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Young v. Marcin

OPINION FILED NOVEMBER 9, 1978.

ANN E. YOUNG ET AL., PLAINTIFFS-APPELLANTS,

v.

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



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

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

The central issue in this case is whether a person seeking signatures for a petition to have a referendum concerning the sale of liquor must request a resident to produce identification before signing the petition. We hold that it is not required and uphold the trial court's order declaring the petitions valid.

During the summer of 1976, petitions were circulated in the 2d Precinct of the 50th Ward of Chicago. The petitions sought to have the question whether the sale at retail of alcoholic liquors for consumption on the premises should be banned be put on the ballot at the next general election, to be held November 2, 1976. Thirteen sheets containing 248 signatures were filed with the city clerk on August 27, 1976. The circulators of these sheets were Richard H. Dorband (Sheets 1-3), Roy S. Schlagman (Sheets 4-6), Jacqueline Dorland (Sheets 7-10), and Charles W. Hill (Sheets 11-13). The plaintiffs, all registered legal voters of the 2d Precinct of the 50th Ward, filed a petition contesting the validity of the petitions filed with the city clerk. After examination and report by a special commissioner, and a hearing before the trial judge, it was ruled that 86 signatures were invalid. Since that left 162 valid signatures, and since under the statute (Ill. Rev. Stat. 1975, ch. 43, par. 167), only 124 valid signatures were needed, the court ordered the questions put on the November ballot.

The appellants contend:

1. That Hill's testimony was not credible (a) because he conceded he did not obtain the first three signatures on Sheet 11, stating that Richard H. Dorband obtained them, which Dorband denied, and (b) because, as Hill himself testified, he did not require proof of identity before obtaining signatures. Therefore, they contend, the court erred in refusing to strike the signatures on Sheets 11, 12 and 13 in their entirety.

2. That Schlagman's testimony was not credible (a) because, like Hill, he did not require proof of identity before obtaining signatures; (b) because he admitted filling in certain of the addresses, precinct designations and completing the dates and (c) because he admitted he did not see two persons sign in his presence. For these reasons, they argue, the court erred in allowing any of the signatures on his sheets.

3. That three other signatures were improperly allowed since the names of two of the signers were not on the 1974 poll sheet and the third did not appear in the same form. It is obvious, however, that this last issue is immaterial. The appellants must prove that 39 signatures held valid by the trial court should in fact have been held invalid. If either or both of the appellants' first two contentions are upheld, they have met that burden; if, on the other hand, those contentions are overruled, it is immaterial whether these three signatures are upheld or not. Accordingly, we need not rule on this contention.

At the hearing before the trial judge, the appellants called three of the four circulators as witnesses. The fourth, Jacqueline Dorland, was in the hospital and unable to testify. No other witnesses were called, although the special commissioner gave a summary of his report.

Charles Hill testified that he had circulated Sheets 11, 12 and 13 of the petition, and had obtained all the signatures on the sheets except the first three on Sheet 11. He believed Richard Dorband had obtained those (this was denied by Dorband). He testified that, taking the poll sheet, he had gone to the various addresses, checked the names on the mailboxes against his poll list of registered voters to identify the signers, knocked on the doors, asked the persons their names and obtained their signatures, and saw all persons sign their names. He had asked for no other identification. The only signatures he had seen before were those of his wife, stepson, mother and his own, all of which appeared on Sheet 11. He did not fill in any addresses or dates on the sheets.

Roy Schlagman, who obtained the signatures for Sheets 4-6, testified that he followed the same procedures as had Hill, and like Hill did not ask for special identification. All the persons who signed the three sheets signed in his presence, except the Hefters. Rose Hefter did not want to open the door so he passed the petition through the chained door. Once she and Irving Hefter signed the sheet, she passed it back to him. Also, he filled in a few addresses and a few of the 76's on the date on Sheet 4.

• 1, 2 It is obvious that the appellants err in contending that the issue is one of credibility. To begin with, as the appellee points out, Hill and Schlagman were the appellants' witnesses and the appellants cannot now challenge the veracity of their own witnesses. (McCray v. Illinois Central R.R. Co. (1957), 12 Ill. App.2d 425, 139 N.E.2d 817; People v. Grant (1976), 38 Ill. App.3d 62, 347 N.E.2d 244.) Furthermore, the issue of credibility is one for the trial court, not for the reviewing court. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill.2d 352, 226 N.E.2d 624; Wyman-Gordon Co. v. Lynch Area Fire Protection District (1977), 51 Ill. App.3d 451, 366 N.E.2d 1055; Smith v. Realcoa Construction Co. (1973), 13 Ill. App.3d 254, 300 N.E.2d 855; Celeste Italian Foods, Inc. v. Choyce (1972), 9 Ill. App.3d 361, 292 N.E.2d 177.) Finally, since the burden of proof was on the appellants to prove the petitions invalid (Hassiepen v. Marcin (1974), 24 Ill. App.3d 97, 320 N.E.2d 572), if the appellants impeach their sole witnesses they still have not proven the petitions invalid. Rather, accepting, as we must for the reasons just stated, the uncontradicted testimony of Hill and Schlagman, the issues clearly are:

1. Are signatures valid where the circulator fails to demand identification before the petition is signed?

2. Should all the signatures on a sheet be stricken where three of them were not ...


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