Choisser v. York

• Decision Date: 20 April 1904
• Citation: 211 Ill. 56,71 N.E. 940
• Parties: CHOISSER v. YORK.
• Court: Illinois Supreme Court

211 Ill. 56

71 N.E. 940

CHOISSER

v.YORK. ^*

Supreme Court of Illinois.

April 20, 1904.

Appeal from Circuit Court, Saline County; A. K. Vickers, Judge.

Election contest by Dan P. Choisser against Lewis E. York.Petition dismissed, and contestant appeals.Affirmed.

Boggs, Scott, and Ricks, JJ., dissenting.

C. S. Conger, L. O. Whitnel, Abney & Burnett, and Choisser, Choisser & Kane, for appellant.

A. W. Lewis, R. S. Marsh, W. F. Scott, and M. S. Whitney, for appellee.

HAND, C. J.

This is an appeal from an order of the circuit court of Saline county, dismissing the petition in a proceeding commenced by the appellant against the appellee in that court to contest the election of the appellee to the office of county superintendent of schools of Saline county.The appellant and appellee, at the general election held in Saline county on the 4th day of November, 1902, were candidates, respectively, of the Democratic and Republican parties for the office of county superintendent of schools.The votes cast at the election were duly canvassed by the canvassing board of said county, and it was determined that the appellee had received 2,086 and the appellant 2,083 votes for said office, and the appellee was declared duly elected, received a certificate of election, and entered upon the duties of the office.A contest was subsequently commenced by the appellant, and upon a trial the court found the appellee had received 2,080 votes and the appellant 2,073 votes for said office, and that the appellee was duly elected, and dismissed the proceedings at appellant's costs.

There are located in Saline county 15 voting precincts, namely, Tate, Galatia, Carrier Mills, Stone Fort, Brushy, Long Branch, Raleigh, HarrisburgNo. 1, HarrisburgNo. 2, Independence, Rector, East EldoradoNo. 1, East EldoradoNo. 2, Cottage, and Mountain.The record is voluminous, and the appellant has assigned errors and the appellee cross-erors thereon, and the questions discussed in the briefs will be considered in their logical order, so far as is practicable, regardless of by whom they are raised.

First.It is said the court erred in holding that the returns of the judges of the election should prevail over the ballots in determining the result of the election.The returns, as well as the ballots, in all of the precincts in which the correctness of the vote was challenged by either party, were admitted in evidence, subject to objection.It appeared, however, when the evidence was all in, that the ballots had not been properly kept, that they had been tampered with, and in many instances changed; and the court, while there is no specific ruling to that effect, seems to have given the ballots but little weight, and to have based its decision mainly upon the returns.In Perkins v. Bertrand, 192 Ill. 58, 61 N. E. 405,85 Am. St. Rep. 315, it was held that the ballots are the best evidence of the result of an election, if they have been properly preserved and have not been exposed to the reach of unauthorized persons, and that whether ballots have been properly preserved is a question of fact, to be determined from all the circumstances in proof.The evidence found in this record shows that the ballots cast at said election were placed in the county clerk's office in a vault where they were accessible to unauthorized persons, that in some instances the seals upon the packages containing the ballots had been broken, that the ballots had been removed from the wires upon which they were strung, and that many of the ballots had been changed or disfigured; and in view of these factswe think the trial court was justified in holding that the ballots failed to overcome the returns, and properly grounded its decision upon the returns.

Second.It is said that the court erred in refusing to eliminate from the recount a large number of ballots on the ground that they bore distinguishing marks.From the manner in which the ballots had been kept it was impossible to determine whether what are designated as distinguishing marks were upon the ballot when cast, or whether such marks had been placed upon the ballots since that time.The condition of these ballots, disfigured as they are in many instances, emphasizes the wisdom of preserving the ballots in the manner and by the officers designated in the statute; otherwise, their value as evidence on a contest is utterly destroyed.The court did not err in declining to eliminate from the recount the ballots alleged to bear distinguishing marks.

Third.The trial court found that 15 illegal votes were cast at said election, 5 of which were cast for appellant and 4 for appellee, and that it was unable to determine from the evidence for which candidate 6 of the said votes were cast, and apportioned the 6 votes between the parties in the proportion the vote of each bore to the whole number of votes case; that is, the court deducted 8 of the votes held to be illegal from the vote of the appellant and 7 from the vote of the appellee.The illegality of said 15 votes was predicated upon the fact that the persons by whom they were cast were not residents of and entitled to vote at the several precincts where they deposited their ballots.The testimony as to whether said persons whose votes were rejected were residents of the several precincts in which they cast their votes was conflicting, and the testimony upon which the court determined for whom 9 of said illegal votes were cast was based entirely upon proof tending to show to which of the political parties-that is, Democratic or Republican-the persons casting illegal votes belonged, and the presumption that members of a political party usually vote their party ticket.Sorenson v. Sorenson, 189 Ill. 179, 59 N. E. 555;Rexroth v. Schein, 206 Ill. 80, 69 N. E. 240.From an examination of the testimony in this record we think the court was justified in its conclusion as to the number of illegal votes cast at the election, that 5 thereof were cast for the appellant and 4 for the appellee, and that as to 6 it could not be reasonably ascertained for whom they were case, and that they were properly apportioned between the candidates.People v. Cicott, 16 Mich. 283, 97 Am. Dec. 141.These questions were determined upon conflicting evidence heard in open court, and, the court having seen and heard the witnesses, this court will not disturb the finding of the trial court, unless its finding is manifestly wrong, which we are unable to demonstrate, from the evidence, to be true in the case at bar.

Fourth.In Independence precinct the canvassing board gave appellee 205 votes and appellant 101 votes.The evidence clearly shows that in that precinct only 201 votes were cast for appellee and that 104 were cast for appellant, and that the returns from that precinct were changed after they were made by the judges and clerks of election, and before they were delivered to the canvassing board.The judge to whom the returns were intrusted to be delivered to the county clerk was guilty of gross carelessness.Instead of retaining possession of the ballots and returns until he could deliver them to the county clerk, he took them, the evening of the election, to the house of a neighbor, where they remained in unauthorized hands until the next day, when he returned and again took possession of them and delivered them to the clerk.The evidence also shows, without contradiction, that, when the votes of Independence precinct were being counted, three of the Democratic ballots had folded in them piecs of colored paper-two blue and one yellow.It also shows that on the day of the election one of the members of the Democratic party working for that ticket exhibited pieces of paper of that color, and stated that those who would vote the straight Democratic ticket with such colored pieces of paper folded in them would receive ‘at Jim Mitchell's store, the next day,’ two dollars.Mitchell was a merchant in Independence, and also belonged to the Democratic party.No explanation is found in the record of how these pieces of paper became folded in the ballots.The slips were doubtless inserted within the ballots for the purpose of designating for whom the voters whose ballots contained them had cast their votes, and the court properly rejected the ballots which contained said slips from the count.The court also found that William Mealer, who voted in Independence precinct, cast an illegal vote for appellee.The trial judge counted 200 votes for the appellee and 101 votes for the appellant in Independence precinct.We find no reason in the record for disturbing the recount in that precinct.

Fifth.In Rector precinct the returns were not signed or certified by the judges and clerks, as required by the state.2 Starr &C. Ann. St. 1896, p. 1651, c. 46, par. 62, expressly provides that, ‘when the votes shall have been examined and counted, the clerks shall set down in their poll books the name of every person voted for, written at full length, the office for which such person received such votes, and the number he did receive, the number being expressed in words at full length; such entry to be made, as nearly as circumstances will admit, in the following form: [Then follows the form to be signed by the judges.]’The next section provides: ‘Before said returns are sealed up, as aforesaid, the judges shall compare said tally papers, footings and certificates, and see that they are correct and duplicates of each other, and certify to the correctness of the same.’In this voting precinct the judges and clerks did not comply with either one of the foregoing sections, or even attempt to do so.None of the required blanks were filled out.Neither were the certificates signed by either judges or clerks, or the vote of any candidate certified.It is claimed that on account of this omlssion of duty the vote of that precinct should not have been counted by the canvassing board.

In Peole v. Nordheim, 99 Ill. 553,...