Caldwell v. McElvain

• Decision Date: 19 February 1900
• Citation: 56 N.E. 1012,184 Ill. 552
• Parties: CALDWELL v. McELVAIN.
• Court: Illinois Supreme Court

184 Ill. 552

56 N.E. 1012

CALDWELL

v.McELVAIN.¹

Supreme Court of Illinois.

Feb. 19, 1900.

Appeal from circuit court, Jackson county; A. K. Vickers, Judge.

Bill by Robert J. McElvain against Andrew S. Caldwell, contesting the election of defendant as county judge of Jackson county.From a decree for contestant, defendant appeals.Affirmed.

James H. Martin, Wm. W. Clemens, and John M. Herbert, for appellant.

F. M. Youngblood, W. P. Lightfoot, M. M. Thompson, and W. W. Duncan, for appellee.

CARTWRIGHT, C. J.

At the election held November 8, 1898, Andrew S. Caldwell, appellant, and Robert J. McElvain, appellee, were opposing candidates for the office of county judge of Jackson county.Upon the canvass of the election returns by the county clerk and two justices of the peace, it was found and declared that appellant had received 3,320 votes and appellee 3,301.Appellant was declared elected to the office, and he was commissioned and assumed its duties.On November 29, 1898, appellee filed a statement in the circuit court of said county for the purpose of contesting the election.Issues were formed and the cause heard, resulting in a finding that appellee had received 3,320 votes, and appellant 3,308 votes.Appellee was declared duly elected, and appellant prosecuted this appeal.The ballots cast at the election were opened and counted in the presence of the court, and the finding was based on such recount.Objection was made by the defendant to opening and counting the ballots, but this objection was properly overruled.Under section 27 of [184 Ill. 554]the ballot law, the party contesting an election has the right to have the ballots opened, and to have all errors of the judges in counting or refusing to count any ballot corrected by the court or body trying such contest.Catron v. Craw, 164 Ill. 20, 46 N. E. 3;Bonney v. Finch, 180 Ill. 133, 54 N. E. 318.

The principal argument against the decision of the court is that the ballots from certain precincts should not have prevailed over the returns of the judges of the election.The canvass made by the election officials is merely a count of the ballots, and the return is a statement of such count.The ballots are necessarily better evidence than such a count, if their integrity has been preserved.Therefore, where it satisfactorily appears that they have not been tampered with, they are better evidence of the result of the election than the returns of the judges.The value of the ballots and the force of the evidence which they furnish are to be determined by considering the question whether they have been preserved according to law, or have been so exposed to the reach of unauthorized persons that they may have been changed or tampered with.If the canvass made by the judges is free from suspicion, and there is no evidence of negligence on their part, or conduct which would cast discredit upon their returns, and the ballots have not been properly preserved, but have been so kept that they might have been reached by unauthorized persons, the canvass will not prevail over the returns.Beall v. Albert, 159 Ill. 127, 42 N. E. 166;Eggers v. Fox, 177 Ill. 185, 52 N. E. 269;Bonney v. Finch, supra.Where, on the other hand, there is evidence that the judges have made mistakes, and have been so careless in performing their duties as to cast discredit upon their returns, such returns will not be conclusive evidence of the result as against the ballots, although the latter may be objects of suspicion by reason of undue exposure or want of proper preservation.The evidence may discredit both the ballots and the returns, and in such case the question what the true result of the election is must be determined by a consideration of both and all the circumstances.Dooley v. Van Hohenstein, 170 Ill. 630, 49 N. E. 193.

It was proved that after the ballots were brought to the county clerk they all safely kept, and were not exposed to the risk of being tampered with.In order to make them more secure, the county clerk put more wax on all of the seals, and they were then deposited in a cupboard in a vault 16 feet square, in his office, where the county records were kept.The windows were barred and fastened with a lever on the inside, and there were double doors to the vault.The inside door was fastened with a latch, and the outside door had a combination lock, and it was kept locked, except when the clerk or his deputies were in the office.There was an outside door of the clerk's office which was open during office hours, but no one was allowed to go into the vault unless the clerk or his deputy was with him.At the suggestion of defendant and his counsel, more wax and a better seal were added to the bags, and they were put in large bags, and sealed up and deposited in a bank.They were produced at the hearing unchanged, and with the seals unbroken.

So, also, there was no question but that the ballots had been properly kept from the possibility of change or interference before reaching the clerk, except as to the town of Elk and the West Side precinct in Carbondale.As to the town of Elk, the evidence shows that the returns were not sealed up when brought to the county clerk.The ballots were strung on wire, and the ends twisted and sealed, by the judges of election, and they were then put in a sack, which was tied, and returned to the county clerk by one of the judges.This judge identified the ballots, and testified that they were in the same condition as when the judges counted and delivered them, and that they were not tampered with or changed after they were counted, strung on the wire, and sealed.The judges had rejected some ballots, which they put in an envelope and sealed up, and these ballots were identified by the same judge, and they had his initials on them.When the returns from this town came to the county clerk, he sealed them up.On the recount of that town, there was no change from the count by the judges, but the court gave to contestant a gain of three votes on said ballots rejected by the judges.There was no disagreement, therefore, between the returns and the ballots from that town as to which the question of preservation of ballots could make any difference.This town of Elk and the two precincts of Carbondale are the only places in which the contestant made gains on the recount, but in the other precincts of the county, taken as a whole, he lost on the recount.

As to the West Side precinct of Carbondale, the evidence was that the ballots were counted, strung on wire, and sealed, and put in a canvas bag, and tied and sealed, in accordance with the statute.This occurred about 4 o'clock in the morning, and they were then delivered by the judges to Henry Crawshaw, supervisor of the town of Carbondale, and he, with the town clerk, who was a clerk of the...