People ex rel. McLaren v. DeBoice
| Decision Date | 18 November 1941 |
| Docket Number | No. 26187.,26187. |
| Citation | 377 Ill. 634,37 N.E.2d 337 |
| Parties | PEOPLE ex rel. McLAREN v. DEBOICE, Acting County Judge. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Original petition for writ of mandamus by the People, on the relation of Homer D. McLaren, against Benjamin S. DeBoice, Acting Judge of the County Court. On respondent's motion to dismiss.
Writ awarded.Homer D. McLaren, of Springfield, pro se, and Roscoe Bonjean, of Springfield, for relator.
A. H. Greening, State's Atty. and Paul Wanless, both of Springfield, for respondent.
We allowed the motion for leave to file a mandamus petition in this case. The respondent, Benjamin S. DeBoice, acting judge of the county court of Sangamon county, Illinois, moved to dismiss, and his motion is treated as a demurrer.
By the decision of this court in Barlick v. Kunz, 375 Ill. 318, 31 N.E.2d 283, it was held that the two candidates for the office of highway commissioner of the township of Springfield received 1580 votes each. The case was remanded with directions to the trial court to require the two parties to decide by lot, conformably to the directions of the court, which of them should be declared elected to the office named. Section 11 of article 7 of the Township Organization law, Ill.Rev.Stat.1939, chap. 139, par. 70, requires that where two or more persons are candidates for a township office, and ‘shall have an equal number of votes for the same office, the question of which shall be entitled to the office shall be decided between such persons by lot, under the direction of the town clerk, but he shall give each party notice of the time and place of drawing lots.’ This section applies to the situation that exists immediately after the election of a township officer when it appears that two or more candidates received the same number of votes for a single office. Section 120 of the Election law, Ill.Rev.Stat.1939, chap. 46, par. 123, p. 1429, provides: ‘If it appears that two or more persons have, or would have had if the legal ballots cast or intended to be cast for them had been counted, the highest and an equal number of votes for the same office, the persons receiving such votes shall decide by lot, in such manner as the court shall direct, which of them shall be declared duly elected; and the judgment shall be entered accordingly.’
This court's mandate in this election contest suit was filed in the county court of Sangamon county on February 18, 1941. The next day Barlick's counsel moved the court to re-instate said cause. The court heard testimony of John E. Murphy to the effect that William (Bill) Kunz, Jr., the contestee, had died on February 17, 1941. Homer D. McLaren had been counsel for Kunz and on February 19, 1941, Barlick's counsel contended McLaren could not be heard because his client had died. The court permitted McLaren to argue and it was his contention then that the cause should be returned to this court by some means or other, and that we should amend our order directing a drawing of lots.
On February 19, 1941, respondent herein entered a judgment in which he said that it was impossible to conform to the mandate of this court because of Kunz's death. He ordered the election contest proceeding reinstated on the docket of the county court and declared Frank Barlick elected. The next day McLaren, as an elector of Springfield township, intervened pursuant to section 22a of the Abatement act, Ill.Rev.Stat.1939, chap. 1, par. 22a, moved to vacate the judgment entered by respondent February 19, 1941, and asked that the election contest proceed to final judgment in compliance with the mandate of this court. This motion was overruled and respondent castigated McLaren for changing his position from that taken on February 19, 1941.
The section just referred to, on which McLaren relied, provides:
This section was involved in McKinley v. McIntyre, 360 Ill. 382, 196 N.E. 506, where we held that although formerly the death of a contestee abated an election contest propceeding (People v. Taylor, 342 Ill. 88, 174 N.E. 59) section 22a required the intervention of an elector, or the appointment of one by the court, and that the election contest proceed to final judgment.
Respondent contends that if section 120 of the Election law is construed correctly it applies only to an election contest at the close of which both parties are living and are found to have received an equal number of votes for the same office. In his ‘Points and Authorities,’ but not in his argument, respondent says:
In the first point of his argument respondent contends since the...
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