Conway v. Sexton

• Decision Date: 22 December 1909
• Citation: 90 N.E. 203,243 Ill. 59
• Parties: CONWAY v. SEXTON et al.
• Court: Illinois Supreme Court

243 Ill. 59

90 N.E. 203

CONWAY

v.SEXTON et al.

Supreme Court of Illinois.

Dec. 22, 1909.

Appeal from St. Clair County Court; Frank Perrin, Judge.

Proceeding by Robert E. Conway against H. D. Sexton and others to contest an election of trustees of a sanitary district. From the judgment, contestant appeals. Affirmed.

Wise & Keefe, for appellant.

J. M. Hamill, John E. Hamlin, Dan McGlynn, and Kramer, Kramer & Campbell, for appellees.

CARTER, J.

This is a proceeding in the county court of St. Clair county to contest the election of trustees of a sanitary district. This district comprises parts of St. Clair and Madisoncounties, and was organized under an act of the General Assembly entitled ‘An act to create sanitary districts in certain localities and to drain and protect the same from overflow for sanitary purposes,’ approved May 17, 1907, in force July 1, 1907. Laws 1907, p. 289 (Hurd's Rev. St. 1908, p. 881, c. 42, §§ 213–240). After the district had been organized as provided by that statute, an election was called for December 16, 1908, to elect five trustees, as provided in sections 4 and 5 of said act. Section 5, so far as it affects the questions raised here, reads as follows: ‘There shall be elected five trustees, who shall constitute a board of trustees for such district, and who shall hold office for three years, and until their successors are elected and qualified. * * * In all elections for trustees, each qualified voter may vote for as many candidates as there are trustees to be elected, or may distribute his vote among not less than three-fifths of the candidates to be elected,’ giving each of such candidates the same number of votes or fractional votes. At this election H. D. Sexton, C. L. Gray, Charles T. Jones, Frederick Kohl, and J. W. Krauth, who were made parties defendant to this proceeding, were candidates for the office of trustee on the Taxpayers' ticket. The appellant and J. M. Chamberlin, George Lock Tarlton, F. A. Garesche, and Thomas F. Leyden were candidates for the office of trustee on the Home Rule ticket. It appears from the briefs that there was a Socialist ticket of five candidates in the field; but neither the record nor the abstract shows the names of the candidates on this ticket or the number of votes received by them. Neither does it appear that the petition set out the number of votes received by any of the candidates on any of the tickets. The petition, however, does allege that the canvassing board found and declared, as a result of their canvass, that C. L. Gray, Charles T. Jones, H. D. Sexton, George L. Tarlton, and Thomas F. Leyden each received more votes than the petitioner, and these five men last named were each given a certificate of election as trustee of said district. As will be seen, three of these men declared elected were on the Taxpayers' ticket, and two of them (Tarlton and Leyden) on the Home Rule ticket. Tarlton and Leyden were not made parties to this contest. Neither were the candidates on the Socialist ticket. The summons was served only on the five candidates on the Taxpayers' ticket. The petition alleges that certain votes were counted for various of the five candidates on the Taxpayers' ticket which should have been counted for appellant, and that, if these votes so wrongfully counted had been properly counted for appellant, he would have been elected; and the appellant prays that there may be a recount of all the ballots, and that he may be declared duly elected trustee. Jones, Gray, and Sexton moved to dismiss the petition because the court was without jurisdiction, in law, to hear and determine the subject-matter of the petition, and because the petition was insufficient in that certain necessary persons were not made parties. On a hearing of these motions the petition was dismissed, and judgment for costs entered against appellant. From this judgment this appeal was taken.

Under this statute five trustees were to be elected. Each candidate was opposed to every other candidate who was running for the office of trustee. Neither candidate was running for any particular one of the five places to be filled, but under the law the five candidates that received the highest number of votes at this election were elected to the five positions. It is quite possible, from anything that is shown in the record, that Gray, Jones, and Sexton, who were declared elected and who are parties to this proceeding, might have received more votes on the recount than either Tarlton or Leyden, and appellant might also have received more votes than Tarlton and Leyden, and yet, as the two latter were not made parties to this proceeding, the court could not declare petitioner elected. We think Tarlton and Leyden, as well as all other persons who were candidatesfor trustee at the election in question, should have been made parties.

Appellant, however, insists that this question should have been raised by a plea in abatement in the court below, and not by motion to dismiss. The defect of proper parties appears here on the face of the proceedings, and the court could determine from an inspection of the petition that certain necessary parties were not in court. The motion to dismiss under such a state of facts, is proper, even in common-law proceedings. Holloway v. Freeman, 22 Ill. 197;Windett v. Hamilton, 52 Ill. 180;McNab v. Bennett, 66 Ill. 157. Section 116 of the election law (Hurd's Rev. St. 1908, p. 929, c. 46) provides that a proceeding of this kind ‘shall be tried in like manner as cases in chancery.’ This court, in discussing this statute in Dale v. Irwin, 78 Ill. 170, said on page 175: ‘The...