Bilek v. City of Chicago

• Decision Date: 19 March 1947
• Docket Number: No. 29899.,29899.
• Citation: 396 Ill. 445,71 N.E.2d 789
• Parties: BILEK et al. v. CITY OF CHICAGO et al.
• Court: Illinois Supreme Court

396 Ill. 445

71 N.E.2d 789

BILEK et al.

v.CITY OF CHICAGO et al.

No. 29899.

Supreme Court of Illinois.

Jan. 22, 1947.

As Modified on Denial of Rehearing March 19, 1947.

Appeal from Circuit Court, Cook County; John Prystalski, judge.

Suit by Frank J. Bilek and others, as taxpayers, against the City of Chicago and the County of Cook, and others, to enjoin the officers of the county and the several municipalities from taking any action toward issuing, executing, and certifying certain bonds issued by the several bodies, to declare the bonds void, and for general relief. From a decree dismissing the complaint, the plaintiffs appeal.

Decree affirmed as to the City of Chicago and reversed as to the County of Cook.

Cobbey & Brussell, of Chicago (Abraham W. Brussell, of Chicago, of counsel), for appellants.

Barnet Hodes, Corp. Counsel, of Chicago (Joseph F. Grossman and Herman Smith, both of Chicago, of counsel), for appellees City of Chicago et al.

William J. Tuohy, State's Atty., of Chicago (Jacob Shamberg and Gordon B. Nash, both of Chicago, of counsel), for appellees Cook County et al.

GUNN, Chief Justice.

An election was held in Cook County Monday, June 3, 1946, for six judges for full terms, and for one judge to fill a vacancy, all in the superior court. On the same day an election was held upon six different propositions for issuing city bonds, and one proposition for the issuance of county bonds was submitted to the voters within the city. One proposition within the city was for the issuance of bonds under ‘An ordinance authorizing the issuance of $42,000,000 Superhighway Bonds of the City of Chicago, and providing for the levy of taxes for payment thereof.’ The five other city bond projects totaled $73,606,000 and in varying amounts were for: (1) Improving sewers; (2) establishing playgrounds; (3) improvement of streets and alleys; (4) city repair shops; (5) city lighting. It will not be necessary to further consider these five propositions, as the determination of their validity will depend upon the action we take upon the superhighway bonds.

At the same time, within the city pre cincts controlled by the board of election commissioners of the city of Chicago, an election was held on the proposition of issuing $70,000,000 of county bonds for the purpose of building roads. The notice of this election, and for the city bonds and other projects, was given by the board of election commissioners of the city of Chicago and ex-officio of the cities of Chicago Heights, Berwyn and Harvey, the town of Cicero, and the Villages of Summit, Stickney, Morton Grove, Elmwood Park and Skokie. Other propositions, not material to this discussion, were included.

On the same day an election was held in all of Cook county, including cities, towns and villages under the jurisdiction of the county clerk of Cook county, for the purpose of electing the judges of the superior court, as above mentioned, and for submitting to the voters of Cook county a proposition for issuing $70,000,000 in county bonds for the purpose of building roads. This notice was signed by Michael J. Flynn, county clerk of Cook county.

From the above, it will be observed that for the $70,000,000 bond issue for the county the notice of election consisted of that given by the election commissioners for those bodies within the county who were under the jurisdiction of the board of election commissioners, and by the county clerk for that part of the county not operating under the board of election commissioners.

At the election all of the bond propositions carried, and the complaint in this case was filed in the circuit court of Cook county by plaintiffs, taxpayers, as a representative suit upon the theory all of the said bonds are void for the reasons set out later, and prayed for an injunction against the officers of the several municipalities, and of the county, to restrain them from taking any action towards issuing, executing, and certifying any of the said bonds issued by the several bodies, to declare such bonds void, and for general relief. Separate motions to strike the complaint were made by the county of Cook and by the city of Chicago. These motions were granted, and a decree was entered that the complaint be dismissed and that the plaintiffs take nothing by their suit. The plaintiffs elected to stand by their complaint and appealed directly to this court. The circuit court certified that there was involved in said cause, and in the final decree, the validity of the ordinances of the city of Chicago and of the county of Cook, and that public interest required that an appeal should be taken directly to this court.

The above is a general outline of the proceeding as it took place, and additionel facts stated in the complaint, or contained in the stipulation of facts, will be referred to when necessary, as applying to each point raised by the respective parties.

The points raised for reversal may be included within the following: (a) The election was void because it was called and held at the same time as a judicial election; (b) that the notice of election was insufficient; (c) that voting upon seven propositions within the city rendered both city and county elections void; (d) that the will of the people was not expressed in the county election; (e) that if the notices were given within the time fixed by statute they were insufficient in that they did not specify the amount of interest and failed in other details claimed to be necessary to make a legal notice. Some of the objections urged apply to both city and county, and some affect only one municipality. The appellees affected will be indicated as we proceed.

Preliminary to discussing the legal issues it is perhaps advisable to call attention to the statutes involved in the superhighway bond issues. What is commonly designated as superhighways are those highways built or authorized under the act of July 9, 1943. (Ill.Rev.Stat.1945, chap. 121, pars. 314a to 314a25 incl.) In that act the word ‘superhighway’ is declared to mean ‘durable, hard-surfaced, reinforced multiple lane highways, so constructed and designed as to eliminate intersection at grade with any street, public road, thoroughfare, highway, railroad or street railroad, except at points of access to said multiple lane highway, together with any grade separations, bridges, viaducts, underpasses, tunnels or ferries thereupon.’ Par. 314a1.

Among other things, this act provides that revenue bonds may be issued and paid, or refunded, from the tolls authorized to be collected by the superhighway commission provided for in said act. The bonds in the sum of $42,000,000 voted upon by the city of Chicago give a different definition to superhighways, as pointed out above, but in reality are for the improvement of streets, alleys and thoroughfares connecting with a superhighway. The resolution upon the part of the county commissioners recites that the $70,000,000 bond issue is to be used on State-aid roads, which are authorized by the statute relating to roads and bridges. Ill.Rev.Stat.1945, chap. 121, par. 19. The resolution describes a State-aid road, presumably the same as the superhighways, and that it will require a tax of nine cents on each $100 in excess of the statutory limits. No question is raised as to the power to issue bonds for each such purpose, but these different acts must be kept in mind in discussing the points raised against the legality of the bond issues.

The first point discussed is that the elections by which the bond issues were authorized are void because the elections were held at the same time as that of the judicial election, in which seven superior court judges were voted upon. There is no statute which prohibits this from being done. Undoubtedly it was the intention of the framers of the constitution that judicial elections should be conducted at different times from elections involving political questions, for section 6 of article VI of the constitution, Smith-Hurd Stats., makes provision for holding a judicial election on the first Monday in June for the election of judges of the Supreme Court. Elections of judges of the circuit courts, and, by statute, of judges of the superior courts, are held at a like time. Section 3 of article V requires that the election of the executive officers of the State shall be held on the Tuesday next after the first Monday of November every four years. Section 2 of article IV provides that the election for members of the General Assembly shall be held on Tuesday next after the first Monday in November of each year for which members are to be elected.

The constitutional provisions would necessarily apply only to the election for the offices specified therein, but not necessarily other elections. This view is fortified by section 7 of the schedule to the constitution of 1870, which provided for the election of four members of the Supreme Court on the same day the constitution was submitted to the people for ratification.

A number of statutes exist in which the General Assembly has provided for an election on the same date as a judicial election. Metropolitan Transit Authority Act, Ill.Rev.Stat.1945, chap. 111 2/3, par. 301 et seq. We held this act valid in People v. Chicago Transit Authority, 392 Ill. 77, 64 N.E.2d 4. And also, the statute provides that the chief justice and associate justices of the municipal court shall be elected at the same time and place as the election of State and county officers. Ill.Rev.Stat.1945, chap. 37, par. 364.

The public policy of the State or of the nation is to be found in its constitution and its statutes, and when cases arise concerningmatters upon which they are silent, then in its judicial decisions and the constant practice of the government officials. Groome v. Freyn Engineering Co., 374 Ill. 113, 28 N.E.2d 274;Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180, 91 N.E. 1041, 28 L.R.A.,N.S. 1112, 19 Ann.Cas. 127. It has otherwise...