Clark v. Robinson

• Decision Date: 31 January 1878
• Citation: 1878 WL 9918,88 Ill. 498
• Parties: E. E. CLARKv.WILLIAM E. ROBINSON.
• Court: Illinois Supreme Court

88 Ill. 498

1878 WL 9918 (Ill.)

E. E. CLARK

v.WILLIAM E. ROBINSON.

Supreme Court of Illinois.

January Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Coles county; the Hon. W. E. ADAMS, Judge, presiding.

Mr. O. B. FICKLIN, Mr. A. J. FRYER, and Mr. H. S. CLARK, for the appellant.

Mr. CHARLES BENNETT, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a proceeding commenced by the appellant herein, E. E. Clark, in the county court of Coles county, at the December term, 1876, to contest the election held on the 7th day of November, 1876, in that county, for clerk of the circuit court of the county. The cause was heard by the county court at the July term, 1877, and judgment given against appellant, from which this appeal was taken.

The board of canvassers declared that there were cast for the office, 2943 votes for the appellee, William E. Robinson, and 2927 for appellant, giving a majority of 16 votes for appellee.

In one election district, one ballot was cast for “E. Clark” for clerk of the circuit court, and one other ballot for “Clark” for clerk of the circuit court, neither of which was counted for appellant. Appellee admits that these two ballots were intended to be cast for appellant. They should have been counted for him. Talkington v. Turner, 71 Ill. 234.

One ballot had “Clark” written on it, and “W. E. Robinson,” printed, with “for clerk of the circuit court,” erased. It was counted for neither contestant nor defendant. Appellant claims it should have been counted for him; that the person casting this ballot must have taken the line containing the words “for clerk of the circuit court” for the one containing the words ““William E. Robinson,” and thus have mistakenly erased the former, instead of the latter. This may have been so, but it is only matter of conjecture. There is nothing to show that the voter intended to do any other thing than what he did do, except the appearance of the ballot. The name of the office is erased, so that two persons appear to be voted for, without designation of the office. Had not the words “for clerk of the circuit court” been erased, the ballot would have contained two names for the same office. By § 58, p. 459, Rev. Stat. 1874, if more persons are designated for any office than there are candidates to be elected, such part of the ticket shall not be counted for either of the candidates. We do not see what could properly be done with such a ballot, except as was done, not to count it for either candidate.

Appellant challenges the four votes of Herbert Kittle, Wm. Harpin, Robert Waller and Ernest Walther, which were counted for appellee, on the ground that these persons were foreign born, and never naturalized as citizens of the United States. Upon an examination of the evidence, it appears to sustain the objection; it shows that these persons had but made declarations of their intentions to become citizens of the United States, and these votes should not be counted for appellee.

Appellant objects to the five votes of Josh Edington, John Goodwin, Thomas Halbrook, Pont Elkin and George W. Matthews, counted for appellee, that the persons casting them were non compotes mentis.

Upon this subject, Judge COOLEY, in his work on Const. Lim. 599, remarks: “In some States, idiots and lunatics are also expressly excluded; and it has been supposed that these unfortunate classes, by the common political law of England and of this country, were excluded with women, minors and aliens, from exercising the right of suffrage, even though not prohibited therefrom by any express constitutional or statutory provision,” citing Cushing's Legislative Assemblies, §§ 24, 27.

There is in this State no express exclusion by constitution or statute. Without further remark upon the legal question, we deem it sufficient to say that we do not regard the testimony as bringing these persons within the description of the above named classes. In regard to Thomas Halbrook, who is most obnoxious to the objection, in the amount of adverse professional testimony, there is the testimony of three witnesses, in whose several employ he had been at different times, that he is a good hand at farm work, and in both saw and grist mills; that he needs no instruction about his work, does the same work and receives the same pay as other hands, knows money and its value, makes his own contracts, does his own trading and takes care of his own money, reads, converses freely, talks and laughs like other men, but owing to some disease he had at some time, his speech is imperfect--yet three medical experts, whose opinions we are urged to accept as conclusive, pronounce him an idiot. They differ, in their ideas of an idiot, from Blackstone. He says: “An idiot, or natural fool, is one that hath had no understanding from his nativity, and therefore is, by law, presumed never likely to attain any.” “A man is not an idiot, if he have any glimmering of reason, so that he can tell his parents, his age, or the like common matters.” 1 Black. Comm. 302, 303. It is but justice, however, that this testimony should be allowed the benefit of the remark in Taylor on Medical Jurisprudence, 743, “but many medico-legal writers apply the term idiot to one who does manifest capacity to receive instruction, although in a low degree.”

The only witness testifying against Pont Elkin is a physician, who says that he does not think Elkin insane, but that he does not think him compos mentis; that a man vacillating, easily persuaded to do anything, is not properly compos mentis. The testimony with regard to the others, Edington, Goodwin and Matthews, was to much the same effect as that in respect to Halbrook, as regards mental capacity. The evidence shows that for some years Matthews has, at times, labored under some kind of illusion or hallucination, but not to such an extent as to incapacitate him from the general management of his business. This hallucination does not seem to have at all extended to political matters, and the evidence shows that, on the day of election, he conducted himself with entire propriety. As respects the others, witnesses testify to peculiarities and eccentricities indicative of mental deficiency to some extent, but we can not think that persons possessing the degree of understanding which these are shown to have had, are, on the account of mental incapacity, to be denied the privilege of the exercise of the elective franchise. We can allow to the medical opinions no controlling force, but such weight only as we deem them entitled to in view of the facts in evidence. We find no error in counting these votes for appellee.

It is claimed by appellant that L. D. Hoyt, Joseph Johnson, John H. Harper and A. Tumalt, whose votes were counted for appellee, were minors. As to Tumalt, he will be further remarked upon in another connection. We find the evidence sustains this objection as to Hoyt, but not as to the others. The vote of Hoyt should not be counted for appellee.

It is objected to sixteen votes counted for appellee, that the persons casting them were not registered, and that their affidavits of their qualifications as voters, which were received by the judges of election, were defective in the particular that the persons by whose oaths the affidavits were supported were not registered voters and householders, as it is required by the statute they should be. Some of these persons are shown affirmatively to have been legal voters. As respects the others, there is no evidence upon the subject, whether they were or not legal voters. We think this case must be taken to be covered by the decision in Dale v. Irwin, 78 Ill. 170, which affirmed the legality of the votes of non-registered voters, which had been received in that case, although there had been no attempt whatever to furnish the required affidavit and proof, holding that the presumption must be, the votes having been received, that the persons were legal voters. To be sure there is a slight difference in the case here, with some of the voters, in the respect of being challenged, and objections to their voting. It was said, in Dale v. Irwin, “It does not appear these voters (unregistered ones) were challenged, or any objections made to their voting, and the presumption must be, they were legal voters, and so known to the judges of the election.” In the case before us, four of the voters were challenged at the polls, and they attempted to furnish affidavits and proof of their qualification to vote. Four others were required by the judges to furnish like affidavits and proof, and attempted to do so. Two more were told by the judges of election that they were not registered, and they attempted to furnish the affidavits and proof. Six others attempted to furnish such affidavits and proof; all made the required affidavits.

The words of the statute are express, that no vote shall be received at any State election, if the name of the person offering to vote be not on the register, unless such person shall furnish to the judges of the election his affidavit that he is an inhabitant of the district, and entitled to vote therein, and prove, by the oath of a householder and registered voter of the district, that he knows such person to be an inhabitant of the district.

The presumption of the legality of a vote in no way depends upon the omission to challenge or object to it, or any presumed knowledge of the judges of election, but it arises from the fact of the deposition of the ballot in the ballot box. A vote so deposited is presumed to be a legal vote, until there is evidence to the contrary. And there is no exception in the prohibitory words of the statute. The decision in Dale v. Irwin did not go upon the principle of there being no challenge of the voter, or objection made to his voting, or of presumed knowledge of the judges of election upon the subject, but upon the ground that the prohibition of the statute in this regard was...