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Havlik v. Marcin

MARCH 29, 1971.

ALBERT A. HAVLIK ET AL., PLAINTIFFS-APPELLANTS,

v.

JOHN MARCIN, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. HARRY COMERFORD, Judge, presiding.

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Plaintiffs challenge a local option election held in the 38th Precinct of the 16th Ward of Chicago on November 5, 1968. The election resulted in prohibition of the sale of alcoholic liquor in the precinct by a vote of 170 to 89. This result was proclaimed by the Canvassing Board on November 26, 1968, and the petition to contest the validity of the election was filed by the eight plaintiffs on December 4, 1968. Defendant, City Clerk of Chicago, filed a written motion to strike and dismiss the petition. This motion was granted and the petition was dismissed.

Two issues must be decided by this court:

First, was the challenge to the election timely filed so that the validity of the proposition petition upon which the election was based may now be attacked by plaintiffs?

Second, was the proposition ballot in proper statutory form?

The first contention is a matter of statutory construction involving portions of the Illinois Liquor Control Act. ch. 43, Ill. Rev. Stat. Section 4 of this Act (ch. 43, par. 169) sets forth the form of the petition for submission of the proposition. It also provides:

"Any five legal voters of any * * * precinct in which a proposed election is about to be held as provided for in this Act, within any time up to 30 days immediately prior to the date of such proposed election and upon filing a bond for costs, may contest the validity of the petitions for such election by filing a verified petition in the Circuit Court * * *"

If this provision is applicable, plaintiffs may not challenge the legal sufficiency of the proposition petition as they attempt to do. Plaintiffs' suit was filed eight days after proclamation of the result.

However, plaintiffs contend that they may urge alleged defects in the proposition petition under authority of section 17 of the Liquor Control Act (ch. 43, par. 182). This statute authorizes any five legal voters of the precinct to "contest the validity of such election" in the Circuit Court by filing a verified petition "within 10 days after the canvass of the returns of such election." Counsel for plaintiffs argue, with ingenuity, that since the proposition petition is the jurisdictional basis of the election (People v. Wanek, 241 Ill. 529, 535), the right to contest the validity of the election necessarily carries with it the right to contest the validity of the petition. We cannot agree with this point of view. Accepted rules of statutory construction lead us to a contrary result.

• 1 In ascertaining the legislative intent, all sections and portions of the statute must be read and considered together and as a whole. One section may not be construed by itself to the exclusion of all other sections. (People v. Holmes, 98 Ill. App.2d 11, 15; People v. Village of Justice, 88 Ill. App.2d 227, 236; Carnahan v. McKinley, 80 Ill. App.2d 318, 320.) Thus we cannot consider section 17 by itself; but we must consider and construe it together with and in the light of section 4. If section 4 did not exist, plaintiffs' argument would be more forceful. However, the plain language of section 4 limits challenge to the validity of the proposition petition to the period more than 30 days immediately prior to the date of election.

• 2 In addition, specific portions of a statute take precedence and control in their practical application over more general portions of the same Act. (Mills v. County of Winnebago, 104 Ill. App.2d 366, 372; In re Estate of Gubala, 81 Ill. App.2d 378, 383; Jansen v. Illinois Fund, 58 Ill. App.2d 97, 105.) In this situation, section 17 is a general statute concerning the field of validity of the election. By contrast, section 4 is a specific statute addressed by the legislature to the most particular matter of contesting "the validity of the petitions for such election." It follows necessarily that the efforts of plaintiffs to attack the validity of the petition must be authorized by the clear and specific language of section 4 rather than by the general provisions of section 17.

• 3 Finally, in construing a statute it is our duty to attempt always to choose that construction which will give the statute a clear and logical meaning rather than any other construction which would tend to make its provisions illogical or useless. (Board of Education v. Community H.S., 89 Ill. App.2d 481, 485; Pinkstaff v. Penn. Ry. Co., 31 Ill.2d 518, 524; Linkens v. Furman, 52 Ill. App.2d 1, 8.) The construction insisted upon by plaintiffs would strip section 4 of all meaning and they could contest the validity of the proposition petition at any time until 10 days after proclamation of the results.

• 4 In this area, the practical background of section 4 must be considered. The legislative purpose seems clear and logical to provide for determination of the validity of the proposition petition before the election and not thereafter. This would eliminate possible unfortunate situations in which validity of the petition would be challenged after the trouble and expense of the election. Also, the construction advanced by plaintiffs would permit them to gamble upon the outcome of the election and to challenge the validity of the proposition petition only if the election result was contrary to their own interests or desires.

• 5 In our opinion, section 4 of the Liquor Control Act is applicable here. Plaintiffs failed to challenge the validity of the petitions for the election up to 30 days immediately prior to the date of the election. It follows that the trial court acted properly in dismissing plaintiffs' petition insofar as it attempted ...


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