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Durham v. Barrett

NOVEMBER 14, 1973.

TOMMY DURHAM, RELATOR-APPELLANT,

v.

EDWARD J. BARRETT, RESPONDENT-APPELLEE.



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

MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

On March 21, 1972, pursuant to statute, ward committeemen were elected in the City of Chicago. No candidates appeared on the ballot for the post of Democratic Committeeman in the 29th Ward, and the contest was conducted by "write-in" ballot. The official canvass in this contest showed Bernard Neistein receiving 1713 votes, the relator, Tommy Durham, receiving 50 votes, and other various individuals receiving one vote apiece. Subsequent to the election an action was filed asking the court to enter an order disqualifying Neistein because he was not a resident of the 29th Ward as required by statute, and such an order was entered declaring Neistein ineligible to serve. It is unclear from the record whether Neistein ever sought to run in the election at all.

The relator-appellant, Tommy Durham, then filed this action for a writ of mandamus to compel the respondent, Edward Barrett, then County Clerk, to certify him, Durham, the first runner-up in the election, as the duly elected Democratic Ward Committeeman for the 29th Ward in the City of Chicago. The trial court denied the petition and dismissed the case and this appeal was taken.

The relator contends that it is the statutory duty of the County Clerk to issue a certificate of election to him since he received the highest vote total of any eligible candidate. He asserts that this duty is non-discretionary and purely administrative and that the clerk's refusal is without legal justification.

The Election Laws of the State of Illinois provide in pertinent part in Ill. Rev. Stat. 1971, ch. 46, par. 7-8(b) that:

"Each candidate for ward committeeman must be a resident of and in the ward where he seeks to be elected ward committeeman. The one having the highest number of votes shall be such ward committeeman of such party for such ward."

Par. 7-58 of the same chapter provides in part that:

"[T]he county clerk shall issue a certificate of election to each person shown by the returns to be elected precinct, township or ward committeeman."

There is no dispute that Neistein received an overwhelming plurality of the write-in votes and appeared to be the winner of the election. Nor is it disputed that subsequent to the election he was declared disqualified because he was not a resident of the ward. Relator Durham argues that under the above quoted statutes he should be declared elected because, since Neistein was subsequently declared ineligible, the relator was really the winner of the election.

• 1 But under par. 7-58 the County Clerk is authorized to issue a certificate of election to each person shown by the returns to be elected. The returns showed that Neistein won and that Durham came in a distant second. We hold that under this section of the Election Code the county clerk does not have a duty to certify first runners-up in the event the winner is later disqualified. He only has the right to select as "shown by the returns."

• 2 Relator asserts that Neistein was never actually a candidate for the office of Ward Committeeman of the 29th Ward, and that therefore his votes should be disregarded and that relator is the eligible winner. But in point of fact it was impossible to determine prior to the election whether anyone was a proper candidate or resided in the ward since there were no official candidates. No names appeared on the ballot and none of the contestants, including the relator, filed certificates of candidacy. The relator would have the County Clerk certify him on the basis of 50 write-in votes as the elected Ward Committeeman when in fact he was not the numerical winner. There is no such duty on the part of the clerk to make such a certification and therefore the mandamus will not lie and the court properly dismissed the action.

In addition to our interpretation of the duty of the County Clerk as contained in par. 7-58, the legislature's intent in regard to the situation presented seems clear. Section 23-29 of the Illinois Election Code, entitled "Disqualification of person receiving highest number of votes" (Ill. Rev. Stat. 1971, ch. 46, par. 23-29), unequivocally provides:

"When the person whose election is contested is found to have received the highest number of legal votes, but the election is declared null by reason of legal disqualification on his part, or for other causes, the person receiving the next highest number of votes shall not be declared elected, but the election shall be declared void."

It is clear that relator has no statutory right to be named 29th Ward Democratic Committeeman based on the returns ...


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