Opinion
No. 23950. Writ awarded.
Opinion filed February 18, 1937.
ORIGINAL petition for mandamus.
JOSEPH S. PERRY, for petitioner.
WILLIAM R. McCABE, and HILL MILLER, for defendants.
An original petition for mandamus was filed here, on leave granted, during the October, 1936, term of this court. The petition received our early consideration on answers, briefs and arguments then presented because the issue involved the printing of petitioner's name on some 75,000 ballots in time for distribution, including the mailing and return of absentee ballots, prior to the general election of November 3, 1936. After such consideration in term time the writ of mandamus was awarded by bench announcement on October 19, 1936, with a statement that our written opinion would follow in due course.
The Forty-first Senatorial District is composed of the counties of Will and DuPage. Prior to the primary of April 14, 1936, the Democratic senatorial committee of that district duly met and certified that two persons should be nominated in such primary as Democratic candidates for representatives in the General Assembly. Subsequently two were so nominated: Michael F. Hennebry and Dominic A. Romano. One of these nominees, Hennebry, died on May 12, 1936, and the petitioner herein, Jos. Sam Perry, was thereafter chosen by the senatorial committee to fill the vacancy on the ticket and a certificate of his nomination was filed with and accepted by the Secretary of State. Perry's name was subsequently certified as one of the two Democratic candidates for State representative in that district by the State Primary Certifying Board, consisting of the Governor, Secretary of State and State Auditor, and the county clerks of both Will and DuPage counties were duly directed to place his name on the Democratic ballot for the general election. Soon after this, Romano, the other Democratic nominee, filed a petition in the circuit court of Will county for a writ of mandamus to compel the county clerks of Will and DuPage counties to disregard the certification of the State Primary Certifying Board, to omit the name of Perry from the official ballot and to print Romano's name as the sole candidate of the Democratic party for representative in that district. Perry was not made a party to the Will county proceedings, and his written motion, supported by an affidavit of interest, for leave to intervene therein, was denied. The sole defendants to this mandamus proceeding were the county clerks of Will and DuPage counties. The latter, Clarence V. Wagemann, represented by the State's attorney of DuPage county, filed a motion to dismiss, which was also denied, and the prayer for mandamus was granted by Edwin L. Wilson, circuit judge of Will county, on October 7, 1936. Prior to this proceeding in Will county a similar petition for mandamus had been considered on the same grounds and denied by Judge Victor Hemphill in the circuit court of Sangamon county.
The circuit court of Will county was without jurisdiction to award mandamus. It ordered the county clerks of Will and DuPage counties to disregard their statutory duties and the directions of the State Primary Certifying Board without making the members of that board, the Governor, Secretary of State and State Auditor, parties defendant. It ordered the clerks to omit the printing of Perry's name on the ballot without giving him a chance to be heard or even a chance to appear as a defendant in the cause.
The writ of mandamus prayed for herein, directing the county clerks of Will and DuPage counties to disregard the order of the Will county circuit court and to print the ballots for the general election of November 3, 1936, in the manner and form certified to them by the State Primary Certifying Board is awarded. It is further ordered that Edwin L. Wilson, judge of the circuit court of Will county, expunge from the records of that court the order awarding mandamus entered by him on October 7, 1936, in the case of People of the State of Illinois ex rel Dominic A. Romano vs. Henry Koerner et al. Writ awarded.