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Capitol Tp. v. Pleasure Parkway & Drive Dist.





Appeal by plaintiff from the Circuit Court of Sangamon county; the Hon. DeWITT S. CROW, Judge, presiding. Heard in this court at the October term, 1950. Affirmed. Opinion filed November 2, 1950. Released for publication November 28, 1950.


Plaintiff appellant, Capitol Township, filed a complaint at law in the circuit court of Sangamon county against defendant appellee, Pleasure Parkway and Drive District in the County of Sangamon, seeking to recover one-third the cost of an election held on April 12, 1949. Defendant's motion to dismiss the complaint was allowed, a judgment in bar and for costs in favor of defendant was granted and this appeal resulted.

The complaint alleged, in substance, that the plaintiff and the City of Springfield are co-extensive and identical in territory; that the defendant's territory included all of the plaintiff's territory and contained other adjoining territory; that school district No. 186 is composed of plaintiff's territory and certain other territory, and that the school district, prior to the election day on April 12, 1949, had elected to come under the provisions of chapter 46, sec. 2-34 of the Illinois Revised Statutes [Jones Ill. Stats. Ann. 43.539]; that the Board of Election Commissioners of the City of Springfield gave notice in form and time as required by law that on April 12, 1949, an election would be held in plaintiff township for the election of supervisors and assistant supervisors, in that part of the school district situated within the township for members of the Board of Education, and in that part of defendant district situated in Capitol township for president and trustees; that on April 12, 1949, said elections were held and were conducted in the same polling places and by the same clerks and judges and that for said elections the plaintiff paid a total of $12,453.24 of which the school district afterward paid plaintiff one-third of that cost. The complaint concludes:

"9. That by reason of the foregoing, the defendant became liable to pay to the plaintiff, and promised and undertook to pay to plaintiff, the sum of $4,151.08, and although requested to do so, has failed and refused to pay the same, to the damage of plaintiff of $4,151.08. Wherefore, it brings suit and prays judgment for said amount and costs of suit."

The Motion to Dismiss alleged —

1. That the complaint did not state a cause of action in that (a) no statutory obligation on defendant was alleged, and (b) that no promise to pay was alleged, the allegations of paragraph 9 quoted above being merely a conclusion that the prior paragraphs amounted to a promise to pay, (c) which they do not so amount to, and (d) that no power or authority existed in defendant to pay plaintiff for election cost by virtue of statute were alleged and that without such power and authority there can be no obligation in that regard.

The question before this court therefore is whether plaintiff's complaint stated a cause of action assuming all well pleaded facts therein to be true, together with all reasonable inferences which can be drawn from those facts. Doner v. Phoenix Joint Stock Land Bank of Kansas City, 381 Ill. 106.

Both parties concede that the defendant's obligation to pay must exist if at all in the statutes of this State. It is therefore upon the election statutes concerned that the correctness of the action of the court below must turn.

Section 14-11 of chapter 46 of Illinois Revised Statutes, 1949 [Jones Ill. Stats. Ann. 43.849] provides in part:

"At all township elections, general or special, held for the election of township officers only, for any township or townships of which said city may be a part, such township or townships shall pay the judges and clerks for their services at such election and at any registration preceding such election and all expenses connected with such registration and election and it shall be the duty of the board of election commissioners in cities lying in two or more townships to apportion such expenses and salaries of judges and clerks among the several townships according to the benefits received.

"At all elections held for the purpose of electing a member of a park board or school board, or for purpose of voting upon a proposition or propositions submitted by such board and for no other purpose, such board shall pay the expenses of such election. At all elections held under the provisions of Articles 6, 14 and 18 of this Act at which any trustee of schools shall be elected, the expenses of such election shall be paid out of the treasury of the school township for which the trustee is elected."

It is the first contention of plaintiff that its complaint should stand because said section 14-11 of chapter 46, standing alone, should be construed to hold that the cost of the election should be apportioned between the township and the park district. Plaintiff's theory is that because in substance each of the above-quoted paragraphs provides that the entire cost of an election must be borne by whichever elective unit conducts the election, in case two governmental subdivisions hold simultaneous elections using the same facilities, neither township nor park district should bear the entire cost and that by necessary implication the cost should be apportioned.

With this contention this court cannot agree. The legislature has authority to apportion the expenses of elections among the various governmental subdivisions of the State and require each to bear its portion. Jacob v. City of Peoria, 345 Ill. 222. It is clear, however, from even a cursory reading of section 14-11 that the legislature did not exercise this authority in that section. The one clear reference to apportionment in the first quoted paragraph of section 14-11 by necessary implication excludes a further apportionment by construction such as plaintiff here seeks, no contrary legislative intent appearing, under the maxim of statutory construction, "expressio unius est exclusio alterius." Downers Grove Community High School Dist. No. 99 v. Board of Education of Non-High School Dist. DuPage County, 329 Ill. App. 208; Howlett v. Doglio, 402 Ill. 311. It is also noteworthy that in the one case of apportionment established by the statute the method is "according to benefits received," which is repugnant to plaintiff's theory expressed in its complaint that there being three governmental subdivisions involved, each, including defendant, should bear one-third the cost, with no mention of benefit received.

Plaintiff's next contention is based on chapter 46, section 2-34, Illinois Revised Statutes, 1949, ...

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