People ex rel. Rago v. Lipsky

• Decision Date: 21 March 1945
• Docket Number: No. 28491.,28491.
• Citation: 390 Ill. 70,60 N.E.2d 422
• Parties: PEOPLE ex rel. RAGO v. LIPSKY et al.
• Court: Illinois Supreme Court

390 Ill. 70

60 N.E.2d 422

PEOPLE ex rel. RAGO

v.LIPSKY et al.

No. 28491.

Supreme Court of Illinois.

March 21, 1945.

Appeal from Superior Court, Cook County; John C. Lewe, Judge.

Mandamus by the People, on the relation of Antonia E. Rago, against Harry A. Lipsky and others, constituting the Board of Election Commissioners of the City of Chicago, to require defendants to permit petitioner to be registered as a voter under her maiden name. From an adverse judgment, defendants appealed and cause was transferred to the Supreme Court.

Cause transferred back to the Appellate Court.

Cassius M. Doty, of Chicago, for appellants.

Urban A. Lavery, of Chicago, for appellee.

GUNN, Justice.

Antonia E. Rago filed her petition in the superior court of Cook county for a writ of mandamus against the members of the Board of Election Commissioners of the city of Chicago to require them to permit her to be registered as a voter in the city of Chicago under the name of Antonia E. Rago, rather than as Antonia Rago MacFarland, as required by appellants, by reason of being married on February 12, 1944, to one William C. MacFarland. The commissioners answered denying she was entitled to such relief. A stipulation was filed agreeing that the cause be tried upon the plaintiff's petition, defendants' motion to strike, and defendants' verified answer and certain additional facts. The court made a finding in favor of plaintiff and ordered and commanded the defendants: (a) To restore the records of registration of the petitioner under the name of Antonia E. Rago to the active registration records of said commissioners, and to desist from holding that the petitioner be required to register under any other name than Antonia E. Rago; and (b) the commissioners were further ordered and commanded, notwithstanding the marriage of the petitioner with William C. MacFarland, to hereafter recognize and accept the registration of the said petitioner in her precinct and ward under the name of Antonia E. Rago for succeeding elections, so long as she shall be otherwise qualified to register.

The petition shows that the plaintiff has lived in her present place of residence practically all of her life; that she has been a member of the bar of Illinois since 1938, and is admitted to the bar of other jurisdictions and has maintained her individual law office under the name and style of Antonia E. Rago, and desires to keep her professional name in that respect; and that after she was married on February 12, 1944, she received a notice March 25, 1944, from the chief clerk of the Board of Election Commissioners notifying her that the registration under her former name would be removed under the provision of the Election Code, which provides that persons who change their names by marriage or otherwise must register anew to be entitled to vote, and accordingly she lost her right to vote in the April primaries, 1944.

The commissioners appealed to the Appellate Court for the First District, and filed record, briefs and abstracts in that court. A motion was made by appellee to transfer the cause to the Supreme Court on the ground that constitutional questions are involved in the decision of the case, in accordance with the affidavit filed in said cause by the attorney for plaintiff. The cause was thereupon transferred to the Supreme Court by order entered November 20, 1944.

The first question to be disposed of notwithstanding the transfer of the cause to this court is whether we have jurisdiction. The plaintiff based her right to be registered in her unmarried name upon the proposition that it was not necessary for a married woman to adopt her husband's name. The petition does not question or raise the validity of the section of the statute requiring a registered voter, who changes his or her name by marriage or otherwise, to reregister. Ill.Rev.Stat.1943, chap. 46, par. 6-54. No question is raised as to the construction of this section of the statute, whether it be mandatory or directory. The only matter remotely approaching a constitutional question is the setting out at length of the nineteenth amendment to the constitution of the United States, which provides that the rights of citizens to vote shall not be denied or abridged on account of sex. It is not alleged that any provision of the Illinois statutes is in contravention of the constitution of the United States or of Illinois.

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