People ex rel. Winstanley v. Weber

89 Ill. 347

• Court: Illinois Supreme Court
• Decided: June 15, 1878
• Status: Published

Opinion

Mr. Justice Dickey

delivered the opinion of the Court:

While the acts of an officer de facto are valid, in so far as the rights of the public are involved and in'so far as the rights of third persons having an interest in such acts are concerned, still, where a party sues or defends in his own right as a public officer, it is not sufficient that he be merely an officer de facto. To do this he must be an officer de jure. As an officer defacto he can claim nothing for himself. People ex rel. Sullivan v. Weber, 86 Ill. 283.

The commission under which relator claims title, recites that it is issued in pursuance of an election held on the 16th day of April, 1878, and the answer to relator’s petition states that “it is from this pretended election that relator obtains all the title he has to the pretended office claimed by him.” This allegation of the answer is confessed by demurrer.

In the case of Stephens v. The People ex rel. ante, 337, we have held void the election through which relator claims to have acquired the supposed office. The condition of the pleadings precludes the relator from insisting that he is an officer de lege, under the appointment of the mayor. If the pleadings were otherwise, the appointment relied upon in argument gave no title to the office without confirmation by the city council, and the body by which such confirmation is claimed was not the proper body,—was not “ the city council” under the law. It follows that the relator is not a public officer of the character held necessary to entitle him to the relief sought.

The application for a writ of mandamus must be denied.

Mandamus refused.