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06/05/87 John Carpenter, Jr., Et Al v. Walter S. Kozubowski

June 5, 1987

JOHN CARPENTER, JR., ET AL., PLAINTIFFS-APPELLANTS

v.

WALTER S. KOZUBOWSKI, CITY CLERK OF CHICAGO, ET AL., DEFENDANTS-APPELLEES

THE PRIMARY ISSUE PRESENTED TO US BY THIS APPEAL IS THE APPLICABILITY OF THE JURISDICTIONAL REQUIREMENTS OF SECTION 23-24 OF THE ILLINOIS ELECTION CODE (ILL. RE

v.

STAT. 1983, CH. 46, PAR. 23-24) AND SECTION 9-19 OF THE ILLINOIS LIQUOR CONTROL ACT (ILL. REV. STAT. 1983, CH. 43, PAR. 182).



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

509 N.E.2d 1309, 157 Ill. App. 3d 127, 109 Ill. Dec. 297 1987.IL.759

Appeal from the Circuit Court of Cook County; the Hon. Joseph Schneider, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., and MURRAY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

Plaintiffs brought this action to contest a local option election which resulted in the prohibition of the retail sale of liquor in their precinct. The complaint, filed within 30 days after the results of the election were determined, alleged the invalidity of the petitions placing the question on the ballot. The complaint also alleged that the vote count was inaccurate because ballots from plaintiffs' precinct were commingled with another precinct's ballots before the votes were counted. On defendants' motion, the trial court dismissed the subject action for want of jurisdiction on the basis that plaintiffs had failed to file their complaint within the 10-day statutory period provided by the Illinois Liquor Control Act (Ill. Rev. Stat. 1983, ch. 43, par. 182). Plaintiffs appeal from this order contending that: (1) the question of jurisdiction should have been determined by the provisions of section 23-24 of the Illinois Election Code (Ill. Rev. Stat. 1983, ch. 46, par. 23-24) rather than the Illinois Liquor Control Act; (2) the 10-day limitation period in which to challenge the validity of such an election is unconstitutional as it bears directly on the citizens' right to vote; and (3) even if plaintiffs missed a statutory deadline, this court should extend that deadline in the exercise of our discretion.

We reverse the order of dismissal insofar as it applied to that portion of the complaint challenging the vote count, and we remand this cause to the circuit court for further proceedings.

In November 1984, a local option election was held in the 17th precinct of the 21st ward of the city of Chicago to determine whether the retail sale of liquor within the precinct should be banned. The official results of the election disclosed that a majority of the residents had voted in favor of the proposed prohibition.

Within 30 days after the results were announced, plaintiffs, a group of registered voters and residents of the 17th precinct, filed a verified complaint against the clerk of the city of Chicago and the board of election commissioners, defendants in these proceedings, claiming that (1) the issue raised by the local option question was improperly on the ballot because the petitions gathered prior to the election were not in proper form; and (2) the unlawful commingling of ballots from voters of the 17th precinct prevented an accurate count of the results of the election.

Defendants moved to dismiss plaintiffs' complaint on jurisdiction grounds, alleging that plaintiffs had failed to properly file their complaint within the time required by the Illinois Liquor Control Act (Ill. Rev. Stat. 1983, ch. 43, par. 182). Under that statute, a party seeking to contest the validity of an election must file his complaint within 10 days of the official canvass. In response to defendants' motion, plaintiffs argued that the question of jurisdiction should be resolved pursuant to section 23-24 of the Illinois Election Code (Ill. Rev. Stat. 1983, ch. 46, par. 23-24). That section allows a complainant contesting the results of an election concerning a question of public policy to file his petition within 30 days of the official canvass.

Following a brief hearing on the matter the trial court granted defendants their motion and thereby dismissed the entire complaint. Plaintiffs filed a motion to appeal after their motions for leave to amend their complaint, for reconsideration, and for a stay of enforcement of the dismissal order were all denied.

Opinion

Section 23-24 of the Illinois Election Code (Ill. Rev. Stat. 1983, ch. 46, par. 23-24) states in relevant part:

"In the case of . . . all questions of public policy submitted to the voters of any political subdivision or district, any 5 electors . . . of the political subdivision or district, respectively, may contest the results of any such election by filing a written statement in the circuit court within 30 days after the result of the election shall have been determined, in ...


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