Cipowski v. City of Calumet City, 153 N.E. 613

Cipowski v. City of Calumet City

153 N.E. 613 | Ill. | 1926

November 20, 1925, appellants filed their petition in the superior court of Cook county against the city of Calumet City to contest the special election held in that city November 14, 1925, for the purpose of voting upon the question of annexing territory to said city. The petition charges seven irregularities which appellants contend invalidate the election, namely: (1) That said election was not held in the room designated by the ordinance calling the special election and named in the notices as the place of the election but was held in another room in said city; (2) that the mayor and other persons electioneered and solicited votes in favor of annexation in and within 100 feet of the polling place; (3) that notice of the election was not posted in front of the polling place either before or during the election; (4) that the territory proposed to be annexed is not contiguous to the city of Calumet City; (5) that part of the territory proposed to be annexed was at the time of the election, and now is, a part of South Holland, an incorporated village in Cook county; (6) that the petition for annexation is not signed by a majority of the owners of real estate in said territory and is not signed by a majority of the legal voters in said territory; and (7) that after it had been signed by some of the signers the petition was altered. The general demurrer filed to the petition by the city was sustained and the petition was dismissed. This appeal followed.

The contest of an election is purely statutory, and in the absence of statutory authority the courts have no power to interfere with the declaration of the result of an election. (O'Connor v. High School Board, 278 Ill. 618.) The important *577 question in this case is whether the statute authorizing the contest of a proposition election is broad enough to give the court power to inquire into the preliminary steps essential to the calling and conducting of a legal election. The contest is brought under section 117 of the Election act, (Smith's Stat. 1925, p. 1149,) which provides: "In the case of all * * * public measures or subjects submitted to the voters * * * of any city, * * * any five electors * * * of the city * * * may contest the results of any such election by filing a written statement in the circuit or superior court within thirty days after the result of the election shall have been determined." When we speak of the result of an election we usually mean the expression of the will of the voters as determined by the count of the ballots. The statute does not provide for a contest of the validity of the election or an inquiry into the steps taken in calling and conducting the election. It merely provides for a contest of the result of the election. In Edgcomb v. Wylie,248 Ill. 602, it is said: "The only power given the court in an election contest, by the statute, is to determine which of the contestants has been elected." In Dilcher v. Schorik, 207 Ill. 528, it is said: "The jurisdiction of the court in a contest of an election is limited to the question who was elected." InCounty of Lawrence v. Schmaulhausen, 123 Ill. 321, it is said: "The proceedings prescribed for contesting an election were so prescribed for the purpose of finding out how many votes were cast for or against a candidate or for or against a measure, and thereby ascertaining the will of the people." InWelsh v. Shumway, 232 Ill. 54, the court refused to inquire into the validity of the nomination papers of the respondent in an election contest. The object of the proceeding filed by appellant is not to contest the result of the election but to declare the election void upon the ground that it was not legally called and held. The petition does not attack the correctness or fairness of the canvass of the votes. It concedes *578 that there were 847 votes cast in favor of annexation and 315 votes cast against it. It has long ago been determined thatquo warranto is the proper remedy to test the validity of annexation proceedings. (People v. City of Peoria, 166 Ill. 517; Drainage Comrs. v. Griffin, 134 id. 330.) Appellants having their remedy in quo warranto, the courts would not be warranted in holding, in the absence of language clearly requiring it, that the legislature intended to provide a special statutory remedy to contest the validity of such annexation proceeding. We hold that objections 3, 4, 5, 6 and 7 to the annexation proceedings are not questions which can be considered in an election contest.

Objections 1 and 2 are to mere irregularities which, in the absence of a showing that they affected the result of the election, will not invalidate it. (Choisser v. York, 211 Ill. 56; Simons v. People, 119 id. 617; City of Chicago v. People 80 id. 496.) There is no allegation in the petition that the irregularities in conducting the election in any manner affected the result, and so the petition did not in this respect state grounds for contest.

The statute states that the contest shall be filed within thirty days after the result of the election has been determined. The result is not determined until the city council has examined and canvassed the returns made by the election officials and has declared the result of the election and caused a statement of the result to be entered upon its journal. Nowhere in the petition is it alleged that the city council has declared the result of this election, and for that reason it was properly dismissed.

The order of the superior court is affirmed.

Order affirmed. *579