Bullman v. Cooper

• Citation: 200 N.E. 173,362 Ill. 469
• Decision Date: 14 February 1936
• Docket Number: No. 23205.,23205.
• Parties: BULLMAN et al. v. COOPER.
• Court: Supreme Court of Illinois

362 Ill. 469

200 N.E. 173

BULLMAN et al.

v.COOPER.

No. 23205.

Supreme Court of Illinois.

Feb. 14, 1936.

Election contest by J. Jay Bullman and others against Howard Cooper. From an adverse judgment, plaintiffs appeal.

Affirmed.Appeal from Warren County Court; James W. Gordon, Judge.

Edmund D. Adcock, of Chicago, and L. H. Hanna and Charles E. Lauder, both of Monmouth, for appellants.

John J. Ryan, of Monmouth, and Roswell B. O'Harra, of Carthage, for appellee.

WILSON, Justice.

On April 2, 1935, an election was held for the office of supervisor of the town of Kelly, in Warren county. J. Jay Bullman and Howard Cooper were respectively the candidates of the Republican and Democratic Parties. The result of the canvas of the votes was that Cooper received 158 votes and Bullman 157. One ballot was declared defective and not counted. Cooper qualified and assumed the duties of the office. The appellants. Bullman and Harry Anderson, a qualified elector, filed a petition in the county court of Warren county to contest the election. The petition was amended and the appellee, Cooper, answered the amended petition. After hearing evidence and a recount of the ballots the court found that all should have been counted, including the one which had been rejected as defective; that the ballots objected to by Bullman and Anderson should be counted for Cooper and that those attacked by Cooper should be counted for Bullman; that 159 votes were cast for Cooper and 157 for Bullman, and that none were improperly marked or bore distinguishing marks; that of four persons alleged to have been disqualified voters three were qualified, and one not qualified; that the latter voted for Cooper and that his vote should not be counted. The court found that Cooper received 158 and Bullman 157 votes and the former was declared to be legally elected to the office of supervisor. Bullman and Anderson prosecute this appeal.

A preliminary question is presented which requires consideration. Appellee makes the contention, among others, that the ballots were not properly preserved, and that, with the exception of the ballot marked for identification as Exhibit AAA, should not have been received in evidence. Appellants maintain that this court is precluded from considering errors on the recount alleged to be favorable to Bullman owing to the fact that the appellee did not file a notice of cross-appeal. If a party has not obtained all that he deems himself entitled to, he may appeal, but not when he receives all that he claims. Pelouze v. Slaughter, 241 Ill. 215, 89 N.E. 259. The final and appealable order rendered by the county court was that the appellee be declared elected to the office of supervisor of the town of Kelly, and for costs against the appellants. No part of this judgment was adverse to the appellee, and, hence, he was not in a position to file a notice of or prosecute a cross-appeal. On the other hand, he has the right in such cases to sustain the judgment upon any ground warranted by the record irrespective of whether the particular reasons given by the trial judge or his specific findings are correct. Stewart v. Dodson, 282 Ill. 192, 118 N.E. 405, 1 A.L.R. 1544; Pelouze v. Slaughter, supra.

The evidence discloses that Kelly township is a rural township in the northeast portion of Warren county; that the town clerk received the ballots after they were counted on election night at the town hall; that they were delivered to him in a closed canvas sack, strung on a string which had a button at one end and a sealed knot at the other. The clerk was a farmer, who lived two or three miles from the town hall, his family consisting of himself, his wife, a daughter, and a son, aged twenty and eighteen years, respectively. He arrived home late in the evening of April 2 and left the sack containing the ballots on the dining room table until the next morning, when he placed it in a box in a room adjoining his bedroom. The town clerk's supplies were kept in this room, access to which could be had only through the bedroom. The ballots remained in the box in the storeroom until they were delivered to the sheriff five days later. The clerk testified that they were in the same condition when produced in court as when he had received them and delivered them to the sheriff. From his testimony, it also appears that he remained at home every night while the ballots were in his custody, and that he had most, if not all, of his meals there. There was no evidence that the town clerk's house had been entered by a stranger while the ballots were in the possession of that officer. Nor was there any evidence tending to show that the ballots had been tampered with at any time since the voters cast them.

To sustain the judgment, the appellee insists, however, that the ballots had not been properly preserved, and that, in consequence, the trial court erred in admitting them as evidence of the result of the election. The question of the probative force of the ballots in an election contest depends upon the care with which they have been preserved. If it clearly appears that the ballots are in the same condition when offered on the hearing as when they were counted by the judges of election, the recount made by the court must prevail, and any discrepancies in the votes certified will be attributed to the errors of the election officers. Bolton v. Whalen, 350 Ill. 50, 182 N.E. 780. Conversely, if the evidence shows that the ballots were exposed to the reach of unauthorized persons, and the returns are not discredited, the ballots will not be regarded as better evidence of the result of the election. Talbott v. Thompson, 350 Ill. 86, 182 N.E. 784; Bolton v. Whalen, supra. The provisions of the ballot law for the preservation of the ballots are directory in the sense that the precise method prescribed is not essential if there is a substantial compliance, and it is clearly proved that the ballots are in the same condition as when they were first counted. Talbott v. Thompson, supra; Alexander v. Shaw, 344 Ill. 389, 176 N.E. 441. The question whether the ballots have been properly preserved is in each action necessarily one of fact to be determined by the evidence. Sibley v. Staiger, 347 Ill. 288, 179 N.E. 877. In the present case the evidence shows that the ballots were not disturbed while they remained in the house of the town clerk; that after they were placed in the box it was not opened until its contents were delivered to the sheriff, and that the ballots, when produced in court, were in the condition in which the judges of election counted them. The county court properly admitted them in evidence.

The appellants contend that three ballots counted for the appellee, namely, A-17, A-18, and A-26, bore distinguishing marks which invalidated them. It is established that any deliberate marking of a ballot by a voter that is not made in an attempt to indicate his choice of candidates, and which is also effective as a mark by which his ballot may be distinguished, should be considered as a distinguishing mark. Stevenson v. Baker, 347 Ill. 304, 179 N.E. 842. Whether a given mark upon a ballot is a distinguishing mark is largely a question of fact to be determined from an inspection of the original ballot itself. Kerr v. Flewelling, 235 Ill. 326, 85 N.E. 624;Winn v. Blackman, 229 Ill. 198, 82 N.E. 215,120 Am.St.Rep. 237. If it appears that marks were placed thereon as the result of an honest effort by the voter to indicate his choice of candidates and not as an attempt to indicate the identity of the voter, the ballot should not be rejected for candidates for whom a choice is expressed according to law. Rexroth v. Schein, 206 Ill. 80, 69 N.E. 240. Ballot A-17 has a short, nearly vertical, line beginning a little to the right of the center of the circle at the head of the Republican column and trailing off vertically to a point a short distance below the lower rim of the circle. The only other mark on the ballot is a cross in the circle at the head of the Democratic column. From the face of this...