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Wheat v. Marcin

OPINION FILED SEPTEMBER 16, 1976.

FREDERICA E. WHEAT ET AL., PLAINTIFFS-APPELLANTS,

v.

JOHN C. MARCIN, CITY CLERK OF THE CITY OF CHICAGO, ET AL., DEFENDANTS-APPELLEES.



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

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:

This suit was brought to enjoin the Chicago Board of Election Commissioners from submitting a referendum to the voters in the 23rd precinct, 7th ward concerning the sale of liquor in that precinct. The injunction was denied and the court ordered the proposition placed on the ballot.

On September 6, 1974, a petition consisting of 18 pages of signatures and addresses was filed with John C. Marcin, City Clerk, Chicago. The petitioners requested that in the general election on November 5, 1974, the voters of the precinct be asked to vote on the following proposition: "Shall the Sale at Retail of Alcoholic Liquor containing more than 4% of Alcohol by weight except in the original package and not for consumption on the premises be prohibited in this 23rd Precinct of the 7th Ward of the City of Chicago?" On September 9 Marcin certified to the Board of Election Commissioners that the petition complied with the requirements of article IX, section 2 of the Liquor Control Act (Ill. Rev. Stat. 1973, ch. 43, par. 167) which is captioned "Referendum on retail sales of alcoholic liquor — Petition — Procedure."

About two weeks later, several of the precinct's registered voters sought to prevent the proposition from being placed on the ballot. Among other things, they alleged that the petition failed to comply with section 2 in that it contained numerous forgeries and irregularities.

A special commissioner was appointed to determine the validity of the challenged signatures. He related his findings at the trial (which were agreed to by stipulation) that in October 1972 (the month in which the last general election was held prior to the filing of the petition) there were 607 registered voters in the precinct; that the petition contained 165 signatures; and that section 2 required only 152 signatures — i.e., 25% of the 607 voters registered in the last general election. He also reported that, based on the analysis of a handwriting expert who examined the petition, 16 of the signatures were signed by a person other than the voter whose name appeared on the registration card.

Of these 16, six were validated as not being forged after the signers came into court and identified the signatures as their own. The remaining 10 were never validated and were considered forged. This left only 155 (165-10) signatures. Of these 155, one was eliminated after the voter who supposedly signed the petition said in court that he never did. This left 154 valid signatures. But three of these were challenged on the ground that they were signatures of persons whose names appeared on the October 1972 poll list but whose registrations had been cancelled in February 1974. The court considered the objectors' contention that these three signatures should be stricken, but decided that they should not.

The plaintiff-objectors appeal this ruling and point to the following statutory provisions:

"The words and phrases defined in this section and used in this Article, unless inconsistent with the context, shall be construed as follows:

`Legal voter', insofar as the signing of a petition for a local election is concerned, means a person whose name appears on the poll list of the last general election of county or state officers." Ill. Rev. Stat. 1973, ch. 43, par. 166.

"When any legal voters of a precinct in any city * * * desire to pass upon the question of whether the sale at retail of alcoholic liquor shall be prohibited in the precinct, they shall, at least 60 days before an election, file in the office of the clerk of such city * * * a petition * * * containing the signatures of not less than 25% of the legal voters registered * * * from the precinct." (Ill. Rev. Stat. 1973, ch. 43, par. 167.)

Section 2 of article IX of the Act requires that local option petitions be signed by a quarter of the precinct's registered legal voters. The objectors' argument is that this means currently registered voters and that an individual, whose name appeared on the poll list of the last general election but whose registration has been subsequently cancelled, is ineligible to sign such petitions.

• 1 Section 1 of article IX (Ill. Rev. Stat. 1973, ch. 43, par. 166) requires that its definition of "legal voter" shall be followed unless this would be inconsistent with the context of the statute. We see nothing inconsistent in using this definition — a person who was registered for the last general election — in section 2. Certainly, there is nothing in that section which specifically indicates that petition signers must be currently registered voters. In the absence of language which would render the application of the section 1 definition of "legal voter" inconsistent, we hold that it should apply and that, as a result, section 2 should be construed to permit voters who presently reside in the precinct and who were registered for the preceding general election to sign local option petitions.

The one case the plaintiffs have cited against this proposition is clearly distinguishable. (Roesch v. Henry (1909), 54 Ore. 230, 103 P. 439.) An Oregon statute ordered the county clerk upon receipt of a local option, "wet/dry" petition to "compare the signatures of the electors signing the same with their signatures on the registration books of the election then pending, or if none pending, then with the signatures on the registration books and blanks on file in his office for the preceding general election." The implication of this language was obvious — that a legal voter could validly sign the petition if he was currently registered for the pending election; but if there was no pending election, he had only to be a legal voter registered for the preceding general election. The difference between the Oregon statute and section 2 is that there is no language in the Illinois provision specifically stating what registrations the clerk should check and none leading to the conclusion, obvious in Roesch, that only currently registered voters may sign a local option petition for a pending election.

The plaintiffs also claim that the circulators of the petition violated part of section 4 of article IX (Ill. Rev. ...


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