APPEAL from the Circuit Court of Kane County; the Hon. JOHN S.
PAGE, Judge, presiding.
MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:
This is an action brought by the plaintiff, a resident, taxpayer, registered voter and person who was interested in becoming a candidate for the office of mayor of the city of Aurora. Plaintiff seeks (1) a declaratory judgment that a referendum and subsequent primary election held pursuant to said referendum for the offices of mayor and alderman of the city of Aurora was unlawful; (2) an injunction restraining future violations of the election code by the city of Aurora and (3) money damages for the plaintiff because he was denied the opportunity to run for mayor. The defendants, city of Aurora and Aurora Election Commission, filed a motion to dismiss which was allowed by the trial court and the plaintiff appeals from that order.
At the general election held on November 2, 1976, the voters of the city of Aurora rejected a proposition to retain the commission form of government and a proposition to adopt the city manager form of government; thereby the city of Aurora voters chose to revert to the mayor-council form of government. On December 7, 1976, the city counsel adopted a resolution to submit to a referendum the question as to (a) whether all city elections should be nonpartisan and (b) whether the primary election should be held in March and the general election be held in April for the year 1977 and that all future primaries be held on the date set by the State Election Code. On December 11, 1976, plaintiff filed his petition to be placed on the ballot as a Democratic candidate for mayor in the election which would have been held in February 1977 pursuant to the Election Code (Ill. Rev. Stat. 1977, ch. 46, par. 7-5). Plaintiff was the only person to file as a partisan candidate in the primary election which would have been held in February 1977. On January 11, 1977, the referendum was held pursuant to the December 7, 1976, resolution; the proposition was adopted with 10% of the voters voting.
Since the referendum passed, the new plan for the primary election provided that the primary would be held in March 1977; that candidates would run on a nonpartisan basis; and they would be permitted to file nomination papers up to and including January 31, 1977. Four candidates filed for mayor under this new method of holding the primary election. The plaintiff did not file; however, he did file objections to the nominating petitions of all of the independent candidates before the election commission; these objections were denied. In his complaint he alleges that he requested instructions from the Aurora Election Commission but received no advice as to what further qualification procedures would be necessary to permit him to appear on the ballot. On oral argument, plaintiff's attorney stated that plaintiff was waiting for a response from the office of the Illinois Attorney General as the State Election Board had requested an opinion from him regarding the referendum; the response merely cautioned the State Board not to get involved.
The primary election was held on March 8, 1977; plaintiff's name did not appear on the ballot. On April 4, 1977, the general election was held and a mayor and city council were elected; this administration took office on April 19, 1977, and has been in office since that time. On June 8, 1977, the plaintiff requested and was granted an opportunity to speak before the city council at its meeting on June 14, 1977; the topic was the financial position of Aurora for the future. In a counteraffidavit filed in this proceeding the plaintiff states that he was in the office of the election commission in mid-February, 1977, and examined the minutes and correspondence covering the period from November 1976 to February 1977; also, plaintiff states that on May 18, he again examined the minutes and correspondence of the election commission for the period from November 1976 to that date.
Plaintiff instituted this action on July 8, 1977; he contends that the January 11, 1977, referendum described above and the March 8, 1977, nonpartisan primary election were unlawful for the following reasons: (1) that section 28-4 of the Election Code (Ill. Rev. Stat. 1977, ch. 46, par. 28-4) requires that a minimum of 78 days intervene between the date of adoption of a resolution calling a referendum and the date on which the referendum is held; (2) that even though the city of Aurora is a home-rule unit, it is not authorized to change the date of the primary or to provide for a nonpartisan election. The State Board of Elections has filed a brief as amicus curiae in support of the plaintiff's position on the theory that the State Constitution places the authority to regulate the entire election process in the General Assembly even though the city of Aurora is a home-rule unit.
1 We have carefully examined the issues presented by this appeal and the events that preceded this litigation. Under all the facts and circumstances set forth in the pleadings, affidavits and exhibits attached thereto we hold that plaintiff has no standing to prosecute this litigation because he waited too long to assert the illegality of the referendum, primary and general election that he now seeks to have declared unlawful. An analysis of the following facts support this conclusion. On December 7, 1976, the city council adopted the resolution to hold the January 11 referendum described above. Plaintiff claims that this referendum proposed by the December 7 resolution violates section 28-4 of the Election Code because 78 days did not elapse between the adoption of the resolution and the date of the referendum. Plaintiff had ample time to bring this contention before the Board of Elections and, if necessary, the question could have been adjudicated in the judicial system. Furthermore, the date of the nonpartisan primary was fixed pursuant to the referendum held on January 11, 1977. Again plaintiff failed to take any legal action to assert the position he now poses although almost 60 days intervene between January 11, 1977, and March 8, 1977 (primary election date). Twenty-seven days after the alleged "illegal" primary of March 8, 1977, the general election for mayor and council was held and approximately 95 days after the general election this action was instituted.
2 Plaintiff seeks to justify his failure to act by stating that he was waiting for an opinion from the Attorney General or from the State Board of Elections neither of whom are required to render legal advice in such a situation. This excuse is belied by the fact that plaintiff filed objections to the nominating papers of the independent candidates with the election commission; further, he examined the records of the election commission in February 1977; he states no reason as to why he could not have pursued his present course in the courts> as early as December 1976, when the referendum resolution was adopted. In short, the plaintiff knew or could have ascertained in December 1976 or January 1977 the irregularities he now asserts in the conduct of the referendum and the primary election of the city of Aurora.
By failing to institute any proceedings before the election, he has waived or he is now estopped.
Plaintiff was not without a remedy. He simply waited too long. In Allen v. Powell (1969), 42 Ill.2d 66, a taxpayer sought to enjoin the Secretary of State from accepting or filing nominating petitions or statements of candidacy in connection with a special primary election. The injunction was denied; however, our supreme court indicated that there would be a remedy in a proper case by the following language at page 68:
"It has been held that injunctive relief will be granted to prevent a waste of public funds by the holding of an election under an unconstitutional election statute. [Citation.] It follows that any election called in violation of the constitution likewise may be restrained and an action for injunctive relief is a proper remedy."
3 Plaintiff does not proceed in this cause by quo warrantor to oust the mayor or the council of Aurora; he requests a declaration or order stating that the 1977 primary election of the city of Aurora was unlawful. We find no authority or precedent for such a broad sweep which would certainly leave the government of the city of Aurora in a precarious position. Our examination of the law indicates that there are two types of legal proceeding by which the office or position of a public official may be attacked: (1) an election contest in which the result (votes count) of the election is determined or (2) a quo warrantor proceeding contesting the qualifications or the validity of the election of the office holder. The relief sought here by the plaintiff is very similar to quo warrantor and therefore we believe that the law applicable to such an action is pertinent here.
4, 5 In a quo warrantor proceeding, the trial judge is given discretion in granting or refusing relief depending upon the public interest, the motives of the petitioner and all other circumstances and conditions involved. In People ex rel. Goldberg v. Delaney (1968), 39 Ill.2d 474, the trial judge declined to issue a writ of quo warrantor because to do so would cause confusion; on appeal our supreme court held that the discretion was properly exercised by refusing the writ. Since plaintiff in this proceeding seeks a result similar to the relief granted in a quo warrantor proceeding, we hold that the public interest and all the circumstances of this case require that the relief sought by the plaintiff should be denied.
6 Further, the doctrine of res judicata may be applied to this proceeding on the theory that the objections filed by plaintiff before the election commission were denied and the failure of the plaintiff to appeal the ruling on these objections now prohibits the attack made in this case. In Black v. Termunde (1973), 14 Ill. App.3d 937, a two-count petition was filed; count I contesting the result of the election and count II claiming that the nominating process used was invalid. The court stated that the only method of testing the validity of an election is by an action of quo warrantor. The petitioner contended that since she had contested the nomination before the electoral board, by an administrative review proceeding and by way of a mandamus action which was unsuccessful, she asserted that she had not waived her right to object to the legality of the nomination in the proceeding instituted after the election had been held. The court found that the present petition was an attempt to reconsider issues which were previously presented and therefore the action could be barred under the doctrine of res judicata. The court finally concluded its view of the second count which contested the nominating procedures with the following language: "* * * an appeal could have been taken ...