People ex rel. Giese v. Dillon , 266 Ill. 272 ( 1914 )

Mr. Justice Farmer

delivered the opinion of the court:

This writ of error was sued out to review a judgment of the circuit court of LaSalle county awarding a peremptory writ of mandamus against plaintiff in error, John Dillon, town clerk of the town of LaSalle, requiring him to place on the ballot to be voted for at the town election to be held in the town of LaSalle April 7, 1914, the proposition whether that'town should become anti-saloon territory. A petition by voters of the town of LaSalle- was filed with plaintiff in error, as town clerk, asking that the question, “Shall • this town become anti-saloon territory ?” be’printed upon the ballot to be. voted upon at the town election. Plaintiff in error did not publish and post notices that the proposition was to be voted upon and refused to cause the proposition to be printed on the official ballot for said election. Thereupon the People, on the relation of J. A. Giese and Thomas N. Haskins, filed a petition in the circuit court of LaSalle county for a writ of mandamus to compel plaintiff in error, as town clerk, to cause the question whether the town should become anti-saloon territory to be printed on the ballot to be voted at the ensuing town election. The petition for the writ of mandamus alleged in detail a compliance with all the requirements of the statute known as the Local Option law for a submission to a vote of the question whether the town of LaSalle should become anti-saloon territory. A copy of the petition filed with the town clerk was, as we understand it, though this is not clearly shown by the abstract, made a part of the petition for mandamus and showed prima facie a compliance 'with the statute. Plaintiff in error demurred to the petition for the writ of mandamus. The demurrer was overruled, and plaintiff in error filed what counsel calls seven pleas. ' ■

There were 2352 votes cast in the town of LaSalle at the last preceding general election. The law required the petition filed with the town clerk to contain the signatures of legal voters not less in number than one-fourth of the vote cast at the preceding election. It contained 986 signatures. The pleas or answer denied that the petition contained the names of 986 legal voters of the town of LaSalle ; denied the names to the petition were signed by the parties in their own proper persons; denied the statement made at the bottom of each sheet of the petition was signed by a resident of the town; denied the said statements were sworn to by an officer in the county of LaSalle authorized to administer oaths, and denied the petition contained the ■signatures of not less than one-fourth of the legal voters of the town. It was also averred in the answer that 426 of the signers of said petition were women, and that they were not legal voters and had no authority, in law, to sign the petition. A demurrer to the answer was sustained, and, plaintiff in error not further answering, judgment was entered as prayed in the petition for mandamus. Plaintiff in error excepted and prayed an appeal to the Appellate Court for the second district, which was denied, and he thereupon sued a writ of error out of this court, which was made a supersedeas.

It is claimed this court has jurisdiction because the constitutionality of the Woman’s Suffrage act was raised in the court below and presented for decision. Defendants in error have filed no brief, probably because before the case could be passed upon by this court the time for the election would have passed. The summons issued upon the filing of the petition for mandamus was made returnable on April i, 1914. On that day plaintiff in error applied for and was granted a change of venue from two of the circuit judges of that circuit and the judge of the city court of Spring Valley was called in to hear the case. The judgment awarding the writ was rendered April 3, 1914, and the election was held April 7, 1914.

The position of plaintiff in error is, that if the facts alleged in his answer to the petition are true, then it was not his duty, as town clerk, to submit the question whether the town of LaSalle should become anti-saloon territory; that the demurrer to the answer admitted the truth of the allegations, and therefore it was admitted of record that the petition filed by the voters of the town of LaSalle did not comply with the law, and the writ of mandamus should have been denied and the petition therefore dismissed. The correctness of this contention depends upon the power of the town clerk to go behind what appears on the face of the petition for the purpose of determining whether the signatures to the petition are those of legal voters, whether they were signed in person, whether the statement at the bottom of each sheet of the petition was signed by a resident of the town, whether such statements were sworn to by an officer having authority to administer an oath, etc.

The petition, on its face, appeared to be in compliance with the law and prima facie sufficient to authorize and require the submission of the question to a vote in the political subdivision. (Hurd’s Stat. 1913, chap. 43, par. 28.) If it was illegal in the respects claimed, that could not be determined from an examination of the petition itself but required an investigation outside of the petition. The town clerk is a ministerial officer. It was his duty to examine the petition, and if upon its face it appeared that it was not in compliance with the requirements of the statute he was not required to submit the question for a vote at the ensuing election. He, however, has no judicial powers, and where the petition presented appears on its face to be in compliance with the statute he cannot institute an investigation to determine whether the parties signing it were legal voters, whether they signed it in their own proper persons, whether the statement required to be made at the . bottom of each sheet of the petition was made by a person authorized to make it, and whether it was sworn to before an officer authorized to administer an oath. The statute imposes the absolute duty on the clerk to submit the question to be voted upon when a petition is filed in compliance with the statute. He is given no discretionary power when a petition proper on its face is filed. His only function is to determine whether, upon the face of the petition, it is in compliance with the law.. If it does not purport to be signed by the requisite number of voters of the town, if it does not purport.to be signed by the voters in their own proper persons, and in other respects does not purport to conform to the requirements of the law, it would impose no duty upon the clerk to cause the question to be submitted at the election; but in determining these things the clerk acts as a ministerial and not as a judicial officer. (Town of Somonauk v. People, 178 Ill. 631; 38 Cyc. 612.) Mandamus is a proper remedy to compel a board or officer to perform a ministerial act where he is under a clear legal duty to do so. (People v. Knopf, 198 Ill. 340; 10 Am. & Eng. Ency. of Law, 805.) The precise question here involved was passed upon at our April, 1914, term in People v. Leming. In that case a petition for a writ of mandamus against the clerk of West Frankfort, Franklin county, was, by leave granted, filed in this court, asking that the writ be awarded to compel the clerk to print on the official ballot to be voted at the April election, the proposition whether the political subdivision should become anti-saloon territory. The answer to the petition for mandamus set up various objections to the sufficiency of the petition filed with the clerk. Some of them were the same as the' objections here made, and others, though not the same, were similar in character. There, as here, the petition, on its face, complied' with the statute. The answer was demurred to and the cause submitted upon typewritten briefs and oral arguments. In an oral announcement (not published) it was held the petition appeared to be in conformity with the statute, and that in such case it was obligatory upon the clerk to submit the proposition to a vote at the election. It was further held that if the petition, although on its face in apparent conformity with the law, in fact was not so for the reasons assigned, that might be determined in a proceeding to contest the validity of the election, but that the legislature had not seen fit to make any provision for the determination of that question by the clerk before the election. People v. Wanek, 241 Ill. 529, is not in conflict with this view. In that case a petition for a writ of mandamus was filed in the superior court of Cook county against' the town clerk o.f the town of Calumet and the board of election commissioners of the city of Chicago, to compel the town clerk and the board of election commissioners to place on the ballot to be voted at the ensuing election, the proposition whether the town of Calumet should become anti-saloon territory. That town lay partly within and partly without the limits of the city of Chicago. The city is under the Election Commissioners act, which requires legal voters within the city to be registered before they shall have a right to vote. A part of the signers to the petition filed with the clerk resided in that part of the town lying within the city limits of the .city of Chicago and it did not appear from the petition that they were registered voters. It was held in that respect the petition,, on its face, did not comply with the requirements of the statute.

It is further contended the judge before whom the cause was tried was without jurisdiction to hear and determine the case. The judge who heard the cause is judge of the city court of Spring Valley, Bureau county, which county is in the same judicial circuit with LaSalle county. It is not questioned that the City Court act confers power upon judges of the city courts to preside in circuit courts and perform the duties of a circuit judge, but it is claimed the record should show that Judge Hawthorne was called to preside in the circuit court of LaSalle county and hear the case by a judge of the circuit court when a change of venue was taken from, two of them. We think this contention is without merit. The presumption will be indulged that Judge Hawthorne was called to hear the case by proper authority, and not, as counsel says, that he assumed jurisdiction sua sponte;

It is also contended that this is now a moot case and the judgment should be reversed for that reason. If the application for the writ of mandamus had been denied and the judgment denying it was sought to be reversed after the election had been held a different question would be presented. But here the judgment was right. Its enforcement was prevented by plaintiff in error until after the election was held. We do not think that state of affairs calls for the reversal of a judgment that was correctly entered, and the judgment will therefore be affirmed.

Judgment affirmed.