Apple v. Barcroft

• Decision Date: 04 November 1895
• Citation: 41 N.E. 1116,158 Ill. 649
• Parties: APPLE v. BARCROFT.
• Court: Illinois Supreme Court

158 Ill. 649

41 N.E. 1116

APPLE

v.BARCROFT.¹

Supreme Court of Illinois.

Nov. 4, 1895.

Appeal from Bond county court; S. A. Phelps, Judge.

Proceedings by James B. Apple against John Barcroft to contest an election. Defendant obtained judgment. Contestant appeals. Reversed.

Northcott & Fritz, for appellant.

William H. Dawdy, for appellee.

PER CURIAM.

At the election in the town of Tamalco, in the county of Bond, for the election of township officers, held on the 3d day of April, 1894, the appellant and appellee were rival candidates for the office of commissioner of highways. It appears from the evidence that by the count and the result, as declared by the judges of election at the closing of the polls, appellant received 106 votes and appellee 107 votes, and appellee was declared duly elected. Appellant, by proper proceedings in the county court, contested the election, insisting that he, and not appellee, was elected to the office in question. Upon a recount of the ballots, and a hearing in the county court, it was decided by that court that appellant received 105 votes, and appellee 106 votes, and that appellee was elected, and entitled to hold said office. This appeal is prosecuted to reverse that judgment.

Eleven of the original ballots, numbered in the record from 1 to 11, inclusive, have been certified to this court for inspection. Of these there are only five concerning which there is any dispute, it being conceded that the other six cannot be counted for either party, and that they were properly rejected by the county court. Of the five ballots in dispute, the court below counted two for appellee, numbered respectively 1 and 11, and one for appellant, numbered 10, and rejected the other two, numbered, respectively, 2 and 3. Ballot numbered 1, so counted for appellee, contains no cross in the appropriate place, opposite the name of appellee, or preceding the appellation or title of the party of which he was the candidate. There are two lines commencing in the circle, preceding said appellation or title, drawn with a lead pencil nearly perpendicularly through said circle, and through each of the squares opposite the names of the candidates. These lines were at some points coincident and at others separated. There was no cross, nor anything approaching one, in the circle, or in the square opposite appellee's name, as the statute required, to indicate an intention of the voter to vote for him, or any one else. The statute must be substantially complied with. To permit the voter to substitute some other method of his own of marking his ballot, to express his choice, for the one provided, would practically nullify the statute. It would not only lead to uncertainty in ascertaining the voter's intention, but would destroy the secrecy of the ballot, by means of distinguishing marks, by which the ballot of each voter could be identified. There was in this instance no such compliance with the statute by the voter as contemplated by its provisions, and the county court erred in counting this ballot for appellee. Ballot numbered 2 shows a cross, thus ‘X,’ not in the square or appropriate place opposite the name of appellant, but to the right of appellant's name, between such name and the square opposite the name of appellee. While there was some plausibility in the contention of appellant that the way in which this ballot was marked showed that it was the intention of the voter to vote for appellant, still, as was held in the case of Parker v. Orr (decided at the present...