People ex rel. Peace v. Taylor

• Decision Date: 18 December 1930
• Docket Number: No. 20533.,20533.
• Citation: 342 Ill. 88,174 N.E. 59
• Parties: PEOPLE ex rel. PEACE v. TAYLOR, Circuit Judge.
• Court: Illinois Supreme Court

342 Ill. 88

174 N.E. 59

PEOPLE ex rel. PEACE

v.TAYLOR, Circuit Judge.

No. 20533.

Supreme Court of Illinois.

Dec. 18, 1930.

Original petition for writ of mandamus by the People, on the relation of Charles E. Peace, against Thomas Taylor, Circuit Judge, in which Wallace F. Kirk filed an intervening petition.

Writ awarded.John F. Tyrrell and Werner W. Schroeder, both of Chicago, for petitioner.

Floyd E. Thompson and John D. Black, both of Chicago, for respondent.

Urban A. Lavery, of Chicago, for intervener.

STONE, J.

This is an original petition for a writ of mandamus. The facts alleged in the petition are not disputed and are as follows: On April 8, 1930, a primary election was held for nomination of a candidate of the Republican Party for the office of state senator for the Twenty-Ninth senatorial district in the county of Cook. There were three candidates: John T. Joyce, Wallace F. Kirk, and Charles J. Monahan. The board of election commissioners of the city of Chicago on May 8, 1930, filed with the county clerk their certificate showing the results of that primary, and that clerk in turn filed his certificate of like character in the office of the secretary of state. The state primary canvassing board canvassed the returns of said primary election, and on May 16, 1930, made proclamation thereof as required by law, showing that John T. Joyce had received 4,268 votes, Wallace F. Kirk 3,997 votes, Charles J. Monahan 188 votes, and that two votes were cast which the certificate characterizes as ‘scattering.’ This certificate shows that John T. Joyce was the nominee of the Republican Party for the office of state senator. Thereafter, on May 20, 1930, Kirk filed a primary election contest in the circuit court of Cook county, in which Joyce and Monahan were named as defendants. That contest bore the title of Wallace F. Kirk, contestant, v. John T. Joyce and Charles J. Monahan, and the general number B200769. In the contest petition Kirk alleged divers frauds and irregularities and prayed that the ballots be brought into court and recounted, and that he be declared the nominee. Issue was joined, and the contest proceeded to a hearing before the respondent, one of the judges of the circuit court of Cook county. That hearing proceeded until July 12, 1930, and was on that date, by stipulation of the parties, continued to September 22, 1930. During the intervening period the respondent was absent from the state.

On August 16 John T. Joyce died, and on August 28 the counsel who appeared for Joyce in the primary contest appeared before Hon. David M. Brothers, who was holding ‘emergency court’ in the circuit court during the month of August, and moved for leave to appearas amicus curiae to suggest the death of Joyce and that the suit be held to be abated. A hearing on this motion was set for September[342 Ill. 91]4, on which day Judge Brothers entered an order reciting that the cause had abated, and dismissed the petition. On September 22, 1930, the respondent returned to Chicago and on motion of Kirk set aside the order of Judge Brothers declaring the cause abated, and proceeded to a further hearing of the contest on its merits, and on September 27, 1930, entered an order finding that fraud had existed in certain precincts at the primary election, which he endeavored to purge by throwing out ballots in several precincts, and found as a result that Kirk had received 3,979 votes and Joyce 3,823 votes for the nomination for state senator. The order also found that Monahan received 188 votes, as was shown by the certificate of the returns for the nomination of officers.

The petition for mandamus sets up that the relator is, and has for more than five years last past been, a resident of the Twenty-Ninth senatorial district; has for that period of time, and longer, had all the qualifications prescribed by law for the office of state senator for the Twenty-Ninth senatorial district; that he is a member of the Republican Party, and that on August 25, 1930, the senatorial committee for that district, for the purpose of filling the vacancy in the nomination of the Republican Party for the office of state senator caused by the death of Joyce, nominated the relator as candidate of the Republican Party for that office and executed their certificate to that effect. The petition also avers that on September 12, 1930, the senatorial committee caused its certificate to be filed in the office of the secretary of state, together with a certified copy of the decree of the circuit court entered on September 4 showing the death of Joyce and the abatement of the contest, and that the state primary canvassing board found that by reason of the death of Joyce a vacancy existed in the Republican ticket in the Twenty-Ninth senatorial district for the office of state senator. The petitioner charges that by reason of the acts of the respondent as judge of the circuit court the state canvassing board is withholding his certificate as nominee, and he prays that a writ of mandamus issue directed to the respondent, as judge of the circuit court, commanding him to expunge from the records of that court the order of September 27 declaring Kirk to be the nominee. Leave was granted by the court to file this petition, and a rule was entered on the respondent to answer the same by a short day. The respondent demurred to the petition, and issues were made up on the sufficiency of the facts alleged therein as basis for the relief prayed. Kirk, the contestant in the election contest, was granted leave to, and did, file his intervening petition, which recites the facts set out in the petition and certain additional facts having to do with what occurred in the circuit court on the hearing of the election contest, and joins in the demurrer of respondent to the petition filed. Kirk was given leave to join in respondent's brief and argument in this court.

By reason of the fact that to be of avail to the parties interested an early determination of the questions involved herein was necessary, this court at the October, 1930, term, entered judgment awarding the writ, which judgment is based on the following considerations:

The first question arising on the petition is whether on the death of Joyce the suit abated. The relator argues that this question is settled by Olson v. Scully, 296 Ill. 418, 129 N. E. 841, while the respondent argues that Olson v. Scully is to be distinguished from this case, and also that the ruling in that case is not in accord with the weight of authority. In that case Edwin A. Olson, Thomas F. Scully, and William A. Cunnea were candidates on the Republican, Democratic, and Socialist tickets, respectively, for the office of county judge of Cook county. The certificate of the canvassing board showed Scully to have been elected by a plurality of 12,610 votes. Olson filed a petition to contest the election. Cunnea answered, neither admitting nor denying the allegations of the petition. The contest proceeded to a hearing, and the court found that Scully had received 172,342 votes, Olson 166,397, and Cunnea 25,255, and declared Scully elected. The cause was appealed to this court, and while pending here Scully died. Counsel for Scully in the contest filed a motion to appear as amicuscuriae to suggest that the cause had abated. That motion was allowed, and the cause was declared abated. This court in that opinion considered most of the questions involved in this case. Attention was there called to the well-established rule of the common law that the death of either party at any stage of a proceeding abated the action. The statute on abatement was there considered, and it was held that the action did not come within the provisions of that statute abolishing in certain cases the common-law rule. Not only the arguments of counsel in this case were there considered, but cases cited in support of the respondent's contentions in his brief and argument in this case were there cited and considered. On further consideration of the questions involved, we adhere to the decision in that case. That decision in binding here unless the cases can be distinguished. The ground upon which distinction is sought to be established by the respondent in this case is that this is a contest under the Primary Election Law, while in Olson v. Scully, supra, the contest arose over the result of a general election. The contest, in this case is brought undersection 62 of the Primary Act of 1927 (Laws of 1927, p. 487), which provides that any candidate whose name appears on the primary ballot of a political party may contest the election of the candidates nominated on the face of the returns by his political party. The section sets out the provisions governing the procedure before the court in which the contest shall be heard. Jurisdiction is vested in the county or circuit court to hear primary contests. Summons must be issued and served as in the manner provided in cases in chancery. The case may be heard and determined by the court in term time or by the judge thereof in vacation. It is also provided that, if the grounds alleged are sufficient in law, the court shall proceed in a summary manner and may hear evidence, examine the returns, recount the ballots, and make such order and enter such judgment as justice may require, and shall declare by decree, as in chancery, to be entered of record in the court, the result of the election. The judgment of the court shall be final. In a contest under the General Election Law, § 113 et seq., the statute (Cahill's Rev. St. 1929, p. 1169, par. 126 et seq.) requires the filing of the statement...