Daly v. Madison Cnty.

• Citation: 38 N.E.2d 160,378 Ill. 357
• Decision Date: 24 November 1941
• Docket Number: No. 26463.,26463.
• Parties: DALY et al. v. MADISON COUNTY et al.
• Court: Illinois Supreme Court

378 Ill. 357

38 N.E.2d 160

DALY et al.

v.MADISON COUNTY et al.

No. 26463.

Supreme Court of Illinois.

Nov. 24, 1941.

Appeal from Circuit Court, Madison County; William P. Boynton, judge.

Petition by Anthony W. Daly and others, as citizens and taxpayers residing in Madison County, for leave to file a taxpayer's suit to enjoin the County of Madison and others from disbursement of public moneys. From a judgment denying leave, the petitioners appeal.

Affirmed.Anthony W. Daly and Emerson Baetz, both of Alton, for appellants.

George F. Barrett, Atty. Gen., and C. W. Burton, State's Atty., of Chicago (P. C. Otwell, of Belleville, and Harold Talley, of Alton, of counsel), for appellees.

SMITH, Justice.

Appellants, Anthony W. Daly, Frances Beiser and Gene Randall, are citizens and taxpayers residing in Madison county. In this cause they filed a petition in the circuit court of that county under the act relating to suits by taxpayers to restrain the disbursement of public moneys. (Ill.Rev.Stat. 1941, chap. 102, pars. 11-17.) With their petition they presented the complaint which they asked leave to file. This complaint named as defendants the county of Madison and the county clerk, county treasurer and county auditor of that county. The Secretary of State, Auditor of Public Accounts and State Treasurer of the State of Illinois were also named as defendants. Notice of the filing of the petition and the date on which the same would be heard was given according to law. Upon such hearing the court denied leave to file the complaint. From the order denying such leave, appellants have perfected this direct appeal.

By the complaint it was alleged, in substance, that the Congressional Apportionment Act of 1901 (Ill.Rev.Stat.1941, chap. 46, pars. 154-156), by reason of changes in the population in the several districts created, under the present existing conditions as to population violates various provisions of the State and Federal Constitutions. It was also alleged that said act is in conflict with certain acts of Congress relating to the election of members of the House of Representatives in the national Congress. For the purpose of determining the right of appellants to file the complaint, the facts set out in the petition and the complaint as distinguished from conclusions, must be accepted as true. Lund v. Horner, 375 Ill. 303, 31 N.E.2d 611;Greenfield v. Russel, 292 Ill. 392, 127 N.E. 102, 9 A.L.R. 1334.

The gravamen of appellants' contention as to the invalidity of the act, is the inequality of elections inherent therein as applied to present population distributions. This inequality, the complaint alleges, makes the act void and the expenditure of public funds thereunder unlawful. The complaint states that the Secretary of State in due course will receive petitions for the nomination of candidates for representatives to Congress from the various districts created by the 1901 act; that he will thereupon certify the names of such candidates to the several county clerks throughout the State; that, unless restrained, the Secretary of State, with the Auditor of Public Accounts and the State Treasurer, will expend funds from the State treasury for these and other enumerated purposes in connection with the primary and general election to be held in 1942 under the act. The complaint further states that, unless restrained, the county clerk of Madison county, together with the county board and other county officials who are made defendants,will pay the expenses in Madison county of the primary and the election to be held in 1942 under the act, from the treasury of that county. That public funds in the hands of the State Treasurer and the county treasurer, to which appellants have contributed by the payment of taxes, will be wasted and dissipated. The complaint prays that the act be declared invalid and appellees enjoined from the use of public funds in carrying out its provisions. It is further charged that the act violates the State constitution because, as applied to the existing population of the districts, it violates section 18 of article 2, Smith-Hurd Stats., which is a guaranty that ‘All elections shall be free and equal.’ The complaint sets out the population of each of the twenty-five districts established by the act, as determined by the 1940 census.

The total population of the State is alleged to be 7,897,241. The complaint further alleges that the districts are unequal in population, and that an election held in these districts will not be equal under said constitutional guaranty. It is averred that the fifth district, which has the smallest number of inhabitants, contains only 112,116 people, and that the seventh district, which is the largest, contains 914,053 inhabitants. It is pointed out that in the twenty-second district, in which the county of Madison is located, it requires 3.205 votes to equal one vote cast in the fifth district; that there are twenty-three districts which contain more than twenty-five per cent more inhabitants than the fifth district; twenty-one districts which contain over fifty per cent more inhabitants than the fifth district; eighteen districts which contain more than ninety per cent more than the fifth district; fourteen districts which contain more than double the number of the inhabitants in the fifth district; that there are seven districts which have more than three times the number of inhabitants in the fifth district; that there are five districts which have more than five times the number of inhabitants in the fifth district, and that one district, the seventh, has more than eight times the number of inhabitants residing in the fifth district. In the seventh district, it is alleged that it requires 8.153 votes to equal the vote of one voter voting in the fifth district. Seven of the entire twenty-five districts are alleged to have an excessive number of inhabitants, while fifteen districts have an unreasonable small number of inhabitants. It is stated that if the population of the whole State be divided by twenty-six (the number of congressmen apportioned to the State) the ratio to population would be 303,740, whereas, the fifth district has only 112,116 inhabitants and the seventh district has 914,053.

Appellants, as taxpayers, base their right to bring and maintain the suit on the ground that, because of the alleged invalidity of said act, any expenditures of public funds for the purpose of holding a primary or an election for the districts created by the act will constitute the use of public funds for unlawful purposes. Anticipating, with commendable frankness, the difficulties with which they were sure to be confronted on account of several prior decisions of this court, it is speciously argued that this is not a suit either to enjoin the holding of an election or to coerce legislation. Notwithstanding the earnestness with which this assertion is made and often repeated, we cannot close our eyes to the fact that to grant appellants the relief which they ask would indirectly result in the exact situation which they assert will be avoided. This court cannot overlook the fact that to enjoin the use of public funds for the purpose of holding an election is, in effect, little short of indirectly enjoining the holding of such election. Equally, to enjoin the use of public funds for the purpose of paying the expenses of holding a primary or an election under the Congressional Apportionment Act of 1901, would create a situation that would render the passage of legislation by the General Assembly indispensable. Regardless of the habiliments in which the questions are presented, the result would be exactly the same.

That the courts have no power to prevent the holding of an election at the suit of a taxpayer is settled by the decisions of this court. Fletcher v. City of Paris, 377 Ill. 89, 35 N.E.2d 329;Payne v. Emmerson, 290 Ill. 490, 125 N.E. 329;Spies v. Byers, 287 Ill. 627, 122 N.E. 841;People v. McWeeney, 259 Ill. 161, 102 N.E. 233, Ann.Cas.1916B, 34;People v. Barrett, 203 Ill. 99, 67 N.E. 742,96 Am.St.Rep. 296;Harris v. Schryock, 82 Ill. 119. The subject of the right of taxpayers to compel or coerce the legislature to enact laws is equally well settled. This is not a new question in this State. It has been unsuccessfully attempted by quo warranto (People v. Blackwell, 342 Ill. 223, 173 N.E. 750); by injunction (Fergus v. Kinney, 333 Ill. 437, 164 N.E. 665) and by mandamus. Fergus v. Marks, 321 Ill. 510, 152 N.E. 557, 46 A.L.R. 960. Neither can the courts pass on a purely political question. This is definitely settled on incontestable principles of equity jurisdiction and procedure.

Appellants place great reliance on the case of Moran v. Bowley, 347 Ill. 148, 179 N.E. 526. While that case is authority for the maintenance of a suit by taxpayers to enjoin the expenditure of public funds in proper cases, it must be said that most of the arguments found in that opinion in support of the conclusion reached that the act there involved was invalid, have been rendered innocuous by the decisions of the Supreme Court of the United States in Wood v. Broom, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131, and Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795.

The case of Maran v. Bowley, supra, held that the provisions of the 1911 act of Congress, 2 U.S.C.A. § 3, which required that ‘Representatives to Congress shall be elected by districts composed of a contiguous and compact territory, and containing as nearly as practicable an equal number of inhabitants,’ were not superseded by the 1929 act, 2 U.S.C.A. § 2a, but were still in force; that the 1931 Apportionment Act enacted by the legislature of this State was invalid under said act of Congress because of the inequality in population of the several districts created. In the course of the opinion, in support of the conclusions reached, it was said [347 Ill. 148, 179 N.E. 530]: ‘If the act of 1929 restored to the states...