Dale v. Irwin

• Decision Date: 30 June 1875
• Citation: 78 Ill. 170,1875 WL 8449
• Parties: MICHAEL G. DALEv.JOHN G. IRWIN.
• Court: Illinois Supreme Court

78 Ill. 170

1875 WL 8449 (Ill.)

MICHAEL G. DALE

v.JOHN G. IRWIN.

Supreme Court of Illinois.

June Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

Messrs. JOHN M. & JOHN MAYO PALMER, and Mr. G. B. BURNETT, for the appellant.

Mr. LEVI DAVIS, Mr. CHAS. P. WISE, Messrs. GILLESPIE & HAPPY, and Messrs. KROME & HADLEY, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

The record in this case shows that, at an election held at the several election precincts in the county of Madison, on the thirteenth of April, 1874, for county judge, there were three persons voted for, namely: appellant, M. G. Dale, appellee, John G. Irwin, and A. H. Gambrill. On canvassing the returns, by the clerk of the county court, aided by two justices of the peace of that county, it was certified by them that appellee, Irwin, had received two thousand and ninety-two votes, appellant, M. G. Dale, had received two thousand and ninety votes, and A. H. Gambrill nine hundred and thirty-five votes. On this showing appellee received the certificate of election.

Whereupon appellant, Dale, on the 12th day of May, being within thirty days thereafter, filed in the office of the clerk of the circuit court of Madison county, a statement, in writing, in the form of a bill in chancery, verified by his own affidavit, alleging that he was duly elected to the office, and that appellee was not elected, and setting forth the points on which he would contest the election. The bill prayed that the defendant, Irwin, might be summoned to answer the statement in the bill, and that upon a hearing the court would decree appellant duly elected to the office of county judge.

The defendant was duly summoned to appear and answer the statement, and at the return term of the circuit court, it being the October term, 1874, defendant appeared and entered his motion to quash the petition, which motion was allowed. Whereupon, at the same time, the complainant and petitioner obtained leave to amend the petition, which was done, and a rule entered against the defendant to plead to the amended petition; whereupon, the defendant entered his motion to strike the amended petition from the files, which motion was disallowed.

The defendant, thereupon, filed his sworn answer to the amended petition, and he also filed exceptions to the opinion of the court, allowing appellant to amend his petition and in refusing to strike the amended petition from the files. Afterwards, at the same term, leave was granted appellant to amend his amended petition, which was done, and the same verified by his oath.

The defendant then entered a motion to strike the petition so amended from the files, which was disallowed, and exception taken. Thereupon, the defendant filed his sworn answer to the amended petition, to which there was a replication by complainant, and the cause heard on the original petition and amendments thereto, answer, replication and proofs. The court found defendant duly elected, and decreed against the petitioner for the costs.

To reverse this decree this appeal is taken, and this finding and decree assigned as error.

We have been thus particular in setting out the proceedings in the circuit court, as appellee has made points upon them which it is important to notice.

No point is made on the order of the court allowing the petitioner to amend his petition after the same had been quashed, the subsequent order to amend being regarded as virtually setting aside the order to quash, and, though irregular, seems to have been acquiesced in by the defendant.

The ground assumed by the appellee, in his exception to the order allowing the petition to be amended, is, that this being strictly a statutory proceeding, the petitioner should be confined to the points made in his original statement or petition; that the proceeding being neither in chancery nor at the common law, the court had no power to allow amendments of any kind, but should be guided by the statute alone, and as no provision is made therein for amendments, the court was powerless to allow them.

This brings us to the consideration of the question made so prominent in appellee's brief and argument: what is the nature of this proceeding? The several sections of chap. 46, title “Elections,” in force July 1, 1872, which we will cite, we think satisfactorily answer the question.

Section 113, of this chapter, provides that the person desiring to contest such election shall, within thirty days after the person whose election is contested is declared elected, file with the clerk of the proper court a statement, in writing, setting forth the points on which he will contest the election; which statement shall be verified by affidavit, in the same manner as bills in chancery may be verified.

Section 114 provides, upon the filing of such statement, summons shall issue against the person whose office is contested, and he may be served with process or notified to appear in the same manner as is provided in cases in chancery.

By section 115, evidence may be taken in the same manner and upon like notice as in cases in chancery.

By section 116, the case shall be tried in like manner as cases in chancery.

By section 119, in case the contest is in relation to the election of some person to an office, the judgment of the court shall declare as elected the person who shall appear to be duly elected. And by section 123, in all cases of contested elections in the several circuit courts or county courts, appeals may be taken to the Supreme Court in the same manner and upon like conditions as is provided by law for taking appeals in cases in chancery from the circuit courts.

From these citations, the conclusion is reasonable that the proceeding to contest such an election is, to all intents and purposes, a chancery proceeding, and subject to all the rules governing them; and it was so held by this court in Talkington v. Turner, 71 Ill. 234.

Previous to this act of the General Assembly, this court had held in Moore v. Hoisington, 31 Ill. 243, that a court of chancery had no jurisdiction to inquire into the validity of an election; and in Moore v. Mayfield, 47 Ill. 167, that an appeal did not lie in a contested election case, as it was not such “a case” as contemplated by the constitution--that it applied only to an action at law or a suit in chancery, and this was neither. To obviate the results likely to flow from these rulings, this act was, doubtless, passed. The whole proceeding under this act of 1872, from its incipiency, by filing a statement verified by affidavit, followed by a summons against the defendant to appear and answer, to the final judgment, has all the incidents of a regular bill in chancery, and an appeal is allowed to the Supreme Court in the same manner and upon like conditions as is provided for taking appeals in cases in chancery from the circuit courts. This view disposes of the exceptions taken to the decision of the court allowing the amendments to the original petition.

We can not think the position taken by appellee, as to the meaning and purpose of this act, tenable or just. If he is right in seeking to confine the contestant to the points contained in his original statement, great injustice might be done in many cases, and this case is one of them. The position is, as we understand it, that, within the thirty days after the result of the election is declared, the contestant must specify all the points on which he grounds the contest, and that if, after that time, the contestee shall admit the facts charged, which are sufficient of themselves to deprive him of his office, he can then attack the contestant's right to the office, on any ground deemed sufficient, and against which the contestant has no right to defend, except by traversing the averments of the answer. We think it plain, regarding the obvious intent and purpose of the statute, that a contestant, after stating the points of contest in the mode required by the act, can avail of any amendment or pleading to meet the tactics of his opponent, and bring before the court the real points of the case. As special replications are now out of use, the same object is effected by amendments to the bill, and suit them to the case, as contestant shall be advised. 2 Daniell's Chy. Prac. 968.

This was the course adopted by the petitioner, under the sanction of the court, and in this there was no error.

It now becomes important to notice the points of contest made by appellant, in his original statement.

Complainant averred, in his statement, or bill, as follows:

“Your orator has been informed, and verily believes, and so charges the fact to be, that, in the election precinct of New Douglas, on the counting of said votes, two unnumbered ballots were found in the ballot-box, at said election, each folded within a numbered ballot; that both of said numbered ballots were for your orator for said office, and that both of said numbered ballots, together with the unnumbered ballots, were thrown out and rejected by the judges of election in said precinct, and were not counted in the returns from said precinct; and that in each of the election precincts of Silver Creek, Marine, Madison and Collinsville, at the counting of said votes at said election, one unnumbered ballot was found in the ballotbox, folded within a numbered ballot, and that each of said numbered ballots was for your orator for said office of county judge; that the judges of election in each of said precincts threw out the said numbered ballots, together with the said unnumbered ballots, and did not count said numbered or unnumbered ballots in making up their returns as aforesaid; and your orator further avers, that the said numbered ballots so thrown out and not counted in the said precincts of New Douglas, Silver Creek, Marine, Madison and Collinsville, were not thrown out and rejected because of any excess of ballots over...