Rafferty v. McGowan

Mr. Justice Craig delivered the opinion of the Court: This was a proceeding in the county court of Greene county to contest an election, instituted by Lewis H. Rafferty, appellant, against William A. McGowan, appellee. It appears that .appellant and appellee were each candidates for assessor of the town of Wrights, in Greene county, Illinois, at an annual meeting held therein April 1, 1890, for the election of town officers. The officers holding the election, upon the completion of the canvass of the votes, declared the result, and caused to he publicly read to the meeting, in pursuance of law, the statement of the result of the election, in which it appeared that appellant had received ninety-nine votes and appellee one hundred votes, showing that appellee was elected, as they had declared. The ground set up in the petition, and relied upon to defeat appellee’s title to the office, was, that four persons who were not legal voters, voted for appellee at the election, and these illegal votes were counted for appellee, thus giving him a majority of the votes cast, when appellant had received a majority of the legal votes cast at the election. To the petition appellee put in an answer, under oath, in which he denied that petitioner was elected assessor by a majority of the legal votes; denied that petitioner received a greater number of legal votes at said election than were received by the respondent; denied that illegal votes were cast for respondent. The respondent further set up in the answer, that at the election he was duly elected assessor by the legal votes of the town; that the result of the election was, in due form of law, entered by the town clerk in the minutes of the proceedings of the meeting kept by the clerk, as required by law; that within ten days respondent qualified, by taking the oath required by law, which oath was filed in the office of the town clerk prior to April .7, 1890; that afterwards, on the 9th day of April, 1890, and before the filing of the petition herein and the service of notice on respondent of this proceeding, respondent resigned said office, and delivered to William D. Waltrip and John Doyle, Jr., then and there the only justices of the peace in said town of Wrights, his resignation in writing. The respondent further set up in the answer, that his resignation was received and accepted by the town board, and an order entered in the office of the town clerk declaring a vacancy in the office of assessor. It also set up, that the town board, after accepting respondent’s resignation, appointed George W. Cunningham assessor of the town to fill the vacancy, and the order was duly entered of record in the town clerk’s office; that said Cunningham, so appointed assessor, took, subscribed and filed in the office of the town clerk of said town of Wrights the oath of office required by the constitution, as required by law, and duly qualified as assessor of said town, for the unexpired term, on April 14, 1890, and on April 30, 1890, the town clerk of said town filed with the county clerk of said county the list showing the appointment of said Cunningham. The petitioner excepted to all that part of the answer setting out the action of the judges in certifying to the election of respondent, his resignation, and the appointment of Cunningham as assessor, because it was wholly immaterial. The court overruled the exceptions, and petitioner electing to abide by the exceptions, the court rendered a decree dismissing the petition. In a proceeding of this character a defendant may interpose, by answer, any matters which show that the contestant is not equitably entitled to the relief sought by the petition, as held in Talkington v. Turner, 11 Ill. 234. The question, therefore, presented by this record is, whether the matters set up in respondent’s answer constitute a defense to the case made by the petition. It will be observed that this proceeding to contest the election was not instituted until after appellee had resigned the office and his successor had been appointed and qualified; and the question raised by the answer is, whether a proceeding of this character may be maintained against a person who does not hold or claim the office which the petitioner seeks by his petition to contest. The proceeding is statutory. Section 112, chapter 46, of Starr & Curtis’ Statutes, provides who may contest an election, and section 113 declares that “the person desiring to contest such election shall, within thirty days after the person whose election is contested is declared elected, file with the clerk of the proper court a statement in writing, setting forth the points on which he will contest the election,—which statement shall be verified by affidavit, in the same manner as bills in chancery may be verified.” Section 114 provides, that “upon the filing of such statement summons shall issue against the person whose office is contested, and he may be served with process, or notified to appear, in the same manner as is provided in cases in chancery.” From the sections of the statute supra, it would seem that the person whose office is to be contested is the person to be brought into court as a defendant to the proceeding. If this is correct,—and the statute so declares,—then the defense interposed by appellee was a valid defense to the petition. Appellee did not hold the office, nor did he set up any claim whatever to it. So far as he was concerned he was an utter stranger to the office of assessor. When a person who may be declared elected to a town office may die, resign or refuse to accept the office, and some other person is appointed or elected before a contest is instituted, the person first declared elected can not be “the person whose office is contested,” within the' meaning of the statute. Appellee held this office but three days, when he resigned. He received no fees or emoluments while he held the office. Why should he be dragged into court and compelled to litigate a matter in which he has no interest and to which he sets up no claim ? We are aware of no principle upon which he can be made a defendant, and be compelled to litigate the title to the office after his resignation, the resignation having been accepted before the proceedings to contest were instituted. ' It is, however, claimed, that a holding of this character will leave appellant without a remedy. This is a misapprehension. The appropriate remedy is quo tuairanto against Cunningham, the person who claims the office by virtue of the appointment of the town board. A proceeding of that character would compel Cunningham to show his title to the office. If he held' by virtue of an appointment, in order to make the appointment valid it would be necessary to establish a vacancy when the appointment was made. There was no vacancy unless appellee had been duly and legally elected, and had resigned. The validity of appellee’s election would thus, in a quo warranto proceeding, directly arise. It would be the foundation to the appointment upon which Cunningham relies. Moreover, if this proceeding had gone on, and it had been determined that appellant was elected, the court would have been powerless to turn Cunningham out and seat appellant. On the other hand, in a quo warranto proceeding, on the relation of appellant, against Cunningham, the court could render a .judgment of ouster, and place the relator in office. One other question remains to be considered. The final judgment of the court was entered in this proceeding on May 13,1890. Appellant then prayed an appeal, which was granted upon filing bond within thirty days. On the 28th of May a bond was executed, submitted to the court, and approved. On the 31st of May appellant appeared before the county court and asked leave to withdraw the exceptions which he had filed to the answer, and asked leave to reply to the answer. The court denied the application, and this is assigned as error. We think the court had the power, at any time during the term, to change its judgment in form or substance; but after a final decree or judgment had been rendered and an appeal had been taken, appellant could not demand a change in the judgment as matter of right, but an application of that character was addressed to the discretion of the court, and under the circumstances we do not think there was an abuse of discretion. The judgment of the county court will be affirmed. Judgment affirmed.