Party v. Flynn

• Decision Date: 07 April 1948
• Docket Number: No. 30581.,30581.
• Citation: Party v. Flynn, 400 Ill. 102, 79 N.E.2d 516 (Ill. 1948)
• Parties: PROGRESSIVE PARTY et al. v. FLYNN et al.
• Court: Illinois Supreme Court

400 Ill. 102

79 N.E.2d 516

PROGRESSIVE PARTY et al.

v.FLYNN et al.

No. 30581.

Supreme Court of Illinois.

April 7, 1948.

Appeal from Circuit Court, Cook County; Jacob Berkowitz, judge.

Action for a declaratory judgment by the Progressive Party and others, against Michael J. Flynn and others, members of the Board of Election Commissioners in the City of Chicago, and its members individually and others, to adjudge that the Progressive Party was entitled to the right to participate in primary elections as an established political party, and defendants filed a counterclaim.From a judgment denying the petition and dismissing the complaint, the plaintiffs appeal, and defendants move to transfer appeal to Appellate Court.

Motion denied and judgment reversed and cause remanded with directions.

H. B. Ritman, Milton T. Raynor, Edmund Hatfield, Hart E. Baker, and Richard F. Watt, all of Chicago, for appellants.

George F. Barrett, Atty. Gen., and William J. Tuohy, State's Atty., Benjamin S. Adamowski, Corp.Counsel, and Bernard J. Korzen, all of Chicago (William C. Wines, Jacob Shamberg, Gordon B. Nash, L. Louis Karton, and Al F. Gorman, all of Chicago, of counsel), for appellees.

GUNN, Justice.

In the judicial election held November 4, 1947, in Cook County, a political organization using the name of The Progressive Party, cast 313,847 votes, equalling forty-four per cent of all votes cast in the election, for Homer F. Carey, one of its candidates, for superior court judge.The election was a regular election, as defined by section 3 of article 1 of the Election Code(Ill.Rev.Stat.1947, chap. 46, par. 1-3), for the purpose of electing twenty-one superior court judges in Cook County.Cook County is one judicial circuit.The said Progressive Party and its members are desirous of participating as a political party in the April 13, 1948, primary, to be held in Cook County for the nomination of offices of State's Attorney, recorder of deeds, clerk of the circuit court, clerk of the superior court, and coroner, all offices of Cook County; for a chief justice and twleve associate judges, a bailiff, and a clerk of the municipal court for the city of Chicago; for three trustees of the Sanitary District of Chicago; and for representatives to the United States Congress, from each of the twelve congressional districts lying wholly within Cook County; such candidates of such political subdivisions to be voted for and nominated at the primary election to be held April 13, 1948.

Thereupon the said Progressive Party, through George Cermak, its chairman, applied to the defendants, the members of the board of election commissioners in the city of Chicago, and its members individually, as well as Michael J. Flynn, individually and as county clerk of Cook County, and Ludwig Schreiber, individually and as the city clerk of Chicago, and Edward J. Barrett, individually and as Secretary of State of the State of Illinois, for information whereby the Progressive Party could nominate candidates for the several abovenamed offices at said primary election in Cook County, and for the twelve congressmen in the said congressional districts within Cook County, and were advised by such officials that the Progressive Party, as a party, was not qualified to be placed upon the primary election ticket, and was not an established political party, legally entitled to nominate candidates in the April 13, 1948, primary election in said county.Plaintiffs thereupon filed a complaint in the Cook County circuit court against the defendants, praying for a declaratory judgment under section 57 1/2 of the Civil Practice Act, (Ill.Rev.Stat.1947, chap. 110, par. 181.1,) adjudging it was entitled to the right to participate in said primary election as an established political party.

The answer of the defendants, except the Secretary of State, in effect asserts: (1) That there is no Progressive Party; (2) that defendants are not under a duty to recognize the Progressive Party; and (3) that the defendants should receive no nomination papers for any officers to be voted for in said primary election under the label of Progressive Party.Said defendants also filed a counterclaim praying that the controversy be determined; that the court hold there is no Progressive Party, and that defendants have no duties to perform toward it, and for other relief.The defendant Secretary of State made a motion to dismiss for want of jurisdiction, because political questions are involved.This motion was denied by the circuit court.The circuit court denied the petition of plaintiffs, and dismissed the complaint.Plaintiffs have appealed to this court.

The defendant Secretary of State makes a motion here to dismiss for want of jurisdiction because the question was said to involve a political matter; and because making the Secretary of State a partydefendant in his official capacity is equivalent to a suit against the State.The other defendants make a motion to transfer to the Appellate Court upon the ground that no question is raised upon which the Supreme Court has jurisdiction upon direct appeal.

The real question involved in this case is the right of those who are members of the Progressive Party, and of the plaintiffGeorge Cermak, individually and as a member of the party, to vote in the April 13, 1948, primary, for candidates under the label of Progressive Party.If the relief prayed for in the complaint is granted, Plaintiff Cermak may vote for Progressive Party candidates in the April primary, as may others who are members of such party, but, if relief is denied, Cermak has been deprived of the right or opportunity to vote under such party label.

The right to vote in an election constitutes a franchise (United States of America v. Hrasky, 240 Ill. 560, 88 N.E. 1031,130 Am.St.Rep. 288,16 Ann.Cas. 279), which would give us jurisdiction of this appeal.In the Hrasky case it is held that a court passing upon the right of the individual to be naturalized sufficiently involved his right to vote in elections so as to involve a franchise allowing a direct appeal to this court.This case has been cited upon this question in Tutun v. United States of America, 270 U.S. 568, 46 S.Ct. 425, 70 L.Ed. 738.

Appellees also urge that section 4 of article 7 of the Election Code prevents appellant, the Progressive Party, from qualifying as an established political party, because the vote qualifying it as a political party took place at a judicial election, and appellants say if such is deemed to be a complete defense then said portion of article 7 is unconstitutional and void, as depriving legal voters of the right to nominate candidates (People v. Brady, 302 Ill. 576, 135 N.E. 87), and, further, that if section 4 of article 7 is not of itself invalid, yet, to enforce it as claimed by appellees would be to give it an unconstitutional effect.Lee v. City of Chicago, 390 Ill. 360,61 N.E.2d 367.

The appellee Secretary of State contends that this court lacks jurisdiction because a purely political question cannot be adjudicated by a declaratory judgment, and cites Daly v. County of Madison, 378 Ill. 357, 38 N.E.2d 160, andFletcher v. City of Paris, 377 Ill. 89, 35 N.E.2d 329, as supporting the principle that equity may not restrain an unlawful election, even though there is no other way in which taxpayers' property rights and public funds may be protected.The question arises, however, whether a declaratory judgment is an equitable proceeding and equivalent to a proceeding restraining an election.It seems that an application for a declaratory judgment is neither a proceeding at law nor in equity, but the application in this case is somewhat similar to an election contest, and may be designated as sui generis, as election contests have been designated (McKinley v. McIntyre, 360 Ill. 382, 196 N.E. 506), and like proceedings for contempt in tampering with ballot boxes.People ex rel. Rusch v. Fusco, 397 Ill. 468, 74 N.E.2d 531.An order declaring rights under the declaratory judgment law is not compelling in itself, but is merely a declaration of rights.

We are of the opinion that the motion of the Secretary of State to dismiss for want of jurisdiction should be denied, that the motion of all of the appellees to transfer the cause to the Appellate Court should also be denied, and that this court has jurisdiction of the case.Atkins v. Atkins, 386 Ill. 345, 54 N.E.2d 488

The counterclaim filed by certain appellees asking for a declaration of rights on the same statute involved in appellants' application is an admission by them that an ‘actual controversy’ is involved as required by section 57 1/2 of the Civil Practice Act.Appellee Barrett's request that in the event his motion was denied he be permitted to join his coappellees in their brief brings him into the same position as the other appellees.Furthermore, any question as to the existence of an actual controversy has not been briefed or argued by any of counsel.

The decision of this case depends upon the provisions of the Election Code relating to nominations of candidates.Nominations by political parties and by individuals are governed by article, 7, 8, 9 and 10.Article 7 in the main pertains to nominations under the primary law.Article 8 governs the nomination of members of the General Assembly.Article 9 provides the method for nominating of circuit, superior and Supreme Court judges.And article 10 provides for nominations by other groups and by individuals.In order to properly apply the law to the present situation it is necessary to correlate all of these different articles, and the provisions in them, as applied to the facts appearing in this record.

Article 7 provides for the nomination of all candidates for all elective State, congressional, city and village, and incorporated town and municipal officers, and clerks of the Appellate Courts, and trustees of sanitary districts in the manner provided ‘in this Article 7.’...