Behrensmeyer v. Kreitz

• Decision Date: 21 January 1891
• Citation: 26 N.E. 704,135 Ill. 591
• Parties: BEHRENSMEYER v. KREITZ.
• Court: Illinois Supreme Court

135 Ill. 591

26 N.E. 704

BEHRENSMEYER

v.KREITZ.¹

Supreme Court of Illinois.

Jan. 21, 1891.

Appeal from Brown county court; JOHN J. McDANNOLD, Judge.

Election contest. For former opinion, see 17 N. E. Rep. 232.Wm. McFadon and W. L. Vandeventer, for appellant.

Carter & Govert and C. A. Babcock, for appellee.

BAKER, J.

This cause was before us at a former term, and is reported as Kreitz v. Behrensmeyer, 125 Ill. 141, 17 N. E. Rep. 232. A statement of the pleadings, and of the general facts of the case, and a discussion of many of the more important questions involved in the controversy, will there be found. At that time the judgment was reversed, and the cause was remanded for further proceedings consistent with the opinion then filed. Upon the filing of the remanding order in the county court of Adams county, the venue was changed to the county court of Brown county, where the second trial was had and the present decree rendered.

At the general election held on November 2, 1886, there were three candidates for the office of county treasurer of Adams county. Charles F. A. Behrensmeyer, the now appellant, was the Republican candidate, John B. Kreitz, appellee, the Democratic candidate, and B. L. Dickerman the Prohibition candidate. The result, as declared by the canvassing board, was that Behrensmeyer had received 4,604 votes, Kreitz 4,618 votes, and B. L. Dickerman 272, making a plurality of 14 votes for Kreitz over Behrensmeyer. The election of Kreitz was contested by Behrensmeyer, and the final decree upon the first trial, which was had in the Adams county court, adjudged that Rehrensmeyer had received 4,597 votes, Kreitz 4,587, and Dickerman 274 votes, and that Behrensmeyer was elected treasurer of said Adams county by a plurality of 10 votes over Kreitz. Upon the second trial, in the Brown county court, the decree was that Kreitz had received 4,573 legal votes, Behrensmeyer 4,565 legal votes, and Dickerman 277 legal votes, and that Kreitz, having a plurality of eight votes over Behrensmeyer, was entitled to the office; and the present appeal is from the latter decree.

It went without contest at the last trial that Kreitz had received 4,520 legal votes, Behrensmeyer 4,511 legal votes, and Dickerman 277 legal votes. It was also admitted that 178 ballots were polled which were blank in respect to the office in question. The contest was in regard to 212 remaining votes. It is now conceded by both parties that 21 additional ballots were illegal, to-wit: The votes of Ferdinand Kowatz, William Ehe, Fred Dickerman, F. W. Moritz, Henry Neidoerffer, J. C. Graves, Herman Pilgrim, A. Kampe, L. Speckhart, William Boge, Gotlieb Boge, Henry Graewe, August Hoecker, Gustav Appenbrink, August Vanderboom, Charles Wormker, one double ballot (163) cast in the precinct of Columbus, one double ballot (160) cast in the precinct of Payson, and double ballots 221, 283, and 294 cast in the fourteenth election district of Quincy. It is also now conceded by both parties that ballot 239 of the third district of Quincy was for Richard Seaton, ballot 54 of the sixth district of Quincy was for Richard Seaton, ballot 251 of the ninth district of Quincy was for Vincent France, and ballot 212 of the fifteenth district of Quincy was for W. Hazelwood, for county treasurer, and that the ballot of Charles Klaubus was a blank in respect to that office. We may therefore deduct 26 ballots from the 212 contested votes, thereby leaving 186 votes for consideration. It is also admitted, as a result of the proofs on the hearing, that ballots 169 of Burton precinct, 177 of Richfield precinct, and 208 of the third district of Quincy were valid votes for Kreitz, and that ballot 198 of said third district was a valid vote for Behrensmeyer. It is likewise admitted that the unnumbered ballot cast in the precinct of Lima for appellant was a valid vote for him.

It is virtually conceded that the evidence sufficiently shows that Charles Miller, James Monteith, Henry Simons, Fred Dickman, Jr., Henry Wensing, Philip Ott, Barney Kloepper, Herman Jansen, Thos. Siebers, Henry Burghorst, Theo. Kemner, and William Schatzley, each cast an illegal vote for Kreitz for treasurer. It is objected, however, by appellee, that there was no allegation in the petition of contestant under which evidence of such illegality was admissible, and that it was error in the trial court to admit the same. The petition contains the following averments only in regard to illegal votes for appellee: That William Childers voted at Melrose, and was an illegal voter; that F. C. Inman voted illegally at the third district of Quincy for Kreitz for treasurer, and that he was not 21 years of age when he so voted; that at Liberty three persons voted illegally for Kreitz for treasurer; and that at some of the precincts and districts of said Adams county other illegal votes than those above named were cast by persons not legal voters for Kreitz, for said office of treasurer, and counted by the election judges for him. If appellee regarded this latter allegation as so indefinite as that it was no allegation whatever, he should have interposed a demurrer, and should have abided by it. He, however, elected to file an answer to the petition, and therein, among other things, denied that William Childers was an illegal voter; denied that F. C. Inman, voting at the third precinct of Quincy, was an illegal voter, under 21 years of age, and asserted he was 21 years of age; denied that at Liberty three illegal votes were cast and counted by the judges for Kreitz for treasurer, and averred that no illegal votes were cast at Liberty precinct for Kreitz; and denied that at any precinct of said county any illegal votes were cast for Kreitz for treasurer, and denied that the judges at said election precincts counted any votes for Kreitz not legal votes. We cannot concur in the suggestion that, under the allegation of other illegal votes in some of the precincts and districts of Adams county, appellant should be limited to proof of two illegal votes other than the five alleged to have been cast in Melrose and Liberty and the third precinct of Quincy, and should be restricted in regard to proof of these two illegal votes to precincts other than the three that are particularly specified. The averment was without doubt too general and indefinite, but, as appellee was content to take issue upon it, the words used must receive their usual and reasonable interpretation. By the expression, ‘some of the precincts and districts,’ is plainly meant an indefinite number of precincts and districts, but, at the same time, a number less than all the precincts and districts in the county. The words ‘other illegal votes' plainly signify illegal votes different from those which had been specified in the petition, and additional to them, and we find nothing in the words that would exclude the idea that such additional illegal votes might have been cast in the election districts that are particularly named. We think there was no error in admitting the testimony in question, and that the 12 illegal votes above mentioned should not be counted for appellee.

John Harrison voted for appellant in the second district of Quincy, and his vote was excluded by the trial court on the ground it was illegal. The sole ground upon which this action of the court is questioned is that the only testimony to show he was alien born, and had never been naturalized, was his own deposition, and the claim that such deposition should, on appellant's motion, have been suppressed. The record shows that appellant entered motions to suppress four separate series of depositions that had been taken by appellee, and that these several motions were overruled by the court. The deposition of John Harrison, here under consideration, was included in one of these series. All the depositions seem to have been taken and certified in substantial conformity with the requirements of section 30 of the evidence and depositions act. Rev. St. c. 51. The criticisms made upon the captions and certificates are technicaland without merit. The statute has fixed no form for either the caption or certificate to be attached to the depositions. The fact the depositions were taken with a type-writer does not show they were not ‘reduced to writing’ as required by the statute. There can be no presumption that any of the depositions were taken by any one other than the notary named in the notices, for he certifies to each of the series that ‘each of said depositions was so taken by me,’ etc. We find no error in the rulings of the court denying the motions to suppress, or in its finding that the vote of John Harrison was invalid, and should not be counted for appellant.

Appellee claims, by way of cross-error, that the entire returns and ballots of the ninth district of Quincy should be excluded, or that, at the least, the ballot should be discredited, and the certified returns of the election officers regarded as the best evidence of the vote. That there were some irregularities at this polling place there is no question. Steinkamp, one of the judges, made probably as many as 10 mistakes in numbering the ballots, but the evidence shows this was purely accidental, and from a lack of memory. So, also, the election officers, after the close of the polls, took the ballots to a room up-stairs, and there canvassed the votes, instead of canvassing them in the room or place where the election was held, as provided by the statute. There were also other irregularities of like character. But the evidence seems to satisfactorily show that none of these irregularities affected in any manner the result of the election, and there is no testimony tending to prove fraud or improper motives on the part of the election officers, or that any injury to any one was the result of their conduct. In Hodge v. Linn, 100 Ill. 397, there was a failure to number any of the ballots cast at the election, and...