injunctive relief prohibiting the hearing scheduled for May 29, 1974, restoring plaintiff to his official position, and prohibiting defendants from interfering with plaintiff’s performance of his official duties. The second count of the complaint requested relief by way of a declaratory judgment that defendants were without authority to remove or suspend plaintiff or to hold a hearing on the matter. The third count requested the court to issue a writ of mandamus ordering defendants to restore plaintiff to office, to refrain from interfering with plaintiff’s exercise of his official duties, and to refrain from holding the scheduled hearing. Each of the three counts contained an allegation that plaintiff had at all times properly performed his official duties.

Since plaintiff’s term of office expired in November of 1974 and he was not reappointed, no relief can now be granted plaintiff under the first and third counts of the complaint. The issues involved with those two counts are, therefore, moot and need not be discussed in this opinion. People ex rel. Morris v. Pettow, 243 Ill. App. 142; Campbell v. Wilbon, 6 Ill. App. 3d 592, 285 N.E.2d 531 (abstract opinion).

The second count of plaintiff’s complaint, on the other hand, does involve a viable issue. If plaintiff was wrongfully ousted from his position as Supervisor of Assessments, he has a claim for salary lost during the time of the ouster. Furthermore, as will be discussed hereinafter, whether plaintiff had a right to retain his office during the term of his appointment, and be compensated therefor, and whether defendants had the authority to remove or suspend plaintiff from office dining the term are matters that can be settled only by a determination of the applicability and effect of certain statutory provisions. A determination of such matters is a proper subject for a declaratory judgment action. Ill. Rev. Stat. 1973, ch. 110, par. 57.1(1); Farm to Market Truckers Association, Inc. v. Perrine, 21 Ill. App. 2d 118, 157 N.E.2d 279 (abstract opinion); 26 C.J.S. Declaratory Judgments §45 (1956).

In the absence of a provision in the Constitution to the contrary, the removal or suspension of a public officer, whether elected or appointed, is generally considered a subject within the control of the legislature, which can designate the grounds for and the mode of suspension or removal. (Donahue v. County of Will, 100 Ill. 94; People ex rel. Akin v. Kipley, 171 Ill. 44, 49 N.E. 229; 4 McQuillan on Municipal Corporations §12.229 (3d ed. 1968); 63 Am. Jur. 2d Public Officers and Employees §178 (1972); 20 C.J.S. Counties §108a (1940).) In the absence of a controlling statute, an officer appointed, or elected by a board or council to an indefinite term holds his office at the will of the appointing or electing authority, since the power of suspension or removal in such cases is usually regarded as incident to the power of appointment or election. (People ex rel. Stevenson v. Higgins, 15 Ill. 110; Lightfoot v. Village of Evergreen Park, 207 Ill. App. 411; 4 McQuillan, Municipal Corporations §§12.229b and 12.249 (3d ed. 1968); 63 Am. Jur. 2d Public Officers and Employees §§179 and 180 (1972); 20 C.J.S. Counties §108b (1940); 67 C.J.S. Officers §59b(2) (1950); contra, Field v. People ex rel. McClernand, 3 Ill. (2 Scam.) 79.) However, when a statute provides for the officer to hold office for a definite term, he can be suspended or removed only for cause. (People ex rel. Post v. Healy, 231 Ill. 629, 83 N.E.453; 4 McQuillan, Municipal Corporations §§12.230a and 12.232 (3d ed. 1968); 63 Am. Jur. 2d Public Officers and Employees §179 (1972); 20 C.J.S. Counties §108b (1940); 67 C.J.S. Officers §60a (1950).) Moreover, when a statute specifies certain grounds as constituting cause for suspension or removal and provides for suspension or removal by a particular method, the enumerated grounds are the exclusive grounds which can constitute cause (4 McQuillan, Municipal Corporations §12.234 (3d ed. 1968); 63 Am. Jur. 2d Public Officers and Employees §189 (1972); 20 C.J.S. Counties §108 c(1) (1940); 67 C.J.S. Officers §60a (1950)) and the specified method is the only method by which a public officer can be suspended or removed. People ex rel. Iddings v. Dreher, 302 Ill. 50, 134 N.E.22; Edwards v. City of Marion, 130 Ill. App. 2d 895, 266 N.E.2d 491; 20 C.J.S. Counties §108d (1940); 67 C.J.S. Officers §64 (1950); see 4 McQuillan, Municipal Corporations §12.255 (3d ed. 1968); 63 Am. Jur. 2d Public Officers and Employees §207 (1972).

Article VII, section 4 (c), of the Illinois Constitution of 1970, provides that each county “may elect or appoint a[n] ” ” e assessor * * * as provided by law or by county ordinance.” The Constitution does not specifically fix the length of the term of office of an assessor, but merely provides that any elective office shall be for a term of four years and that “[o]ffices other than sheriff, county clerk and treasurer may be eliminated and the terms of office and manner of selection changed by law.” (Ill. Const. 1970, art. VII, §4(c).) Furthermore, the Constitution does not contain a provision governing the suspension or removal of an assessor. It is thus within the authority of the Illinois legislature to determine the method of selecting the county assessor, whether by election or by appointment; and, if selection is by appointment, then the legislature can determine the length of the term of office. It is also within the authority of the legislature to provide for the manner of and grounds for removal of an assessor.

Under section 3a of the Revenue Act of 1939, as it was in effect at the beginning of plaintiff’s term of office, at the time of his suspension from office, and at the time his term expired, the office of assessor in counties such as Perry County was an appointive office and an office for a definite term. Section 3a of the Revenue Act provided in part:

“In counties containing less than 1,000,000 inhabitants and not having an elected board of assessors, the office of supervisor of assessments or county assessor, shall be filled by appointment by the county board, as herein provided. * * 0

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Bluebook (online)
352 N.E.2d 382, 40 Ill. App. 3d 392, 1976 Ill. App. LEXIS 2779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macaluso-v-west-illappct-1976.