Jordan v. Officer

• Decision Date: 15 May 1987
• Docket Number: No. 5-87-0251,5-87-0251
• Citation: 508 N.E.2d 1077,155 Ill.App.3d 874,108 Ill.Dec. 500
• Parties: , 108 Ill.Dec. 500 Clyde JORDAN and Charles Powell, Plaintiffs-Appellees, v. Carl E. OFFICER, Defendant-Appellant, Charlotte Moore, Harold Franklin and Roosevelt Malone, Defendants,
• Court: United States Appellate Court of Illinois

Page 1077

508 N.E.2d 1077

155 Ill.App.3d 874, 108 Ill.Dec. 500

Clyde JORDAN and Charles Powell, Plaintiffs-Appellees, v. Carl E. OFFICER, Defendant-Appellant, Charlotte Moore, Harold Franklin and Roosevelt Malone, Defendants,

No. 5-87-0251.

Appellate Court of Illinois,

Fifth District.

May 15, 1987.

Kenwyn A. Redding, Belleville, for Carl E. Officer.

Jack A. Strellis, Waterloo, for Charlotte Moore.

Richard G. Younge, East St. Louis, and Philip R. Rice, Rice Law Office, Belleville, for plaintiffs-appellees.

Justice WELCH delivered the opinion of the court:

This appeal arises out of the February 24, 1987 Democratic party primary election for candidates for the April 7, 1987 consolidated (general) election for city offices in the city of East St. Louis. Carl Officer defeated Clyde Jordan, Harold Franklin and Roosevelt Malone for the Democratic Party nomination for mayor; Charlotte Moore defeated Charles Powell for the Democratic Party nomination for city treasurer. The margin of victory was 1035 votes for Officer over Jordan and 987 votes for Moore over Powell. On March 9, 1987, Jordan and Powell, the plaintiffs herein, petitioned the trial court contesting the primary election results on the basis inter alia that over 2000 voters in the primary election had also signed the nominating petitions for independent candidates. Plaintiffs' petition named Officer, Moore, Franklin and Malone as defendants. On March 25 the circuit court ordered the City of East St. Louis Election Board to review nominating petitions filed by independent candidates to determine who among the persons signing those petitions also voted in the primary election. On March 27 the Election Board filed its petition for permission to distribute absentee ballots for the consolidated election naming Officer and Moore as the Democratic candidates for the offices of mayor and treasurer, respectively. The Election Board also requested that due to the lateness of the distribution of the absentee ballots the electors be allowed to apply for absentee ballots not less than two days prior to the consolidated election rather than the five day period set forth by statute. On April 2, 1987, while the Election Board review was in progress, the circuit court on its own motion postponed the April 7, 1987 consolidated election "pending further instructions from this Court." In that order the court stated as reasons for that order the expense which would be wasted should the consolidated election proceed with improper names on the ballot, and the physical impossibility of holding the election as scheduled by statute. (Ill.Rev.Stat.1985, ch. 46, par. 2A-1.1(b).) Following denial of motions to reconsider, Officer appealed pursuant to Supreme Court Rule 307(a)(1). (87 Ill.2d 307(a)(1).) While this appeal was pending, Officer filed with this court a certified copy of a suggestion of death indicating Jordan died on or about April 23, 1987.

The remaining plaintiff argues this case is unappealable under Rule 307(a)(1). Rule 307(a)(1), an exception to the general rule against appeals before final judgment, allows appeal from an interlocutory order "granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction[.]" Plaintiff argues the order Officer appeals is not injunctive as to Officer, as it is directed against the Election Board and does not require Officer to do anything or to refrain from doing anything. Plaintiff also suggests it is somehow important regarding appealability that the April 2, 1987 order was entered on the court's own motion. In determining what constitutes an injunction subject to interlocutory review the court should look to the substance of the order rather than its form. (Bohn Aluminum & Brass Co. v. Barker (1973), 55 Ill.2d 177, 179, 303 N.E.2d 1, 3 (held, a "temporary restraining order" was appealable as a "restraint upon the defendant which is essentially injunctive in character" (55 Ill.2d 177, 183, 303 N.E.2d 1, 5)); Bullard v. Bullard (1978), 66 Ill.App.3d 132, 135, 22 Ill.Dec. 876, 878, 383 N.E.2d 684, 686.) Passively phrased, Rule 307(a)(1) does not purport to require that an order be issued against a party to the action or at the behest of the other to be appealable. Plaintiff has provided no authority imposing such a condition for appealability. The instant order issued as part of plaintiff's action against defendants, and one of its effects was to prevent the consolidated election until such time as plaintiff might prove his contentions that the primary results were improper. We believe this order was a "restraint" upon Officer which was "essentially injunctive in character" and hence appealable.

We turn to the merits. We have determined that the crucial issue in this appeal is one which was not raised by the parties. That issue is whether the circuit court was authorized to enjoin an election. As we have determined that the court had no such authority, the April 2, 1987 order was improper and is vacated.

It is well established that the courts have no jurisdiction to enjoin the holding of an election. (Coalition for Political Honesty v. State Bd. of Elections (1976), 65 Ill.2d 453, 458, 3 Ill.Dec. 728, 731, 359 N.E.2d 138, 141; Fletcher v. City of Paris (1941), 377 Ill. 89, 93, 35 N.E.2d 329, 331.) In Fletcher v. City of Paris, our supreme court quoted from Walton v. Develing (1871), 61 Ill. 201:

" 'The election proposed would have been an...