Engel v. Caputo, 77-441

CourtUnited States Appellate Court of Illinois
Writing for the CourtSTOUDER; STENGEL; BARRY
Citation380 N.E.2d 537,63 Ill.App.3d 752
Parties, 20 Ill.Dec. 559 Robert Dale ENGEL, Petitioner-Appellant, v. Edward CAPUTO, Robert Engel, Andrew Hochstetler, and Robert Widman, Respondents-Appellees.
Docket NumberNo. 77-441,77-441
Decision Date11 September 1978

Page 537

380 N.E.2d 537
63 Ill.App.3d 752, 20 Ill.Dec. 559
Robert Dale ENGEL, Petitioner-Appellant,
v.
Edward CAPUTO, Robert Engel, Andrew Hochstetler, and Robert
Widman, Respondents-Appellees.
No. 77-441.
Appellate Court of Illinois, Third District.
Sept. 11, 1978.

William F. Bochte, Elburn, for petitioner-appellant.

Joseph E. Lanuti, Frank X. Yackley, State's Atty., Ottawa, for respondents-appellees.

STOUDER, Justice.

This appeal is from the judgment of the circuit court of LaSalle County after a bench trial granting the motion of respondent, Edward Caputo, to dismiss the action of petitioner-appellant, Robert Engel, at the close of petitioner's case. The underlying action was brought by petitioner to contest the election for road commissioner held on April 5, 1977, in Brookfield Township, LaSalle County, Illinois. Respondent, Edward Caputo, the incumbent road commissioner, was a candidate in the election. Robert Engel, Edward Caputo and Andrew Hochstetler were the candidates whose names appeared on the official ballots for office. 330 votes were cast. Edward Caputo received 172 votes, Robert Engel received 151 votes and Andrew Hochstetler received 7 votes. Thirty absentee ballots were cast in the election. This appeal is brought by petitioner, Robert Engel.

The conduct of elections in Illinois is governed by The Election Code (Ill.Rev.Stat.1975, ch. 46, par. 1-1 thru 30-3). (Drolet v. Stentz, 83 Ill.App.2d 202, 227 N.E.2d 114.) Petitioner alleges the following irregularities constituted violations of the Election Code:

[63 Ill.App.3d 753] 1. The absentee ballots were not properly processed;

2. The absentee voter list for posting was not kept in a conspicuous place accessible to the public;

3. Absentee voters' names were not announced as required;

4. Absentee ballots may have been placed in the ballot box prior to the close of the polls;

5. Two of the five election judges were not properly appointed or certified;

6. Respondent and his wife approached and spoke with citizens as they came into the polling place; and

7. Respondent candidate took a portion of the ballots in hand, read from the ballot the names of the candidates voted for and orally announced the name of such candidate so that the same could be tallied.

Due to the view we take of this case the only contention we need deal with on this appeal regards the action of the successful candidate Caputo handling the ballots, reading the votes thereon and announcing the votes on each ballot. We feel this issue is dispositive of this appeal.

Respondent concedes he handled the ballots, read the votes thereon and announced

Page 538

[20 Ill.Dec. 560] the votes on each ballot. There is no evidence that any judge or poll watcher participated with the respondent in reading the ballots or verified the respondent's announcement of the votes on the ballots. Respondent contends that after the polls were closed and all the ballots were in the ballot box one of the judges received a foreign particle in his eye and therefore had difficulty seeing. The counting of the ballots was then held up. Respondent offered to assist in the counting. The election judges asked the two poll watchers if it would be all right for respondent to help. Petitioner's poll watcher said she didn't care and Caputo's poll watcher raised no objection. Caputo helped call somewhere between 40 and 50 ballots and when he had stopped counting he went over to petitioner's poll watcher who said she had been keeping her own tally and up to that time it showed Caputo was losing.

Respondent argues there was no fraudulent conduct or wrongful intent or any injury resulting to the election process or any candidate, relying on Hodge v. Linn, 100 Ill. 397. In this 1881 decision the Illinois Supreme Court held mere irregularities in conducting an election or in counting the votes which did not involve any wrongful intent, did not deprive any legal voter of...

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