holding that Kane County judgment rendered by the presiding judge in De Kalb County but ultimately filed in Kane County was valid
How later courts described this case
- holding that Kane County judgment rendered by the presiding judge in De Kalb County but ultimately filed in Kane County was valid
Written by the judges who cited it.
The opinion
Mr. Justice Davis, dissenting:
I must dissent in that the court has superimposed its policy predilections over the clear language of section 61 of the Roads and Bridges Act, (Ill. Rev. Stat. 1957, chap. 121, par. 67,) and, under the guise of-statutory construction, has judicially repealed that enactment and reversed its prior decision of Chicago and Eastern Illinois Railroad Co. v. People ex rel. McCord, 206 Ill. 296 .
The opinion ignores the command of section 61 that the special election here involved “shall be held at the place of the last regular town * * * meeting” and that each town “shall for the purposes of the special election * * * constitute an election precinct.” In this section, the legislature has specifically prescribed how, when and where súch special election shall be held and has" prescribed the form of ballot to be used. It is complete within itself. Under the circumstances, I believe it is an abuse of judicial power for this court to hold “that the election was invalid since it was not held in the established pricincts within the town of Aurora.”
In McCord, at pages 300 and 301, we stated: “The town meeting is designed to bring all of the electors of the town together in one assemblage, to discuss and consider any subject upon which the town may lawfully act. The powers of the electors when assembled in the regular annual town meeting are prescribed in section 3 of article 4 of the Township Organization Act, and when convened at a special town meeting are prescribed by the provisions of section 10 of article 6 of the same act. The power possessed by these meetings cannot be exercised by the electors by casting, ballots at an election called and held in the different voting precincts in the town. The attempt to exercise the powers vested in the town meeting by a special election held in the different voting precincts of the town was illegal, and the tax levied by virtue of such election is void, * *
The opinion of the court has reversed McCord without making reference to it, and has recognized that the teachings of Smoda v. Gallagher, 412 Ill. 271 , People ex rel. Delaney v. Markiewicz, 225 Ill. 563 , and Williams v. Potter, 114 Ill. 628 , are inconsistent with its language! In addition, it has abandoned the long recognized rule of statutory construction which holds that a statute subsequent in time must prevail over a prior one. People ex rel. Dixon v. Community Unit School Dist. 2 Ill.2d 454 ; Rosehill Cemetery Co. v. Lueder, 406 Ill. 458 .
The court justifies this departure from established law on its “basic concept of a free and equal election,” and in so doing forgets that it is for the legislature to determine, within constitutional limitations, the public policy of the State in regard to such elections.
The legislature has, with certain exceptions, exempted school elections from the provisions of the Election Code and this court has found no fault in such legislation. (Ill. Rev. Stat. 1957, chap. 122, par. 5A — 1 et seq.) Prior to this decision, the court was committed to the view that the Township Organization Act and not the general or special election laws now in force governed the mode of conducting elections within the town. (Smoda v. Gallagher, 412 Ill. 271 .) We have acknowledged in Ruth v. Sanitary District, ante, p. 11, at page 21, the constitutionality of legislation which provided that, under certain circumstances, “a proposition to issue bonds does not require submission thereof to the voters where the electorate has a voice in the selection of * * * the corporate authorities who impose the tax.” How then can this court fail to recognize the right of the legislature to prescribe that certain township bond propositions shall be submitted to the electors only “at the place of the last regular town meeting” and that each town “shall for the purpose of the special election * * * constitute an election precinct.”
Under the Township Organization Act, mtich of the old New England town meeting has been preserved. This act gives electors congregating in a single place vast and diverse powers of local self-determination. (Ill. Rev. Stat. 1957, chap. 139.) I submit that it is for the legislature to determine how much of this type of township government shall be retained.
In this case the legislature, by a special statute enacted subsequent in time to the Election Code, has made specific provisions for holding the type of bond referendum in question. These provisions were followed by the township of Aurora. This election should not be set aside because of some vague concept of free elections which exists only in the minds of members of this court. I would affirm the trial court.
Mr. Justice Bristow joins in this dissent.