Lehman v. Hill

• Decision Date: 22 January 1953
• Docket Number: No. 32523,32523
• Citation: 414 Ill. 173,111 N.E.2d 120
• Court: Illinois Supreme Court
• Parties: LEHMAN v. HILL.

Page 120

111 N.E.2d 120

414 Ill. 173

LEHMAN v. HILL.

No. 32523.

Supreme Court of Illinois.

Jan. 22, 1953.

Rehearing Denied March 24, 1953.

F. E. Merrills and Otis E. Guymon, both of Belleville, for appellant.

Lindauer, Lindauer & Pessin and Henry W. Nieman, both of Belleville, for appellee.

CRAMPTON, Chief Justice.

Appellant, Max L. Hill, defendant in the circuit court of St. Clair County, below, seeks review of a decree of that court declaring Ed Lehman entitled to the office of sheriff at the election held on November 7, 1950. The canvass of the votes showed Hill, the Democratic candidate, the winner by a majority of 306 votes. Lehman contested and the trial judge, after lengthy and protracted hearings, held all the ballots cast at the election in Centreville Township, precinct No. 2, Centreville Township, precinct No. 5, and Stites Township, precinct No. 1, were illegal and void and declared the plaintiff below, Ed Lehman, the Republican candidate and appellee here, the duly elected sheriff by a majority of 284 legal votes.

Appellant makes a number of points. The first contention is that the circuit court has no jurisdiction to hear this contest. The Election Code provides (Ill.Rev.Stat.1949, chap. 46, par. 23-4) that the circuit court in the respective counties may hear and determine certain contests (not including sheriffs) 'and concurrent jurisdiction with the county court in all cases mentioned in Section 23-5 hereof.' Section 23-5 provides 'The county court shall hear and determine contests of election of all other county, township and precinct officers, and all other officers for the contesting of whose election no provision is made.' (Ill.Rev.Stat.1949, chap. 46, par. 23-5.) The rule expressio unius est exclusio alterius-the mention of one thing implies the exclusion of another thing-is a maxim applied to statutory construction as an aid in arriving at intention. It is not of universal application and should not be used to defeat the apparent intention of the legislature. The maxim is not appropriate here, for the circuit court is, by statute, expressly given concurrent jurisdiction with the county court to hear and determine the cause, and we have heretofore upheld this jurisdiction in the circuit court. Smith v. Reid, 223 Ill. 493, 79 N.E. 148; Zeman v. Dolan, 279 Ill. 295, 166 N.E. 642.

The second point of contention is made that if the court undertakes a recount of the ballots it must count them all, relying upon the authority of Wood v. Hartman, 381 Ill. 474, 481, 45 N.E.2d 864. The point was not made or argued in the trial court probably because of the stipulations of the parties entered into and waiving the counting of all the ballots. There were a number of stipulations, but the vital one in its pertinent parts provided: 'It is further stipulated that the recount of the ballots in the precincts, not previously counted, shall continue by the tellers previously appointed by the Court, and under the same conditions. It is further stipulated that neither party, by reason of any stipulation entered into, shall be required to count the ballots of all of the remaining precincts.' We think this stipulation and the fact defendant himself made a motion to exclude certain precincts from the recount disposes of this particular contention without need of further comment.

The controlling issue in the case is joined in the disposition of the votes in Stites Township, precinct No. 1. The trial court found there were only approximately sixty persons entitled to receive assistance at the polls, as disclosed by the permanent registration records, yet the unquestioned evidence reveals that hundreds of voters actually were given assistance by one of two persons, either Mayor Terry or Marcelus West, the latter a person not entitled to assist, being neither a judge nor a clerk of election and that, in such instances, no affidavits or oaths were administered prior to the giving of assistance. Hundreds of blank affidavits for assistance were included in the election supplies taken to the home of William Terry the night preceding the election. These disappeared and no satisfactory explanation was made or advanced and no effort was made to supply them after their disappearance became apparent. The lower court properly held this course to be a fraud and unlawful misconduct to the extent that the freedom and equality of the election in this precinct were destroyed and that the poll could not be purged of such unlawful votes, that it was impossible to determine the legal votes cast, and, as a result, the entire poll was rejected. The evidence in the record further indicates many applications for ballots made by 'X' mark, making it impossible to determine who received assistance; the wearing of political insignia in the polling place; the presence of many special policemen bearing arms; and various other fraudulent and illegal practices.

In addition to the foregoing circumstances, the chancellor had before him other controlling factors that led to his conclusion that the ballot box under inquiry was a receptacle of fraudulent votes; William Terry who was in complete command was a person whose authority was far reaching and wide spread; he was a Democratic election judge; he was also mayor of Brooklyn, a village within the confines of the voting precinct; he was superintendent of schools in the village of Brooklyn; he was also supervisor of Stites Township which was coextensive with the boundaries of Stites Precinct No. 1.

An attorney testified that he and Terry had heated words because Terry refused to hand out the blue ballots pertaining to the constitutional amendments. Only 150 blue ballots were cast. The permanent registration records were not consulted or used to check signatures and addresses. The appellee appeared at the polling place in a futile effort to protect his rights and pulled Terry out of a booth while ...