People ex rel. Dever v. Sweitzer

Mr. Justice Stone delivered the opinion of the court: Relators, John J. Dever, as a qualified elector of Cook county, and William V. Brothers and Worth E. Caylor, as nominees at a republican convention for the offices of judge of the circuit and superior courts, respectively, to fill vacancies caused by death and resignation of former incumbents, on leave being granted filed in this court their original petition praying that a writ of mandamus issue against the respondents, as county clerk of Cook county and board of election commissioners, requiring that they print or cause to be printed the names of William V. Brothers and Worth E. Caylor on the ballots to be voted by the electors of Cook county for the offices of judge of the circuit court of Cook county and judge of the superior court of Cook county, respectively, at the election to be held on November 4, 1924; that Sweitzer, the county clerk, be required to print or cause to be printed the statutory notice of a special election to fill such offices and cause the same to be delivered to the sheriff for posting, as required by the statute. The respondents appeared and filed their answers. The members of the board of election commissioners answered, in effect, that they stood ready to make the necessary certificates and print the names of Brothers and Caylor on the ballots when the same are certified to them by Sweitzer, as required by the statute. The county clerk answered, denying that he had refused to include the names of Brothers and Caylor in the notice of the election or in the certificate to the board of election commissioners. By his amended answer, however, he states that he is advised that no proper writ of election was issued by the Governor, and that therefore it is not his duty to include the names of Brothers and. Caylor on the ballots for the election November 4. The amended answer was demurred to, and the question of its sufficiency is thus presented. The facts are as follows: On August 11, 1924, Gov. Len Small issued a writ of election calling a special election on November 4 to fill the office of judge of the superior court of Cook county made vacant by the resignation of Hon. Charles A. McDonald therefrom, at the same time issuing a writ for a special election on November 4 to fill the vacancy in the office of circuit j'udge of Cook county caused by the death of Hon. John K. Prindiville, a j'udge of said court. Pursuant thereto the republican party of Cook county called a convention, which was held on the 29th day of September, 1924, at which time Brothers and Caylor were nominated to fill the vacancies in the circuit and superior courts, respectively. On the first day of October the certificaté of such nomination was filed in the office of the Secretary of State, who thereafter issued a certificate to the county clerk of Cook county certifying the nomination of Brothers and Caylor as candidates at a special election to be held on November 4 for the purpose of filling the vacancies herein referred to. It also appears from the petition and the answer of Sweitzer, that Brothers and Caylor called upon Sweitzer and reminded him that the certificate of nomination had been sent to him and that he had issued an election notice which did not contain the offices of j'udge of the circuit court and j'udge of the superior court to be filled at a special election called as herein referred to, and demanded that he prepare an election notice in accordance with the statute. It appears that Sweitzer gave them no answer at the time, saying that he desired to consult' his attorney. It appears also from his answer, and it is admitted by the demurrer, that the records of the office of Sweitzer show that an election was held to fill the vacancies in the circuit and superior courts caused by the death of Hon. John K. Prindiville and the resignation of Hon. Charles A. McDonald, for June 2, 1924; that nominations were made for said offices by the democratic party; that Frank Comerford was nominated for the office of judge of the circuit court and John J. Kelly was nominated for the office of judge of the superior court to fill vacancies occasioned by such death and resignation; that said election was held on June 2, 1924, at which Comerford and Kelly received a plurality of all votes cast at that election for the offices of judge of the circuit and superior courts, respectively; that the republican party did not nominate candidates to fill such vacancies for the election on June 2. Sweitzer by his amended answer also avers that the writ of election issued by the Governor is void on its face, for the reason that it calls an election for November 4 to fill an alleged vacancy caused by the resignation of Hon. Charles A. McDonald, which the writ itself states to be on December 5, 1924; that a new and different writ of election issued by the Governor was later received in the office of Sweitzer on the 10th of October, less than thirty days before the election on November 4, which showed the resignation of McDonald to have taken place on December 5, 1923. The question involved in the case is whether or not it was the duty of Sweitzer to include the names of Brothers and Caylor in the notice and on the ballots. The determination of this question necessarily involves a determination of the question whether the election of June 2, 1924, to fill these vacancies was a valid election, for if so, there was no vacancy to be filled on November 4. The power to call an election to fill vacancies is prescribed by the statute. Section 145 of chapter 46. (Cahill’s Stat. 1923) provides as follows: “When a vacancy shall occur in the office of judge of the Supreme Court, judge of the circuit court, judge of the superior court of Cook county, or judge of the county court, the clerk of the court in which the vacancy exists shall notify the Governor of such vacancy. If such vacancy shall occur within one year before the expiration of the term of the office made vacant, the Governor shall fill such vacancy by appointment; but if the unexpired term exceeds one year, the Governor shall issue a writ of election, as in other cases of vacancies to be filled by election.” This court held in People v. Czarnecki, 312 Ill. 271, and in Stephens v. People, 89 id. 337, that the time of a special election- to fill vacancies in such offices as circuit and superior court judges must be fixed and the election called by the Governor. Neither the county clerk nor the clerk of the court in which the vacancy occurs has any such power. It is argued earnestly that unless the power be vested elsewhere, the Governor may, by refusing to call a special election to fill a vacancy, prevent the functioning of different departments of the government, or by waiting until the unexpired portion of the term amounts to less than one year appoint an official to fill such vacancy, and thus defeat the purpose of the statute. Without passing on the validity of such an appointment or the advisability of d. statute permitting a special election to be called by others in case of unreasonable delay on the part of the executive in so doing, it is sufficient to say that such are questions which should be addressed to the legislature and not to the courts, whose duty it is to construe the laws as they are. It is objected that the recital in the writ of election, by showing the1 resignation of Hon. Charles A. McDonald to have taken place on December 5, 1924, renders the writ of election invalid. The recital is as follows: “Whereas, by reason of the resignation on December 5, A. D. 1924, of the Hbn. Charles A. McDonald as a judge of the superior court of the county of Cook, in the State of Illinois, a vacancy now exists in the office of judge of the superior court of Cook county,” etc. The writ then proceeds to call a special election to be held in the county of Cook on November 4 to fill such vacancy. It is contended that this shows that McDonald’s resignation was not $o take effect until December 5, 1924, and that therefore no vacancy existed when the writ was issued". It is evident, however, from the language of the recital itself that the date “December 5, A. D. 1924,” is a typographical error. The recital states that by the resignation of McDonald on that date a vacancy “now exists.” A resignation to take effect on December 5, 1924, would not create a vacancy until that time, and it would be inconsistent" with the balance of the recital to say that a vacancy now exists where the date of the" resignation is, in fact, subsequent to the date of the writ. That this was a typographical error is further borne out by a second writ of election issued October 10 bearing date August 11, on which is endorsed": “Writ of election to correct typewriter error in date of resignation in original.” In the second writ the resignation of McDonald is shown to have been on December 5, 1923. The issuance of the second writ was but' a correction of the first and does not constitute the issuance of a new writ. That it merely corrected the first writ to speak the truth is not controverted, as it nowhere appears that Judge McDonald did not, in fact, resign on December 5, 1923. It is also argued that the election of June 2, 1924, having been called and having taken place, and the election of Kelly and Comerford to fill the vacancies herein referred to having been had, there was no vacancy to be filled on November 4; that the election of June 2 cannot be attacked because of irregularity in the manner of calling the same, and that the failure of the Governor to issue a writ of election to fill vacancies in time for the election "in June should not be allowed to defeat the will of the people when expressed at the polls. Counsel cite in support of this argument People v. Graham, 267 Ill. 426. In that case the question was whether or not the election was void by reason of the fact that a voting place was fixed outside the election district, where a large number of the electors cast their votes and where there was a fair expression of the will of the voters. It was there held that the omission on the part of an election official to perform his duty will not render void the election, where such irregularity has not hindered any voter from exercising the right of suffrage or rendered doubtful the evidence from which the result was to be declared. Where a statute imposes a duty upon officials connected with the holding of an election and by express language provides that the omission to perform the same shall make the election void the courts are bound tq enforce such statute, but if the statute simply provides that certain acts or things should be done in a particular time or in a particular manner and does not declare their performance essential to the validity of the election, they will be regarded as mandatory if they do and directory if they do not affect the actual merits of the election. (People v. Graham, supra.) The question arising in the Graham case had to do with an irregularity in fixing a polling place. There was nothing in the call of the election nor in the election itself which was illegal. It was an irregularity on the part of an. election official having to do with a valid election. Such is not the case here. No one other than the Governor has authority to call such an election, and an election not so called is of itself invalid from its inception. Such a case is not one merely of an irregularity in an official act having to do with a valid election. The Graham case is therefore not applicable. The county clerk, when he receives a writ of election from the Governor of the State which is regular on its face, has no right or authority to make any determination as to whether or not it should be followed. He is purely a ministerial officer, and has no right or authority, in the absence of statute, to determine whether a special election should be called or to call the same. He has no authority to refuse to obey an election writ regular on its face though it may appear to call an election which he considers illegal. If the writ is regular on its face his duty is to obey it and leave questions concerning the legality of the election to the courts. People v. Righeimer, 298 Ill. 611, and People v. Dillon, 266 id. 272, cited by respondents, do not lay down a different rule. The rule there announced is that the clerk may examine a petition to see whether it is regular on its face. If it is he must act on it; if not he need not. The writ will be awarded. Writ awarded