Zeman v. Dolan

• Decision Date: 21 June 1917
• Docket Number: No. 11373.,11373.
• Citation: Zeman v. Dolan , 279 Ill. 295, 116 N.E. 642 (Ill. 1917)
• Parties: ZEMAN v. DOLAN et al.
• Court: Illinois Supreme Court

279 Ill. 295

116 N.E. 642

ZEMAN

v.DOLAN et al.

No. 11373.

Supreme Court of Illinois.

June 21, 1917.

Appeal from Circuit Court, Cook County; Thomas G. Windes, Judge.

Action by Anton T. Zeman against Harry P. Dolan and others.From judgment for defendants, plaintiff appeals.Reversed and remanded.

Charles M. Haft, of Chicago, for appellant.

Tolman, Redfield & Sexton, of Chicago (William H. Sexton and Henry P. Chandler, both of Chicago, of counsel), for appellees.

CARTWRIGHT, J.

The appellant, Anton T. Zeman, filed in the circuit court of Cook county his petition for a contest of an election held in the city of Chicago on November 7, 1916, for the election of ten associate judges of the municipal court.He alleged his qualifications for the office and that he was a candidate at the election; that, as shown by the returns of the judges and clerks of election, 194,226 votes were cast for him and 194,391 for Harry P. Dolan, one of the appellees; that votes were counted incorrectly and fraudulently for Dolan, and dummy tally sheets were used in many of the precincts; that in ten of the wards, the numbers of which were given, the judges and clerks, while the ballots were being counted, made crosses on ballots before the name of Dolan; that in the various precincts of the First ward at least 132 votes more than were cast for Dolan were counted for him and at least 110 votes cast for petitioner were not counted; that there were like frauds and irregularities in various precincts in other wards; that numerous errors and irregularities occurred; and that a large majority of the votes legally cast were for the petitioner.The petition then alleged that the canvassing board for the city canvassed the returns and made proclamation thereof, showing the number of votes cast for the petitioner and Dolan as returned by the judges and clerks of election, and it prayed for an answer and a recount and that the true and correct result of the election might be determined.Harry P. Dolan and various other candidates voted for at the election were made defendants, and a number of them filed answers.John J. Looney, who was a candidate at the election, filed a cross-petition, alleging that he, and not Dolan, was elected.Dolan filed a special demurrer to the petition, setting forth in three specifications that the statute purporting to give jurisdiction to circuit courts to hear election contests concerning the office of associate judge of the municipal court was unconstitutional, and he added to these specifications 29 other grounds of demurrer.The court sustained the claim that the statute was unconstitutional and void as set forth in the first three specifications, and having decided that the court was without jurisdiction, regarded the remaining 29 grounds as superfluous, and the demurrer was sustained, and the petition dismissed.From the judgment this appeal was prosecuted.

The case was considered at the April term of this court, and the judgment was reversed, and the cause remanded to the circuit court for the following reasons:

The sole ground relied upon in support of the judgment is that the act of 1895 giving the circuit court jurisdiction is unconstitutional and void.The statute was approved on June 17, 1895, in force July 1, 1895, and is as follows:

‘An act to amend sections ninety-seven (97) and one hundred and sixteen (116) of an act entitled ‘An act in regard to eletions, and to provide for filling vacancies in elective offices.’

‘Section 1.Be it enacted by the people of the state of Illinois, represented in the General Assembly: That sections ninety-seven (97) and one hundred and exteen (116) of an act entitled ‘An act in regard to elections, and to provide for filling vacancies in elective offices,’ be amended to read as follows:

‘Sec. 97.The circuit courts in the respective counties, and in Cook county the superior court also, may have and determine contests of the election of judges of the county courts, mayors of cities, presidents of county boards, presidents of villages, in reference to the removal of county seats and in reference to any other subject which may be submitted to the vote of the people of the county, and concurrent jurisdiction with the county court in all cases mentioned in section ninety-eight (98).’

Laws of 1895, p. 170.

This was followed by section 116as amended, which does not apply to this case, but relates to procedure and the power of the court to make and enforce all necessary orders for the preservation and protection of the ballots, poll books, tally papers, returns, registers, and other papers or evidence that may bear upon the contest.Section 98(Laws 1871-72, p. 396), mentioned in the act of 1895, is as follows:

‘Sec. 98.The county court shall hear and determine contests of election of all other county, township and precinct officers, and all other officers for the contesting of whose election no provision is made.’

The objection to the act of 1895 is that it violates section 13 of article 4 of the Constitution, which provides:

‘No law shall be revived or amended by reference to its title only, but the law revived, or the section amended, shall be inserted at length in the new act.’

The manner in which it is contended that the act violates that section of the Constitution is, that while it is declared to be amendatory of sections 97and116, which are inserted at length in the act, it also amends section 98 without purporting to amend it and without inserting that section at length in the new act.The position of counsel for the appelleeHarry P. Dolan, who demurred to the petition, is that a change or amendment was made to section 98 by making the jurisdiction of county courts concurrent instead of exclusive, as it had been previously.It is true that the act of 1895 makes the jurisdiction of circuit...