People ex rel. Agnew v. Graham

• Decision Date: 22 April 1915
• Docket Number: No. 9840.,9840.
• Citation: 267 Ill. 426,108 N.E. 699
• Parties: PEOPLE ex rel. AGNEW v. GRAHAM et al.
• Court: Illinois Supreme Court

267 Ill. 426

108 N.E. 699

PEOPLE ex rel. AGNEW

v.GRAHAM et al.

No. 9840.

Supreme Court of Illinois.

April 22, 1915.

Error to Appellate Court, Second District, on Writ of Error to Circuit Court, La Salle County; Joe A. Davis, Judge.

Proceeding by the People on the relation of Charles Agnew against Edward Graham and others. On writ of error judgment for respondents was affirmed by the Appellate Court (187 Ill. App. 599), and relator brings certiorari. Affirmed.

See, also, 186 Ill. App. 217.

Cooke, J., dissenting.L. B. Olmstead, of Somonauk, and Butters & Clark and George S. Wiley, State's Atty., all of Ottawa, for plaintiff in error.

Faissler, Fulton & Roberts, of Sycamore, and Brown & Wiley, of Ottawa, for defendants in error.

CARTER, J.

This proceeding was commenced in the circuit court of La Salle county October 4, 1912, by the state's attorney filing with leave of court, in the name of the people, on the relation of Charles Agnew, an information against Edward Graham, F. E. Blakeslee, and P. J. Cruise, requiring them to show by what warrant they respectively exercised the offices of mayor of Earlville and aldermen of said city and the offices of president and secretary and member of the board of local improvements of said city, which offices, the information alleged, they had and still usurped. Respondents set up, by plea, their title to their respective offices. A demurrer thereto having been overruled, plaintiff in error elected to abide thereby, and judgment was entered in favor of respondents. A writ of error was sued out from the Appellate Court for the Second District, and that court affirmed the judgment. The case has been brought to this court by petition for certiorari.

From the petition and plea it appears that the city of Earlville was organized under the general City and Village Act on February 5, 1887, and about two months thereafter, by ordinance, it was divided into three wards, the boundaries of which it is unnecessary to state here. The same day an ordinance was passed providing that the city council should appoint three judges of election, one from each of the three wards, and one or more clerks who should conduct all the city elections until their successors were selected; that the elections in said city should be held at a place therein to be designated by the city council in the notice published by the city clerk 20 days before the election; that a ballot box should be prepared with three apartments, lettered ‘First Ward,’ ‘Second Ward’ and ‘Third Ward,’ respectively, and that the ballot of each voter should be deposited in the apartment designated for the ward in which he resided, otherwise such ballot should not be counted for alderman. It further appears that the said last-mentioned ordinance remained in full force from 1887 to the time of the hearing of this cause and had never been repealed or amended, and that said city of Earlville had conducted and held all elections from and after its organization in conformity with said ordinance. From the plea it further appears that in the spring of 1911 a primary and thereafter an election were duly called, due notice thereof given and the same duly held, and that the respondents became candidates for the respective offices, and all necessary steps were taken to place their names on the primary ballot and on the official ballot in the election; that they were fully qualified in every respect to be candidates and to hold the said offices, and that they were each duly nominated and elected, Graham for mayor and Cruise and Blakeslee for aldermen of the first and second wards, respectively, and that the election was held according to law, and the returns canvassed and declared, and they duly qualified and entered upon said offices, and thereby, under the law, became members of the board of local improvements and were at the time of filing said plea occupying said offices; that said primary and said election of 1911 were held at the city hall in the city of Earlville, which was the place designated by the city council and had been the place of holding elections in said city for 20 years last past; that the ballot box contained three apartments, and that all those voting at the election were legally qualified voters in the ward designated on the apartment in which their ballots were deposited, and that each judge of election possessed the qualifications required by law. The plea further alleged ‘that there was a large vote cast at said election and a fair expressionof the will of the voters of said city; that no one entitled to vote was deprived of his right to do so by reason of the polling place being situated as aforesaid, and that the said election was conducted in all respects in the same manner as has been the custom and practice in said city for more than 20 years and as provided for by the general ordinances of said city; that said city hall is centrally and conveniently located for holding such elections,’ etc. It further appears from the plea that the city hall was located not more than 60 feet distant from the boundary lines of both the First and Second wards of said city, being located in the southeast corner of the Third ward, directly north of Winthrop street, the northern boundary of the First ward, and directly west of Ottawa street, the western boundary of the Second ward.

The first question necessary to be considered is whether the ward lines must be taken into consideration in fixing the boundaries of the precinct or voting district. The words ‘precinct’ and ‘district’ are frequently used interchangeably and with the same meaning in the various statutes of this state. People v. Markiewicz, 225 Ill. 563, 80 N. E. 256. Section 3 of article 4 of the Cities and Villages Act provides that ‘all persons entitled to vote at any general election for state officers within any city or village, having resided therein thirty days next preceding thereto, may vote at any election for city or village officers.’ Hurd's Stat. 1913, p. 268. If this were the only provision of the law affecting residence and election districts there would be no question, as contended by counsel for defendants in error, that a city, even though divided into wards, could be considered as one election district. Section 4, however, of said article 4 of the Cities and Villages Act, provides, among other things, that the city council may divide the city into wards, and that one alderman shall annually be elected from each ward. Section 9 provides that the city council shall designate the place or places in which the election should be held and appoint the judges and clerks, and cause notices to be printed and posted as to the time and place of election 20 days before such election. Section 10 provides that the manner of conducting elections and voting at elections held under this act and contesting the same shall be ‘the same, as nearly as may be, as in the case of the election of county officers, under the general laws of this state.’ Section 1 of article 7 of the Constitution of 1870 provides that ‘every person having resided in this state one year, in the county ninety days and in the election district thirty days next preceding any election therein, * * * shall be entitled to vote at such election.’ Section 65 of the General Election Law follows this wording of the Constitution as to the residence of the voter in state, county and election district. Hurd's Stat. 1913, p. 1055.

This court had under consideration a somewhat similar question in Welsh v. Shumway, 232 Ill. 54, 83 N. E. 549, and held that for city elections the city council, and not the county board, should establish the boundaries of the election precincts or districts, as well as name the polling places and the judges and clerks of election, but that in such cities for city elections (232 Ill. 67, 83 N. E. 555) ‘the ward lines must necessarily be considered in forming election districts.’ As a practical matter in carrying on and conducting a city election where the city is divided into wards, we do not see how it can be reasonably argued that the ward lines can be ignored in forming and fixing the boundaries of election districts or precincts, otherwise it would be impossible to elect the aldermen. That this must be so is conceded by counsel for defendants in error, but they argue that under the holding of this court in People v. Markiewicz, supra, the city may be considered one election precinct with a separate polling place in each ward, it being held in the case just referred to that for the purpose of town elections the entire town was considered as one voting precinct as respecting the qualifications of the voters although there might be several polling places in the town. The wording of the statutes as to the conduct of town elections is, as will be seen from the two cases already cited, very different from the wording of the statutes on city elections. The reasoning of the case last referred to as to the conduct of township elections does not apply to the fixing of boundaries of election districts for city elections and the manner of conducting such elections. We see no reason to change the holding in Welsh v. Shumway, supra, that under the law in this state the ward lines must not be crossed in forming the boundary lines of an election district though such ward may be divided into several election districts or precincts, in which case the voter must have resided in the precinct 30 days before the election, in conformity with the Constitution and as required by said section 65 of the General Election Law.

The principal contention in the briefs is whether the voters of the First and Second wards could legally cast their ballots outside of the boundaries of the respective wards in which they resided. This precise question has never been considered or decided in this state, although general statements have been made in various decisions which have more or less bearing thereon....