Alexander v. Shaw
| Decision Date | 18 June 1931 |
| Docket Number | No. 20633.,20633. |
| Parties | ALEXANDER v. SHAW. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Petition by Albert C. Alexander contesting the election of Henry Shaw to the office of county treasurer of Coles county. From an adverse judgment, the latter appeals.
Reversed and remanded, with directions.
Appeal from Circuit Court, Coles County; Charles A. Shuey, judge.
Craig & Craig and Vause & Kiger, all of Mattoon, and T. N. Cofer, of Charleston, for appellant.
A. C. & Ben F. Anderson, of Charleston (John T. Kincaid, C. M. Heinlein, and Herbert S. Anderson, all of Charleston, of counsel), for appellee.
Appellee filed in the circuit court of Coles county a petition to contest the election of appellant to the office of county treasurer of that county at the general election held on November 4, 1930. After return of the ballots to the office of the county clerk, a canvass of the vote was made by the canvassing board, who certified that appellant has received 6,308 votes and appellee 6,254 voted, and the canvassing board declared appellant elected and issued to him the certificate of election. The petition to contest the election alleges that in certain named precincts ballots were counted for the contestee that should have been counted for the contestant, and that ballots were not counted for the contestant which should have been so counted; that ballots bearing a distinguishing mark and those which did not have indorsed thereon the initials of a judge of election were counted for the contestee, and, in short, contains the usual averments of such a petition. An answer was filed and a hearing had before the court. All the ballots cast at the election were recounted. The court found on that hearing that appellee had received 6,351 votes and appellant had received 6,347 votes and entered judgment that appellee was duly elected to the office of county treasurer. From that judgment appellant has perfected this appeal.
No cross-errors have been assigned by appellee. But 15 of the original ballots have been certified to this court. No objection is raised in this court to the rulings of the trial court concerning the correctness of the recountof the ballots other than as to the 15 ballots referred to.
The primary question in the case arises on the error assigned on the action of the court in counting the ballots from the Eighth precinct of the town of Charleston. At the commencement of the hearing the parties entered into a stipulation which recited that, in order to expedite the trial, evidence should first be offered as to the preservation of the ballots after their return by the judges and clerks of election, and that, in case the trial court should rule that the ballots were properly preserved when and after they were delivered to the county clerk and that they were admissible in evidence, the ballots should be recounted. The usual reservations of the rights to object were included. Before the ballots were opened appellant objected to a recount of them on the ground that they had not been properly preserved, and so were entitled to no weight as against the returns of the election officers. This objection went primarily to the ballots of precinct 2 of East Oakland township, precinct 2 of Hutton township, and precinct 8 in the town of Charleston. The basis of that objection was that the sacks containing the ballots were not sealed and had no appearance of ever having been sealed, that the ballots contained therein were bound together by a string run through them, but that the ends and edges of the ballots were not bound, and any ballot was therefore easily accessible. As to the ballots in precinct 2 of Hutton township, there was raised the additional objection that it appeared that the drawstring of the sack which contained the ballots was untied and the sack left open. As to precinct 8 of the town of Charleston, it was also objected that the ballots when brought into court were found to be in a sack which was tied but not sealed with wax or in any other manner, and that the ballots had a string through the ends of them but were otherwise free and not bound together, and that there was no trace of any seal on the sack.
The parties entered into a stipulation as to the condition of the ballots when brought into court, the substance of which is as follows: In precinct 8 of Charleston township and precinct 2 of Oakland township the ballots when brought into court were found to be in canvas containers which were tied but not sealed with wax or in any other manner, and that the ballots had a string through the center of them, but that the ends of the ballots were free and not bound together, and that there was no trace of a seal ever having been put on the bags containing the ballots. The appellee, to show the preservation of the ballots in precinct 8 of the town of Charleston, offered the testimony of William O. Todd, one of the judges of election in that precinct. He testified that he returned the ballots to the deputy county clerk in the same condition as when they left the judges of election, as far as he knew, and that he did not change any of them. He stated on cross-examination that, after the ballots were put into the sack, the sack was sealed with red sealing wax and put into a grain sack with the remaining supplies. The court counted those ballots, but the record does not show a ruling on the objections offered.
As to the Second precinct of East Oakland township, the recount showed that appellee lost one vote and appellant gained one. As to precinct 2 of Hutton township, the recount showed no change from the certificate of the canvassing board. These two precincts may therefore, for the present, be eliminated from consideration.
The principal controversy arises over counting the ballots of precinct 8 of the town of Charleston. The return of the judges of election in that township showed that appellee had received 141 votes and appellant 81. In the recount of the ballots of that precinct, the court found that appellee had received 166 votes and appellant 79, making a gain of 25 votes for appellee and a loss of two votes for appellant. Since no objections are here made to the findings and rulings of the court in the recount of the ballots other than those arising on the question of their proper preservation and the 15 objected to ballots certified to this court, and since no cross-errors are assigned, the issue in the case resolves itself, in the first instance, into a question of the correctness of the court's action in recounting the ballots of the Eighth precinct of the town of Charleston and permitting such recount to overturn the returns. If no error exists in that action, an examination of his rulings as to the 15 ballots objected to is required. If the ballots of that precinct should not be allowed to overturn the returns a consideration of the said 15 ballots is unnecessary, for it must be conceded, on this record, that if the ballots of said precinct 8 were improperly...
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Mayes v. City of Albion
...288, 179 N.E. 877. The statute is silent as to the place and particular manner in which election ballots shall be kept. Alexander v. Shaw, 344 Ill. 389, 176 N.E. 441. Under the evidence, we do not believe the action of the circuit court in overruling appellant's objections should be disturb......
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Bolton v. Whalen
...kept in such a way that there was no reasonable opportunity for tampering with them, they cannot overcome the returns. Alexander v. Shaw, 344 Ill. 389, 176 N. E. 441;Haley v. Reidelberger, 340 Ill. 154, 172 N. E. 19;Kelly v. Brown, 310 Ill. 319, 141 N. E. 743;Clarke v. Bettenhausen, 296 Ill......
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Ralston v. Scott
...of their having been tampered with. Upon this point the trial court evidently relied upon our opinion in the case of Alexander v. Shaw, 344 Ill. 389, 176 N. E. 441, 442, and that is the principal case presented to us on behalf of the appellee in his brief. A reading of the record in the cas......
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Talbott v. Thompson
...kept in such a way that there was no reasonable opportunity for tampering with them, they cannot overcome the returns. Alexander v. Shaw, 344 Ill. 389, 176 N. E. 441;Haley v. Reidelberger, 340 Ill. 154, 172 N. E. 19;Kelly v. Brown, 310 Ill. 319, 141 N. E. 743;Clarke v. Bettenhausen, 296 Ill......