Emery v. Hennessy

• Decision Date: 05 October 1928
• Docket Number: No. 18820.,18820.
• Citation: 162 N.E. 835,331 Ill. 296
• Court: Illinois Supreme Court
• Parties: EMERY v. HENNESSY et al.

331 Ill. 296

162 N.E. 835

EMERY

v.HENNESSY et al.

No. 18820.

Supreme Court of Illinois.

June 23, 1928.

As Modified on Denial of Rehearing Oct. 5, 1928.

Petition by David J. Emery against William A. Hennessy and others to contest an election. From judgment declaring certain defendants elected, petitioner appeals.

Reversed and remanded, with directions.

Thompson, J., dissenting.Appeal from Will County Court; Ralph C. Austin, Judge.

D. R. Anderson, of Joliet, for appellant.

Robert W. Martin and Donovan, Bray & Gray, all of Joliet, for appellees.

HEARD, J.

This is an appeal from a judgment of the county court of Will county declaring Hugh H. Bolten, Samuel E. Shepley, William S. Strohm, and William A. Hennessy elected commissioners of the city of Joliet.

The city of Joliet was organized under the General Cities and Villages Act, and adopted the commission form of government.At a primary election held in the city on March 8, 1927, Hugh H. Bolton, Thomas C. Bothwick, John J. Cleary, William A. Hennessy, Samuel E. Shepley, William S. Strohm, Martin J. Whalen, and David J. Emery were nominated for the four offices of commissioners, to be voted for at the April 19, 1927, city election. The city had previously been divided into fourteen election districts, numbered continuously from 1 to 14, and both the primary and the election were called by the city officers to be held in these fourteen districts. The city council, acting as a canvassing board, canvassed the returns of the election in the fourteen districts, and declared Bolton, Hennessy, Shepley, and Strohm elected commissioners, and they qualified as such. A petition was filed in the county court by Emery to contest the election, and all of the candidates were made defendants. The city clerk and the Joliet National Bank were also made defendants because of the fact that, at the time of the filing of the petition, the ballots and the returns were in the possession of the city clerk and in the vaults of said bank. While all of the candidates for commissioners were made defendants, it is conceded that Bolton, Shepley, and Strohm were elected, and that Bothwick, Cleary, and Whalen were defeated. The contest is really only between Emery and Hennessy. The petition set out certain mistakes, illegal voting, alteration of ballots, duplicates of names on the poll books, and stuffing of the ballot box, alleging fraud, particularly in the fifty election district, where it is alleged that there were 130 names duplicated on the poll books, and that the election officers in the district made these duplications and also stuffed the ballot box with ballots to correspond, and that illegal voting and other frauds were perpetrated with the knowledge of election officials, and that some of the acts of fraud were perpetrated by the election officials themselves in the fifth district.

The territory embraced in the fourteenth district was annexed to the city of Joliet by an ordinance of the city passed and approved January 12, 1925. Hennessy, in his answer, set up that this annexation was not a valid annexation. Emery demurred to that portion of Hennessy's answer, and the demurrer was sustained. Repeated efforts were made by Hennessy during the progress of the hearing to raise the question of the legality of the annexation, but the trial court held that the annexation of the district could not be attacked collaterally in this suit. Prior to this proceeding a quo warranto proceeding had been instituted in the circuit court of Will county questioning the right and authority of the city of Joliet to exercise governmental power over the annexed territory, and the circuit court decided that the annexation was valid. An appeal had been taken to this court, and we had reversed the judgment and remanded the cause to the circuit court of Will county without directions. The cause was reinstated in the circuit court of Will county, and a rehearing having been had in that court, the circuit court again decided that the annexation was valid. A second appeal was then prosecuted to the Supreme Court, and on the 21st day of December, 1927, this court reversed the decision of the circuit court and entered judgment of ouster. People v. City of Joliet, 328 Ill. 126, 159 N. E. 206. At this time the instant case had been heard and was being held under advisement by the judge of the county court. On December 28, 1927, the court granted a motion made by Hennessy to re-open the case, and, over the objection of petitioner, Hennessy was permitted to rpove the annexation of the fourteenth district to the city of Joliet, the various steps of such annexation, the decisions of the circuit and Supreme Courts in the quo warranto case, and other matters attacking the validity of the annexation. The trial court excluded both the fifth and fourteenth election districts from the count, the former on the ground of fraud and the latter on the ground that it was not a part of the city of Joliet at the time of the election, and found that Hennessy had received 5,609 votes and Emery 5,384 votes, thus giving Hennessy a majority of 225 votes over Emery.

But two main questions are involved in this case-the action of the trial court in excluding the entire vote of the fifth district and in excluding the entire vote of the fourteenth district. Appellant contends that the trial court's action with reference to the fifth district was right, and that in excluding the fourteenth district it was wrong. Appellees' position is that, while there was fraud in the fifth district, the entire vote should not have been excluded; that the illegal votes could be easily separated from the legal votes, and the trial court should merely have purged the returns of the fraudulent votes, and that, if that were done, even though the fourteenth district should be included in the court, Hennessy would still have a majority of 39 of the legal votes cast in the election. If the trial court was right in excluding the entire vote of the fifth district and was wrong in excluding the vote of the fourteenth district, then Emery, and not Hennessy, was elected.

The undisputed evidence shows gross irregularities and frauds in the fifth district. In the poll books 130 names were duplicated, and the ballot box was stuffed by the election officials to at least a like extent. Certain public questions were voted upon at this same election. In the fifth precinct, after the ballots for officers were taken out of the regular ballot box, a large number of ballots for officers, estimated by the witnesses at about 200, were taken out of the public question box and counted by the election officials. During the progress of the election, at different times election officials went into the booths and came back therefrom with a number of ballots and placed them in the ballot box, and explained that they were public question ballots which had been left by the voters in the booths. The evidence conclusively shows that the election officials fraudulently marked a large number of ballots and placed them in the ballot box; 41 ballots were in the box not initialed, and 15 illegal votes were cast in the precinct. When four of the election officials were called as witnesses in the case, they refused to testify, on the ground that it would tend to incriminate them. Appellees offered in evidence the record of the circuit court showing that on their plea of guilty four of these election officials were sentenced for their illegal conduct as election officers at the election in this precinct.

[1][2][3] There is a distinction, in the nature of things, between particular illegal votes which may be proven and exactly computed and the effect of fraudulently stuffing the ballot box by the election officials. Where the election officials participate in such glaring frauds as were shown by the evidence to have been perpetrated in the fifth district, no one can estimate or compute to what extent the entire poll was permeated by such fraud. Questions affecting the fairness of an election are of vital importance in this country, as popular self-government depends upon their proper solution. It seems clear that courts must abnegate the power of preserving the freedom of elections and abandon the polls to the violent and unscrupulous, or must take the ground that, wherever such practices or influences are shown to have prevailed, not slightly and in individual cases, but to sech extent that they cannot be computed, the whole poll must be rejected. Patton v. Coates, 41 Ark. 111. The rule obtains in elections, as in other affairs, that a man shall not profit by his own wrong, nor by that of others done to allow him to reap the benefit. The only means by which approximate justice may be reached when the illegal acts render the result doubtful is to require the party to whose benefit they inure to purge the poll of their effect, or to suffer the penalty of having its majority excluded from his count of votes. Jones v. Glidewell, 53 Ark. 161, 13 S. W. 723,7 L. R. A. 831. When the ballot box becomes the receptacle of fraudulent votes, the freedom and equality of elections are destroyed. That election is free and equal where all of the qualified electors in the precinct are carefully distinguished from the unqualifiedand are protected in the right to deposit their ballots in safety and unprejudiced by fraud. That election is not free and equal where the true electors are not separated from the false, where the ballot is not deposited in safety, or where it is supplanted by fraud. People v. Hoffman, 116 Ill. 587, 5 N. E. 596,8 N. E. 788,56 Am. Rep. 793. The fact that the evidence does not show that Hennessy participated in the fraud does not authorize the court to award the certificate of election to him where the votes cast in a particular district are so tainted with fraud as to require their elimination, and without them he has no claim to the office. The evidence shows clearly that the...