Foley v. Tyler

• Decision Date: 28 March 1896
• Citation: 161 Ill. 167,43 N.E. 845
• Parties: FOLEY et al. v. TYLER et al.
• Court: Illinois Supreme Court

161 Ill. 167

43 N.E. 845

FOLEY et al.

v.TYLER et al.

Supreme Court of Illinois.

March 28, 1896.

Appeal from Cook county court; O. N. Carter, Judge.

Proceeding by O. J. Tyler and others against John M. Foley and others to contest an election. From a judgment for contestants in part, respondents appeal, and contestants assign cross errors. Affirmed.W. E. Thorne and J. J. Coburn, for appellants.

J. T. Bailey, R. C. Morse, and G. E. Plumb, for appellees.

At the annual election of officers of the village of Evergreen Park, Cook county, Ill., on the 16th day of April 1895, two tickets were voted, one headed ‘Republican,’ and the other ‘Citizen.’ On the first O. J. Tyler was the candidate for president of the village board, Samuel Overton, F. D. Webb, and Nels Parsons for trustees, and B. L. Mead for village clerk. On the other J. M. Foley for president, Herman Kuschel, Andrew Olin, and Edward F. Lowell for trustees, and Fremont W. Gunderson for clerk, the then incumbents, were candidates for re-election. The issue between the two sets of candidates was purely a local one, relating mainly to the sale of intoxicating liquors in the village, those on the so-called ‘Republican’ ticket favoring a more rigid enforcement of the law regulating such sales. The judges of the election declared the result to be the election of the candidates on the ‘Citizens” ticket, counting to each of them 100 votes, and to those on the other ticket but 90. Thereupon those declared elected qualified, and assumed the duties of the respective offices for which they were candidates, and appellees, candidates on the other ticket, file this petition to contest their election.

They charge in their petition: ‘That after the close of the polls a count of the ballots showed ninety-seven votes for each of the petitioners and ninety-three votes for each of the respondents. There were one hundred and ninety names on the poll book, and the result of three counts corresponded with the poll book. After the count of the ballots, certain persons, * * * none of them voters or residents of said village, but who had been admitted by the election officers to the canvass of the votes, pretended to find upon the floor certain alleged ballots, which they claimed had been dropped from the ballot box during the canvass. The Republican challengers and watchers of the count called attention to the fact that all said ballots were Citizens' ballots, and had been found by men acting for Citizens' candidates, and protested that no ballots had been dropped, but the number of ballots counted corresponded with the number of voters on the poll list.’ It is then alleged that thereupon, on the suggestion of one of the parties interested in the Citizens' ticket, the room was cleared, and the challengers for petitioners expelled, against their protest, and not readmitted into the room until the final proclamation of the result by the judges, while other parties, representing the Citizens' ticket, were readmitted; that ‘the election officers unlawfully and fraudulently withdrew from the ballots lawfully cast not less than seven ballots cast for petitioners, and fraudulently intermingled with the legal ballots not less than seven ballots alleged to have been found on the floor, and wrongfully and fraudulently counted and returned said ballots for the respondents.’It is further alleged that the conduct of the election as alleged was in pursuance of a plan and combination to bring about the re-election of the defendants; that all the judges of the election were selected from the Citizens' party by the village board, who refused to allow any member thereon from the petitioners' ticket; that in pursuance of said unlawful plan and combination about 50 illegal voters were brought into the village, who were allowed to vote the Citizens' ticket, over challenges made on behalf of petitioners. The answer admits that the total number of votes cast was 190, but denies that the Republican candidates received 97 and the Citizens' candidates but 93 of those votes, and denies that the Republican candidates were lawfully elected, denies the charges of wrongful or fraudulent conduct on the part of the election officers, and that any votes were counted which had not been cast, and that 7 ballots legally cast were removed and destroyed. It denies that any fraudulent votes were cast for the Citizens' ticket, and alleges that not less than 25 illegal votes were counted and returned for the Republican candidates, which, if expunged from the returns, would show petitioners received that many votes less than were returned for them. It denies that ‘the count of the ballots showed ninety-seven votes for the Republican candidates and ninety-three votes for the Citizens' candidates, but admits that there were one hundred and ninety names on the poll book; states that the count showed one hundred and ninety-eight ballots cast; that one of said ballots was found by the judges to be informal and irregular, and was rejected; that, the number of ballots still exceeding the number of names entered on the poll list, they were replaced in the box, the box was closed, and was shaken, and again opened, and that one of the judges drew out and destroyed seven ballots; and thereupon, the ballots and poll list agreeing, the judges counted the votes, and announced the result as provided by law.’ It further denies the allegation of the petition as to the finding of ballots upon the floor, and alleges that the Republican challengers were expelled from the room because of their refusal to maintain order. The remaining portions of the answer are general denials of the allegations of the petition. A replication being filed, the cause was heard on the testimony of witnesses introduced by the respective parties and in open court.

On the 6th of September, 1895, the court entered its decision in the case, finding the following facts: That 190 ballots were cast at the election, of which 97 were Republican and 93 were Citizens'; that during the count 7 ballots, all marked for the Citizens' candidates, were picked up from the floor of the polling place, which had not been legally cast at the election, and which the judges wrongfully intermingled with those taken from the ballot box, and counted and returned for the Citizens' candidates; that they wrongfully and unlawfully withdrew from the ballots 7 cast for the Republican candidates; that the 7 found on the floor were not regularly cast, were never in the ballot box, and should not have been counted; that the returns of the election should have shown 97 ballots for each and every Republican candidate, and 93 ballots for each and every Citizens' candidate; also that all the members of the village board, including...