McKinley v. McIntyre , 360 Ill. 382 ( 1935 )

At the general election on November 4, 1930, there was an election of twelve associate judges of the municipal court of Chicago. According to the canvass and proclamation of the canvassing board, George V. McIntyre received the twelfth highest number of votes and Charles F. McKinley received the thirteenth highest number of votes cast at said election for associate judges. McIntyre was declared elected and took the oath of office and assumed the duties thereof. Subsequently McKinley filed a petition to contest the election of McIntyre and the other associate judges who had been declared elected. For reasons which do not appear of record the contest was prolonged over a period of several years, and on July 15, 1934, McIntyre died. On the following day Arthur A. Sullivan, who was counsel for McIntyre during the contest, appeared before the county court of Cook county and suggested of record the death of McIntyre. On July 30, 1934, no elector of the city of Chicago having appeared within five days or at any time after the suggestion of McIntyre's death, the county court, pursuant to the provisions of section 22a of "An act to revise the law in relation to abatement," (Cahill's Stat. 1933, chap. 1,) designated Arthur A. Sullivan, an elector of said city, to appear, intervene and defend in this proceeding. The order found him to be a fit and proper person to be so appointed. The next day after his appointment Sullivan specially appeared for the purpose of questioning the court's jurisdiction over the subject matter and over the person of the appointee. He then moved to dismiss the proceeding on the following grounds: (1) That the proceedings should abate because of McIntyre's death; (2) the section of the statute under which the purported appointment is made is unconstitutional, unreasonable and void; and (3) that said section is not retroactive. The court overruled the motion to dismiss the proceeding, and, having heard all the evidence, found that McKinley had received 395,098 votes and McIntyre had received 395,019 votes; that McIntyre had not been elected to the office of associate judge at said election but McKinley had been duly elected. A decree was entered in conformity with the findings, from which Sullivan has appealed to this court.

Previous to the enactment of section 22a of the Abatement act the law was settled by the decisions in Olson v. Scully,296 Ill. 418, and People v. Taylor, 342 id. 88, that the death of the contestee in a proceeding to contest his election furnished ground for the abatement of the cause. Proceedings to contest an election to office were unknown to the common law, consequently they are purely statutory. In this State, if a constitutional amendment, a bond issue, a question of public policy or any public measure has been submitted to a vote of the people, the result of the election, as declared by the proper canvassing board, may be contested by any five electors of the State or subdivision thereof in which the election was held. (Cahill's Stat. 1933, chap. 46, sec. 117, par. 130.) The court in which the proceeding is pending shall allow any one or more electors of such State or subdivision to appear and intervene for the purpose of participation in the prosecution or the defense of the cause, and the court, if it deems it just, may tax the whole or some portion of the costs against the intervenors. In the event the election does not concern a constitutional amendment or a public measure but involves the election of a public official somewhat different provisions for a contest are provided by statute. (Cahill's Stat. 1933, chap. 46, sec. 118.) Thus, one elector of the State may contest the election of the Governor or of other State officers enumerated in section 99. (Cahill's Stat. 1933, chap. 46, par. 112.) The contest is heard by the legislature in joint session. The election of a member of the General Assembly may be contested by any qualified voter of the senatorial district to be represented by the senator or representative whose seat is contested. The contest will be decided by the body to which the contestee claims to have been elected. The election of all other officers may be contested by any elector of the State, judicial division, district, county, town or precinct in and for which the contestee is declared elected. Cahill's Stat. 1933, chap. 46, sec. 112, par. 125.

Proceedings to contest the election of public officers have usually been instituted by a candidate who was defeated on the face of the returns but in his own name and capacity as an elector. We held in Olson v. Scully, supra, that the right to an office is not a property right and the right of an elector to contest an election exists only by virtue of the statute. Even the incumbent of an office has no property right in it or in the prospective fees of the office, and it is erroneous to say that he owns or has any title to the office. The suit to contest an election is sui generis. It is neither an action at law nor in equity, although the proceedings are conducted as cases in chancery and the requirements of service of process are the same as in chancery proceedings.

Where the contest proceeding is instituted by a defeated candidate against a successful candidate it has been referred to as an adversary proceeding as between them, and inasmuch as the statute, prior to the amendment, did not expressly provide for a survival of the proceeding after the death of a contestee, it was held in the Scully case that the public, alone, could not be said to have a sufficient interest to keep the cause from abating. This court plainly pointed out that inasmuch as the statute made no provision for the survival of the action after the death of the contestee the proceeding should abate, and it was said that it is well settled in this State that a cause of action created by statute does not survive unless declared so to do by the statute itself or unless provision for its survival is made by some other statute. The decision in the case was predicated upon that rule of law, and the opinion of the court concluded in the following language: "It is settled in this State that in the absence of statutory provisions for the survival of a statutory proceeding such proceeding abates on the death of a party. There seems to be no provision in our statute for the survival of a case of this character upon the death of one of the parties. As this is conclusive of the rights of the parties it becomes unnecessary to review other points raised in this case." The views of the court upon this point were expressly adhered to in People v. Taylor, supra.

Both cases recognize the existence of legislative power to provide for survival of proceedings to contest an election and do so in unequivocal language. The General Assembly, with knowledge of the then existing law on the subject, amended the Abatement act by adding section 22a, which provides: "No election contest shall abate on account of the death of any contestee in such contest. Upon the suggestion of death of any contestee, any elector of the political subdivision in which the election was held may, within five days, appear and intervene in such proceeding and if no elector appears within that time, the court shall appoint one to intervene and defend and thereupon the court shall proceed to final judgment."

The legislative power to enact a law permitting a survival of an election contest cannot be denied. The General Assembly has a right to declare the obvious public interest in elections and to make all necessary provisions for carrying out the people's will. That public interest goes to the extent of favoring the incumbency of the person who receives the greatest number of votes at the election, other-wise there would be no such thing as popular government. All statutory provisions relating to election contests are remedial in nature. Before the amendment to the Abatement act election contests between individuals for an office were, from the force of the statute and from that force alone, an adversary proceeding as between them, but no one can deny the right of the legislature to extend the provisions of the statute so as to give protection to the public interests. Those interests are no less involved in a contest over who was rightfully elected to a public office than they are in a contest as to whether a question of public policy did or did not receive a plurality of votes. A contest of the latter kind has never been recognized as a proceeding in personam, but has been authorized to proceed to final determination without defendants and without process. The amendment to the Abatement act endeavors to safeguard the right of the people to be governed by officers of their choice. It is remedial and protective, and it is a universal rule that such legislation shall be liberally construed. Our body politic would be in a hapless state unless the General Assembly can provide that the people's choice at an election may be placed in office notwithstanding the exigency of death of a contestee who through error or fraud has received a certificate of election.

It is urged that even though the subject matter of the statutory amendment lies within a proper legislative domain, nevertheless the terms of the amendment would permit the court to compel an elector to defend, and perhaps be mulcted in costs, without his consent and against his will. There is no reasonable ground for this contention. The various provisions of the statute relative to contests of election, even where the intervenors voluntarily appear, leave the adjudication of costs solely within the sound discretion of the court. And in this proceeding, although the contest was determined against the intervenor, no costs were assessed against him and none were assessed against the estate of the deceased contestee.

No question involving the salary of the office is presented in the case. The right to salary may follow, as a result of the case, purely as an incident to the office but not by force of the decree. The court hearing the contest had no power to adjudge the rights to salary. The only scope of the decree is to declare who is entitled to the office. Olson v. Scully,supra.

It is further contended that the amendment was prospective, and therefore not applicable to election contests which were previously instituted. Numerous decisions of this court are to the effect that where an act merely changes the remedy or the law of procedure, all rights of action will be enforcible under the new procedure without regard to whether they accrued before or after such change in the law. (Woods v. Soucy, 166 Ill. 407;Chicago and Western Indiana Railroad Co. v. Guthrie, 192 id. 579; People v. New York, Chicago and St. Louis RailroadCo. 316 id. 452.) The amendment here involved became effective January 1, 1934. Judge McIntyre died more than six months after that date. He had neither a vested title to the office nor a vested right in any legal procedure which may have been instituted to contest his right to hold the office. The criticisms directed against the amendment because of alleged omissions and insufficiencies may be justified in a measure, but they are appeals to the consideration of the legislative branch of government rather than to the judiciary. It is sufficient to say that the General Assembly had the right, in the protection of the public interest, to provide that an election contest of this character should not abate.

For the reasons stated we are of the opinion the decree of the county court was correct, and it is therefore affirmed.

Decree affirmed.