Dickey v. Reed

• Decision Date: 30 September 1875
• Parties: T. LYLE DICKEY et al.v.CHARLES H. REED et al.
• Court: Illinois Supreme Court

78 Ill. 261

1875 WL 8468 (Ill.)

T. LYLE DICKEY et al.

v.CHARLES H. REED et al.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

Mr. T. LYLE DICKEY, Mr. M. F. TULEY, Mr. WM. C. GOUDY, Mr. EMERY A. STORRS, Mr. JAMES P. ROOT, and Mr. FRANCIS ADAMS, for the appellants.

Messrs. ROSENTHAL & PENCE, and Messrs. LAWRENCE, CAMPBELL & LAWRENCE, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

On the 23d day of April, 1875, an election was held in the city of Chicago, to determine whether that municipality would change its charter, and the people would become incorporated under the general incorporation act for cities and villages, which went into force on the first day of July, 1872. On the 26th of that month, the prosecuting attorney and five others, tax-payers of the city, filed a bill in the circuit court of Cook county against forty aldermen, composing the common council of the city, and the city clerk. It alleges the omission, by the mayor and common council, to submit, in express terms or otherwise, to a vote of the people, the question of minority representation, and charges that, on account of such omission, the election held on the 23d of the month was void; also, that a large number of illegal and fraudulent votes were cast in favor of organization under the law; that a large number of ballots not actually cast by voters were deposited in the ballot boxes by the judges, or by their connivance; that in some of the wards there were no poll lists and no clerks, and that if the illegal votes were rejected, the result would be against organization under the act; that the judges had returned, or were about to return, their canvass of the votes, including such illegal and fraudulent votes so cast and received, and those cast at the polling places where no poll lists were kept; and that complainants had good reason to believe, and did believe, that the common council would proceed to declare the act of 1872 adopted.

Affidavits were filed in support of the bill, and in compliance with the prayer thereof a temporary injunction was ordered, restraining that body from canvassing the returns made to them by the judges and clerks of the election. The injunction was to remain in force ten days, with leave to defendants to move to dissolve, and like leave to the complainants to move to continue the same.

The writ was issued and served on the 26th of April. The common council, on the same day, were in session, and after the writ was served they appointed a committee to procure legal advice and assistance to defend the suit. They employed Wm. C. Goudy, M. F. Tuley, E. A. Storrs, and J. P. Root, to assist the regular law officers in such litigation as might grow out of the election.

After being thus employed, the mayor of the city put to them, and to the corporation counsel and his assistant, the question whether the members of the common council would be liable to punishment for contempt of court if they should, notwithstanding the injunction, proceed to canvass the returns, and declare and certify the same. They, after deliberation, answered, that the circuit court had no jurisdiction in the case, and the writ was void, and that the defendants could not be legally punished for contempt, in case they should disobey the writ.

These opinions were in writing, signed by counsel and delivered to the mayor, and at a meeting of the common council, on the 3d of May, 1875, were read to that body whilst in session, and they canvassed the returns, declared the result, and caused it to be entered on the records of the city.

On the 4th of May, the original bill was amended and a supplemental bill was filed, making the city a party, and setting out what had subsequently transpired after issuing the writ, and praying that the city be restrained from exercising the powers conferred by the act of 1872, thus declared to have been adopted. A motion to strike the supplemental bill from the files was overruled.

On the next day defendants answered the original and supplemental bills, and complainants moved to continue the injunction, but the motion was denied. The injunction expired by the lapse of time. On the 12th of that month complainants dismissed their supplemental bill.

On the 14th, complainants, on affidavits filed, moved for a rule on the members of the common council who canvassed the returns and the attorneys who signed the opinions, to show cause “why they should not be punished and committed” for a contempt of court--the members for violating and the attorneys for advising the violation of the injunction.

A rule was, accordingly, entered, requiring them to show cause by the 21st of May, at 10 o'clock, and requiring them to answer interrogatories. They were subsequently exhibited, and answers thereto were filed by all of the defendants. The members of the common council admitted the canvassing of the returns, and the attorneys admitted the giving of the opinions referred to herein. The court found the defendants guilty of a contempt, and fined each of a number of aldermen $100, and each attorney $300, and they all appeal to this court.

It is first urged, that there is error in the form in which the judgments are entered. This may be true, but we have chosen to consider and determine the case on its merits, passing over technical objections.

The General Assembly have not only failed to define the offense of resisting the authority of the State, as exercised by the courts, and declare the penalty or punishment to be inflicted, but in the last revision of our statutes omitted the prior provision on the subject. They have thus repealed the law authorizing courts to punish contempts offered in the presence of the same, and for disobedience to their orders and process. Whether it was the design of that body to strip the courts of that power, or to leave them to exercise the undefined power as it existed at the common law, or whether, the courts being created by the constitution, and the power to punish for contempts being inherent in courts of record, the right is not constitutional and beyond the power of the General Assembly, are questions not discussed in this case, and, in the view we have taken of it, become unimportant in its decision.

It is urged by appellants, that the court below had no power to entertain jurisdiction of the case, or to issue the writ, and that all which followed the filing of the bill was utterly void; that the want of power to entertain a bill in such a case, or to make the restraining order, rendered the whole proceeding void and of no effect, and, being void, appellants had the right to disregard its requirements, and to proceed to the performance of a plain duty required of them by the statute, although in violation of the restraining order of the court. This we understand to be, in substance, the position assumed by appellants.

On the other hand, appellees insist, that if the court had power, as contradistinguished from mere jurisdiction, to entertain a bill to review the canvass of election returns in any case, and to correct frauds, accidents or mistakes, then the want of jurisdiction in the particular case did not affect the power to issue the writ; that the court had power, and had exercised it in contested county seat cases, independent of statutory authority, and as an inherent power, or, if not inherent, a power derived from the constitution, and hence the court had power in this case to issue the writ and punish those refusing to observe its requirements, or for disobedience to its commands, as a contempt of the authority of the court and the State.

Thus, it is seen, that a question of much interest, and, it may be, of great importance, is presented for consideration. It is a question of how far a court of equity may use its powers to relieve against frauds, accidents or mistakes in elections, where its action must determine which of two persons shall fill an office, or, as in this case, which of two forms of local government shall control the people of this municipality. If the election may, in this case, be thus contested, and the municipal officers and others be restrained from performing the functions and duties imposed, until, by the tedious process of taking depositions and preparing the case for trial, the case can be heard in the court below, and an appeal, with the incident delays, may be heard, years would, in all probability, elapse, before the government chosen by the people could, in many instances, go into operation. Hence, it is the policy of the law to afford a more speedy and a less expensive mode of settling these contests.

If the court may exercise this jurisdiction in cases of doubt, or even where there is no doubt of the result, a few contentious and not over-scrupulous persons might, and probably would, be induced, from the heat and strife always engendered in such elections, to resort to a bill and an injunction, and thus, for years, thwart the will of the people, which the General Assembly has made absolute in adopting or rejecting this charter for their government. Public policy does not require such a jurisdiction, even if it could sanction it. If the power were admitted, where would its jurisdiction end? Suppose a person were to conceive a law to have been unconstitutionally enacted, could he, by bill, restrain the Governor and all other officers from executing it until a hearing could be had and the law declared valid? Suppose a citizen, in his hostile opposition to a Governor elect, or from other motives, were to conceive that he had obtained his apparent majority by fraud, could he apply to a court for and obtain an injunction to restrain him from becoming inaugurated, until, by delays and appeals, the term for which he had been elected should expire, and thus defeat the will of the people?

Again, suppose a constitutional convention were...