People ex rel. Cole v. Kinsey

Mr. Justice Dunn delivered the opinion of the court: This appeal from a judgment of the circuit court of McDonough county denying leave to file an information in the nature of quo warranto charging the appellees with holding and executing without warrant the office of members of the board of education of a community high school district presents two questions. The first is as to the validity of an election upon the question of organizing the district. The county superintendent appointed three electors to conduct the election and directed that two of them should act as judges and one as clerk, without specifying which two should act as judges and which one as clerk. No other irregularity in the conduct of the election is alleged. The appellees, resisting the application for leave to file the information, presented affidavits showing that the county superintendent orally designated who should act as judges and who should act as clerk, and that the persons named did act, respectively, in those capacities. This was not such an irregularity in the conduct of the election as to require the election to be declared void. It is not claimed that it interfered in any way with the result of the election, that anyone having the right to vote was not permitted to do so, or that anyone voted who did not have the right to vote. Hodge v. Linn, 100 Ill. 397; Behrensmeyer v. Kreitz, 135 id. 591; Ackerman v. Haenck, 147 id. 514; Choisser v. York, 211 id. 56. The second question is as to the right of women to vote at the election on the question of the organization of the district. It was held in People v. Peltier, 265 Ill. 630, that women had no right to vote at such an election. No statute has since been passed expressly authorizing them to vote at such an election, but in 1915 an act was passed entitled “An act to legalize certain elections held since July 1, 1911, under and by virtue of ‘An act to authorize the organization of high school districts,’ approved June 5, 1911, and in force July 1, 1911, and all proceedings taken in pursuance thereof, and to abate certain pending suits.” This act is as follows: “Section 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly: That whenever any election has been held since July 1, 1911, under and by virtue of ‘An act to authorize the organization of high school districts,’ approved June 5, 1911, and in force July 1, 1911, at which the votes of women may have been the deciding factor in carrying such election then, and in such case, such elections are hereby made and held to be legal, valid and binding, and all high school districts organized under and by virtue of such elections and in pursuance thereof, if otherwise legally organized, are hereby held and declared to be duly and legally organized and made valid and binding, and all officers elected and all acts done under and by virtue of such elections and in pursuance thereof, if otherwise legal, are hereby made valid and declared to be legal, binding and of full force and effect, and all pending suits, questioning the validity of such elections oh the aforesaid grounds, shall abate: Provided, that this act shall not apply to any district, portions of which have since the organization of such district, been later organized into or as a part of any other district or districts. “Sec. 2. Whereas, an emergency exists, therefore, this act shall be in full force and effect from and after its passage and approval.” (Laws of 1915, p. 630.) In the case of People v. Militzer, 272 Ill. 387, this act was held to be valid' and effective to legalize the organization of a school district under the act of June 5, 1911, by virtue of an election held prior to the passage of the curative act at which women voted and their votes were the deciding factor in carrying the election. At the same time there was in force a provision of the general School law for the establishment of township high schools, and on April 4, 1916, an election was held on the proposition to establish a township high school for the benefit of township 20, range 10, in Lee county, under that provision, at which women voted, and their votes were decisive in favor of the proposition, the men casting a majority of six votes against it. The question of the validity of this election and the organization of this high school district arose in the case of People v. Vaughan, 282 Ill. 163, and it was held that the act of 1915 gave women the right to vote at all elections for the organization of high school districts. In so holding we fell into error. The act of 1915 did not purport to grant the right to vote. There are no words which indicate such purpose. Such a grant would not have been constitutional because not within the title of the act, which purported only to legalize certain elections' held since July 1, 1911. It was a curative act which affected only things done in the past and did not purport to lay down any rule for future action. It was said that the result necessarily followed from the holding of the act valid in the case of People v. Militzer, supra, on the ground that the General Assembly had power, when the Township High School act was passed, to authorize women to vote at such elections, because the General Assembly could not at any time have passed an act authorizing women to vote at certain elections for the organization of high school districts but not at other elections for the same purpose, or under one act and not under another enacted for the same purpose, or limiting the right to vote at elections in which their vote was the deciding factor in carrying the election in favor of the proposition for organizing the district. This argument may demonstrate that the decision in the case of People v. Militzer, supra, was wrong in holding the curative act constitutional, but it does not justify inserting in that act a grant of rights of which the title makes no mention and which the legislature itself did not include in the act. The legislature is prohibited from including in an act- a subject not mentioned in the title, and certainly the court cannot include in an act by construction a subject not mentioned either in the act or the title. The object of a curative act is not to change the law governing future action but to waive some requirement of the law in regard to past action. (People v. Madison, 280 Ill. 96.) The act of 1915 did not give women the right to vote at any election. The appellees insist that the relator having voted at the election cannot question its legality. Laches or the acquiescence of individuals does not bar the public, and the conduct of a relator does not constitute an estoppel except where the information is filed for his private and exclusive benefit. People v. Keigwin, 256 Ill. 264. The circuit court should have permitted the information to be filed. Its judgment will be reversed and the cause remanded, with directions to allow the motion to file the information. Reversed and remanded, with directions.