Jeter v. Headley

• Decision Date: 21 June 1900
• Citation: 186 Ill. 34,57 N.E. 784
• Parties: JETER v. HEADLEY.
• Court: Illinois Supreme Court

186 Ill. 34

57 N.E. 784

JETER

v.HEADLEY.

Supreme Court of Illinois.

June 21, 1900.

Appeal from circuit court, Edgar county; H. Van Sellar, Judge.

Election contest by George M. Jeter against Stephen T. Headley. From an adverse judgment, contestant appeals. Affirmed.

H. A. Neal, J. E. Dyas, and F. C. Van Sellar, for appellant.

H. S. Tanner, R. L. McKinlay, and Eads & Eads, for appellee.

WILKIN, J.

These parties were rival candidates for county judge of Edgar county at the November election, 1898; appellant being the Republican, and appellee the Democratic, candidate. By the returns and canvass of the votes appellee was found to have received a majority of 68, and thereupon received a certificate and commission, and entered upon the duties of the office the first Monday of December of that year. Within the time fixed by statute, December 12, 1898, appellant filed his petition in the circuit court of that county to contest appellee's election. The only ground of contest set up in the petition was the alleged miscount of the ballots. Issue being joined, the cause was by agreement submitted to the circuit judge without the intervention of a jury. The original ballots were brought into court and recounted, the result showing that appellant had received a majority of 16 votes over appellee. Upon the issue made and this evidence, the only question presented to the trial court for decision was whether or not the recount of the ballots should prevail over the returns of the election officers; and that question was decided in the negative, and an order entered September 1, 1899, dismissing the petition at contestant's cost. To reverse that judgment this appeal is prosecuted.

The law applicable to the case is not difficult of ascertainment. Section 27 of the election law of 1891 (Laws 1891, p. 118), after prescribing the duties of the election judges in returning the ballots to the proper clerk or board of election commissioners, requires such officer to ‘carefully preserve said ballots for six months,’ at the expiration of which time they shall be destroyed, ‘provided, that if any contest of the election of any officer voted for at such election shall be pending at the expiration of said time, the said ballots shall not be destroyed until such contest is finally determined. In all cases of contested elections the parties contesting the same shall have the right to have said ballots opened and to have all errors of the judges in counting or refusing to count any ballot corrected by the court or body trying such contest; but such ballots shall be opened only in open court or in open session of such body and in the presence of the officer having the custody thereof.’ It has been frequently held by this court that where it is satisfactorily shown that the ballots have been properly returned to the clerk or board of election commissioners, and securely and safely kept, so that there has been no opportunity to change them, they shall be regarded as the best evidence of the actual result of the election, and shall prevail over the count and return by the election judges, even though there is no proof of mistake or misconduct on the part of the election judges. We have so often held this proposition that a citation of the cases is unnecessary. The difficulty in determining whether such weight shall be given to the ballots has always arisen upon the question whether or not they have been properly returned, and carefully preserved by the custodian after receiving them. It was stipulated in this case ‘that each election officer who returned the ballots and election returns from each voting place to the county clerk testified that he returned the same in the condition in which he received them from the election officers, with seals unbroken, and that they had not been broken or tampered with while in his possession,’ so that the only question here is whether or not they were safely kept by the county clerk. In Kingery v. Berry, 94 Ill. 515, we quoted with approval the following language of the supreme court of Kansas in Hudson v. Solomon, 19 Kan. 177: ‘In order to continue the ballots controlling as evidence, it must appear that they have been preserved in the manner and by the officers prescribed in the statute, and that while in such custody they have not been so exposed to the reach of unauthorized persons as to afford a reasonable probability of their having been changed or tampered with.’ This rule was followed in Bonney v. Finch, 180 Ill. 133, 54 N. E. 318, and cases there cited, and is also recognized in the still later case of 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 to properly perform their duties (the one in receiving, counting, and returning the ballots, or the other in safely preserving them), neither the return of the judges nor the recount can be allowed to prevail over the other; but the result must be determined from a consideration of both, with all facts and circumstances surrounding the case. Catron v. Craw, 164 Ill. 20, 46 N. E. 3;Dooley v. Van Hohenstein, 170 Ill. 630, 49 N. E. 193; Caldwell v. McElvain, supra. There is, however, in this case no direct evidence of fraud, mistake, or misconduct on the part of the officers who conducted the election in any of the several precincts of the county. The only claim of proof of misconduct on their part made on behalf of appellant is that the recount shows that they were guilty of either fraud or mistake. But this is assuming that the recount of the ballots is better evidence than the returns, which is the very question at issue. The first point for decision must therefore be, were the original ballots so preserved by the county clerk from the time they were returned to him until they were brought into open court and offered in evidence as to entitle them to credit over the returns?

At the time the ballots were returned the incumbent of the office of county clerk was Stephen Maddock. He testified that he received and placed the ballots in the vault in the county clerk's office, and that they were not interfered with or handled by anybody during his term of office, to his knowledge, and that he turned them over to his successor, E. E. Ellidge, when the latter took the office, December 5th, in the same condition they were received by him, so far as he knew. His deputies also testified that they in no way disturbed or changed them, and that, to their knowledge, they were not interfered with by others; and the evidence of Ellidge and his deputies is to the same effect. No change whatever in the manner of keepingthem was made after Ellidge took charge of the office. The vault in which they were placed is a small, triangular shaped room, about 4 1/2 feet in depth at the deepest place, and 6 or 7 feet long at the longest place. In it is a metal case for boxes, containing papers, and the base of this case is about 18 inches from the floor. No other furniture was in the vault. There was no access to it, except through the county clerk's office, and the...