Simons v. People ex rel. Dunning

• Decision Date: 13 November 1886
• Citation: 9 N.E. 220,119 Ill. 617
• Parties: SIMONS v. PEOPLE ex rel. DUNNING.
• Court: Illinois Supreme Court

119 Ill. 617

9 N.E. 220

SIMONS

v.PEOPLE ex rel. DUNNING.

Supreme Court of Illinois.

November 13, 1886.

Appeal from appellate court, First district.

Quo warranto brought by the relator, Andrew Dunning, the appellee, to try the right of Edward Simons, the appellant, to act as trustee of schools of township 40 N., range 13, in Cook county, Illinois. The relator claimed to have been elected to the office in question at an election held November 21, 1885. The respondent, in his first plea, claimed to have been elected at an election held October 24, 1885, and in his second plea claimed to have been elected at the election of November 21, 1885. There was judgment in the lower court for the relator, and the respondent appealed.

Contemporaneous construction and usage is of great weight in the interpretation of statutes. People v. Loewenthal, 93 Ill. 200. Where the interpretation is doubtful, the court will adopt an interpretation of the law consonant with equity and convenience. Kerlin v. Bull, 1 Dall. 178;Crocker v. Crane, 21 Wend. 211;People v. Utica Ins. Co., 15 Johns. 358;Jersey Co. v. Davison, 29 N. J. Law, 415, 424.

A polling-place can be changed on the day of election. Broadhead v. Milwaukee, 19 Wis. 658;People v. Martin, 5 N. Y. 22, 27;Goodel v. Baker, 8 Cow. 286;Dale v. Irwin, 78 Ill. 170, 181;Chicago v. People, 80 Ill. 496,

As to the first plea, Rev. St. 1881, c. 122, § 27, in relation to schools, provide ‘that in townships where, for general elections, there is more than one polling-place, the trustees shall give notice that at each of said polling-places a poll will be opened for such election,’ etc. Sess. Laws 1885, p. 194, § 30, provide that ‘the county board, in every case, shall fix and establish the places for holding elections in its respective county, and all general and special elections shall be held at the places so fixed.’ The statute of 1883, above quoted, requires that a poll be opened at each polling-place used for general elections.

A fixed place for balloting is requisite; and, when once fixed, the place can only be changed by the proper authority. McCrary, Elect. p. 125, § 115; Miller v. English, 21 N. J. Law, 317; Com. v. Commissioners, 5 Rawle, 75;Marshall v. Kerns, 2 Swan, 68;Foster v. Scarff, 15 Ohio St. 535;Stephens v. People, 89 Ill. 342. Polling-places can only be established by the county board. Williams v. Potter, 114 Ill. 628; S. C. 3 N. E. Rep. 729. The change in the polling-place allowed in Dale v. Irwin, 78 Ill. 170, was so allowed only on the ground of absolute necessity.

Matthews & Dicker, for appellant.

Crafts & Stevens, for appellee.

SCOTT, C. J.

The information in this case is in the nature of a quo warranto, and charges Edward Simons with having usurped and entered into, and exercised the powers and duties, of, the office of trustee of schools of a certain township particularly described both by name and numbers. Two pleas, stating definitely the title of respondent to the office in question, were filed by him, to both of which a demurrer was sustained, and, respondent not answering further, judgment of ouster was pronounced. In the first count of the information respondent is simply charged with usurping the office of trustee of schools in a certain township, and exercising the powers and duties of such office; but in the second count it is averred the relator, Andrew Dunning, on the twenty-first day of November, 1885, was regularly and legally elected to the office of trustee of schools in such township by the legal voters, and that he took the necessary oath required by law, and entered upon the duties of such office, and that afterwards respondent unlawfully usurped such office, and entered into and exercised the powers and duties of the same, without any authority of law for doing so. The title to such office, as set forth in the first plea, respondent avers, was acquired under an election held on the twenty-fourth day of October, 1885, to elect a successor to a former deceased trustee to fill the unexpired time of such deceased officer, and at which election respondent was elected his successor. In the second plea, respondent avers he was elected trustee of schools at a special election held in the township on the twenty-first day of November, 1885.

It is obvious, if the respondent was regularly and legally elected trustee of schools at the election held on the twenty-fourth day of October, 1885, to fill the unexpired term of the former trustee, the second election, held on the twenty-first day of November, 1885, to elect a successor to the same deceased trustee, would be a mere nullity, for it would be an election to fill a vacancy in an office where none existed either in law or in fact. The facts appear on admission by demurrer to the plea, and it is a question of law whether the facts, as stated on the first plea, show that respondent was legally elected to the office of trustee of schools at the election held on the twenty-fourth day of October, 1885.

On the tenth day of October, 1885, the surviving trustees ordered an election to be held in the township on Saturday, the twenty-fourth day of October, 1885, to elect a trustee to fill the vacancy in the board occasioned by the death of one of the trustees. At the same meeting when the election was ordered, the board appointed the polling-places in township,-six in number,-all of which polling-places are situated in the township, and conveniently located for receiving the votes of all the voters of the township. Accordingly the township treasurer gave the usual notice for the holding of such election on the day named, and at the several places appointed by the board to be polling-places to be used at the ensuing election. It is then averred ‘that the manner of calling said election, and of fixing the polling-places, and giving notice of the same, was as provided by law, and in accordance with the custom used at the previous election of the school trustees in said township. The polling-places before named were the same polling-places named and used at three previous elections of trustees of schools of said township, and the boundaries of the districts for which each of said polling-places was appointed were well understood by the electors of said township; and said districts, taken together, embraced the whole of said township, and no more territory, and no person entitled to vote at said election failed to do so by reason of any insufficiency of the number of polling-places appointed, or by reason of any misunderstanding of the boundaries of any district for which any of the said polling-places were appointed as aforesaid.’

The election ordered to be held on the twenty-fourth of October, 1885, was in fact held on that day at the polling-places appointed by the board in pursuance of the notice given, except that on the day of the election the polling-place in district No. 3 was changed from Kuhn Hall to Kuhn's real-estate office,-the latter place being in plain sight of the former, with the space between vacant; and except a similar change was made, before the voting began, on the day of the election, in the Norwood Park district, from Ball's store, across the railroad, to Fox's store. It is averred the polling-places, and the boundaries for the voting districts used at such elections, were the same as fixed by the board of commissioners of Cook county to be used at general elections in the towns of Jefferson and Norwood Park, except that the county board divided the town...