Holcomb v. Davis

• Citation: 1870 WL 3422,56 Ill. 413
• Parties: GEORGE W. HOLCOMBv.JOHN DAVIS.
• Decision Date: 30 September 1870
• Court: Supreme Court of Illinois

56 Ill. 413

1870 WL 3422 (Ill.)

GEORGE W. HOLCOMB

v.JOHN DAVIS.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Livingston county; the Hon. CHARLES H. WOOD, Judge, presiding.

The opinion states the case.

Mr. A. E. HARDING, for the appellant.

Messrs. PILLSBURY & LAWRENCE, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of replevin, brought by appellee before a justice of the peace in Livingston county, to recover the possession of two cows. A trial was had before the justice, resulting in a verdict and judgment in favor of plaintiff, from which an appeal was prosecuted to the circuit court of that county, where a trial was had, with a like result, and the case is brought to this court by appeal, and a reversal is urged upon the errors assigned.

On the trial in the court below, it appeared that appellant took up and impounded the animals under the act of March 7, 1867 (Sess. Laws, 97), and the evidence shows that on the vote for and against adopting that act in Livingston county, there were cast for “keeping up stock,” as required by the statute, 1,244 votes, and “against keeping up stock,” 971 votes. It also appears that there were cast at that election 2,600 votes. It is therefore contended, that while there was a majority of those voting on that question, in favor of ““keeping up stock,” that still there was not a majority of all the legal votes of the county cast in favor of the proposition, and the law, for that reason, did not become operative in Livingston county.

The eighth section of the law declares that it shall not be in force until it shall be ratified by a majority of the legal voters of the county, etc. This section, considered independent of other provisions of the act, would, no doubt, require a majority of all the votes cast at the election at which the question was submitted for its adoption. But it is urged that the language employed in the ninth and tenth sections explains the legislative intention, and modified the language employed in the eighth section.

The ninth section required the clerk of the county court to give notice of the election, and provides for the form of the votes cast. It then declares, if a majority of all the votes cast in the county are in favor of adopting the law, then the law should be and continue in full force. The tenth section declares that, in case a majority of the votes cast are against the adoption of the law, the county court shall have power, at any subsequent regular term, to submit the same question to the voters of the county, at the next regular election.

It will be observed that the tenth section declares that if a majority of the votes cast are against the law, then another, or subsequent election, may be held. If the construction contended for by appellant be correct, the question could not be again submitted, unless the majority of all the votes cast at that election, for officers or otherwise, was against the law; and a case like the present would not be within its provisions. In this case there is not a majority, either of all the votes cast at the election, or on this question, against the proposition. And we must conclude that, inasmuch as the general assembly have provided for again submitting the question in case of its failure, it was intended to...