People ex rel. De Doncker v. City of East Moline
| Decision Date | 16 December 1959 |
| Docket Number | Gen. No. 11284 |
| Citation | 23 Ill.App.2d 334,163 N.E.2d 109 |
| Parties | PEOPLE of the State of Illinois ex rel. David DE DONCKER, and Orval Jacobs, Plaintiff-Intervenor, Plaintiff-Appellee, v. CITY OF EAST MOLINE, a Municipal Corporation, Defendant-Appellee. Frank J. Esposito, F. Joseph Ryan and Ray Westerbeck, Appellants. |
| Court | United States Appellate Court of Illinois |
F. Joseph Ryan, East Moline, Moran, Klockau, McCarthy & Johnson, Rock Island, for appellants.
John M. Kerwin, East Moline, Dan H. McNeal, Moline, Reidy, Katz, McAndrews, Durkee & Telleen, Rock Island, for appellee.
This case was commenced on November 18, 1958 by the filing of a petition in the name of the People on the relation of David DeDoncker for a writ of mandamus seeking to compel the defendant City of East Moline, a municipal corporation, to abide by the result of a municipal election held on April 16, 1957, which result was for the abandonment of the managerial (city manager) form of municipal government, and to comply with Ch. 24, Ill.Rev.Stats. par. 20-13, and such other parts of the Revised Cities and Villages Act, Ch. 24, par. 1-1ff as may be applicable thereto. The defendant City of East Moline filed an answer to the petition admitting the allegations thereof but denying that a writ of mandamus should issue and setting forth certain alleged affirmative matters. The petitioner filed a reply to those alleged affirmative matters admitting the factual allegations and denying the alleged conclusions of law and also set forth certain alleged affirmative matters or conclusions. The defendant City filed a reply to the alleged affirmative matters in the petitioner's reply denying all the alleged conclusions of law. Oral Jacobs upon leave, filed a complaint of intervention as an intervenor plaintiff or petitioner realleging much of the petition and alleging certain other matters and joining in the petitioner's prayer for relief.
From the pleadings it is admitted that on July 1, 1952, the City of East Moline voted in favor of the managerial form of municipal government; on April 21, 1953 a Mayor and four councilmen were elected for the first time under the managerial form, and took office on May 4, 1953; a petition by the at least minimum number of electors to abandon the managerial form of municipal government was filed with the City Clerk on December 19, 1956; no objections thereto were filed and no judicial proceedings were had thereon as to its sufficiency; that petition to abandon was submitted to the City Council January 7, 1957; on January 21, 1957, the City Council passed an ordinance submitting the abandonment proposition to a vote at a general municipal election to be held on April 16, 1957; at the election of April 16, 1957, the votes were 1,924 for abandoning the managerial form of government and 1,751 against such abandonment; prior to the adoption of the managerial form of government the City of East Moline had been governed by the aldermanic-trustee form of municipal government under Article 9 of the Revised Cities and Villages Act; a demand upon the defendant City to comply with the majority vote of April 16, 1957 to abandon had not been made and would be unavailing for the reason that the City had adopted a resolution on October 22, 1958 not to abide by the result of the election to abandon of April 16, 1957, and declaring such to be void and of no effect, which resolution was signed by Frank Esposito, Mayor, and attested by Arnold Niehaus, City Clerk; the City will in December, 1958 prepare and pass an election ordinance to govern the municipal election to be held April 21, 1959.
The defendant City, in its answer to the petition for mandamus, took the position that the City had not at the time, December 19, 1956, of the filing of the petition calling for an election to abandon the managerial form of government, or at the time, April 16, 1957, of holding the election thereon, operated for four years or more under the managerial form, that the election to abandon of April 16, 1957 was contrary to the provisions of Section 20-13 of the Revised Cities and Villages Act, was null and void, and of no legal force and effect. The petitioner in his reply to the defendant City's answer took the position that at the time of the filing of the petition to abandon the City had not operated for four years or more under the managerial form, but that at the time of the election to abandon it had so operated four years or more, and denied the election to abandon was contrary to par. 20-13 of Ch. 24 or null and void or of no legal effect, and the petitioner also set forth certain other alleged affirmative matters or conclusions, which need not now be here detailed.
The Circuit Court by its order of December 17, 1958 held for the petitioner, granted the writ of mandamus, directing the defendant City forthwith to abide by the result of the election to abandon of April 16, 1957, and held, as is indicated in the Court's written opinion filed contemporaneously that the managerial form of government had originally gone into operation in the City immediately after the original vote of July 1, 1952 was found favorable to it, on July 1, 1952, and not on April 21, 1953 when the first Mayor and Council had been elected thereunder, or on May 4, 1953 when that Mayor and Council had taken office. The order for mandamus further directed the defendant City to comply with Ch. 24, Ill.Rev.Stats., par. 20-13, and Article 9, and such other parts of the Revised Cities and Villages Act as may be applicable in preparing and passing an election ordinance to govern the forthcoming Municipal Election to be held in April, 1959. The Order recites that the parties have stipulated of record to the facts and evidence.
The writ of mandamus was issued December 19, 1958 pursuant to that order. The return to the writ indicates that the City Council passed an ordinance December 29, 1958 for a primary election and a general election for the purpose of nominating and electing municipal officers, (the primary election to be held February 24, 1959, and a general election to be held April 21, 1959) for the election of a Mayor for a term of two years, and other officers,--a city clerk, a city treasurer, police magistrate, and aldermen for various terms in each of five wards of the City.
The defendant City of East Moline did not take an appeal from the mandamus order entered against it, but Frank J. Esposito, Ray Westerbeck and F. Joseph Ryan filed a notice of appeal therefrom, and it is that appeal from that order for mandamus which is before us.
It is recited in the notice of appeal that Frank J. Esposito is a citizen of the City of East Moline, and Mayor of that City, having been so elected April 16, 1957 for a four year term; that F. Joseph Ryan and Ray Westerbeck are citizens, landowners, taxpayers, and qualified electors of the City of East Moline, that they voted in the election of April 16, 1957, at which Frank J. Esposito was elected Mayor and voted for him; that Frank J. Esposito will be injured by the order appealed from, and benefited by a reversal thereof; that the order will deprive him of completing the four year term of office for which he was legally and validly elected on April 16, 1957, and that a reversal of the order will permit him to complete that term of office as Mayor to which he was so elected; and that the appellants F. Joseph Ryan and Ray Westerbeck will be injured by the order and benefited by its reversal because it deprives them of having the elected officer of their choice fulfill the term to which he was elected.
Motions were made in this Court by the defendant City, the original petitioner for mandamus, and the intervenor plaintiff or petitioner, to dismiss the appeal of Frank J. Esposito, F. Joseph Ryan and Ray Westerbeck upon the grounds that the appellants were not parties of record and have not shown a direct interest in the subject matter of the litigation, or that they are injured by the order for mandamus, or would be benefited by its reversal, or are competent to release errors. The appellees' motions and brief do not controvert the recitals of fact in the notice of appeal. The motions to dismiss the appeal were taken with the case.
We believe the motions to dismiss the appeal should be and are denied insofar as the appeal of Frank J. Esposito is concerned. He does not take an appeal officially as Mayor of the City of East Moline, but we believe that he, individually, in view of the office he held at the time of the order, has alleged such facts in his notice of appeal as come within the applicable provisions of the Civil Practice Act and entitle him to appeal, though he was not a party of record. Under Section 74 of the Civil Practice Act, in part,: '* * * The right heretofore possessed by any person not a party to the record to review a judgment or decree by writ of error is preserved by notice of appeal'. Ch. 110, Ill.Rev.Stats.1959, par. 74. Thereunder one not a party to the record has a right to appeal if it appears he has been injured by the judgment rendered, or will be benefited by its reversal, or is competent to release errors: Village of Westchester v. Holmes, 1945, 390 Ill. 436, 62 N.E.2d 410; Lenhart v. Miller, 1941, 375 Ill. 346, 31 N.E.2d 781; People ex rel. Yohnka v. Kennedy, 1937, 367 Ill. 236, 10 N.E.2d 806; Cf. Anderson v. Steger, 1898, 173 Ill. 112, 50 N.E. 665. It is to be assumed, under the circumstances, for the present purpose, that the appellant Frank J. Esposito was elected Mayor of the City of East Moline on April 16, 1957, ostensibly for a four year term, which, in the absence of some other applicable intervening facts or occurrences or law, would not expire until April, 1961. At the time the petition to abandon the managerial form of municipal government was here filed with the City Clerk, December 19, 1956, and the ordinance was passed submitting the...
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