Bonney v. Finch

• Decision Date: 19 June 1899
• Citation: 54 N.E. 318,180 Ill. 133
• Parties: BONNEY v. FINCH.
• Court: Illinois Supreme Court

180 Ill. 133

54 N.E. 318

BONNEY

v.FINCH.

Supreme Court of Illinois.

June 19, 1899.

Appeal from circuit court, Clay county.

Contest of election by Sol T. Finch against John R. Bonney. There was judgment for contestant, and defendant appeals. Reversed.

R. S. C. Reaugh, H. W. Shriner, E. S. Boyles, and B. D. Monroe, for appellant.

Hoff & Hoff, Rose & Dillman, and Sol T. Finch, for appellee.

WILKIN, J.

The parties to this litigation were rival candidates for the office of county judge of Clay county at the November election, 1898, the appellant being the Republican candidate, and the appellee that of the Democratic party. One R. P. Anderson was also a candidate. The returns were regularly canvassed, and appellant declared duly elected by a majority of 1, he having received 1,983 votes. Appellee received 1,982, and Anderson 70. After appellant had been commissioned and entered upon the duties of his office, appellee began this proceeding to contest his election. The grounds of contest alleged in the petition are that the judges of certain voting precincts made mistakes or errors against the petitioner in receiving and rejecting ballots and in making additions, with the general averment that such mistakes and errors were committed in all the precincts of the county. Appellant, by his answer, denied each of these allegations. Upon the hearing in the circuit court, on January 30, 1899, the ballots cast at said election were recounted. They, together with the tally sheets, poll books, and other papers pertaining to the election, were at that time in the custody of I. N. Holiday by consent of the parties, pending a contest between John A. Bateman and Wesley E. Jackson for the office of county clerk voted for at the same election. Holiday, as such custodian, was ordered to produce the ballots in court, and by consent of the parties four tellers were appointed to recount them; which being done, the result was found to be that the petitioner had received 1,993 votes, the defendant but 1,977, and Anderson 70. It was accordingly decreed that the petitioner, Finch, was duly elected to said office, and from that decree this appeal is prosecuted.

The question for decision on this record is whether, under the facts and circumstances shown by the record, the ballots shall be permitted to impeach and overturn the return as shown by the return of the canvassing board. That is the only issue presented by the pleadings. The general rule is that upon an election contest the ballots are the best evidence of the number of votes and for whom cast, and will overcome the official count and return. It has been held that, before the ballots can be admitted in evidence in such a case and recounted, it must be shown that they have been safely kept by the proper custodian. Under our present statute, they are competent without such affirmative proof, not as the best evidence, but for what they are worth. Catron v. Craw, 164 Ill. 20, 46 N. E. 3. The competency of the ballots in this case cannot, however, be questioned, the certificate of evidence showing that they were admitted and counted by agreement of counsel for the parties. It is not denied that the ballots, as they appeared at the time of the recount, showed the result as found by the tellers. Therefore, if they are to be considered as the best evidence of the result of the election, and to overcome the return of the canvassing board, the result reached by the chancellor was unquestionably correct, and our first inquiry must be whether the ballots were entitled to that degree of probative force, or whether, under all the circumstances, they were insufficient to disprove the return made by the canvassers.

Counsel for appellee insist that it was agreed by counsel that the ballots brought into court and afterwards recounted were the same identical ballots cast at the election, and there is a recital in the decree to that effect. The certificate of evidence, however, shows that the agreement was by no means that broad, it being stated expressly: ‘The contestee, Bonney, does not admit, however, that said ballots are the identical and original ballots voted at the several election precincts of Clay county, Illinois, at the November election, 1898, or that they have been properly preserved as required by law, and expressly reserves the right to deny that said ballots are such identical and original ballots, and that they have been kept as required by law.’

The first ground upon which the credibility of these ballots is questioned is that they were not safely kept, as required by the statute. There is no claim that they were not so kept by the judges of the election and promptly returned to the county clerk. Under the statute, it was made his duty to safely keep them for six months. The statute does not specify the manner or place in which the ballots shall be kept, so that, whenever the question arises, it must be determined upon all the facts and circumstances of the case. The evidence shows that the ballots were returned to him in canvas bags, tied and sealed, and these bags were placed, or, as some of the witnesses say, thrown, in the back room of the county clerk's office, partly on the floor and partly on boxes, near two outside windows. This back room was used by the county clerk as a part of his office, for keeping records, files, etc., and was also occupied by the county judge, who at this time was the only deputy of the county clerk. There was a door opening from the room into the hallway of the court house, and also one opening into the front room of the clerk's office. There was a third door, but this was closed by a file case having been built against it. All parties agree that the canvas bags containing the ballots remained on the floor and boxes about a week or 10 days, when some complaint was made by candidates on the Democratic ticket to W. R. Whitman, chairman of the Democratic central committee, as to the manner in which they were being kept, and he was requested to speak to the county clerk about the matter. He thereupon called at the office, and, finding the clerk himself absent, talked with Judge Hagle, who was then acting as deputy county clerk, occupying the back room mentioned, and had the keys to the same. Judge Hagle, as he testified, was a lifelong Republican. He and Whitman had some conversation about the opportunity the clerk had for keeping the ballots as they were kept, and their safety, and finally concluded to put the bags in a cupboard in that room, which they did. Hagle says, speaking of the conversation with Whitman: ‘We talked the matter over, and I said it would be better to put them in a safer place, away from there. We put them where nobody would see them.’ Whitman says that, after placing them in the cupboard, they attempted to close the door, and found it would not stay shut, and that Hagle remarked, ‘They are no more secure now than they were before.’ The evidence of Hagle is to the effect that the door leading into the hall,...