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Boyd v. Ford

OPINION FILED APRIL 4, 1985.

H.C. BOYD, PETITIONER-APPELLANT AND CROSS-APPELLEE,

v.

ROBERT FORD, WOOD RIVER TOWNSHIP SUPERVISOR, ET AL., RESPONDENTS-APPELLEES (GEORGE MYERS, OBJECTOR-RESPONDENT-APPELLEE AND CROSS-APPELLANT).



Appeal from the Circuit Court of Madison County; the Hon. Jonathan Isbell, Judge, presiding.

PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Petitioner appeals from an order of the trial court that affirmed a decision of the Wood River Township Electoral Board to dismiss a petition to call a referendum upon a proposition to discontinue the maintenance and operation of the Wood River Township Hospital.

On December 7, 1982, petitions signed by 2,463 persons purporting to be voters of Wood River Township were filed with the town clerk of Wood River Township, Madison County. The petitions recited that "We, the undersigned voters of Wood River Township pursuant to chapter 139, Section 160.3 of the Illinois Revised Statutes, do hereby request that a referendum be held to submit the proposition to discontinue the maintenance and operation of the Wood River Township Hospital." The petitioners designated H.C. Boyd as their attorney in fact, and no issue is raised concerning the sufficiency of the petitions or the number of signatures they contain. In this opinion we refer to H.C. Boyd and the signers of the petition as Boyd, or petitioner or appellant.

The electoral board of the township, comprised of the township supervisor, the town clerk and a town trustee, set a hearing on the objection for December 18, 1983, and gave the appropriate notice. Objection to the petitions was filed by one George Myers on December 13, 1982. The basis of the objection was that the hospital was organized pursuant to the authority of sections 1 through 11 of the township hospital act (Ill. Rev. Stat. 1945, ch. 139, pars. 160.6 through 160.16), and the legislature did not provide, and has not provided, a means or method whereby the voters of a town may seek a referendum to discontinue a hospital organized under that act. The objection continued by asserting that the petition to which objection was made sought to proceed under the authority of section 3 of "An Act to authorize townships to levy a tax for the purpose of maintaining and operating public non-sectarian hospitals" (Ill. Rev. Stat. 1981, ch. 139, par. 160.3), which is inapplicable to the Wood River Township Hospital and, accordingly, unavailable to petitioners to secure the referendum on discontinuance.

The hearing was held as scheduled. The petitioner did not appear; the objector did, in person and by attorney. Following evidence and argument, the electoral board, by a two-to-one vote, sustained the objection by a written order. The basis of the board's decision was that the referendum procedure provided in section 3 (Ill. Rev. Stat. 1981, ch. 139, par. 160.3) was inapplicable to Wood River Township Hospital and was, accordingly, unavailable to petitioner.

Petitioners, through H.C. Boyd, filed a petition for review of the order of the electoral board in the circuit court on December 27, 1982, pursuant to section 10-10.1 of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 10-10.1). We note that both petitioner and respondents have treated the objections and the procedures thereon as being conducted pursuant to section 10-10.1 of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 10-10.1). Since the petition for referendum sought to present a public question to a referendum, objections and proceedings thereon would appear to be governed by section 28-4 of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 28-4). In essence, the petition for review asserted that since section 3 was passed seven days after section 1 of "An Act authorizing any town * * * to establish * * * a public hospital * * * (Ill. Rev. Stat. 1981, ch. 139, par. 160.6), "the Legislature, basing their decision on the title of Section 160.3, `Petition and Election for Discontinuance', [sic] would have fairly concluded that such a title would have applied to both types of hospital encompassed within the one act, `Hospitals', [sic] which was from Section 160.1 through 160.16 * * *."

A hearing was held on the petition for review on August 17, 1983. Petitioner Boyd was present with counsel; the respondents and the objector were each represented by separate counsel. No issue was raised by any of the parties regarding the nature of the hearing in the circuit court. Without objection, the court received exhibits into evidence consisting of certified copies of three acts of the legislature and a letter from one of the editors of West Publishing Company. Arguments were presented, and, at their conclusion, the court announced its decision orally and followed this with a written order filed on September 9, 1983. The circuit court affirmed the order of the electoral board. Petitioner Boyd, for himself and on behalf of the 2,463 signatories of the petition, appeals from the circuit court's order.

• 1 We must initially consider an issue raised by the appellees in a motion to dismiss the appeal, which we elected to consider with the merits of the case. In their motion the appellees argue that this court has no jurisdiction to consider this appeal because decisions of a circuit court in reviewing orders of an electoral board are final under section 10-10.1 of the Election Code (Ill. Rev. Stat. 1981, ch. 46, par. 10-10.1) and may not be further appealed to the appellate or supreme court. Appellees cite two decisions of this court wherein we expressly so held, Petterson v. Scoville (1980), 83 Ill. App.3d 746, 404 N.E.2d 795, and Lawrence v. Board of Election Commissioners (1977), 45 Ill. App.3d 776, 360 N.E.2d 168.

Our examination of decisions of the supreme court and other districts of the appellate court have caused us to re-examine our decisions in Petterson and Lawrence. We find two cases of the supreme court entered in cases of review of orders of electoral boards, Lewis v. Dunne (1976), 63 Ill.2d 48, 344 N.E.2d 443, and Dooley v. McGillicudy (1976), 63 Ill.2d 54, 345 N.E.2d 102. These cases indicate the appealability of final judgments of the circuit court in such cases. Although the supreme court in these two cases considered such orders in the context of a mandamus proceeding, there is little room for doubt that they indicate the further appealability of a judgment of the circuit court reviewing the decision of an electoral board. Beyond Lewis and Dooley, two districts of the appellate court have expressly declined to follow Petterson and Lawrence. In Havens v. Miller (1981), 102 Ill. App.3d 558, 429 N.E.2d 1292, the court reasoned that the right to appeal from all final judgments, conferred by article VI, section 6, of the Illinois Constitution, includes final judgments in cases where the trial court has reviewed a decision of an electoral board. In Gilbert v. Municipal Officers' Electoral Board (1981), 97 Ill. App.3d 847, 423 N.E.2d 952, the court reasoned that a determination that judicial review of an electoral board's findings ends with the judgment of the trial court would constitute an unconstitutional limitation upon the exclusive authority of the supreme court to make rules governing appeals, and Supreme Court Rule 301 (87 Ill.2d R. 301) confers the right of appeal from a final judgment of a circuit court in a civil case. We regard the reasoning of the Havens and Miller cases as persuasive, if not unassailable.

Without any discussion of the issue of appealability, the appellate court has reviewed final orders of the circuit court entered upon review of decisions of an electoral board in Fortas v. Dixon (1984), 122 Ill. App.3d 697, Panarese v. Hosty (1982), 104 Ill. App.3d 627, 432 N.E.2d 1333, Jones v. Municipal Officers Electoral Board (1983), 112 Ill. App.3d 926, 446 N.E.2d 256, and Madden v. Schumann (1982), 105 Ill. App.3d 900, 435 N.E.2d 173.

In view of the foregoing authorities, we must conclude that our cases of Petterson v. Scoville and Lawrence v. Commissioners were improvidently decided, and we decline to follow them in this and all subsequent cases. The concern expressed in Petterson and Lawrence of insufficient time to consider an appeal from judgments reviewing electoral board decisions has been resolved elsewhere by the expedient of accelerated briefing and oral argument schedules and by oral announcement of the appellate decision followed in due course by written disposition. Those same expedients are available to this court.

Upon consideration of the appeal upon its merits, we have concluded that the order of the trial court must be affirmed. To sustain his objection, the appellant seeks to show that there is an interplay between two acts of the legislature that authorized townships to become involved in the creation and operation of hospitals and the funding of public, nonsectarian hospitals. Petitioner finds such interplay between the two acts to have been created by first the insertion of and later the deletion of footnote references in certain sections of the Illinois Revised Statutes published by the West Publishing Company.

In 1945 the legislature passed two acts that authorized townships to become involved with hospitals. The first in point of time was approved July 17, 1945. It contained paragraphs numbered 1 through 11 and was entitled "An Act authorizing any town having a population of less than 500,000 to establish, acquire by purchase or otherwise construct, improve, extend, repair, equip, maintain and operate a public hospital and to levy taxes and issue bonds therefor." This enactment was placed in the Illinois Revised Statutes, 1945, as Chapter 139, paragraphs 160.6 through 160.16. For convenience, we will hereafter refer to this act as the township hospital act.

The act second in point of time was approved July 24, 1945. It contained paragraphs numbered 1 through 5 and was entitled "An Act to authorize townships to levy a tax for the purpose of maintaining and operating public non-sectarian hospitals." This enactment was placed in the Illinois Revised Statutes, 1945, as Chapter 139, paragraphs 160.1 through ...


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