People ex rel. Schnackenberg v. Czarnecki

• Decision Date: 17 December 1912
• Citation: 100 N.E. 283,256 Ill. 320
• Parties: PEOPLE ex rel. SCHNACKENBERG v. CZARNECKI et al.
• Court: Illinois Supreme Court

256 Ill. 320

100 N.E. 283

PEOPLE ex rel. SCHNACKENBERG

v.CZARNECKI et al.

Supreme Court of Illinois.

Dec. 17, 1912.

Mandamus proceeding by the People, on the relation of Elmer J. Schnackenberg, against Antony Czarnecki and others. Writ denied.Donald R. Richberg and Edward B. Burling, both of Chicago, for petitioner.

Charles H. Mitchell, of Chicago (Edgar L. Masters, of Chicago, of counsel), for respondents.

PER CURIAM.

A petition was filed with the city clerk of the city of Chicago, nominating a candidate for chief justice of the municipal court of Chicago and candidates for associate judge of that court, together with candidates for other offices, and designating the party in whose behalf such nominations were made as the ‘Progressive Party (for Social Justice).’ The candidate for chief justice of the municipal court and several of the candidates for associate judge had been previously nominated for those offices by the Republican party at the primary election held on April 9, 1912. The board of election commissioners of the city of Chicago having charge of the printing of the ballots for the election of November 5, 1912, decided that the law prohibited the placing of a candidate's name in two or more columns on the ballot, and therefore refused to print the names of the candidates for chief justice and associate judge of the municipal court so nominated by petition, as well as by the Republican party at a primary election, in the column with the other candidates so nominated by petition, and also in the column with the other Republican candidates. Thereupon the relator, who was a signer of the nominating petition, having obtained leave of the court, filed a petition in this court for a writ of mandamus against the board of election commissioners, commanding them to cause the names of the candidates for chief justice and associate judge of the municipal court of Chicago so nominated by petition on behalf of the Progressive party (for social justice), and also nominated by the Republican party, to be printed on the ballots in the column with the names of the other candidates of the Progressive party (for social justice). The cause was submitted upon demurrer to the petition, and upon oral and printed arguments on behalf of both parties.

Counsel for the relator argue that the provisions of the Ballot Law (Hurd's Rev. St. 1911, c. 46, §§ 288-323), which the respondents regarded as prohibiting them from printing the name of a candidate in two places on the ballot, did not do so, for the reasons that they have been repealed, by implication, by the Primary Election Act (Hurd's Rev. St. 1911, c. 46, §§ 452-545), and that they are in violation of the constitutional provision that ‘all elections shall be free and equal.’

The Ballot Law, which provides for the printing and distribution of ballots at public expense, was adopted in 1891. It contained no provision prohibiting the printing of names of candidates in more than one place on the ballot for the same office, except the provision in section 5 that the name of any candidate whose name might appear in any other place on the ballot should not be added by petition for the same office. Section 8 provided that any one whose name had been presented as a candidate might withdraw from the nomination by filing with the Secretary of State his request in writing, signed and acknowledged before an officer authorized to take acknowledgments of deeds. In 1897 (Laws 1897, p. 211) and in 1903 (Laws 1903, p. 174) section 8 was amended, so that it now reads as follows: ‘Any person whose name has been presented as a candidate or who has been nominated by more than one convention, caucus or meeting of qualified voters, may cause his name to be withdrawn from any such nomination by his request in writing, signed by him and duly acknowledged before an officer qualified to take acknowledgment of deeds, and filed with the Secretary of State not less than twenty-five (25) days, or with the proper clerk not less than thirteen (13) days previous to the day of election, and no name so withdrawn shall be printed upon the ballots under the party appellation or title from which the candidate has withdrawn his name. In case the certificate of nomination or petition as provided for in this act shall contain or exhibit the name of any candidate for any office upon more than one of said certificates or petitions (for the same office), then and in that case the Secretary of State or county clerk, as the case may be, shall immediately notify said candidate of said fact and that his name appears unlawfully upon more than one of said certificates or petitions, and that within three (3) days from the receipt of said notification, said candidate must elect as to which of said political party appellations or groups he desires his name to appear and remain under upon said ballot, and if said candidate refuses, fails or neglects to comply with the provisions herein, then and in that case the Secretary of State or county clerk, as the case may be, shall not permit the name of said candidate to appear or be printed or placed upon said ballot under any or either of said political party appellations or groups. All certificates of nomination and nomination papers when filed shall be open, and under proper regulation, to public inspection, and the Secretary of State and the several clerks having charge of nomination papers shall preserve the same in their respective offices not less than six months.’

[1] However defective the language of this section may be in the expression of the legislative intention, it manifestly was designed to prevent the name of a candidate from appearing upon the ballot under the name of more than one party or group of petitioners, and provides the method of its withdrawal if it shall appear on more than one certificateor petition for the same office. Whether the provision for notice to the candidate, and for his election as to which party appellation he desires his name to remain under, and for the omission of his name from the ballot on his failure to elect, violates any constitutional right is a question not arising in this case. No facts are alleged presenting that question, but the only question is the right of a group of petitioners to have the name of a candidate already nominated by a political party appear in two places on the ballot. It is not alleged that any intention exists not to print the candidate's name in accordance with the first nomination. If the provision for notice and election of nominations should be eliminated, the officer who must act, whether the nomination be for a state, county, or municipal office, may justly regard the first nomination as the one to be printed on the ballot, where only one can be so printed, and the nominee does not within a reasonable time elect another.

The Primary Election Law was passed in 1910, sections 58 and 59 of which, so far as necessary to be here considered, are as follows:

‘Sec. 58. The persons receiving the highest number of votes at a primary as a candidate of a party for the nomination for an office shall be the candidate of that party for such office, and his name as such candidate shall be placed on the official ballot at the election then next ensuing. * * *

‘Sec. 59. * * * When the nomination is made for an office to be filled by the electors of an entire city or village, including alderman, and where it is the duty of the city or village clerk to prepare the official ballot for the election, it shall be the duty of the city or village clerk, under this act, to place upon the official ballot to be voted at the election the names of all candidates nominated for office, as herein provided, as shown by the certificate of the canvassing board on file in his office. * * *’

[2][3]It is contended that these sections repeal, by implication, section 8 of the Ballot Law. Repeals by implication are never favored, and a subsequent statute will never be held to have repealed a prior statute by implication,...