People ex rel. Yarrow v. Lueders

• Decision Date: 20 February 1919
• Docket Number: No. 12484.,12484.
• Citation: 287 Ill. 107,122 N.E. 374
• Parties: PEOPLE ex rel. YARROW v. LUEDERS et al., Board of Election Com'rs.
• Court: Illinois Supreme Court

287 Ill. 107

122 N.E. 374

PEOPLE ex rel. YARROW

v.LUEDERS et al., Board of Election Com'rs.

No. 12484.

Supreme Court of Illinois.

Feb. 20, 1919.

Petition for mandamus by the People, on the relation of Philip Yarrow, to be directed to August Lueders and others, the Board of Election Commissioners of the City of Chicago. Writ awarded.Frank B. Ebbert and Charles H. Watson, both of Chicago (Frank J. Loesch, Charles S. Cutting, Daniel L. Cruice, and Robert McMurdy, all of Chicago, of counsel), for petitioner.

Colin C. H. Fyffe, of Chicago, for respondents.

CARTWRIGHT, J.

By leave of court a petition in the name of the people of the state of Illinois, upon the relation of Philip Yarrow, a citizen, resident, and registered legal voter of the city of Chicago and one of the signers of a petition for the submission to the voters of said city of the proposition, ‘Shall this city become anti-saloon territory?’ was filed in this court, praying for a writ of mandamus directed to the respondents, August Lueders, Bernard Horwich, and Frank X. Rydzewski, the board of election commissioners of said city, commanding them to give notice, in the manner provided by law, of the submission of such question at the next election for officers in said city, to be held on Tuesday, April 1, 1919. The defendants answered the petition, and the cause has been submitted for decision on the petition and answer.

A proceeding for a writ of mandamus is an action at law, and the petition, answer, and subsequent pleadings are governed by the same rules as apply to an ordinary action at law. Silver v. People, 45 Ill. 224;Dement v. Rokker, 126 Ill. 174, 19 N. E. 33;Board of Supervisors v. People, 159 Ill. 242, 42 N. E. 777;People v. Board of Education, 236 Ill. 154, 86 N. E. 206. The petition takes the place of the alternative writ at common law and is in the nature of a declaration. City of Chicago v. People, 210 Ill. 84, 71 N. E. 816;People v. Pavey, 151 Ill. 101, 37 N. E. 691;People v. Busse, 247 Ill. 333, 93 N. E. 335. An answer to the merits of a petition for a writ of mandamus waives a demurrer, and an issue at law as to the right of the petitioner for the relief prayed for on the facts stated in the petition cannot be raised by setting up in an answer facts designed to raise such an issue. Chicago Great Western Railway Co. v. People, 179 Ill. 441, 53 N. E. 986. A respondent may demur or answer, and, if he answers, the answer must traverse by distinct and direct denial the facts alleged in the petition upon which the claim of the relator is founded, or by confession and avoidance set up other facts sufficient in law to defeat the claim. All the material facts alleged in the petition and not denied by the answer are admitted to be true. Chicago & Alton Railroad Co. v. Suffern, 129 Ill. 274, 21 N. E. 824;People v. Crabb, 156 Ill. 155, 40 N. E. 319;People v. Commissioners of Cook County, 180 Ill. 160, 54 N. E. 164. Facts charged in the petition and denied by the respondent must be proved by the relator, but, if not denied, are admitted, and matters alleged in avoidance of the charge made, if not denied by the relator, are admitted, but, if denied, must be proved by the respondent. Although every fact alleged in the petition and not denied has been admitted as a matter of law, the answer of the respondents admits seriatim the material averments of fact in the petition, but denies as a conclusion of law that the proceedings of the respondents upon the petition, and the denial thereof, were without lawful power and authority. The answer sets up the pendency of proceedings in the superior court of Cook county for a writ of mandamus, based on the petition for the submission of the question whether the city should become anti-saloon territory.

Applying these settled rules of pleading, we find the facts to be as follows: The total vote cast in the city of Chicago at the last regular election for choosing city officers, held on April 3, 1917, was 425,868. The statute required a petition containing the signatures of legal voters in number not less than one-fourth of the total vote cast at such preceding election, and on January 31, 1918, more than 60 days before the regular annual election for choosing city officers, to be held on April 2, 1918, there was filed in the office of the respondents, as the board of election commissioners of the city, a petition upon which there were the signatures of not less than 106,467 persons, who signed the same as duly registered legal voters of the city, and on the petition were all the particulars required by the statute, and they are detailed in the petition of relator. The petition contained 8,663 sheets bound together, and by statute it was made prima facie evidence that the signatures, statements of residence, and dates thereon were genuine and true, and the persons signing the same were registered legal voters of the city of Chicago. The petition remained in the office of the respondents from the time of its presentation on January 31, 1918, to March 5, 1918, witout any action by the respondents. In the meantime persons interested in the manufacture of and traffic in intoxicating liquor were allowed to separate the sheets and copy the same and make photographic copies, and said persons put over 100 copyists and checkers at work copying and checking the petition, who were continuously engaged in that work for 8 weeks. Cards were made of the signatures, and objections were made to signatures noted on the cards to the number of 54,148. On March 8, 1918, the respondents ordered an examination of the petition under the supervision of their chief clerk, and the examination was made by checking the cards and petition against the registration lists in the possession of the respondents. The clerk reported on March 19, 1918, that the number of names on the petition was 148,651, that 49,739 signatures should not be counted, and that there were 7,515 less valid signatures than the number required by law.

The respondents thereupon refused to submit the question by placing it on the ballot, and on the same day a petition in the name of the people, on the relation of Charles E. Coleman, was filed in the superior court of Cook county for a writ of mandamus compelling the respondents to place the proposition on the ballot. The summons was returnable March 25, 1918, and the respondents filed their answer on March 28, 1918, setting up the investigation made by the board and the insufficiency of the petition by reason of facts not appearing on its face, and alleging that the ballots for the election had been printed, and in the time that remained before the election it would be impossible to have other ballots printed. The attorneys for various persons, officers of the Trade Union Liberty League and United Societies, or as individuals, filed a petition to be made defendants in the suit. The petition to be made defendants was denied, but the court ordered that the attorneys might appear and participate in the cause as amici curiae. The petition for the writ was amended, so as to pray that if, for any reason, a writ of mandamus could not be granted in time for the election of April 2, 1918, it should be granted for an election thereafter. On motion of the respondents that portion of the prayer was stricken out, and there remained no possibility of any relief being obtained in the superior court, and no further action was taken in the case.

It is contended by counsel for the respondents that the fact, alleged in their answer, that the suit in which Coleman is relator is still undisposed of, precludes this court from ordering the writ prayed for. The respondents are not entitled to raise that question, because by the rules of pleading the pendency of another suit for the same purpose must be raised by a plea in abatement, and the respondents could not ask the judgment of the court on the merits by answer without waiving the plea in abatement. Silver v. People, supra. There would, however, have been no ground for abatement for at least two reasons. The superior court of Cook county and this court do not exercise concurrent jurisdiction in mandamus. The superior court exercises such jurisdiction generally, but the exercise of the jurisdiction by this court is discretionary, and the court will assume jurisdiction in cases only where there is a special reason, and the remedy in the trial court is ineffective, and this court may take jurisdiction on that ground, although a proceeding is pending in a local court. A second reason is that the superior court, on motion of the respondents, struck from the amended petition the prayer for a writ commanding submission at a subsequent election, leaving the petition asking for submission at an election now long passed.

It is also argued that the relator is not entitled to relief because of laches, and this argument seems to be seriously made, and not as mere entertainment. Generally the time limited for bringing actions at law is governed by statutes of limitation, but the equitable doctrine of laches is appliedin some kinds of actions at law, where the court may exercise judicial discretion...