The City of Chicago v. People Ex Rel. Henry W. King
| Decision Date | 30 September 1875 |
| Citation | 1875 WL 8786,80 Ill. 496 |
| Parties | THE CITY OF CHICAGOv.THE PEOPLE ex rel. Henry W. King et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Criminal Court of Cook county; the Hon. HENRY BOOTH, Judge, presiding.
State passed an act, entitled “An act to provide for the incorporation of cities and villages.” (Rev. Stat. 1874, p. 211.)
By the first section of this act it was provided, that whenever one-eighth of the legal voters of any city, voting at the last preceding municipal election, should petition the mayor and council to submit to a vote of the electors of the city the question of becoming incorporated under said act, it should be the duty of the mayor and council to submit such question.
The 53d section of the same act provided that whenever said act should be submitted to a vote of the electors, there should be submitted, at the same time, for adoption or rejection, the question of minority representation in the city council.
On the 4th of January, 1875, the common council of the city of Chicago, having received a petition signed by the requisite number of voters, passed a resolution appointing the 23d of April, 1875, as the day for holding such election, and by said resolution submitted the question of becoming incorporated under said act, without providing for the submission of the question of minority representation.
It was further provided in said resolution, that the polling places should be the same as at the election of State and county officers, held in the said city on the 3d of November, 1874.
On the 20th of March, 1875, a notice was given, by publication in a Chicago newspaper, that an election would be held on the 23d day of April, 1875, as to whether the city should become incorporated under said act. The notice gave no information as to the places where the election was to be held, and contained nothing in regard to the question of minority representation.
On the 16th of April, 1875, the common council passed another resolution, fixing other places for holding said election than those specified in the resolution of the 4th of January, above named. Under the resolution of January 4 there would have been ninety-two polling places, while under the resolution of April 16 there were but twenty, one in each ward in the city, there being twenty wards.
An election was held on the 23d of April, 1875, the result of which, as declared by the common council upon a canvass of the votes, was the adoption of the act of 1872 as the city charter. This result was announced on the 3d of May, 1875, and from that day the city claimed to be incorporated under said act.
On the 14th of May, 1875, there was filed an information in the nature of a quo warranto, against the city of Chicago, asking that the city be required to answer by what warrant it claimed to use and enjoy the franchises conferred by said act of 1872. The court below sustained demurrers to several pleas of the defendant, and gave a judgment of ouster. From that judgment the city brings this appeal.
Mr. T. LYLE DICKEY, Mr. JAMES P. ROOT, Mr. M. F. TULEY, and Mr. E. A. STORRS, for the appellant.
Messrs. LAWRENCE, CAMPBELL & LAWRENCE, and Messrs. ROSENTHAL & PENCE, for the appellees.
In view of the statements made by the counsel of the respective parties, that, for the purpose of deciding the substantial questions presented by this record, it will only be necessary for the court to direct its attention to the fifth plea, we shall, as respects the errors assigned on the part of the appellant, confine ourselves to the questions raised and discussed under that plea, to which a general demurrer was sustained.
The plea sets forth, in detail, all the several steps which were taken in regard to the submission of the question of becoming incorporated under the act of 1872, and, owing to its great length, we omit to set it out, deeming it unnecessary to do so for the purpose in hand.
It is insisted on the part of the relators, that the election, as set forth in this fifth plea, was invalid on three different grounds, all of which appear in the plea:
1st. The act of 1872 required the question of “minority representation” to be submitted to the popular vote at the same time with the question of the adoption of the new charter, and that this was not done.
2d. The notice of the election, as set forth in the plea, was fatally defective in not stating the places where the election was to be held, and the two questions upon which the vote was to be taken.
3d. The resolution of the common council of the 4th of January, 1875, directing that the polling places should be the same as at the election of State and county officers, held on the 3d day of November, 1874, in said city of Chicago, was, as to this provision, rescinded by a resolution of the council, passed April 16, 1875, by which other and different polling places were fixed, and this was done only seven days prior to the day of election, which was held at the polling places fixed by the resolution of April 16.
The first two sections of the act under consideration are as follows:
“Sec. 1. Be it enacted, etc. That any city now existing in this State may become incorporated under this act in manner following: Whenever one-eighth of the legal voters of such city, voting at the last preceding municipal election, shall petition the mayor and council thereof to submit the question as to whether such city shall become incorporated under this act to a vote of the electors in such city, it shall be the duty of such mayor and council to submit such question accordingly, and to appoint a time and place, or places, at which such vote may be taken, and to designate the persons who shall act as judges at such election. But such question shall not be submitted oftener than once in four years.
Sec. 2. The mayor of such city shall give at least thirty days' notice of such election, by publishing a notice thereof in one or more newspapers within such city; but if no newspaper is published therein, then by posting at least five copies of such notice in each ward.”
Article 4 of the act, headed “Elections,” in section 53, provides: Then follow, in the same section, provisions for subsequent submissions, in case the first vote is against the proposition, and provisions as to the canvass of the votes, and the effect of adopting minority representation.
As respects the first of the foregoing reasons for holding the election invalid, that there was a failure to submit the question of minority representation, it is contended that that particular question should have been submitted by the passage of an ordinance by the city council directing its submission, and by a notice, given by the mayor, stating the fact of such submission.
Certainly the statute does not expressly require this. It is silent as to by whom, or how, the question of minority representation shall be submitted. The language is, “there shall be submitted, at the same time, for adoption or rejection, the question of minority representation,” etc. Why the need of an ordinance directing that there shall be submitted such question, when the statute itself says there shall be a submission of it? It would be superfluous for the mayor and council to appoint a time and place at which a vote should be taken on the question of minority representation distinctly, because, when they had appointed a time and place for the vote upon the question of incorporation under the act, there was then already fixed a time and place for voting upon the question of minority representation, namely: the same time and place with the vote upon incorporation, so expressly fixed by the act itself.
There was, moreover, the action of the city council upon the question of minority representation, recognizing and virtually declaring its submission. The plea was, that on the 19th day of April, 1875, the common council adopted and spread upon its records a resolution directing the city clerk to cause to be printed one hundred thousand ballots, with the words: “For minority representation in the city council,” and one hundred thousand ballots with the words: “Against minority representation in the city council,” printed on the ballots, and to see that the same were properly distributed among the wards, and delivered to the judges of election on the 23d of April, 1875; and that, in pursuance of the resolution, the ballots were so printed and distributed, and were, in fact, distributed among the voters before and at the election; and that said proceedings of the common council, embracing a copy of the resolution, were published in the corporation newspaper of the city on the 21st day of April, 1875; that the voters at such election did vote upon the question of minority representation; that returns of such votes were made, and the result, as declared by the common council upon a canvass of such votes, was, that a majority of the votes cast at such election on that subject were against minority representation in the city council.
We must think that the electors rightfully voted upon this question; that their vote upon it was a valid one, although there had been no formal submission of the question by the common council--that the act authorized such vote.
We are of opinion, then, that the question of minority representation should be regarded as having been submitted to the popular vote at the same time with the question of the...
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