concurring:
The appellants filed an information in the nature of a Quo Warranto against the defendant, for usurping, intruding into, and unlawfully holding and exercising the office of clerk of the Sangamon Circuit Court, from and after the 4th day of May, 1835, to the injury of the relator, who, as is alleged, was then and from and after the 14th of February, 1827, had been legally clerk of the said Court. To this information, the defendant pleaded specially in bar, that by an act of the legislature of this State, passed 7th January, 1835, entitled “ An ¿let to provide a uniform mode of holding Circuit Courts,” a judge was regularly elected to said Circuit, and that he appointed the aforesaid Mordecai Mobley clerk. To this plea the appellants demurred. By agreement of the parties in the Court below, judgment was rendered in favor of the appellee, subject to an appeal, as in other cases. And now the appellant assigns for error the insufficiency of said plea to bar the plaintiff’s right of recovery. By the Constitution of this State, Article 4, section 4, it is provided as follows :
“The justices of the Supreme and inferior Courts shall hold their offices during good behavior, until the end of the first session of the General Assembly which shall be begun and held after the first day of January, 1S24, at which time their commissions shall expire, and until the expiration of which time the said justices respectively shall hold Circuit Courts in the several counties, in such manner and at such times, and shall have and exercise such jurisdiction as the General Assembly shall prescribe. But ever after the aforesaid period, the justices of the Supreme Court shall be commissioned during good behavior, and the justices thereof shall not hold Circuit Courts unless required by law.”
By the 6th Section, “ The Supreme Court or a majority of the justices thereof, the Circuit Courts, or a majority of the justices thereof, shall respectively appoint their own clerks.”
In January, 1835, the legislature repealed the act requiring the judges of the Supreme Court to hold Circuit Courts, and in the same statute required the judges of the Supreme Court to hold annually two terms of the Supreme Court at the seat of government, and appointed Circuit judges to perform that part of the duty that had been required of the judges of the Supreme Court; such as holding Circuit Courts, &c. The law withdrawing th.e judges of the Supreme Court from the Circuit Courts, did not destroy those Courts, but only appointed other judges to perform (in that particular only) what had been before performed by the judges of the Supreme Court. By the statute passed 13th February, 1835,(1) it is provided that “The several clerks of the Circuit Courts appointed or to be appointed, shall give bond, be qualified,” &c. &c.
It is certainly competent for the legislature to impose this on the clerks of the Courts; but I cannot see where the power is given to a judge to remove a clerk when once appointed, where no charge has been preferred against him. By the statute of 1829,(2) it is provided that “The clerks of the respective Circuit Courts shall issue process,” &c. &c.—they “shall keep their office at the county seats, to do and perform all the duties in their Courts which may be enjoined upon them by law,” &c. and “ if any clerk of a Circuit Court shall neglect or refuse to perform any of the duties enjoined upon him by law, or shall in any manner be guilty of malfeasance in office, upon proper complaint made to the Court or judge, he shall be removed from office : Provided, that the said clerk shall nevertheless have the right of appeal to the Supreme Court, under the like conditions as are or may be prescribed by law for other cases.” From the state of pleading nothing appears to show that the clerk ever violated any duty that was enjoined on him by law, or that he is guilty of malfeasance in office. I am therefore of the opinion that the judgment of the Circuit Court be reversed, and that the aforesaid Charles R. Matheny be restored to the office of clerk of the Circuit Court of Sangamon county.
Acts of 1835,171-2; Gale’s Stat. 188.
R. L. 152; Gale’s Stat. 172.