People Ex Rel. Jesse C. Wheaton v. Wiant

• Decision Date: 30 September 1868
• Citation: 48 Ill. 263,1868 WL 5096
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS ex rel. JESSE C. WHEATONv.JOEL WIANT.
• Court: Illinois Supreme Court

48 Ill. 263

1868 WL 5096 (Ill.)

THE PEOPLE OF THE STATE OF ILLINOIS ex rel. JESSE C. WHEATON

v.JOEL WIANT.

Supreme Court of Illinois.

September Term, 1868.

OPINION TEXT STARTS HERE

This was an application for mandamus, to compel the county treasurer of Du Page county to transfer his office and place of business from Naperville to Wheaton, in that county.

Messrs. VALLETTE & VAN ARMAN, for the relator.

Messrs. GOUDY & CHANDLER, for the respondent.

Mr. JUSTICE WALKER delivered the opinion of the Court:

The respondent is the county treasurer of Du Page county, and is keeping his office, as such, at Naperville, and the object of this proceeding is to compel him to remove it to, and keep it at Wheaton. Naperville, it is admitted, was the county seat of that county, and still is, unless it has been changed under the provisions of the constitution and an act of the legislature, approved Feb. 13, 1867. By that act, the voters were authorized to vote upon the question of removing the county seat from Naperville to the town of Wheaton. A vote was had at the time, and in the manner required by the act, and the returns from the various precincts showed a majority of 117 in favor of removal; that, after the result was announced to them, the board of supervisors of the county selected a site for county buildings at Wheaton, adopted a plan therefor, and appointed a committee to superintend their erection. The buildings were erected, and on the 22d of July, 1868, the grounds upon which they had been constructed were conveyed to the county, for its use and benefit; and on that day, the board of supervisors being in session, by a vote of a majority of those present, accepted the deed and buildings previously erected; that respondent refused to remove his office to, and hold it in Wheaton.

By the return, it is insisted that the law under which this vote was had is unconstitutional, because it does not designate the point to which it was proposed to remove the county seat, as required by article 7, section 5, of the constitution. This objection does not, in fact, exist. The first section of the act (Private Laws, 1867, vol. 3, p. 894) provides for a vote being taken for and against the removal of the county seat, from its present location at Naperville, “to the point of the incorporated town of Wheaton, in said county.” This fixed the point as the constitution requires. It designates the incorporated town of Wheaton as the point to which it is proposed to remove the county seat, and provides for an election, as required by that section.

It is also objected, that it does not appear that the majority of the legal voters of the county voted at the election for a removal to Wheaton. The constitution requires that a majority of the voters shall vote in favor of the removal before it shall be done, and the act requires the same. In this case, it appears that the majority of the votes cast at the election on the question, were for removal, but the clerk's certificate does not show that those voting in its favor are a majority of the votes cast at that election. It was held, in The People ex rel. v. Warfield, 20 Ill. 160, that to give this provision of the constitution a practical operation, we must presume that it was the intention of the framers of that instrument that the voters would all vote, and that the majority of those voting should determine the question. To give it a different construction, would involve an inquiry, whether there were other voters of the county who had, from any cause, abstained from voting, and this would lead to interminable inquiry, and invite contests in such elections, which would be embarrassing and baneful, if it did not destroy all of the practical benefits of laws passed under these provisions of the constitution. The fourth section of the law requires the judges and clerks of elections to make returns as in other elections; and the fifth section requires the county clerk to canvass the returns, and to open and count the votes cast at the election, and if it shall appear that a majority of the legal voters of the county have voted for removal to Wheaton, then that place shall be the county seat of the county, and the county clerk is required to make a certificate of the result of the election, and spread the same on the records of the board of...