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In Re Town of Lisbon Local Option Election

OPINION FILED FEBRUARY 25, 1982.

IN RE THE TOWN OF LISBON ELECTION ON THE QUESTION OF THE CONTINUATION OF PROHIBITION OF SALE OF LIQUOR.


APPEAL from the Circuit Court of Kendall County; the Hon. PATRICK DIXON, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

The plaintiffs, five registered voters of the Township of Lisbon, appeal from the order of the trial court which dismissed their petition contesting the action of the township canvassing board and upheld that board's determination that an election proposition had failed.

In 1939 there was an election under section 2 of article IX of "An Act relating to alcoholic liquors" (Ill. Rev. Stat. 1939, ch. 43, par. 167) to determine whether the sale of liquor should be prohibited in the unincorporated areas of Lisbon Township. The proposition submitted to the voters was:

"Shall the sale at retail of alcoholic liquor be prohibited in that portion of Lisbon township lying without the corporate limits of a city, village or town?"

The affirmative won, and accordingly the sale at retail of alcoholic liquor was banned and that condition obtained until April 1981 in the unincorporated areas of Lisbon Township. The only incorporated area of the township is the Village of Lisbon. It appears from the record that no sale of alcoholic liquor had been permitted in the Village of Lisbon for many years. There is no official record of a vote on that proposition applying to the village only. However, the defendant's attorney stated in argument at trial that "[t]he official record book is missing and the recollection of the people in the village is that they had a separate vote in the same period of time which followed the repeal." (Presumably the reference is to the repeal of the eighteenth amendment requiring prohibition.) There is no official evidence, however, that the sale of liquor was banned in the Village of Lisbon prior to April 1981.

On April 7, 1981, an election proposition was submitted to the voters of the "Town of Lisbon" reading as follows:

"Shall the prohibition of the sale at retail of alcoholic liquor be continued in Town of Lisbon?"

It will be noted that the proposition voted on varied from the one submitted to the voters in 1939 since, as worded, it applied to the whole Township of Lisbon, not merely the unincorporated areas, as had the 1939 proposition. Since the proposition, as worded, included the whole township, the village residents as well as those outside the village voted on the proposition as submitted. The result was that the ban on the sale of alcoholic liquor at retail was retained by a total vote of 129 to 120. After the election, the township trustees constituted themselves a canvassing board and, by excluding the votes cast by those living within the village, declared that the proposition had failed in the unincorporated areas by a vote of 103 against to 99 in favor of continuing the ban on the sale of alcoholic liquor outside of the village. The village residents voted 30 to 17 to continue the ban.

The plaintiffs then filed a petition to contest the result of the election in accordance with the provisions of section 17 of article IX of "An Act relating to alcoholic liquors" (Ill. Rev. Stat. 1979, ch. 43, par. 182), which provides in part as follows:

"Any 5 legal voters of any political subdivision or precinct in which an election has been held as provided for in this Act, may within 10 days after the canvass of the returns of such election and upon filing a bond for costs, contest the validity of such election by filing a verified petition in the Circuit Court for the county in which such political subdivision or precinct is situated, setting forth the grounds for the contest. * * *."

In their petition the plaintiffs requested that the trial court either declare that the result of the election was to continue the prohibition of the sale of alcoholic liquor in the "Town of Lisbon," or to declare the election null and void and set it aside. The Township of Lisbon filed a motion to strike and dismiss the petition to contest the election. After considering the memoranda submitted by both sides and hearing the argument of counsel, the trial court entered an order dismissing the contest petition and declared the result of the election to be "that the incorporated Village of Lisbon remain anti saloon territory and that that portion of the township of Lisbon without the corporate limits of a city, village or town shall not continue as anti saloon territory."

In this appeal the plaintiffs contend: (1) that the designation "Town of Lisbon" includes all residents of Lisbon Township, therefore all residents of Lisbon Township were eligible to vote on the single proposition submitted in the April 1981 election; (2) if the proposition as submitted to the voters was intended to include the persons living within the Village of Lisbon (or alternatively to have intended two elections, one in the village applying only to the village and the other to the unincorporated areas applying only to such areas) then the election proposition was defectively stated and a new election must be held.

• 1 We think there is no doubt that the expression "Town of Lisbon" in the proposition submitted to the voters at the April 1981 election may properly be considered to embrace the whole territory of Lisbon Township. (See People ex rel. Hatfield v. Grover (1913), 258 Ill. 124; People ex rel. Deneen v. Town of Thornton (1900), 186 Ill. 162, both of which discuss the meaning of the terms "town" and "township.") From the language of these cases it is clear that a "town" is not intended to mean an incorporated town or village but is the name given to a political unit — usually geographically the same as a township. It does not indicate a municipal corporation, but is organized as a unit of county government under the authority of the State legislature. See also Committee of Local Improvements v. Objectors to the Assessment (1968), 39 Ill.2d 255, which clearly indicates that a "town" is a separate political unit and has a definite historical meaning other than municipality or incorporated town. Sections 5 and 6 of "An Act to revise the law in relation to township organization" (Ill. Rev. Stat. 1979, ch. 139, pars. 5 and 6) explains the division of a county into towns:

"§ 5. The presiding officer of the county board, with the advice and consent of the county board, shall, at its next session, appoint three commissioners, residents of the ...


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