Daniels v. Cavner

• Decision Date: 22 November 1949
• Docket Number: No. 31188.,31188.
• Citation: 88 N.E.2d 823,404 Ill. 372
• Parties: DANIELS et al. v. CAVNER.
• Court: Illinois Supreme Court

404 Ill. 372

88 N.E.2d 823

DANIELS et al.

v.CAVNER.

No. 31188.

Supreme Court of Illinois.

Nov. 22, 1949.

Petition by August Daniels and others against Walter R. Cavner, city clerk, of the city of Venice, for writ of mandamus to compel defendant, city clerk, to put names of certain plaintiffs as candidates for various city offices on ballot to be used at city election of April 19, 1949.

The Circuit Court, Madison County, Edward F. Bareis, J., entered judgment awarding a writ of mandamus which directed defendant to place on ballot names of certain of the plaintiffs and the defendant appealed.

The Supreme Court, Daily, J., held that nominating papers presented to the city clerk at his home after closing of his official office and with no attempt having been made to file at office, was not a filing of nominating papers in time or manner contemplated by election statute and reversed the judgment awarding the writ and remanded the cause with directions.Fred P. Schuman, of Granite City, and Harold G. Talley, of Alton, for appellant.

Jesse R. Brown, of Edwardsville, for appellees.

DAILY, Justice.

Appellees, seven in number, designating themselves as residents, citizens, taxpayers and voters of the city of Venice, filed, on March 26, 1949, their petition in the circuit court of Madison County, seeking a writ of mandamus against Walter R. Cavner, appellant, as city clerk of said city. The petition prayed that he be commanded to print the names of certain of appellees, as candidates for various city offices, on the ballot to be used at the city election of April 19, 1949. It further prayed that appellant be directed to proceed with the steps necessary to have the proper authorities consider objections made by appellees to nominating petitions of other candidates. Appellant filed a motion to strike, and, after hearing, the trial court struck the portion relating to the objections to other petitions, but denied the motion as to the balance of the petition. Thereafter, appellant filed his answer, and after hearing evidence in open court, the trial judge, on April 14, 1949, entered judgment awarding a writ of mandamus which directed that appellant place upon the ballot the names of certain appellees, towit: August Daniels, William Rogan, Edward Foley and Carl Wallen, as independent candidates for mayor, city clerk, city treasurer and police magistrate, respectively. Appellant filed notice of appeal to this court on the same day the order was entered, which appeal acted as a supersedeas. We take jurisdiction on the ground that a franchise is involved. Progressive Party v. Flynn, 401 Ill. 573, 82 N.E.2d 476;United States v. Hrasky, 240 Ill. 560, 88 N.E. 1031,130 Am.St.Rep. 288,16 Ann.Cas. 279;People ex rel. Powell v. Hartley, 170 Ill. 370, 48 N.E. 950.

The principal contentions of appellant in this court are that: (1) the entire issue has become moot since the date of the election has long since passed; (2) the nominating papers of appellees were not presented to appellant as city clerk within the time required by law; (3) the nominating papers were not in the form provided by law; and, (4) appellees as purported candidates of an established political party, as set forth in their petitions, could not be legally nominated as independent candidates by said nomination papers.

As to the first contention, that we should not review because the questions have become moot, the argument of appellant is that since the election has already been held, any direction to add names to the ballot would now require a useless and impossible act. We find the law to be that where an appeal is taken from a lower court's decision refusing to certify names for an election, and the time of the election has passed pending the appeal, the question is moot in the court of appeal. Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 40 L.Ed. 293;Richardson v. McChesney, 218 U.S. 487, 31 S.Ct. 43, 54 L.Ed. 1121. However, where the writ of mandamus has been ordered to issue by the lower court and its enforcement has been prevented by defendant's act of appealing from the order, thus necessarily postponing the appeal court's decision on the issues until after the election has occurred, the questions are not moot and will be considered on appeal. People ex rel. Giese v. Dillon, 266 Ill. 272, 107 N.E. 583. Here, the trial court issued the writ of mandamus, thus the issues did not become moot.

Much evidence was introduced in the trial court to determine the question of whether the nominating papers of appellees were presented to appellant at his residence before or after the hour of midnight ending the day of March 15, 1949, the last day for filing. Without detailing the evidence, suffice it to say that appellees' witnesses testified that the petitions were presented to appellant at his residence a few minutes before midnight, while appellant's witnesses fixed the time as being a few minutes after midnight. Appellant testified that when he was handed appellees' petitions, he told them it was too late, and that he took them and made a notation on them that they had been left with him at 12:12 a. m. March 16, 1949. He further testified that his office hours at the city hall were between 8:30 a. m. and 4:30 p. m. and that the girl employed in the office arrived about 9:00 a. m. and remained until 5:00 p. m. Appellant's contention is that the finding of the trial court is against the manifest weight of the evidence. Neither party, however, has questioned the propriety of filing nomination papers at the clerk's residence rather than his office, which issue, we feel, is the determinative one in this case.

The pertinent portion of the Election Code which governs the time and place of filing nomination petitions in cities such as Venice, is that part of section 10-6 (Ill.Rev.Stat.1947, chap. 46, par. 10-6,) which provides that ‘certificates of nomination and nomination papers for the nomination of candidates for the offices in cities, villages and incorporated towns, * * * shall be filed with the clerks of the townships, cities, villages and incorporated towns at least thirty-five days previous to the day of such election.’ Mandamus is an extraordinary remedy, and one seeking the writ must show a clear right to it. Wilson v. Board of Education, 394 Ill. 197, 68 N.E.2d 257;Friedman v. City of Chicago, 374 Ill. 545, 30 N.E.2d 36;People ex rel. Davidson v. Bradley, 382 Ill. 383, 47 N.E.2d 93. A petition for mandamus must set forth every material fact necessary to show that it is the duty of the person against whom the writ is sought to perform the acts sought to be compelled. People ex rel. City of Chicago v. Board of Review, 326 Ill. 124, 157 N.E. 186;People ex rel. Parker v. Board of Appeals, 367 Ill. 559, 12 N.E.2d 666. The burden rests on the relator to show every material fact necessary to establish the existence of such right and duty. People ex rel. Callahan v. Whealan, 356 Ill. 328, 190 N.E. 698. The first and principal question before us is whether the evidence introduced by appellees in support of their petition shows a ‘filing with the clerk’ such as would create a duty on his part to put the names of appellees, who were candidates, on the ballot.

We do not find that this court has ever been called upon to determine whether a presentation of nominating papers to a clerk at his residence after office hours constituted a filing with the clerk within the meaning of the Election Code. Several cases of like nature have arisen in other States. In Cowie v. Means, 39 Colo. 1, 88 P. 485, persons with nomination certificates found the Secretary of State of Colorado on a railway train at the Denver depot on Saturday evening at 7:00 p. m., being the last day for filing such certificates, and there handed him the documents. The secretary stated he could not file them at that place but would look them over. On the Monday following, he returned them advising the parties that he declined to receive or file the certificates as not being filed in apt time. The contention was made that handing the certificates to the secretary at the railway station...