Stephens v. People ex rel. Rafter

Mr. Justice Sheldon delivered the opinion of the Court: The defendant’s claim of title to the office of alderman is by virtue of the election held on the 16th day of April, 1878. It was only under the provisions of the general law of 1872, entitled “An act to provide for the incorporation of cities and villages,” that a legal election could be held on that day, or that there was any office of alderman to be filled at that time. Under the prior special charter of the city of East St. Louis, the first Tuesday of April, 1878, was the day of election, and the offices of aldermen were full, so that, unless the special city charter had become supplanted, and the general law of 1872 was adopted by the vote of the electors of the city taken at the election held on the 15th day of January, 1878, the election on the 16th day of April, 1878, was without warrant of law, and defendant can derive no title thereunder. For the determination of this case, we need but to consider the question of the validity of that election held on the 15th day of January, 1878, upon the subject of becoming incorporated under the general law of 1872. The objection taken thereto is, that the election was not ordered by the proper authority. The provision of the statute is, that the mayor and council of the city shall submit the question to a vote of the electors in the city, and appoint a time and place or places at which the vote may be taken, and designate the persons who shall act as judges at the election. But here, the mayor, alone, without any order, consent or authority of the council, did all these acts. It is needless to attempt to show that the mayor is not the same authority as the mayor and council. They are evidently different authorities. Power was given to the mayor and council, and to them alone, to call the election. The call of the election by the mayor alone was by an unauthorized person. It is, of course, essential to the validity of an election, that it •be held at the time, and in the place provided by law. McCrary on Elections, § 109. When the time and place of an election are fixed by law, it has been held that an omission to give the notice directed of the election will not vitiate an election held on the day appointed by law. But where the time and place of an election are not fixed by law, as in the present case, but the election is only to be called and the time and place to be fixed by some authority named iu the statute, after the happening of some condition precedent, we regard it as essential to the validity of such an election that it be called, and the time and place thereof fixed, by the very agency designated by law, and none other. This court has repeatedly so held, and we consider former decisions of this court as entirely covering the question involved and determining the invalidity of this election, as not having been called by lawful authority. In Clarke v. Board of Supervisors, etc., 27 Ill. 310, it was said: “ If an election were held without warrant of law, or if it were ordered by a person or tribunal having no authority, there could be no doubt that the whole proceeding would be absolutely void. Such an election, and every subsequent step, would be unauthorized and void, and therefore incapable of ratification by the county authorities.” In Marshall County v. Cook, 38 Ill. 44, where, in the case of an election to ascertain whether a county would make a subscription to the stock of a railroad company, the statute authorized the board of supervisors of the county to call the election, and it was called by the county court, it was held that the election so called was without authority of law, and that a subscription to the stock of a railroad company, and bonds issued thereon by the board of supervisors, in pursuance of such an election, were absolutely void. In Force v. Town of Batavia, 61 Ill. 99, a case of a similar election in a town, where, upon the application of any fifty voters of a town, the statute made it the duty of the clerk of the town to call the election, it was held, that an election under the provisions of the act, called by the supervisor of the town, was void,—that the town clerk, and he only, could legally call such election. It was said : “ The election having been called by an unauthorized person, that, and its results, are void and of no effect. Neither has any greater validity than the unauthorized action of a mass meeting would have.” We view the call of the election, here, by the mayor alone, equally without authority as it was in the cases cited, and that they, with the other authorities the}" refer to, must be held as conclusive of the present case. It is suggested as a ground of distinction which should vary the construction in the present case, that the cases cited were railroad subscription cases, where the effect of the rilling was to relieve the municipalities from indebtedness. The avoidance of the payment of debts does not stand in such favor with courts of justice, that they adopt any exceptional rules of construction to secure that result. The decisions were upon the general legal principle applicable to all cases, irrespective of particular effect, that the person required by law to call an election and fix the time and place of holding it must call it, or the election will be invalid. Though there may have been a palpable omission of duty on the part of the council in not calling the election, and for the corrupt purpose, as alleged in the plea, that would not give to the mayor alone the power to call the election. For any unreasonable non-performance of duty by the council in this respect, there would be a remedy by mandamus to compel them to do their duty, as in Village of Glencoe v. The People, 78 Ill. 382. It is contended by appellant, that if the election on the 15th of January, 1878, was unauthorizedly called by the mayor, and so not valid, that the subsequent action of the council in canvassing the returns of the election, and in passing the resolution of April 11, 1878, approving the action of the mayor in giving notice of the first annual election under the general law of 1872 for the election of city officers on April 16, 1878, and the registry by the Secretary of State of the city as organized under the general law of 1872, ratified the election and cured all defects. The law requires the corporate authorities of the city to file a certificate of the result of the election in the office of the Secretary of State. In ordinary municipal transactions, which require no action to make them valid except that of the mayor and council, the principle of ratification may apply; but where some other power must have acted—as here, a majority of the voters of the city must have voted for the change of organization at a legal election-—the principle, we conceive, has no application. In order to the adoption of the general law of 1872, the consent of the inhabitants of the city was necessary, to be manifested by a majority vote taken at a legal election. The city council, of itself, independent of such vote, could not adopt-the law and effect a change of organization; and if the vote which was taken failed to do this, by reason of the election being void, manifestly, any subsequent action of the council or of the Secretary of State would be powerless to effect such result. The vote so had could not be taken, legally, as an expression of the consent or will of the voters of the- city. It was remarked in Marshall v. Silliman, 61 Ill. 224, in reference to an actual vote of a town for a subscription, at an election held without authority of law, and where there was a subsequent act of the legislature purporting to legalize and confirm the election: “It can not be said that the town has ever consented to the creation of this debt. The so-called vote was an idle form. Persons opposed to the subscription were under no necessity or obligation to vote against it, because they had a right to regard the entire proceeding as a nullity." And it might be said, further, that such an election would be without the legal safeguards of a fair election. Minors and aliens, and other persons not entitled to vote, might vote at such an election with impunity, and in like manner legal voters might multiply their votes. And the cases cited hold such elections called by another and different power than the one to whom the authority was given to be absolutely void, and incapable of ratification. The fact, as averred in the plea, that three of the relators participated in the election, is without effect, as regards the three others. Any right there may have been to contest the election, can not be held as exclusive of the present proceeding. The conclusion is, that the election on the 15th day of January, 1878, not having been called by the power to whom - authority was given, but by another power, was without warrant of law and void, and the vote taken thereat a nullity, and, consequently, that the city of East St. Louis has not become organized under the general law of 1872, and that the defendant’s claim of title to office under an election held on the 16th day of April, 1878, in pursuance of the provisions of that law, is invalid, and can not be sustained. The demurrer to the plea was properly sustained, and the judgment of the circuit court is affirmed. Judgment affirmed.