People ex rel. Sandberg v. Grabs

Decision Date10 April 1940
Docket NumberNo. 25479.,25479.
Citation26 N.E.2d 494,373 Ill. 423
PartiesPEOPLE ex rel. SANDBERG et al. v. GRABS et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Quo warranto proceeding by the People, on the relation of Robert M. Sandberg and others, against B. H. Grabs and others, charging that defendants were usurping the offices of members of the board of fire and police commissioners of the City of Chicago Heights. The chief of police, the acting police matron, and certain police officers and firemen were permitted to intervene, and they made the City of Chicago Heights, the mayor, and various officers thereof defendants to the intervening petition. From a judgment holding an election void and dismissing the proceeding, relators and the mayor appeal. Upon a suggestion that the Supreme Court had no jurisdiction, the appellants filed a motion to determine if the Supreme Court had jurisdiction before arguments were made on the merits, and the appellees filed a counter motion to dismiss the appeal or transfer it to the Appellate Court for the First District.

Motion to dismiss or transfer denied, and judgment affirmed.Appeal from Superior Court, Cook County; Francis B. Allegretti, judge.

Michael F. Ryan and Richard F. McPartlin, Jr., both of Chicago, for appellants.

Warren H. Orr, of Chicago, for appellees.

FARTHING, Justice.

The State's attorney of Cook county filed a complaint in quo warranto in the superior court in the name of the People of the State of Illinois on the relation or Robert M. Sandberg, John M. Gravelot, Jr., and William H. Laue, in which he charged that B. H. Grabs, B. J. Schwoeffermann and Charles C. Donovan were usurping the offices of members of the board of fire and police commissioners of the city of Chicago Heights. The complaint alleged the city had adopted the commission form of municipal government in 1921; that on April 18, 1939, the electors of Chicago Heights adopted the Fire and Police Commissioners act; that on April 28, 1939, the mayor appointed the relators to be the first members of the board of fire and police commissioners; and that on May 8, 1939, the city council appointed the defendants to the same offices. The defendants filed an amended answer admitting substantially the allegations in the complaint, but asserted that the city council, and not the mayor, had the power to appoint the first members of the board. Relators filed a motion for judgment on the pleadings, and raised the question of law as to who had the appointive power, the mayor or the city council. On September 8, 1939, the superior court granted leave to the chief of police, the acting police matron and certain police officers and firemen to intervene. Their petition charged that they had an interest in the quo warranto proceeding; that the ballot used at the election on the question of adopting the Fire and Police Commissioners act did not conform to the statute, and that since the act had not been legally adopted by the voters, the officers of members of the board of fire and police commissioners of Chicago Heights did not legally exist. The city of Chicago Heights, the mayor and various officers thereof, were made defendants to the intervening petition. The original defendants answered that on September 12, 1939, they resigned their positions as members of the board of fire and police commissioners and prayed that they be dismissed. The relators and the mayor moved to strike the intervening petition. The court denied the motion to strike, held the election of April 18, 1939, void, and dismissed the quo warranto proceeding. Relators and the mayor have appealed directly to this court for the reason that a franchise is involved. Appellees suggested in their brief that this court had no jurisdiction. Appellants then filed a motion to determine if this court had jurisdiction before arguments were made on the merits of the case. Appellees filed a counter-motion to dismiss the appeal, or transfer it to the Appellate Court for the First District. Both motions were taken with the case.

The title to a public office and the right to perform its duties does not involve a franchise. People v. Pettow, 320 Ill. 572, 151 N.E. 673;People v. Hogan, 335 Ill. 463, 167 N.E. 18. However, where the suit involves not only the right of the defendants to hold the office to which they claim to have been elected, but also the legal existence of the office, a franchise is involved. Rostad v. Chicago Suburban Water & Light Co., 211 Ill. 248, 71 N.E. 978;People v. Cooper, 139 Ill. 461, 485, 486, 29 N.E. 872;People v. City of Spring Valley, 129 Ill. 169, 21 N.E. 843. The intervening petition charged, in substance, that the city of Chicago Heights was attempting to operate under the Fire and Police Commissioners act without having legally adopted it. The existence of the office to which relators claim title was attacked, and a franchise is involved. The motion to dismiss or transfer is denied.

Appellees next contend that the abstract of the record is insufficient to sustain the appeal, because it does not show the nature of the notice of appeal or upon which parties it was served. An appeal is perfected when the notice of appeal is filed in the lower court, and no other step in the perfecting of an appeal is jurisdictional. Ill.Rev.Stat.1939, chap. 110, § 200(2). sec. 76(2). It is not contended that the notice of appeal was not filed in proper time, or that it was not properly served, but only that the abstract was insufficient. It appears from the abstract that the judgment of the lower court was entered on October 3, 1939; that on November 9, 1939, the notice of appeal was filed, and November 13, 1939. Proof of service of notice of appeal.’ This shows that the notice of appeal was served within ninety days after the entry of the judgment appealed from, and within but four days after it was filed. Rule No. 38 of this court (370 Ill. 43) regulates the making of an abstract. It must be sufficient to present fully every error relied upon, and it will be taken to be accurate and sufficient for a full understanding of the questions presented for decision, unless the opposite party shall file a further abstract, making necessary corrections or additions. To dismiss this appeal for failure to fully abstract the notice of appeal and proof of its service where no point is made as to it being regularly and properly filed or served, would be highly technical, and would defeat the announced purpose of section 4 of the Civil Practice Act which provides that the act shall be liberally construed to the end that controversies may be speedily and finally determined, according to the substantive rights of the parties. Ordinarily, the appellee must supply an additional abstract if he deems appellant's abstract insufficient. He cannot obtain the dismissal of the appeal, except for flagrant disregard of the rule.

Appellants contend that appellees should not have been permitted to intervene; that they have no interest which would entitle them to intervene; that they were bound to take the issues as they found them, and that the petition to intervene should have alleged that appellees had not participated in the election. The contentions that appellees have no interest which would entitle them to intervene and that they should have alleged they did not participate in the election ignore the public nature of this quo warranto proceeding. The original complaint was filed by the State's attorney on the relation of three persons claiming the offices they alleg...

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27 cases
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    • United States
    • Illinois Supreme Court
    • March 29, 1976
    ...par. 301; 58 Ill.2d R. 301; People ex rel. Pickerill v. New York Central R.R. Co., 391 Ill. 377, 63 N.E.2d 405; People ex rel. Sandberg v. Grabs, 373 Ill. 423, 26 N.E.2d 494. We would note that there was no evidence of prejudice to the Registrar because of the failure to serve him. Prior to......
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    ...law prescribes the method by which it is to be submitted to a referendum, that method must be followed. (E.g., People ex rel. Sandberg v. Grabs (1940), 373 Ill. 423, 26 N.E.2d 494; People ex rel. Hudson v. Cleveland, Cincinnati, Chicago and St. Louis Ry. Co. (1935), 360 Ill. 180, 195 N.E. 6......
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    ...Ill. 362, 52 N.E.2d 708;People ex rel. Burkholder v. Peoria and Eastern Railway Co. 375 Ill. 197, 30 N.E.2d 651;People ex rel. Sandberg v. Grabs, 373 Ill. 423, 26 N.E.2d 494. The direction of the act, that the proposition to be voted upon should be on a separate ballot, was not in any sense......
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    ...of many rights, both public and private, which could not have been vindicated at common law by quo warranto. (People ex rel. Sandburg v. Grabs (1940), 373 Ill. 423, 26 N.E.2d 494; People ex rel. Raster v. Healey (1907), 230 Ill. 280, 82 N.E. 599.) The Quo Warranto Act enacted in our State i......
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