Clark v. Quick

• Citation: 36 N.E.2d 563,377 Ill. 424
• Decision Date: 15 September 1941
• Docket Number: No. 25658.,25658.
• Parties: CLARK v. QUICK.
• Court: Supreme Court of Illinois

377 Ill. 424

36 N.E.2d 563

CLARK

v.QUICK.

No. 25658.

Supreme Court of Illinois.

Sept. 15, 1941.

Election contest by Wilbur Clark against John Quick. From the judgment, the defendant appeals, and the plaintiff raises certain questions by cross-error.

Reversed and remanded with directions.

SMITH, J., dissenting.Appeal from Circuit Court, Clark County; Frank B. Leonard, judge.

Scholfield & Purdunn, Grendel F. Bennett, and Caslon K. Bennett, all of Marshall, and Everett L. Dalbey, of Danville, for appellant.

Robert F. Cotton and Harold E. Nimz, both of Paris, for appellee.

SHAW, Justice.

At the election which was held November 8, 1938, in Clark county, Wilbur Clark was the Republican candidate for county clerk and John Quick was his opponent on the Democratic ticket. Quick was declared elected and from that election the contest developed from which this appeal has followed. The canvassing board gave Quick 4,787 votes and Clark 4,770. On trial of the election contest the circuit court found that Clark had won over Quick by a majority of 12.0064. Every conceivable error and cross error has been assigned, based on an enormous record-nearly 300 exhibits and over 400 pages of brief and argument. In order to confine this opinion to any reasonable length, it will be necessary to consider the questions raised by groups and the qualifications of the various voters individually, regardless of the point questioned, and finally to tabulate the results arrived at.

In order to summarize the questions of law which must be considered, we wish to point out at the beginning of this opinion that in recent cases, Pope v. Board of Election Com'rs, 370 Ill. 196, 18 N.E.2d 214,Park v. Hood, 374 Ill. 36, 27 N.E.2d 838, and Coffey v. Board of Election Com'rs, 375 Ill. 385, 31 N.E.2d 588, we have given careful consideration to a review of all our previous cases concerning matters of residence and qualifications to vote. These three cases have occupied much of our time, have been fully considered, and each of them, after long discussion and full argument, has been adopted. We consider those cases to state the law of this State on the points involved, and we will, therefore, refrain from further consideration or discussion of prior cases, many of which are cited in the briefs.

In the Pope case we endeavored to make it clear that there is a distinction between place of residence and domicile and that, although it may be true that a person retains one domicile until he acquires another one, it does not necessarily follow that his residence or place of abode coincides with his domicile. In that case we decided that residence for voting purposes means an actual place of abode and we pointed out that domicile and residence are not synonymous. In the Park case we reiterated our holdings in the Pope case and held that the term ‘residence’ as used in the election law is equivalent to ‘permanent abode.’ In that case we said [374 Ill. 36, 27 N.E.2d 842]: ‘A real and not an imaginary abode, occupied as his home or dwelling, is essential to satisfy the legal requirements as to the residence of a voter. One does not lose a residence by temporary removal with the intention to return, or even with a conditional intention of acquiring a new residence, but when one abandons his home and takes up his residence in another county or election district, he loses his privilege of voting in the district from which he moved.’ These two holdings were reaffirmed in the Coffey case, supra, and the holdings of these cases are the basis for decision in this one.

Another preliminary observation will dispose of considerable argument in the briefs. A great deal is said on both sides concerning the right of every voter to express his will at the polls and it is clearly inferable from the arguments that this is considered to be an absolute right. It is enough to point out that it is not an absolute, but a conditional right. It is conditional, in some cities, upon previous registration; it is conditional upon not moving from one precinct to another within thirty days; it is conditional upon reaching the polling place while the polls are open, even though failure to do so might be entirely without fault on the part of the voter, and it is conditional in the case of absent voters, on the proper application being made within the proper time and in accordance with the statute. The right to vote is conditional upon many other things which might be mentioned and upon circumstances which may or may not appear to be within the control of the voter. No good purpose can be served by discussing any of the bad results which might follow from a failure to meet the conditions. No one doubts the legislative power to prescribe reasonable conditions and any fault which may be found with them must be taken up with the legislative rather than the judicial branch of government.

It is one of these conditions that raises the first serious point of argument which concerns the validity of forty-six absent voter's ballots. The statute which controls the voting by absent electors is quite specific in its directions as to how such ballots shall be applied for, how they shall be voted and how they shall be returned. The subject is covered by the Absent Voters Act. Ill.Rev.Stat.1939, chap. 46, pars. 462-475. It is provided by this act that an elector who expects to be absent from his place of residence on election day may apply to the proper official within the times mentioned in the statute for an absent voter's ballot and that he may receive the same to be used by him as in the act specified. So far as material here the pertinent section is section 6 (par. 467) of the act, which is as follows: ‘Such absent voter shall make and subscribe to the affidavits provided for in the application and on the return envelope for said ballot before an officer authorized by law to administer oaths and such voter shall exhibit the ballot to such officer unmarked, and shall thereupon in the presence of such officer and of no other person mark such ballot or ballots, but in such manner that such officer cannot see or know how such ballot is marked, and such ballot or ballots shall then in the presence of such officer be refolded by such voter in the manner required to be folded before depositing the same in the ballot box, and be in the presence of such officer deposited in such envelope and the envelope securely sealed. Such officer shall then endorse his certificate upon the back of said envelope and said envelope shall be mailed by such voter, postage prepaid, to the officer issuing the ballot or, if more convenient, it may be delivered in person, but in any event it must be returned into the hands of the officer in sufficient time for said ballot or ballots to be delivered by such officer to the proper polling place before the closing of the polls, on the day of the election.’

A subsequent paragraph of the act provides severe penalties for any willful violationof its provisions including fines up to $2,000, imprisonment up to one year and disfranchisement up to five years, with a forfeiture of any right to hold any elective or appointive office in this State.

It will not be necessary to go into detail as to each of the 46 absentee ballots because they all fall into one group and all are necessarily subject to the same rules. Neither is there any serious question but that they were all Republican ballots and all handled in substantially the same way. These ballots were obtained on affidavits taken before an active officer of the party with the assistance of a sister of the plaintiff who was a stenographer. Instead of being returned by mail to the county clerk as required by the statute, these ballots were given to John Hollenbeck who was secretary and treasurer of the Republican county organization in Clark county, who testified he placed some additional tape on the envelopes, including some which had been left for him at the office of the Marshall Herald and some which had been left at the office of his father. He held part of these ballots until November 6, 1938, and some until the morning of election day, November 8, 1938, when they were mailed or delivered to the county clerk. In the meantime those ballots which he held he said were kept in a safe in his office to which a sister of the plaintiff had access and which safe was not always kept locked. These ballots were received by him at various times and he said he put the extra tape on them for fear the county clerk or someone else might tamper with them. He received and held absent voter's ballots from various other Republican workers, some of which were voted in the Herald office and others in other places. Hollenbeck is State's attorney of Clark county, elected on the Republican ticket and precinct committeeman for precinct No. 2 in Clark county. Some other precinct committeemen had control of these absent voter's ballots, none of which were mailed within the statutory provision and some of which were held as long as ten days and probably, as to many of them, for a much longer period. Many of these ballots were notarized by the plaintiff's sister and then kept by her for future handling.

These ballots were void. There is nothing in the record before us to indicate that any of them were actually tampered with by any unauthorized person, but it is entirely obvious that the opportunity to do so was present. It is the entire theory of our ballot law, as expressed in all of the cases, that once a ballot has been marked by a voter in secret, from that time on it shall not be subject to any opportunity for any other person to mar, change or erase it. It will be found in all of the cases that the question for consideration by the court is not whether the ballot has been tampered with, but whether or not an unauthorized person has had an opportunity to do so. If the opportunity has been present the presumption seems to follow that it has been...