dissenting:
The opinion adopted by the majority is, in our judgment, not only not based upon correct rules of construction, but it is directly and irreconcilably contrary to several' decisions of this court construing provisions of the present constitution and like provisions of the constitution of 1848, which is not a mere matter of judgment but of actual demonstration.
Section 1 of article 5 of the constitution of 1848 vested the judicial power of the State in one supreme court, circuit courts, county courts and justices of the peace, and provided that inferior local courts of civil and criminal jurisdiction might be established by the General Assembly in the cities of the State. Section 11 provided that no person should be eligible to the office of judge of any court of this State who was not a citizen of the United States and who had not resided within the State five years next preceding his election. The General Assembly passed an act to establish the recorder’s court of the city of Chicago, and Robert S. Wilson was elected judge of that court. An information in the nature of a quo warranto against him was presented on the ground that at the time of his election he had not resided, five years in this State. Leave to file the information was not granted and the relator sued out a writ of error from this court. This court affirmed the judgment, and said that upon every recognized principle of construction the term “judges” could not include any except such as were made judges or recognized as such by the constitution; that when the constitution was formed no such court as a recorder’s court was in existence and for anything that was then known might never have been established, and that when the subject matter of legislation was so apparent no rule of construction would allow a court to presume that something else was intended, and thus deprive the legislature, by implication, of power to legislate upon a given subject. (People v. Wilson, 15 Ill. 388.) The word “city,” in section 17 of article 6 of the present constitution, qúoted in the opinion of the majority, has not the slightest significance as modifying or affecting the decision referred to, because for some reason eligibility to membership in the board of county commissioners was included, and the reference was to the board of commissioners of Cook county, ten of whom must be elected from the city of Chicago. Section 32 of article 6 of the present constitution is the one that relates to the officers provided for in that article covering the judicial system, and the provision is, that all officers provided for in the article shall reside in the division, circuit, county or district for which they may be elected or appointed. The reasoning of the court in the Wilson case applies exactly to this case.
In 1869 another act was passed by the General Assembly creating the common pleas court of Sparta, and William P. Murphy was elected judge. Afterward the General Assembly repealed the act creating the court. In a suit instituted by Murphy this court said: “It is entirely clear that there was nothing in the constitution of 1848 which would prevent the legislature from depriving relator of his office by a repeal of the act creating it. No such court as the common pleas court of Sparta, nor such officer as the judge thereof, is mentioned in the constitution. They are both mere creatures of the legislature under the proviso to section 1, article 5, authorizing that body to establish inferior local courts of civil and criminal jurisdiction in the cities of this State. It is a general rule that where an office is created by statute it is wholly within the control of the legislature creating it. The length of term and mode of appointment may be altered at pleasure, and the office may be abolished and the compensation taken away from the incumbent unless forbidden by the cbnstitution,”—citing many authorities. (People v. Lippincott, 67 Ill. 333.) There is no difference whatever between the provisions of the constitution of 1848 and the present constitution conceming the power of the General Assembly to establish courts in the cities of the State.
Section 32 of article 6 of the present constitution provides that the terms of office of all officers provided for in that article, where not otherwise prescribed in the article, shall be four years. The General Assembly created the municipal court of Chicago, and provided that the first election should be for terms of two, four and six years. Frank P. Sadler was elected for a term of two years, and in an original proceeding in this court for mandamus alleged that section 32 fixed his term of office at four years and that the act in question providing for a term of two years was in conflict with the constitution. It was held that article 6 covers the whole judicial power of the people of the State and is the source of all legislative authority respecting courts and that the municipal court was created under section 1 of that article, but it was held that judges of the municipal court were not officers provided for in that article and that it was within the power of the legislature to fix the term of office. The court said that it was a well known rule that where an office is created by legislative action it is wholly within the control of the legislature creating it. The decisions relating to the acts creating the recorder’s court of Chicago and the common pleas court of Sparta were stated and indorsed, but the court said that if there were no guides in judicial decisions under the constitution of 1848, or legislative construction acquiesced in for a long period of time, the court would have reached the same conclusion from a consideration of the language of the constitution. The conclusion of the court was stated as follows: “We do not see how it can be said that courts are in any proper sense provided for by the constitution when such courts may never be created but it is entirely optional with the legislature whether they or their officers shall ever have any existence. So far as providing for them is concerned, the most that can be said is that provision is made for their creation by the legislature, and if created they are of legislative origin. The only relation of section i to the subject is that it confers authority to create such courts,- without which the legislature would be powerless to create them, since the enumeration of courts in article 6 is a limitation on the power of the legislature. The legislature may fill the place provided in the judicial system with city courts, but whether it shall be done or not is left entirely to legislative discretion.” People v. Olson, 245 Ill. 288.
In those cases it was decided that the city courts the General Assembly was authorized to create, and the judges of such courts, were neither courts nor officers of constitutional origin, and they cannot be otherwise interpreted.
In our opinion the decision in People v. English, 139 Ill. 622, furnishes no warrant for the conclusion reached in this case. Section 5 of article 8 of the constitution provides : “There may be a county superintendent of schools in each county, whose qualifications, powers, duties, compensation, and time and manner of election, and term of office, shall be prescribed by law.” That officer and his election were provided for in the constitution, and while those provisions did not become operative without an act of the General Assembly, an act was passed in furtherance of the constitutional provision which provided for the election of such officer. It was held that the office was one of constitutional origin, and the word “manner” indicated merely that the legislature might provide, by law, the usual, ordinary or necessary details required for holding his election, and that the county superintendents of schools were made component parts of the system of free schools for which the General Assembly was required to provide. In the case of Plummer v. Yost, 144 Ill. 68, the decision in People v. English was stated and quoted from and the clear distinction between the provision relating to the election of a county superintendent of schools and the election of school officers not mentioned in the constitution was pointed out, and it was held that as to officers not named in the constitution there was no requirement or restriction upon the General Assembly, which had complete control of the subject. The decisions respecting the legislative power to provide for the election of officers not mentioned in the constitution, by persons having different qualifications from those prescribed by the constitution, were again reviewed in Scown v. Czarnecki, 264 Ill. 305, and it was again decided that as to officers not of constitutional origin the qualifications of electors are wholly within the control of the Gen'eral Assembly.
The opinion of the majority in this case is contrary to authority and impairs the stability in the law and decisions of the court, which the people, and the General Assembly in the enactment of laws, have a right to rely upon.