Appeal from the Circuit Court of Scott County; the Hon.
Charles J. Ryan, Judge, presiding.
JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Can a Board of County Commissioners consolidate precincts under the Election Code?
We reverse in part and remand.
Plaintiffs, the town of Naples and residents of that town, filed suit on March 30, 1980, requesting the court to declare invalid a resolution passed by the Board of Commissioners of Scott County. The resolution provided for redistricting the Naples, North Bluffs, South Bluffs, and Oxville voting precincts, so that each precinct was divided into two portions, and each portion was combined with a portion of each of the other three precincts in order to form three new precincts. The complaint further alleged that the old precincts ranged in size from approximately 111 voters to 352 voters and the newly formed precincts ranged from 202 voters to 332 voters.
Paragraph 12 of the complaint alleged the existence and effectiveness on the date the resolution was passed of sections 11-1 and 11-2 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, pars. 11-1, 11-2). These sections provided as follows:
"In counties not under township organization, the election precincts shall remain as now established until changed by the Board of County Commissioners, but said County Board may, from time to time, change the boundaries of election precincts and establish new ones. * * *" (Ill. Rev. Stat. 1979, ch. 46, par. 11-1.)
"The County Board in each county, except in counties having a population of 3,000,000 inhabitants or over, shall, at its regular meeting in June, divide its election precincts which contain more than 800 voters, into election districts so that each district shall contain, as near as may be practicable, 500 voters, and not more in any case than 800. Whenever the County Board ascertains that any election precinct contains more than 600 registered voters, it may divide such precinct, at its regular meeting in June, into election precincts so that each precinct shall contain, as nearly as may be practicable, 500 voters." (Ill. Rev. Stat. 1979, ch. 46, par. 11-2.)
Paragraph 13 alleged the invalidity of the resolution since the above-quoted sections do not authorize consolidation of precincts, the old precincts did not meet the numerical standards authorizing change, the new precincts do not meet the numerical goals, and there is a general lack of authority to alter precincts in the manner undertaken. Paragraph 13 also alleged that the resolution was illegal and void since it was arbitrary and unreasonable and therefore constituted a violation of plaintiffs' rights to due process and equal protection under the Federal and State constitutions. Paragraph 15 alleges damages to plaintiffs by virtue of these violations.
A motion to strike certain paragraphs of the complaint as immaterial was filed and granted as to paragraphs 12, 13, 14 and 15. The court gave leave to plaintiffs to file an amended complaint. Following a denial of plaintiffs' motion to reconsider, plaintiffs filed a complaint containing the identical essential allegations contained in and stricken from the first filed complaint. The court granted defendants' motion to dismiss the second complaint.
The questions of whether the stricken paragraphs are material and whether the complaint states a good cause of action are one and the same. If the paragraphs are material, the complaint is good and vice versa. The answer is dependent upon statutory interpretation of sections 11-1 and 11-2. (However, the issue of the materiality of paragraphs 13(e) and 14 is waived pursuant to Supreme Court Rule 341(e)(7) since it was not argued on appeal (87 Ill.2d R. 341(e)(7)).
Defendants contend the stricken paragraphs were immaterial since section 11-2 concerns division of existing precincts and there were no allegations that the existing precincts were divided. It is also implied that the resolution was in fact authorized by the broad language of section 11-1. Defendants conclude that since these statutes do not prohibit the consolidation of voting precincts they are immaterial when placed in context with allegations the statutes were violated by consolidating precincts. Essentially it is argued that the allegations are immaterial because they fail to state a cause of action. Plaintiffs, however, argue that section 11-2 entirely controls and limits the exercise of the seemingly broad grant of power in section 11-1. Plaintiffs imply that any action not authorized by section 11-2 is prohibited. Therefore, their allegations that the resolution violates sections 11-1 and 11-2 are material.
Plaintiffs support their contention that section 11-2 controls section 11-1 by citing County Board v. Short (1898), 77 Ill. App. 448, and Rexroth v. Schein (1903), 206 Ill. 80, 69 N.E. 240. In both of those cases, construing the statutory predecessors to the present sections 11-1 and 11-2, it was held that the times at which a county board may alter precinct boundaries was controlled and limited by the time stated in the predecessor statute to 11-2, notwithstanding language in the predecessor statute to section 11-1 that changes may be made "from time to time." Plaintiffs also note People ex rel. Akin v. Board of Supervisors (1900), 185 Ill. 288, 56 N.E. 1044, where a writ of mandamus issued requiring the board to readjust the precinct boundaries to comply with the numerical mandate of the statute since it was clear that the redistricting attempt of the board did not comply with the numerical standards of the predecessor statute to section 11-1. Although that case did not explicitly discuss the effect of the numerical requirements of the predecessor statute to section 11-2 on the seemingly broad grant of authority to alter precincts found in the predecessor statute to section 11-1, plaintiffs conclude that section 11-2 is controlling.
Plaintiffs and defendants note two conflicting Illinois Attorney General opinions. In the first opinion, it is merely stated that there is no indication anywhere in section 11-2 of a legislative intent that the county board be given the power to consolidate election precincts. Therefore, it was concluded the boards had no such power. (1976 Ill. Att'y Gen. Op. 139.) The second decision noted the broad language of section 11-1 along with the language of section 11-2. The opinion states that the board was "given power to change the boundaries of election precincts and establish new ones. In doing so and in complying with the required population ranges per precinct, it seems inevitable that one or more precincts might be eliminated." (1979 Ill. Att'y Gen. Op. 60, 61.) Since a county has all the implied powers necessary to effectuate its ...