People ex rel. Woods v. Green

• Decision Date: 16 October 1914
• Docket Number: No. 9085.,9085.
• Citation: 106 N.E. 504,265 Ill. 39
• Parties: PEOPLE ex rel. WOODS, County Collector, v. GREEN.
• Court: Illinois Supreme Court

265 Ill. 39

106 N.E. 504

PEOPLE ex rel. WOODS, County Collector,

v.GREEN.

No. 9085.

Supreme Court of Illinois.

Oct. 16, 1914.

Appeal from Edgar County Court; Dan V. Dayton, Judge.

Proceeding by the People, on the relation of A. E. Woods, County Collector, against James A. Green for a judgment for delinquent taxes. From an order sustaining defendant's objections, the People appeal. Reversed and remanded, with directions.W. H. Hickman, State's Atty., and Shepherd & Trogdon, all of Paris, and Jas. W. & Edw. C. Craig, of Mattoon, for the People.

H. S. Tanner, F. C. Van Sellar, W. S. Lamon, W. V. Arbuckle, and Fred Rhoads, all of Paris, for appellee.

CARTER, J.

The collector of Edgar county applied to the county court of that county, at the June term, 1913, for judgment against the lands of James A. Green, appellee, for taxes alleged to be delinquent. Green filed objections, which were sustained. The people have prosecuted an appeal to this court from the order of the county court refusing judgment.

The taxes involved were levied for purpose of constructing hard roads in the town of Embarrass and for the payment of principal and interest on bonds issued to raise funds to build hard roads. The objections raised the question of authority in the commissioners of highways to levy these taxes, on the ground that the returns of the election at which was submitted the question of levying a tax for hard roads had never been canvassed by the officers designated by the statute for that purpose. The town of Embarrass has two voting precincts, and an election was held in each of these precincts to vote on a tax for hard road purposes. After the election was held returns were filed with the town clerk, and said returns were canvassed by him and one of the justices of the peace of said town. The proposition was by these officers declared carried.

[1] Section 3 of the Hard Roads Law provides (Hurd's Stat. 1911, p. 2036, c. 121, § 247) that ‘if a majority of all the ballots cast at said election shall be in favor of said special tax, then it shall be the duty of the commissioners of highways of the township * * * to levy a tax in accordance with said vote.’ Section 4a of that act, as amended in 1909 (Hurd's Stat. 1911, p. 2036, c. 121, § 248a), provides that the returns of the election shall be ‘made in the same manner as other special town (or district) elections are now or may hereafter be provided by law.’ This last is the only portion of the act which might be construed as referring in any way to the canvass of the returns, and only provides how the returns shall be made, and not how they shall be canvassed. Section 7 of article 7 of the Township Act provides (Hurd's Stat. 1913, p. 2444, c. 139, § 67) that in organized townships ‘the supervisor, together with the assessor and collector, shall, within five days thereafter, meet and canvass said returns and declare the result of said election.’ While this section does not refer specifically to canvassing the returns as to propositions, in our judgment the Legislature intended that the elections held under the hard roads statute in counties under township organization should on any question be canvassed by the same board as under the law is required to canvass other township elections; that is, the supervisor, assessor, and collector. The town clerk and justice of the peace were therefore without authority to act as a canvassing board or to declare the result of this election.

[2][3][4][5][6] Can this tax, as levied by the highway commissioners, be questioned in this proceeding because the canvass was not made by the proper officials? In considering the question as to ascertaining the result in elections on questions submitted for adoption or rejection by the electorate, the usual rule seems to be that the votes are counted and the returns made in the same manner as in other elections, unless there is some provision to the contrary. The canvassing of the votes by the wrong officers, however, is but a mere irregularity. 5 McQuillin on Mun. Corp. § 2200. In a township election in this state where railroad bonds had been voted and the ordinary judges of election had canvassed the votes instead of the moderator of the town meeting, it was held by the United States Circuit Court in Mercy v. Ohio, 17 Fed. Cas. 64, that this was not vital; that ‘the main thing in this election was to determine whether there was a majority of the voters in favor of the subscription, upon the conditions named. There is no dispute but that there was such a majority; and the fact that certain persons named as judges, by common consent, received the votes, and canvassed them, is nothing more than an irregularity,’ etc. This decision was affirmed in 85 U. S. (18 Wall.) 552, 21 L. Ed. 813. The canvass of the returns or the certificate of election is merely prima facie evidence as to the result. In a proper proceeding the authorities may go behind the certificate or the canvass and ascertain the real facts. The duties of the canvassing board are merely ministerial, and omissions or mistakes of that board can have no controlling influence on the election. 15 Cyc. 382, 387, and cases cited. ‘The failure or refusal of the proper officer to issue a certificate of election to a person duly elected to an office cannot operate to deprive such person of his rights. The certificate or commission is the best, but not the only, evidence of an election, and if that be refused secondary evidence is admissible.’ McCrary on Elections (4th Ed.) § 205. It is not in the power of election officials, by neglecting or refusing to give the proper certificate, to defeat the will of the people, for the ballots determine the election, and not the certificate, and the person chosen from whom the certificate is withheld may nevertheless proceed to qualify and take possession of the office unless opposed by a de facto incumbent. The right to the office depends on the ballots, and not on a commission. Cooley's Const. Lim. (7th Ed.) 934, 940; State v. Draper, 50 Mo. 353. The legality of the election and the rights, powers, and duties of the office do not depend upon the fact of the declaration of the board of elections. ‘That declaration is proper, and is the usual practice, but withholding it, or neglecting causelessly or illegally to make it, will not prevent the installation in, and investment with, the office. The authority, rights, and powers of such officers are derived from the election, and not from the returns, which are the usual prescribed evidences of it.’ People v. Kilduff, 15 Ill. 492, 60 Am. Dec. 769. In reaching the correct results in proper proceedings in election matters very little attention is paid to mere irregularities in the acts of election officers which do not affect the real merits of the case. If the statute expressly declares any particular act to be essential to the validity of the election or that its omission...