People ex rel. Meyer v. Kerner

• Decision Date: 13 September 1966
• Docket Number: No. 40127,40127
• Citation: 219 N.E.2d 617,35 Ill.2d 33
• Parties: State of Illinois ex rel. J. Theodore MEYER et al., Petitioners, v. Otto KERNER et al., Respondents. *
• Court: Illinois Supreme Court

Page 617

219 N.E.2d 617

35 Ill.2d 33

State of Illinois ex rel. J. Theodore MEYER et al., Petitioners, v. Otto KERNER et al., Respondents. ^*

No. 40127.

Supreme Court of Illinois.

Sept. 13, 1966.

Kirkland, Ellis, Hodson, Chaffetz & Masters, Don H. Reuben, Lawrence Gunnels and David W. Ruttenberg, Chicago, for petitioners.

William G. Clark, Atty. Gen., Springfield, Daniel P. Ward, State's Atty., and Stanley T. Kusper, Jr., Chicago, for respondents.

HOUSE, Justice.

An original petition for a writ of Mandamus has been filed, pursuant to leave, by J. Theodore Meyer and Mary K. Meany, nominees of the Republican Party for the office of Representative in the Illinois General Assembly for the 28th Representative District. The respondents are the members of the State Electoral Board, the County Clerk of Cook County, the members of the Board of Election Commissioners for the sociate judge of the circuit court of Cook County.

On February 27, 1966, 108 days prior to the primary election on June 14, 1966, the Representative Committee for the Republican Party for the 28th Representative District met and passed a resolution determining that there should be only two candidates nominated by the Republican Party from the 28th District. The resolution was filed in the office of Paul Powell, Secretary of State, on March 3, 1966, and was accepted by him. The official list of candidates compiled and published by the Secretary of State recited that only two Republican candidates be nominated from the 28th District. The Republican ballot for the District, as certified by the Electoral Board to the County Clerk and printed by the Board of Election Commissioners and used in the election for the District, recited that only two Republican candidates were to be nominated for the office of Representative in the General Assembly.

Petitioners, together with Joseph M. Adduci, were candidates for the nomination and their names appeared on the ballot in the 28th District in the primary election. On June 29, 1966, the respondent Board of Election Commissioners proclaimed the results of the election, from which it appears that candidate Meany had 16,962 1/2 votes, candidate Meyer had 6,327 votes, and candidate Adduci 6,083 1/2. Adduci filed a petition for a recount in which he alleged a miscount of ballots, and further sought to have the action of the Representative Committee and the State Electoral Board declared null and void because the certified copy of the resolution designating two candidates was filed in the office of the Secretary of State four days after the Representative Committee met rather than two days after such meeting.

On August 3, 1966, respondent Murphy entered an order decreeing that the act of the State Electoral Board certifying to the County Clerk that only two candidates were to be nominated in the Republican primary city of Chicago, and James E. Murphy, as-was void. He ordered that the Electoral Board certify to the County Clerk, who, in turn, must certify to the Election Commissioners, that three Republican nominees appear on the ballot in the November, 1966, election as candidates for the office of Representative. The ground for the order was the failure to comply with the requirements of section 8--13 of the Election Code, (Ill.Rev.Stat.1965, chap. 46, par. 8--13,) which reads in pertinent part: 'At least 90 days prior to the date of the June primary the Representative committee of each political party shall meet and, by resolution, fix and determine the number of candidates to be nominated by its party at the primary for Representative in the General Assembly. A copy of said resolution, duly certified by the chairman and attested by the secretary of the committee, shall within 2 days thereafter, be filed in the office of the Secretary of State, and in the office of the county clerk of each county, and in the office of each board of election commissioners having jurisdiction within the Representative district.' It is conceded that the resolution was not filed until four days after its passage but the 90-day provision was complied with in that it was filed 104 days prior to June 14, 1966, the date of the primary.

The members of the State Electoral Board, the members of the Board of Election Commissioners of the city of Chicago, and Edward J. Barrett, County Clerk of Cook County, filed separate answers submitting themselves to the jurisdiction and protection of this court and seeking instructions. Respondent James E. Murphy, associate judge of the circuit court of Cook County filed a motion to strike the petition and in the alternative files an answer seeking to justify his order.

This is an appropriate case for the use of our original Mandamus jurisdiction because it must be determined whether the order of the trial court is void for lack of power to enter it. (People ex rel. Woll v. Graber, 394 Ill. 362, 68 N.E.2d 750; People ex rel. Bradley v. McAuliffe, 24 Ill.2d 75, 179 N.E.2d 616.) In cases involving the election process, where the time factor alone would usually render an appeal futile, this court has seen fit to grant original writs of Mandamus. (People ex rel. Scott v. Kerner, 32 Ill.2d 539, 208 N.E.2d 561; People ex rel. Barrett v. Barrett, 31 Ill.2d 360, 201 N.E.2d 849; People ex rel. Nachman v. Carpentier, 30 Ill.2d 475, 197 N.E.2d 32; People ex rel. Daniels v. Carpentier, 30 Ill.2d 590, 198 N.E.2d 514.) The argument that a writ of Mandamus should not issue because there was no demand that the order be vacated, based upon Murphy v. City of Park Ridge, 298 Ill. 66, 131 N.E. 256, is without merit. The order here sought to be expunged does not merely effect the private rights of the petitioners, but it also involves the public interest. No demand is necessary when enforcement of a public right is sought. People ex rel. Allied Bridge & Const. Co. v. McKibbin, 380 Ill. 63, 43 N.E.2d 550; People ex rel. Barrett v. Barrett, 31 Ill.2d 360, 201 N.E.2d 849; People ex rel. Scott v. Kerner, 32 Ill.2d 539, 208 N.E.2d 561.

Election officials must know how their statutory duties are to be performed in ample time to permit orderly elections. We feel that they are entitled to our interpretation of the statute for their guidance, even though this case could be disposed of on jurisdictional grounds. First, respondent Murphy's order was beyond the scope of election contest proceedings, since such actions are limited to a determination of the result of an election. For example, in Welsh v. Shumway, 232 Ill. 54, 83 N.E. 549, it was held that the validity of nomination papers could not be contested; Cipowski v. City of Calumet City, 322 Ill. 575, 153 N.E. 613, involved the question of whether a petition for annexation was signed by the requisite number of voters and it was held that a contest of the validity of an election or an inquiry into the steps taken in calling and conducting an election is not contemplated by the statute; and in Glakemeier v. Calhoun, 3 Ill.2d 329, 121 N.E.2d 513, an election contest was held to be an inappropriate proceeding for...