United States v. Walsh, 9635.

• Citation: 174 F.2d 49
• Decision Date: 20 April 1949
• Docket Number: No. 9635.,9635.
• Parties: UNITED STATES ex rel. WHITE v. WALSH.
• Court: U.S. Court of Appeals — Seventh Circuit

174 F.2d 49 (1949)

UNITED STATES ex rel. WHITE v. WALSH.

No. 9635.

United States Court of Appeals Seventh Circuit.

April 20, 1949.

William J. Tuohy, State's Atty., and James V. Cunningham, Asst. State's Atty., both of Chicago, Ill. (John S. Boyle, State's Atty., of Chicago, Ill., John T. Gallagher and W. S. Miroslawski, Asst. State's Attys., both of Chicago, Ill., of counsel), for appellant.

Joseph I. Bulger and Ode L. Rankin, both of Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, KERNER, Circuit Judge, and LINDLEY, District Judge.

LINDLEY, District Judge.

This is an appeal from a judgment in a habeas corpus proceeding discharging relator from custody under sentence for six months imprisonment for contempt of court, because of his refusal to comply with a judgment for a writ of mandamus awarded by the Superior Court of Cook County, Illinois. Our ultimate question of whether the sentencing court was without statutory authority to issue the contempt order, as the District Court found, in turn, depends upon whether that court had authority to issue the writ which relator refused to obey, for, if the order for the writ was void, the contempt order was likewise a nullity. Decision upon these questions necessitates a somewhat extended consideration of the facts and the applicable Illinois law.

Relator White was elected clerk of the village of Lyons, Cook County, Illinois, in 1941, for four years ending April 30, 1945. In March, 1945, as such clerk, he received nominating papers of the "Regular People's Party," naming candidates for village officials in the election to be held April 17, 1945. These candidates had been nominated by a party caucus, and the certificates included the necessary statutory showing that the party was organized and legally existing in the village. Two electors filed objections, alleging that the village had a population of over 5000, a fact which, if true, under the Illinois Statute, precluded nomination by caucus. Ill.Rev.Statutes, Chapt. 46, Sec. 10 — 1 to 10 — 10.

This simple issue being thus joined, it was necessary to resort to the statutory means prescribed for deciding it. The Election Code of Illinois creates a "Municipal Officers Electoral Board" composed of the village president, as chairman, the clerk, and the senior trustee and provides that "The * * * board * * * shall decide whether or not the certificate of nomination or nomination papers on file are valid or whether the objections thereto should be sustained and the decision of a majority of the * * * board shall be final", and that, within 24 hours after it has reached its decision, the board shall report its proceedings to the clerk who "shall abide by and comply with the ruling so made." Ill.Rev.Stats., Chapt. 46, Sec. 10 — 10.

Provisions similar to the one in this statute, that the decision of a majority of the board "shall be final", have been construed many times by the Illinois courts. Thus the Supreme Court of Illinois, in People ex rel. Murray v. Rose, 211 Ill. 249, 71 N.E. 1123, said: "The legislature, by the act named, has created a special forum or court to which such matters are referable, and that body has seen fit to declare by statute that the decision of the body there provided for shall in such matters be final. * * * the judgment of the proper tribunal has been invoked, and has been received; and, although it may be contrary to the law, as contended by the relators, that does not at all interfere with the jurisdiction of the body that tried it, and does not authorize us, in a proceeding for mandamus, to review the action of such tribunal". To the same effect are People ex rel. Williams et al. v. Rose, 211 Ill. 259, 71 N.E. 1125; People ex rel. McKinlay v. Rose, 211 Ill. 252, 71 N.E. 1124; People ex rel. Perry v. Koerner, 365 Ill. 521, 6 N. E.2d 870. Hence, only if the board was illegally constituted or acted arbitrarily or fraudulently, were its actions subject to judicial review, People ex rel. Martin et al. v. White et al., 329 Ill.App. 81, 67 N.E.2d 498, 504; otherwise its decision was final and conclusive.

The president of the village board was a candidate for re-election. Under the statute, in such a contingency, his duties as chairman of the electoral board devolved upon the county judge, the Honorable Edmund K. Jarecki. As soon as he received the objections to the nominating papers, the clerk forwarded the papers and the objections to Judge Jarecki, who then called, for March 23, 1945, a meeting of the board consisting of: Judge Jarecki, chairman; Ralph White, (village clerk), and Louis Hoffman, (senior village trustee). At the hearing, a dispute developed as to whether the federal census or a later village census was the proper basis for determination of the village population. The chairman read the Illinois statute; announced that he believed that the federal census of 1940, showing 4,960 inhabitants, controlled, and voted to overrule the objections and to place the candidates' names on the ballot. The other two members, constituting a majority of the board, were of the opinion that the municipal census, showing more than 5,000 inhabitants, controlled; hence, they voted to exclude the names from the ballot.

The candidates challenged the right of White to participate as a member of the board on the ground that he was not the village clerk. This contention was not considered but, after the vote had been taken, the chairman agreed to hold up the board's decision until noon on March 27, so that counsel might have opportunity to seek a determination in court of whether White had a right to sit as a member. Thus, it appears that no final action was taken at this hearing.

The court proceeding referred to was a petition for mandamus filed in the Circuit Court the previous day, praying that the board be dissolved, in which Judge Jarecki was sole defendant. The petition, as amended, averred that one Joseph Janda, not White, was clerk. Without White or Janda having been made parties, an order was entered finding that White was not clerk and that the board was, therefore, illegally constituted. The court directed the chairman to dissolve the board and return all papers to the village authorities. Judge Jarecki then wrote White, as clerk, enclosing the papers and stating that the Circuit Court had issued a writ of mandamus "on the ground that the board was illegally constituted", and, further, that the "mandamus action automatically ends the action."

On the following day, March 27, at noon, the members of the board and the interested parties, pursuant to adjournment, met in the chambers of Judge Jarecki, who reported that he had returned the papers to White, in pursuance of the Circuit Court's order. When the other two members expressed their desire to complete their consideration and determination of the matter, Judge Jarecki declined to participate further. White and Hoffman then retired to the county clerk's office and there completed the proceeding; passed and directed the filing of a resolution reciting that White was the duly elected, qualified and acting village clerk and that the village population exceeded 5,000 and resolving that the nominations in question were, therefore, invalid and sustaining the objections and adjourned. Report of the board's action was filed in the village clerk's office and the several candidates affected were notified that their names would not appear on the ballots.

The candidates then requested the Circuit Court to adjudge White and Hoffman in contempt of the judgment in mandamus because, subsequent to its entry, they had completed and filed the record of the proceeding. The court, however, held that it had no jurisdiction to do this, inasmuch as neither of those men had been made parties to the mandamus action and reminded counsel that the court had so advised him when he applied for judgment, but that counsel had replied that he did not want to make them parties because they would then have the right to appeal. Commenting further on the omission of White and Hoffman as parties, Judge Fisher very aptly and appropriately remarked: "If, consciously, the court could proceed in a mandamus case against one of numerous parties and issue its mandate to him, and then hold the others, who are not parties to the law suit, accountable for the performance of the mandate, there would be a very fine opportunity to deny to those parties due process of law." This comment was undoubtedly inspired by the court's familiarity with well known ruling principles announced in such decisions as that in Baker v. Baker, Eccles & Co., 242 U.S. 394, 403, 37 S.Ct. 152, 155, 61 L.Ed. 386: "The fundamental requisite of due process of law in judicial proceedings is the opportunity to be heard. * * * To hold one bound by the judgment who has not had such opportunity is contrary to the first principles of justice."

However, the day before this ruling by Judge Fisher, the candidates had filed a complaint in the Superior Court against White and Janda for a writ of mandamus to compel the candidates' names to be placed on the ballot, in which petitioners averred that Janda, not White, was clerk, and requested the court so to determine. In his answer, White set forth the proceedings before the board, averred that he was clerk, and challenged the court's jurisdiction to review the decision of the board. The candidates made no reply to White's answer, but offered a transcript of the record of what had transpired in the Circuit Court in the cause wherein Judge Fisher had refused to act against White because he was not a party. Without trial of any issue, the application was granted by the Superior Court and judgment entered. The court directed its order to both White and Janda, directing them to destroy the prepared ballots and to substitute new ones containing the names of the petitioning candidates.

Neither White nor Janda complied. Thereupon they were ordered to show cause why they...