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Dowsett v. City of East Moline





APPEAL from the Circuit Court of Rock Island County; the Hon. A.J. SCHEINEMAN, Judge, presiding.


Rehearing denied June 15, 1956.

Eugene French, intervening plaintiff, and others appeal directly to this court from decrees of the circuit court of Rock Island County entered on December 2, 1955, and January 25, 1956, holding a proposed waterworks revenue-bond-issue ordinance of the city of East Moline and a referendum election in support thereof valid and denying an injunction restraining the issuance of such bonds.

The trial judge has certified that the validity of an ordinance of the city of East Moline is involved and that in his opinion the public interest requires an appeal be taken direct to this court. Consequently, this court properly has jurisdiction of this appeal.

On March 15, 1955, the city council of East Moline adopted and the mayor approved an ordinance providing for the issuance of $1,050,000 waterworks revenue bonds in order to provide for certain waterworks improvements and the required publication thereof was duly made. Thereafter a petition for referendum on said ordinance was filed within the required statutory period.

On April 12, 1955, the city council adopted an ordinance calling a special election to vote on the bond issue for May 3, 1955. Said ordinance consisted of seven numbered sections: section 1 calling the special election and directing the clerk to publish notice thereof; section 2 specifying the question to be submitted, the hours the polls were to be open and the number of precincts to be used; section 3 specifying verbatim the notice of special election to be published by the clerk; section 4 naming specific persons as judges and clerks for the specified precincts; section 5 specifying verbatim the form of ballot to be used; section 6 directing the clerk to cause publication of a sample ballot; and section 7 providing for the ordinance to be effective immediately upon passage and approval.

Thereafter, on April 14, 1955, the clerk caused the complete ordinance calling said special election to be published once, which ordinance contained within its text the verbatim form of notice for the special election to be held on May 3, 1955. The city clerk on April 28 caused a sample of the ballot to be used in said special election to be published, but at no time did the clerk publish any notice of election other than that contained in the publication of the ordinance calling the special election.

On May 3, 1955, a special election was held wherein 2,261 total votes were cast, there being 1,217 votes in favor of the bond issue and 1,022 against.

On November 29, 1955, the plaintiff, as a citizen, voter, resident and taxpayer of the city of East Moline, filed his complaint praying that the issuance of said waterworks revenue bonds be enjoined, in which complaint the only issue raised was the validity of the publication in full of the ordinance calling the special election as a valid notice of said special election. Summons was duly issued returnable December 19, 1955, and January 2, 1956, and was served on the city clerk on November 29, 1955, the date of filing the complaint.

On December 1, 1955, a verified answer was filed by the defendants admitting most of the allegations in the complaint and contending that the notice of election was valid.

On the next day, December 2, 1955, evidence was heard and a decree entered by the trial court finding that there was extensive publicity prior to the election and a heavy vote at the election, that no more voters would have participated had a notice of special election been published without reference to the ordinance and decreed that the special election was, in all respects, legal and valid, denying the prayer for injunction and dismissing the complaint.

On January 3, 1956, Eugene French filed his motion for leave to intervene and to vacate the decree for want of jurisdiction or, in the alternative, to open up the decree with leave to plead and file a cross complaint for declaratory judgment. In said motion the intervenor alleged that he was a water rate payer, that the plaintiff in the original complaint was an open and active proponent of the proposition voted upon, that the suit was instituted as a "friendly suit" and hearing had thereon prior to the return date for the purpose of obtaining an adverse adjudication and to cut off the normal time for intervention by those desiring to litigate in good faith, that the plaintiff therein had no standing to enjoin the issuance, that the court had no jurisdiction, that the court went beyond the only issue tendered, that the sample ballot was not published, that the precinct boundaries were inaccurate so as to invalidate the election, that the council abused its discretion in setting the election only 18 days after publication, and generally that the entire procedure was collusive and fraudulent.

On January 11 defendants moved to strike the said petition for leave to intervene, in which motion it is alleged among other things that the petition for intervention came too late after final decree and that the ...

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