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Bridgewater v. Hotz

OPINION FILED MARCH 30, 1972.

WAYNE BRIDGEWATER, APPELLEE,

v.

EULALIA HOTZ, APPELLANT. — HERBERT L. "HUB" STERN, ET AL., APPELLANTS,

v.

GRACE MARY STERN, APPELLEE. — ELMO MCCLAIN, APPELLANT,

v.

LOIS MILLER, APPELLEE. — PEOPLE EX REL. RICHARD M. COLEMAN, PETITIONER,

v.

RAY W. MACDONALD, COUNTY CLERK, ET AL., RESPONDENTS.



No. 44891. — APPEAL from the Circuit Court of Madison County; the Hon. MICHAEL KINNEY, Judge, presiding.

No. 44897. — APPEAL from the Circuit Court of Lake County; the Hon. LLOYD A. VAN DEUSEN, Judge, presiding.

No. 44908. — APPEAL from the Circuit Court of Adams County; the Hon. JOHN T. REARDON, Judge, presiding.

No. 44929. — Original petition for mandamus.

MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

GOTTLIEB and SCHWARTZ, of Chicago and HERCULES PAUL ZAGORAS, of Waukegan, for appellant.

JACK HOOGASIAN, State Attorney of Waukegan, for appellee.

GOEHL & ADAMS, of Quincy, for appellant.
CHARLES F. MARINO, of Chicago, for petitioner.

WILLIAM A. REDMOND, of Bensonville, for respondent.

We have consolidated for opinion appeals from judgments of the circuit courts of Madison (Docket No. 44891), Lake (Docket No. 44897), and Adams (Docket No. 44908) counties, and an original action for mandamus (Docket No. 44929). The circuit court of Madison County held section 2-26.01 of the Election Code (Ill. Rev. Stat. 1969, ch. 46, par. 2-26.01) invalid, enjoined the county clerk of Madison County from conducting the primary for the nomination of candidates for the offices of members of the county board on February 8, 1972, as provided in section 7-5, and from conducting the election for said offices on April 4, 1972, as provided in section 2-26.01 of the Election Code, ordered the county clerk to conduct the primary on March 21, 1972, the same date fixed for the primary for the nomination of candidates for offices to be voted upon in the general election, and further ordered that the election of members of the county board be conducted at the same time as the general election to be held on November 7, 1972. In actions seeking substantially similar judgments the circuit courts of Lake and Adams Counties denied the relief sought and dismissed the suits.

Following timely notices of appeal to the appellate court for the appropriate districts we allowed motions filed in accordance with our Rule 302(b) (Ill. Rev. Stat. 1971, ch. 110A, par. 302(b)), fixed an expedited schedule for filing briefs, consolidated the cases for oral argument and following oral argument announced our decision. Subsequent to announcement of that decision we allowed a motion for leave to file an original action seeking the issuance of a writ of mandamus ordering the circuit court of Du Page County to expunge a decree substantially similar to the decree of the circuit court of Madison County and ordering the county clerk of Du Page County to hold the primary and election for nomination and election of members of the county board in accordance with the statutes. Because of the brief period of time remaining until February 8, 1972, we ordered an expedited briefing schedule, and following oral argument awarded the writ.

Several statutes are pertinent to this litigation. Section 2 of "An Act relating to the composition and election of county boards in certain counties" (Ill. Rev. Stat. 1969, ch. 34, par. 831 et seq.), hereafter called the County Board Act, provides, in part, that in counties having a population of 3,000,000 or less and the township form of government there shall be a county board of not less than 5 nor more than 29 members, who may be elected at large or by county board districts with an equal number of inhabitants. Section 2-26.01 of the Election Code provides that county board members provided for in the County Board Act shall be elected on the first Tuesday in April 1972 (April 4) and one half of the members shall be elected every two years thereafter. To the extent here relevant, section 7-5 of the Election Code provides that a primary for the nomination of officers to be voted for on the first Tuesday in April in any year shall be held on the second Tuesday in February of such year, and that "A primary shall be held on the third Tuesday in March in every year in which officers are to be voted for on the first Tuesday after the first Monday in November of such year, for the nomination of candidates for such offices as are to be voted for at such November election." Section 7-1.01 of the Election Code provides that in any county that has been divided into county board districts in accordance with the County Board Act, the county board may, by resolution, provide that established political parties may nominate candidates for the office of member of the county board by caucus.

By reason of the provisions of section 4-6 of the Election Code there can be no registration of voters during the 28-day period preceding the primaries to be held on February 8 and March 21, 1972, during the 28-day period preceding the election to be held on April 4, 1972, and during the two-day period following each of the primaries and the election. Section 4-6 also provides "that if by reason of the proximity of any such elections to one another the effect of this provision would be to close registrations for all or any part of the 10 days immediately prior to such 28 day period, the county clerk shall accept, solely for use in the subsequent and not in any intervening election, registrations and transfers of registration within the period from the 28th to the 38th days, both inclusive, prior to such subsequent election * * *." As the result of this provision, during the period commencing on February 26, 1972, and ending March 6, 1972, voters may register for the election to be held on April 4, 1972.

Plaintiffs contend that the statutory provisions for the February primary and the April election applicable to counties within the class created by section 832 of the County Board Act are in violation of sections 3 and 4 of article III and ...


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