Harvey v. Cook Cnty.
| Decision Date | 17 April 1906 |
| Citation | 221 Ill. 76,77 N.E. 424 |
| Parties | HARVEY et al. v. COOK COUNTY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Cook County; Julian W. Mack, Judge.
Election contest by T. W. Harvey and another against Cook County. From a judgment in favor of defendant, plaintiffs appeal. Reversed.
Herrick, Allen, Boyesen & Martin, for appellants.
Harry A. Lewis, William F. Struckman, and Charles G. Little (John Barton Payne and Sigmund Zeisler, of counsel), for appellee.
The appellants, five electors of the county of Cook, filed their petition in the circuit court of Cook county to contest the result of the vote at a general election held in the county of Cook on November 8, 1904, on the question of the adoption of an act in force July 1, 1903, entitled ‘An act to amend sections seven (7) and eighteen (18) of an act entitled ‘An act concerning land titles,’ approved and in force May 1, 1897.' An amended petition was filed, to which the appellee filed an answer, and upon a hearing the court entered a decree dismissing the petition. The petitioners below have perfected an appeal to this court.
The original act, entitled ‘An act concerning land titles' (Hurd's Rev. St. 1897, c. 30, § 44, p. 399), was adopted by the county of Cook at an election held in November, 1897, and has from thence hitherto been in force in said Cook county, during which time 1,508 titles have been registered in said county. At the general election held in said Cook county on November 8, 1904, the question of the adoption by the people of that county of an act entitled ‘An act to amend sections seven (7) and eighteen (18) of an act entitled ‘An act concerning land titles,” Laws 1903, p. 121, was submitted to the electors of said county of Cook. Two forms of ballots were printed and provided by the election authorities to be used at said election; one the regular ballot containing the names of all the candidates nominated and to be voted for at said election, the other a separate ballot for the submission of the questions of the adoption of a proposed constitutional amendment, the adoption of the amendment to the Torrens land law, the proposed issuance of Cook county bonds, and three questions of public policy. On the 26th day of November, 1904, the votes cast at said election having been counted, the election authorities declared that the majority of the votes cast on the question of the adoption of the amendment to the act concerning land titles were in favor thereof. The official election returns showed that at said election 400,923 regular ballots and 300,899 separate ballots were cast, and that the vote on the question of the adoption of the amendment to the act entitled ‘An act concerning land titles,’ was 241,924 for and 30,043 against the adoption.
Appellants' contention is that substantial requirements of the act prescribing the manner of preparing the ballots to be voted on the question of the adoption of the act at said election were ignored and disregarded, that such requirements were mandatory, and that therefore there had been no valid adoption of the said amendment. They insist that the election commissioners, in submitting the question of the adoption of said amendment to the people, should have printed the proposition so to be voted upon, upon the regular ballot, and not, as was done, on the separate ballot; that the proposition should have been printed at the top of the ballot, above the names of the candidates for official positions to be voted for at the same election; and also insist the form of the submission of the proposition fixed by the statute was disregarded.
Section 2 of said amendatory act is as follows:
‘The provisions of this act shall not apply to land in any county, where the act of which this act is an amendment has been adopted, until this act shall have been adopted by a vote of the people of the county, at an election to be held on Tuesday next after the first Monday in November, or any election for the election of judges of the year in which the question is submitted. The question may be submitted in the following manner: In any county of the first or second class, as the same are classified in the act concerning fees and salaries, on the petition of not less than one-half of the legal voters, to be ascertained by the vote cast at the last preceding election for county officers, or in any county of the third class upon petition of not less than twenty-five hundred (2,500) legal voters praying the submission of the question of the adoption of this act, the clerk shall give notice that such question will be submitted at such election, and shall cause to be printed at the top of the ballots to be used for said election:
For extension of the Torrens land title system
Against extension of the Torrens land title system
First. Appellee denies the first proposition contended for by appellants, and insists that the particular form of submitting the question to be voted on, provided by said section 2, was properly placed on the separate ballot under the terms of section 16 of the election laws (Hurd's Rev. St. 1903, p. 867, c. 46, § 303), and that the regular ballot provided for by section 14 of that act was not the proper ballot on which to submit the question to the voters. As to the other contentions of the appellants, the appellee insists the requirements of said section 2 of the proposed amendment were substantially complied with, and that greater strictness was not essential.
The Legislature, by said section 2 of the amendment, above set out in full, provided expressly a method for the submission of the question of the adoption of said amendment, and unless the positive and material provisions of that section have been complied with, the election as to the adoption of the amendment must be held void. Said section 2 provides that it shall not apply to the land in any county ‘until this act shall have been adopted by a vote of the people of the county, at an election to be held on Tuesday next after the first Monday in November, or any election for the election of judges of the year in which the question is submitted,’ and that the clerk ‘shall cause to be printed at the top of the ballots to be use for said election’ the particular form prescribed therein. At all of the elections at which the said amendment could be voted upon and adopted, the regular ballots containing the names of the candidates to be voted for, provided for by said section 14 of the general election laws, would be used, while the separate ballot provided for by said section 16 of the general election laws ‘whenever a constitutional amendment or other public measure is proposed to be voted upon by the people,’ might or might not be used at such election.
But the appellee says a separate ballot was necessary for the several propositions voted upon at the election held in November, 1904, and that said separate ballot was as much ‘the ballots to be used’ as the one containing the names of the candidates. True it is that it so happened that at this particular election a separate ballot was required and used, but the fact still remains that the separate ballot might not have been necessary at the said election, nor will it necessarily be used at any future election at which the same question may be presented to the voters of the various counties...
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...It is not to be presumed that voters will not know what they are voting about, and the case is not at all like Harvey v. Cook County, 221 Ill. 76, 77 N. E. 424, where the ballot was so ambiguous as clearly to mislead voters. Next it is said that the act violates the provision of section 13 ......
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