People ex rel. Dever v. Sweitzer
| Citation | 145 N.E. 648,314 Ill. 330 |
| Decision Date | 16 December 1924 |
| Docket Number | No. 16470.,16470. |
| Parties | PEOPLE ex rel. DEVER et al. v. SWEITZER, County Clerk, et al. |
| Court | Supreme Court of Illinois |
Mandamus by the People, on the relation of John J. Dever and others, against Robert M. Sweitzer, County Clerk, and others.
Writ awarded.
William G. Wise, of Chicago, for relators.
Weymouth Kirkland, Henry A. Berger, and Joseph B. Fleming, all of Chicago, for respondents.
Relators, John J. Dever, as a qualified elector of Cook county, and William V. Brothers and Worth E. Caylor, as nominees at a republican convention for the offices of judge of the circuit and superior courts, respectively, to fill vacancies caused by death and resignation of former incumbents, on leave being granted, filed in this court their original petition praying that a writ of mandamus issue against the respondents, as county clerk of Cook county and board of election commissioners, requiring that they print or cause to be printed the names of William V. Brothers and Worth E. Caylor on the ballots to be voted by the electors of Cook county for the offices of judge of the circuit of Cook county and judge of the superior court of Cook county, respectively, at the election to be held on November 4, 1924; that Sweitzer, the county clerk, be required to print or cause to be printed the statutory notice of a special electionto fill such offices, and cause the same to be delivered to the sheriff for posting, as required by the statute. The respondents appeared and filed their answers. The members of the board of election commissioners answered, in effect, that they stood ready to make the necessary certificates and print the names of Brothers and Caylor on the ballots when the same are certified to them by Sweitzer, as required by the statute. The county clerk answered, denying that he had refused to include the names of Brothers and Caylor in the notice of the election or in the certificate to the board of election commissioners. By his amended answer, however, he states that he is advised that no proper writ of election was issued by the Governor, and that therefore it is not his duty to include the names of Brothers and Caylor on the ballots for the election November 4. The amended answer was demurred to, and the question of its sufficiency is thus presented.
The facts are as follows: On August 11, 1924, Gov. Len Small issued a writ of election calling a special election on November 4 to fill the office of judge of the superior court of Cook county made vacant by the resignation of Hon. Charles A. McDonald therefrom, at the same time issuing a writ for a special election on November 4 to fill the vacancy in the office of circuit judge of Cook county caused by the death of Hon. John K. Prindiville, a judge of said court. Pursuant thereto the Republican party of Cook county called a convention, which was held on the 29th day of September, 1924, at which time Brothers and Caylor were nominated to fill the vacancies in the circuit and superior courts, respectively. On the 1st day of October the certificate of such nomination was filed in the office of the secretary of state, who thereafter issued a certificate to the county clerk of Cook county certifying the nomination of Brothers and Caylor as candidates at a special election to be held on November 4 for the purpose of filling the vacancies herein referred to. It also appears from the petition and the answer of Sweitzer that Brothers and Caylor called upon Sweitzer and reminded him that the certificate of nomination had been sent to him, and that he had issued an election notice which did not contain the offices of judge of the circuit court and judge of the superior court to be filled at a special election called as herein referred to, and demanded that he prepare an election notice in accordance with the statute. It appears that Sweitzer gave them no answer at the time, saying that he desired to consult his attorney. It appears also from his answer, and it is admitted by the demurrer, that the records of the office of Sweitzer show that an election was held to fill the vacancies in the circuit and superior courts caused by the death of Hon. John K. Prindiville and the resignation of Hon. Charles A. McDonald, for June 2, 1924; that nominations were made for said offices by the Democratic party; that Frank Comerford was nominated for the office of judge of the circuit court and John J. Kelly was nominated for the office of judge of the superior court to fill vacancies occasioned by such death and resignation; that said election was held on June 2, 1924, at which Comerford and Kelly received a plurality of all votes cast at that election for the offices of judge of the circuit and superior courts, respectively; that the Republican party did not nominate candidates to fill such vacancies for the election on June 2. Sweitzer by his amended answer also avers that the writ of election issued by the Governor is void on its face, for the reason that it calls an election for November 4 to fill an alleged vacancy caused by the resignation of Hon. Charles A. McDonald, which the writ itself states to be on December 5, 1924; that a new and different writ of election issued by the Governor was later received in the office of Sweitzer on the 10th of October, less than 30 days before the election on November 4, which showed the resignation of McDonald to have taken place on December 5, 1923.
The question involved in the case is whether or not it was the duty of Sweitzer to include the names of Brothers and Caylor in the notice and on the ballots. The determination of this question necessarily involves a determination of the question whether the election of June 2, 1924, to fill these vacancies was a valid election, for, if so, there was no vacancy to be filled on November 4.
The power to call an election to fill vacancies is prescribed by the statute. Section 145 of chapter 46 (Cahill's Stat. 1923) provides as follows:
[1] This court held in People v. Czarnecki, 312 Ill. 271, 143 N. E. 840, and in Stephens v. People, 89 Ill. 337, that the time of a special election to fill vacancies in such offices as circuit and superior court judges must be fixed and the election called by the Governor. Neither the county clerk nor the clerk of the court in which the vacancy occurs has any such power. It is argued earnestly that, unless the power be vested elsewhere, the Governor may, by refusing to call a special election to fill a vacancy, prevent the functioning of different departments of the government, or by waiting until the unexpired portionof the term amounts to less than one year appoint an official to fill such vacancy, and thus defeat the purpose of the statute. Without passing on the validity of such an appointment or the advisability of a statute permitting a special election to be called by others in case of unreasonable delay on the part of the executive in so doing, it is sufficient to say that such are questions which should be addressed to the Legislature and not to the courts, whose duty it is to construe the laws as they are.
[2] It is objected...
To continue reading
Request your trial
-
Hamilton v. Marshall
......457;. Thompson v. Stone, (Ky.) 174 S.W. 763; People v. Hill, (Calif.) 57 P. 669; Tebbe v. Smith,. (Calif.) 41 P. 454; Savage ...285; Dist. v. School Dist.,. (Ia.) 83 N.W. 1068; People v. Sweitzer, (Ill.). 145 N.E. 648; Western v. Margraf, (Ill.) 160 N.E. 215; State v. ......
- People ex rel. Shaner v. Chicago, B.&Q.R. Co.
-
People ex rel. Rice v. Appellate Court, Fifth Dist.
...also, ch. 46, par. 25--2, and ch. 38, par. 33--3; People ex rel. Comerford v. Miller, 314 Ill. 474, 145 N.E. 685; People ex rel. Dever v. Sweitzer, 314 Ill. 330, 145 N.E. 648; People ex rel. Anderson v. Czarnecki, 312 Ill. 271, 143 N.E. 840.) Since the forfeitures here occurred as of the ti......