Fiegenbaum v. McFarlane (399 Ill. 367, 1948)

Mr. Chief Justice Murphy

delivered the opinion of court:

This is an appeal prosecuted to reverse a judgment of the county court of Madison County entered in an election contest action. The incumbent of the office of recorder of deeds of that county died arid a special election to fill the vacancy was called, to be held on the day of the general election in November, 1946. Thomas E. Henry and appellee, Paul G. Fiegenbaum, were opposing candidates for said office. November 12, 1946, the canvassing board declared Henry elected and issued a certificate of election to him. He died November 28 without having qualified for the office.

On December 10, Piegenbaum filed his statement under section 23-19 of the Election Code, to contest the election. Parties named as defendants and summoned to answer were Sara Taylor McParlane, who had been appointed to the office to serve until the vacancy could be filled by election, and Jane Henry, executrix of the will of Thomas E. Henry, deceased.

Defendants moved to dismiss the petition on the grounds that they had no interest in the contest and should not be named as defendants, and further that the action had abated on the death of Henry. The contention of Piegenbaum that the action could be maintained under section 22a of the Abatement Act (Ill. Rev. Stat. 1947, chap. 1, par. 22a,) was sustained and thereupon, to conform with the requirements of that statute, the court appointed John B. Harris, an elector of the county, to defend. By apt and timely motions made by Harris as elector and the other two defendants, a question is presented as to whether the death of Henry, occurring as it did before he qualified for the office and prior to the filing of Piegenbaum’s contest, caused the action to abate. After the motions for dismissal were overruled, the court proceeded to recount the ballots and at the conclusion thereof entered a judgment declaring Piegenbaum elected to the office to fill the vacancy.

The defendant elector filed a notice of appeal from such order and in this court the other defendants join in his brief. Questions are argued which arose on the recount of ballots, but, in view of the conclusion reached on the jurisdictional question, it will not be necessary to consider them.

The motion to dismiss presents questions which require a construction of section 22a of the Abatement Act. The section is as follows: “No election contest shall abate on account of the death of any contestee in such contest. Upon the suggestion of the death of any contestee by the contestant at any time before final judgment, within five days thereafter any elector of the State or political subdivision thereof for which the contestee was declared to be nominated or elected, may appear and intervene in such proceeding, or in case no elector appears within such five days, the court shall appoint such an elector to appear and intervene in such proceeding, and defend the same and thereupon the court shall proceed to final judgment." It was added to the act in 1933.

Before considering the statute, it is well to consider a few principles involving election contest actions which were well established prior to the enactment of section 22a, and from this determine what defect section 22a was designed to cure and 'whether it is applicable to the facts shown "in this record. .

The right to contest an election is purely statutory. No such right existed at common law. (Flake v. Pretzel, 381 Ill. 498; Hulse v. Nash, 332 Ill. 500; Olson v. Scully, 296 Ill. 418.) The procedure prescribed by statute to contest an election must be strictly followed. (Girhard v. Yost, 344 Ill. 483.) A contest cannot be brought unless authorized by statute. Douglas v. Hutchinson, 183 Ill. 323.

Section 23-19 of the Election Code (Ill. Rev. Stat. 1947, chap. 46, par. 23-19,) authorizes any elector of the county or subdivision for which the person is declared elected to contest the election. Section 23-20 provides that the person desiring to contest the election of a person to a particular office shall “within thirty (30) days after the person whose election is contested is declared elected" file a statement with the clerk of the court having jurisdiction to hear such contest. The contestant must set forth in such statement the points relied upon for contest and shall vertify it in the same manner as complaints in other civil cases are verified. Section 23-21 directs that upon the filing of such statement summons shall issue against the person whose office is contested, and he may be served with process or notified to appear in the same manner as is provided in other civil cases.

No claim is made that Jane Henry, executrix, or Sara Taylor McFarlane had any interest in the contest which required their being summoned as defendants. No costs have been taxed against them and they should not have been made defendants.

In Rafferty v. McGowan, 136 Ill. 620, the one who had been declared elected and had assumed the duties of the office, anticipating a contest, tendered his resignation which was accepted. Thereupon the office was declared vacant. Notwithstanding such resignation, a contest was filed and the one who had relinquished the office was summoned as defendant. His withdrawal was pleaded as a defense. The petition to contest was dismissed and the judgment was affirmed. After referring to the statute, which is the same as section 23-20, it was said:- “Appellee, [the one declared elected] did not hold the office, nor did he set up any claim whatever to it. So far as he was concerned he was an utter stranger to the office of assessor. When a person who may be declared elected to a town office may die, resign or refuse to accept the office, and some other person is appointed