O'Hair v. Wilson

• Decision Date: 28 March 1888
• Citation: O'Hair v. Wilson, 124 Ill. 351, 16 N.E. 256 (Ill. 1888)
• Parties: O'HAIR v. WILSON.
• Court: Illinois Supreme Court

124 Ill. 351

16 N.E. 256

O'HAIR

v.WILSON.

Supreme Court of Illinois.

March 28, 1888.

Appeal from Coles county court; L. C. HENLEY, Judge.

Craig & Craig and A. J. Fryer, for appellant.

F. K. Dunn and T. Stoddert, Jr., for appellee.

SCOTT, J.

This proceeding was commenced in the county court of Coles county, by petition under the statute, to contest an election. At an election for town officers, held on the fifth day of April, 1887, Cortez B. O'Hair and William H. Wilson were opposing candidates for the office of town clerk of the town of Seven Hickory. The canvassing board of the town gave the certificate of election to O'Hair, and Wilson then filed the petition herein to contest his election. On the hearing of the cause the court found that each candidate had received the same number of legal votes, and thereupon entered an order on the opposing candidates ‘to draw lots' to decide the contest, which they did, and, as Wilson was successful, the decree of the court was in his favor, establishing his right to the office. To the findingsand decision of the court O'Hair excepted, and brings the case to this court on appeal. All the questions discussed as arising on this record, with perhaps a single exception, are purely questions of fact, concerning which the evidence is quite conflicting. In such cases the rule most commonly observed is to allow the determination of the trial court to stand. It is for the reason that that court has some advantages for settling controverted questions of fact not possessed by this court.

It is assigned for error that the court improperly found that James McCoy, Charles Wood, Dennis Tehan, Paddy Tehan, and John Tehan, all of whom voted for, and whose votes were counted for, O'Hair, were not legal voters. On the testimony submitted the court found the five persons named were not legal voters at the election in question; and, on a careful consideration of the evidence, this court cannot say that that finding was incorrect, or that it would have found otherwise had the question of their qualifications to become voters at that election been submitted to it as on first impression.

It is also assigned for error that the county court improperly found that Ed Sharp, who voted for Wilson, and whose vote was counted for him, was a legal voter. As respects this voter, the testimony is full to the point. He had been a citizen of this state for a great many years. He enlisted in the military service of the government in this state, and, after his term of service expired, he returned to this state, and distinctly testifies it has been his home...