Graham v. Peters

• Decision Date: 21 December 1910
• Citation: 248 Ill. 50,93 N.E. 315
• Parties: GRAHAM v. PETERS.
• Court: Illinois Supreme Court

248 Ill. 50

93 N.E. 315

GRAHAM

v.PETERS.

Supreme Court of Illinois.

Dec. 21, 1910.

Appeal from Sangamon County Court; George W. Murray, Judge.

Suit by James E. Graham against Frank Peters. From a judgment for plaintiff, defendant appeals. Reversed.Andrus & Trutter (Sidney S. Breese, of counsel), for appellant.

Graham & Graham, for appellee.

CARTWRIGHT, J.

At an election held on April 5, 1910, in the town of Illiopolis, in Sangamon county, the appellant, Frank Peters, and the appellee, James E. Graham, were rival candidates for the office of collector. The ballots were canvassed, and the result determined was that the appellant had received 163 votes and appellee 162 votes, and a return was made accordingly. The appellant received a certificate of election and qualified as collector. Appellee filed in the county court his petition for a contest, alleging that ballots were counted for the appellant which should not have been counted, and others were not counted for appellee which should have been counted for him. The petition was answered, with a denial of any errors in the canvass; and, the issue coming on for hearing, the court, against the objection of appellant, ordered a recount of the ballots, and, after deciding disputes between the parties based on the appearance of certain ballots and the manner in which they were marked, found that 161 legal votes were cast for the appellee and 159 for the appellant. It was thereupon adjudged that the appellee was duly elected collector, and the court ordered that a proper certificate of election be issued to him, and the certificate of election issued to the appellant be canceled and annulled.

The appellant questions the ruling of the court in refusing to count for him certain ballots which the court concluded were defectively marked, and counting for appellee a ballot which was alleged to have a distinguishing mark, and the appellee questions rulings in counting a ballot for the appellant which it is claimed had a distinguishing mark, and another in which a judge of the election wrote his initials, and by mistake one of the three initials was a different letter; but the principal controversy is whether the ballots ought to prevail over the return of the judges.

The rules of court by which courts hearing election contests are to be governed have been stated in various cases. The canvass by the judges of election is merely a count of the ballots, in which the judges credit to the several candidates the ballots which in their judgment ought to be counted for them, and the return is a statement of such count. The return is prima facie evidence of the result; but the ballots are the original evidence of the votes cast, and are better evidence of the result, if they have been preserved in the manner required by the election law, for the purpose of securing the integrity of the ballots in case there should be a contest. The statute provides that they shall be strung upon a piece of flexible wire, and the ends united in a firm knot, sealed in such a manner that it cannot come untied without breaking the seal. The ballots so strung are to be inclosed in a secure canvas covering, securely tied and sealed with official wax impression seals in such manner that it cannot be opened without breaking the seals. The ballots in the canvas covering are then to be returned to the proper clerk, who is required to preserve them carefully. The question whether they shall prevail in a contest over the return is to be determined by considering whether they have been preserved in substantial compliance with these requirements, or have been so exposed to the reach of unauthorized persons that they may have been changed or tampered with. If there is no evidence which would cast discredit upon the return, and the ballots have not been properly preserved, but have been so kept that they might have been reached by unauthorized persons, they will not be regarded as better evidence than the return. Eggers v. Fox, 177 Ill. 185, 52 N. E. 269;Murphy v. Batte, 155 Ill. 182, 40 N. E. 470;Beall v. Albert, 159 Ill. 127, 42 N. E. 166;Bonney v. Finch, 180 Ill. 133, 54 N. E. 318;Caldwell v. McElvain, 184 Ill. 552, 56 N. E. 1012. Where the evidence shows that both the judges of election and the custodian of the ballots have failed properly to perform their duties, neither the return of the judges nor the ballots will prevailover the other; but the result must be determined from a consideration of the return and the ballots, with all the facts and circumstances surrounding the case. Catron v. Craw, 164 Ill. 20, 46 N. E. 3;Jeter v. Headley, 186 Ill. 34, 57 N. E. 784; Caldwell v. McElvain, supra.

The provisions of the statute for preserving the ballots are directory, in the sense that the precise method prescribed is not essential, if there is a substantial compliance, and it is clearly proved that the...