Bolton v. Whalen

• Decision Date: 22 October 1932
• Docket Number: No. 21133.,21133.
• Citation: 182 N.E. 780,350 Ill. 50
• Court: Illinois Supreme Court
• Parties: BOLTON v. WHALEN.

350 Ill. 50

182 N.E. 780

BOLTON

v.WHALEN.

No. 21133.

Supreme Court of Illinois.

Oct. 22, 1932.

Election contest by Hugh H. Bolton against Martin J. Whalen and others. From judgment for named defendant, plaintiff appeals

Affirmed.

Appeal from Will County Court; Ralph C. Austin, Judge.

D. R. Anderson, of Joliet, for appellant.

Snapp, Heise & Snapp, Edward R. Nadelhoffer, and Martin K. Miller, all of Joliet, for appellee.

DE YOUNG, J.

The city of Joliet in Will county, adopted the commission form of municipal government in the year 1915. At a primary held in the city on March 3, 1931, the appellant, Hugh H. Bolton, Robert J. Cronin, David J. Emery, John K. Jeffrey, Joseph E. Kochevar, Samuel E. Shepley, Martin J. Whalen, and Robert Wraith were nominated for the four offices of commissioner. The election was held on April 21, 1931, and on the next day the official canvass of the returns from the eighteen election districts or precincts of the city disclosed that Shepley, Wraith, Emery, and Whalen, in the order stated, stood first, second, third, and fourth in the total numbers of votes received, and that there had been cast for them respectively 13,209, 9,752, 8,219, and 8,053 votes. Accordingly they were declared elected. Upon the canvass, Bolton was credited with 8,019 votes, and, among the unsuccessful candidates, stood highest in the number of votes received. He filed a petition in the county court of Will county to contest the election. The petition was amended. Two answers were filed; one by Whalen, and the other by Emery, Shepley, and Wraith, and these answers were followed by a replication. The petition was taken as confessed by Cronin, Jeffrey, and Kochevar. During the progress of the hearing, the parties stipulated that Emery, Shepley, and Wraith had been elected, and after a recount of the ballots, and the introduction of considerable evidence, the court found that unauthorized persons had been afforded access to the ballots; that, after the canvass of the votes, crosses not made by the voters had been placed before the name of the petitioner on a number of ballots from two election districts; and that the returns made by the officers of election were true and correct, and, as evidence of the result of the election, were entitled to greater weight than the ballots. The court adjudged Whalen elected to the remaining office of commissioner, and dismissed Bolton's petition. From that judgment, the latter prosecutes this appeal.

The ballots and returns from sixteen election districts were delivered to the city clerk late on the day of the election. He received them from the two remaining districts early the following day. His office was located on the second floor of a bank building in the principal business district of Joliet. The city leased that floor, and it was occupied not only by the office of the city clerk, but also by the offices of the mayor, commissioners, city collector, and building commissioner, the council chamber, an information bureau, and a storeroom. A corridor ran from east to west, and turned south near the southwest corner of the building. North of this corridor and near the east end of the building was a large room set apart for the city clerk and the city collector as their combined office. A door in the east wall of this room opened into the office of Commissioner Shepley. Between the south wall of the latter's office and the north wall of the corridor, the city clerk's vault was located. The door to the vault was in the south wall of the commissioner's office, and the vault could be entered only through that office. Near the southwest corner of the same office a door opened into a hallway which, for a short distance, adjoined and ran parallel to the corridor. From this hallway admittance was gained to the offices of the mayor and Commissioners Shepley and Wraith, as well as the office of Commissioner Emery. A door in the south wall of the hallway opened into the corridor, and practically opposite this door, and at the point where the corridor turned south, the storeroom was located. The door to the storeroom was in the north wall of the room, which was the south wall of the corridor; the room had no windows, and it was lighted by two electric lamps. At the southwest corner of the second floor, west of the corridor and opposite the south end of the storeroom, was the office of Whalen, the appellee. It had been occupied by Bolton, the appellant, Whalen's immediate predecessor, and it was entered directly from the corridor.

Upon the delivery of the ballots and returns to the city clerk, he deposited them in the vault of his office. He took them from the vault so that the official canvass might be made, and, when that purpose had been served, he returned them to the vault. For the lack of space in the vault, the clerk, on the day after the canvass, transferred the ballots and returns to the storeroom. Shortly thereafter he heard rumors of a contest of the election, and for that reason, on the fourth of May, he took the ballots and returns from the storeroom and returned them to the vault. The door to the vault was locked when the office was closed. During the time the ballots and returns were in the vault, the city clerk was the only person who understood the operation of the combination lock to open the vault door. No person other than the city clerk and his deputy had access to the vault.

The storeroom was the depository of stationery and supplies used by the officers and employees of the city. A table stood in the center of the room. The door to the storeroom was self-locking and was kept closed. A key to the lock, however, hung on the wall in the city collector's office and in the public view, was available for use by the collector, the city clerk, and their assistants. Master keys to unlock the doors to the municipal offices and the storeroom were carried by the mayor and certain commissioners. On May 4, 1931, when the appellee entered upon the dischargeof his duties as a commissioner, the appellant gave him one of these keys. The doors at the street entrance to the building were never locked; the second floor could be reached by a stairway and an elevator, and any person who had a master key or had obtained custody of the key in the collector's office could gain admittance to the storeroom.

Upon the filing of the appellant's petition to contest the election, the county court, on May 12, 1931, appointed the county clerk the custodian of the ballots and returns. Pursuant to this appointment, the city clerk delivered the ballots and returns to the county clerk and the latter deposited them in the vault of his office. The vault was used exclusively by the county clerk, and that officer and his two deputies were the only persons who had knowledge of the combination to the lock and could open the vault door. The ballots remained in this vault until they were counted in court, and the county clerk and one of his deputies testified that no person not connected with the office entered the vault during that period.

The evidence showed irregularities by the judges and clerks of election in several districts. A number of ballots cast in one district bore the surname instead of the initials of a judge of election. In certain districts the ballots were divided into three piles and the votes in each were counted by a judge and tallied by a clerk. The three results credited to each candidate were then added together to ascertain his total in the district. Several clerks first tallied votes on sample ballots and then transferred the tallies to the sheets provided for that purpose. In certain districts erasures and corrections of figures appeared on tally lists and in pollbooks. The signature of the officer administering the oath of office to the judges of election was omitted from certain pollbooks. To save time, the judges of election in certain districts signed the pollbooks before the polls were closed, and in a majority of the districts the ballots were not folded before they were strung on a wire. There was no proof, however, of any want of good faith or of fraudulent conduct on the part of the judges and clerks, while there was testimony by watchers, as well as judges and clerks, that in every district the ballots had been correctly counted.

The ballots, tally sheets and poll lists and the testimony concerning them disclosed the following facts: In the first district a small number of ballots were separated from the rest, and the wires which ran through them were twisted together, but the ends were not sealed. One of the judges could not tell whether the ballots were in the same condition as when they were fastened together immediately after the election. The seal on the sack of ballots from the...