Devous v. Gallatin Cnty.

• Decision Date: 16 February 1910
• Parties: DEVOUS et al. v. GALLATIN COUNTY et al.
• Court: Illinois Supreme Court

244 Ill. 40

91 N.E. 102

DEVOUS et al.

v.GALLATIN COUNTY et al.

Supreme Court of Illinois.

Feb. 16, 1910.

Error to Circuit Court, Gallatin County; E. E. Newlin, Judge.

Petition by Joseph Devous and others against Gallatin County and others to contest an election for the removal of the county seat of the county. There was a judgment dismissing the petition, rendered after sustaining a demurrer thereto, and petitioners bring error. Writ dismissed.

R. M. Morrison, Cooper & Burgess, and Creighton & Thomas, for plaintiffs in error.

Thomas H. Daily, State's Atty., C. K. Roedel, City Atty., Boggs & Boggs, Jesse E. Bartley, Marshall E. Lambert, D. M. Kensall, and Carl Roedel, for defendants in error.

CARTWRIGHT, J.

An election was held in Gallatin county on November 10, 1908, at which the question of the removal of the county seat from the city of Shawneetown to the village of Ridgway was submitted to the legal voters of the said county. The returns, when canvassed, showed a majority of 70 votes against the removal, and on December 9, 1908, the plaintiffs in error, five citizens of the incorporated village of Ridgway and the village, filed their petition in the circuit court of said county against two of the defendants in error, Gallatin county and the city of Shawneetown, for a contest of the election, alleging that the majority of the legal votes cast were in favor of the removal, but that illegal votes were received and counted; that the judges of election were guilty of fraud in knowingly receiving and counting the same; and that there were irregularities in the conduct of the election. Richard Cadle, who is also a defendant in error, was made a defendant to the petition on his application. There was a demurrer to the original petition, and an amended petition was filed on June 17, 1909. Cadle moved to dismiss the suit because the amended petition was not filed within 30 days after the result of the election had been declared, but the court overruled the motion. The county of Gallatin and city of Shawneetown demurred to the amended petition, and the demurrer was sustained. The petitioners elected to stand by the amended petition, and the court dismissed it at their costs. A writ of error was sued out to bring the record into this court for review, and the defendants in error have entered their motion to dismiss the writ.

The election was held under the provisions of the act to provide for the removal of county seats, in force July 1, 1872 (Laws 1871-72, p. 309). Prior to the time when that act became effective no method had been provided for contesting an election upon the question of removing a county seat, and courts of equity had taken jurisdiction under their general powers to determine the result of the election. This was not done on the ground that a contest of an election was an action or case either at law or in equity, but for the purpose of determining where the citizens of the county had a legal right to transact public business. It was held that the proceeding was not a contest of an election, and that the question of the legality of votes was only incidentally involved. Boren v. Smith, 47 Ill. 482;People v. Wiant, 48 Ill. 263;Knox County v. Davis, 63 Ill. 405;Dickey v. Reed, 78 Ill. 261. On the same day that the act for the removal of county seats took effect, the general election law, covering the same subject and passed by the same Legislature, went into force. Laws 1871-72, p. 380. Section 97 of the election law provided that the circuit courts might hear and determine contests of elections in reference to the removal of county seats, and section 116 provided that the case should be tried in like manner as cases in chancery. These sections were amended in 1895, but were not changed in those respects. Section 117 authorized any five electors of the county to contest the election, and section 118 provided that, if the county board should fail or refuse properly to defend the contest, the court should allow any one or more electors of the county to appear and defend. The constitutional provision respecting the number of votes necessary for a removal required additional provisions peculiar to an election to remove a county seat, and those provisions were supplied by section 12 of the act for the removal of county seats. That section made the number of legal votes cast prima facie evidence of the number of legal voters of the county, but provided that if it should become necessary, in consequence of a contest, to ascertain...