People v. Shaw (253 Ill. 597, 1912)

Mr. Chief Justice Carter

delivered the opinion of the court:

This is an appeal from a judgment of ouster entered by the circuit court of Fulton county against appellants, as officers of the village of Norris, upon an information in the nature of quo warranto. In July, 1908, a petition was filed for the incorporation of certain territory in said county as a village. An election was held on August 17, 1908, and eighty-one votes were cast for and twenty-seven against organization. September 22, 1908, an election was held for village officers, and appellants were elected, respectively, president, trustees and clerk of said village. Shortly thereafter leave was granted to file this information. Appellants filed an amended plea, setting forth the proceedings for the organization of the village and election of village officers. A demurrer to this was sustained and judgment of ouster entered. This appeal followed.

The chief contention arises over the construction of the sections of the statute governing the organization of villages, as to whether the petition for such organization must be addressed to the county judge and filed with the county clerk, or addressed to the judge of the county court and filed with the clerk of the county court. Sections 5, 6 and 7 of article 11 of the Cities and Villages act, (Hurd’s Stat. 1911, p. 359,) which relate to the matter in controvefsy, read, in part, as follows:

“Sec. 5. Any thirty legal voters resident within the limits of such proposed village may petition the county judge of the county in which they reside, to cause the question to be submitted to the legal voters of such proposed village, whether they will organize as a village under this act. And if the territory described in said petition shall be situated in more than one county, then the petition shall be addressed to the judge of the county court of the county where a greater part of such territory is situated. Such petition shall be addressed to the county judge.

“Sec. 6. Upon the filing such petition in the office of the county clerk, it shall be the duty of such judge to perform the same duties * * * as is above required to be performed by the president and trustees in towns already incorporated. The returns of such election shall be made to the county judge, who shall call to his assistance any two justices of the peace, and canvass such returns, and cause a statement of the result of such election to be entered upon the records of the county court.

■ “Sec. 7. If a majority of the votes cast at such election' is for village organization under the general law, such proposed village * * * shall, from thenceforth, be deemed an organized village under this act, and the county judge shall, thereupon, call, and fix the time and place of an election to elect village officers, and cause notice thereof to be posted or published, and perform all other acts in reference to such election, in like manner, as nearly as may be, as he is required to perform in reference to the election of officers in newly organized cities.”

In these sections the term “county judge” is usually used, but in the latter part of section 5 the words “judge of the county court” are found. It will be noted that section 6 provides that the result of the election shall be “entered upon the records of the county court.” Section 7 provides that in conducting the election for village officers the county judge shall perform certain acts “in like manner, as nearly as may be, as he is required to perform in reference to the election of officers in newly organized cities.” Under article 1 of this same Cities and Villages act it is provided (section 5) that in organizing cities the petition shall be filed with “the clerk of the county court” and addressed “to the judge of such court,” and that the “county judge” shall fix the time and place of the election. Article 1 also provides that the “county judge” shall call to his assistance two justices to canvass the returns, and that the “county judge” shall call and give notice of the election for the first city officials, the same as the later sections