People ex rel. Akin v. Bd. of Supervisors of Adams Cnty.

• Decision Date: 17 April 1900
• Parties: PEOPLE ex rel. AKIN v. BOARD OF SUPERVISORS OF ADAMS COUNTY.
• Court: Illinois Supreme Court

185 Ill. 288

56 N.E. 1044

PEOPLE ex rel. AKIN

v.BOARD OF SUPERVISORS OF ADAMS COUNTY.

Supreme Court of Illinois.

April 17, 1900.

Mandamus by the people, on relation of Edward C. Akin, attorney general, against the board of supervisors of Adams county, to compel the readjustment of voting districts in the town of Riverside. Granted.

E. C. Akin, C. A. Hill, and B. D. Monroe, for petitioner.

James N. Sprigg, for respondent.

BOGGS, J.

This is a petition filed originally in this court by the attorney general, representing the people of the state of Illinois, in his official capacity, the prayer thereof being that a writ of mandamus issue out of this court, commanding the board of supervisors of Adams county, in this state, to redivide and readjust the election districts in said town of Riverside, including said soldiers' and sailors' home, so that each district shall contain, as near as practicable, 400 voters, and not more in any case than 450 voters (each district to be composed of contiguous territory, and in as compact a form as can be, for the convenience of the electors voting therein); to describe such districts, and each of them, by metes and bounds, and number them; and also to fix and establish a polling place in each of said districts, and where such districts include or embrace said soldiers' and sailors' home, or any part thereof, upon which the inmates thereof reside or are located; that the said board of supervisors be commanded to fix and establish the polling places for the inmates of said home at some convenient and comfortable place or places, easy of access, on the grounds and within the inclosure where the said home is located; and that said board of supervisors may also be required to appoint judges of election in and for each election district,and in all respects comply with the provisions of section 30 of the election law, as approved April 24, 1899. The cause was submitted on a general and special demurrer filed by the respondent board to the petition, and joinder in demurrer by the petitioner.

It appears from the averments of the petition that at and prior to the general election in November, 1898, the town of Riverside, in the said Adams county, was divided into four election districts, and that at said general election 1,454 votes were cast in the said four voting districts in said town, and that more than 450 votes were cast at that election in district No. 2 in said town. Section 30 of an act of the general assembly entitled ‘An act in regard to elections and to provide for filling vacancies in elective offices,’ approved April 3, 1872, as amended by an act approved April 4, 1895, made it the duty of the respondent board of supervisors, at the regular meeting of the board required by the statute to be held in the month of July next after each regular November election, to redistrict or readjust election districts in each town in said county in which more than 450 votes had been cast at the polling place in any election district at the said preceding November election.

The general assembly, at the session of 1899 adopted an act changing the time of the regular meeting of the boards of supervisors in counties under township organization to the second Monday of June. This act, by virtue of an emergency clause incorporated in it became valid and effective on the 22d day of April 1899,-the date of its approval by the governor. It thereby became the duty of the respondent board, at its June meeting in the year 1899, to redivide and readjust the election districts in the town of Riverside, for the reason that at the preceding general election in November, 1898, more than 450 votes had been cast at one of the election districts in the town. It appears from the averments of the petition that the respondent board, at the June term, 1899, in obedience to the statutes then is force, entered upon the duty of redividing and readjusting the election districts in the town of Riverside. The petition, however, avers that the said board omitted, failed, or refused to redivide and readjust the said election districts in said town in such manner as that not more than 450 voters should be contained in any one election district, but that said respondent board divided the said town, which contained 1,454 voters at the last general election, into but three election districts. It is but a matter of mathematical calculation to know that some or all of these three election districts must contain more than 450 voters. If the three election districts were so adjusted that one-third of the voters of the town were to vote at each polling place, the number of such voters would be 484 at each of the three districts. The legal duty of the board was to divide the town into such number of voting districts, so, to quote the statute, ‘that each district shall contain, as near as may be practicable, 400 voters, and not more in any case than 450.’ It is therefore beyond dispute that the respondent board failed or omitted, at its June meeting in 1899, to perform a duty which it stood charged by law to perform.

At the session of the general assembly for the year 1899, on the 24th day of April, 1899 (being two days after the act of April 22d, before mentioned, was approved and in force), said section 30 of the act of the general assembly approved April 4, 1895, hereinbefore mentioned, was amended by adding the following proviso: ‘Provided further, that it shall be the duty of the county board in each county where any state soldiers' and sailors' home or homes are located, the inhabitants of which are entitled to vote, to fix and establish the place or places for holding such election or elections at some convenient and comfortablie place or places, easy of access, on the ground or grounds, and within the enclosure where such state soldiers' and sailors' home or homes are located,’-and, so amended, was re-enacted and became effective as law July 1, 1899. Said section 30, as so amended and re-enacted, provided that the action to be taken by boards of supervisors with reference to redistricting or readjusting election districts in a town in which more than 450 votes had been cast in any election district at the preceding November election should be had at the regular (or a special) meeting of the board in the month of July next after the general election in November, and, if not made at such July meeting, might be made at an adjourned or special meeting of the board to be held in the month of August thereafter. In view of this latter enactment the respondent board at its July meeting, 1899, as appears from the averments of the petition, adopted an order reaffirming the action it had taken at its June term, 1899, with reference to the redivision and readjustment of the election districts of the town of Riverside. The result of these proceedings of the respondent board provided but three election precincts for the 1,454 voters entitled to vote in the said town of Riverside. It is manifest that the respondent board has not complied with the duty enjoined upon it by law,-to redivide and readjust the election districts in that town so that ‘each district shall contain, as near as may be practicable, 400 voters, and not more in any case than 450.’

It is, however, urged that mandamus cannot be resorted to to enforce the performance by the respondent board of its duty in this respect, for the reason, as counsel insist, that the board is without power to redistrict or readjust election districts except when convened in session in July or August of each year. It is argued that boards of supervisors, if empowered to divide, redivide, and readjust election precincts at any meeting, might exercise the power at a meeting less than 30 days preceding an election, and thus, it is urged, practically disfranchise electors in such district or precinct, and, further, that the legislature, in specifically naming the months in which such action should be taken by boards of supervisors, intended that the boundaries of election districts should be permanently fixed thus far in advance of elections in order that voters might have ample time and opportunity to ascertain and be advised as to the location of the polling place at which they would be entitled to vote. If it were asked to coerce a board, by the writ of mandamus, to take action at a period intervening between the month of August and the date of the election to be held in November, these arguments and considerations advanced by counsel would, no doubt, be worthy of consideration; for courts, in granting or refusing writs of mandamus, exercise judicial discretion, and are governed by what seems necessary and proper to be done in the particular instance for the attainment of justice. Courts, in the exercise of wise judicial discretion, may, in view of the consequences attendant upon the issuing of a writ of mandamus, refuse the writ, though the petitioner has a clear legal right, for which mandamus is an appropriate remedy. People v. Ketchum, 72 Ill. 212;Oakes v. Hill, 8 Pick. 47; 14 Am. & Eng. Enc. Law, 97. Action by the board, if now ordered, would not be attended with any of the evil results mentioned by counsel.

Nor do we think the prayer of the petition should be denied upon the ground that the court cannot lawfully direct the board to act at terms other than those to be convened in July or August. The case here presented by the petition is that the county board, at a term at which it was required to perform an official duty, took action as in performance of that duty, but which, clearly, was not performance thereof; and the question is, may the court order the omission to be corrected by official action at a subsequent term, even if it be conceded that the board has no power, of its own motion, to take such action at such subsequent term? It is the general rule that mandamus will not be granted in anticipation of a default or failure of official duty, and, if the writ...