Neal v. Odle

• Decision Date: 20 June 1923
• Docket Number: No. 14981.,14981.
• Citation: 308 Ill. 469,140 N.E. 31
• Parties: NEAL v. ODLE.
• Court: Illinois Supreme Court

308 Ill. 469

140 N.E. 31

NEAL

v.ODLE.

No. 14981.

Supreme Court of Illinois.

June 20, 1923.

Election contest by Ed Neal against Albert Odle. Judgment for contestant, and contestee appeals.

Reversed and remanded.Appeal from Franklin County Court; W. F. Slater, Judge.

John E. Carr, of West Frankfort, and George Sawyer, of Marion, for appellant.

J. A. Lamkin and H. R. Dial, both of West Frankfort, for appellee.

PER CURIAM.

Appellant, Albert Odle, and appellee, Ed Neal, were candidates for the office of highway commissioner on the Republican and Democratic tickets, respectively, at an election held in the town of Frankfort, in Franklin county, April 4, 1922. There were no other candidatesfor that office at that election, and these two were the only political parties having candidates. The tickets on the ballots were headed by the party designations, ‘Republican’ and ‘Democratic.’ At the same election a supervisor, three assistant supervisors, an assessor, township clerk, and school trustee were elected. On the Republican ticket there were candidates for all of said offices, with their names printed on the ballots and with squares to the left of the names. The first name on that ticket was that of W. C. Finney under the words ‘For Supervisor.’ There were only two names printed on the Democratic ticket-W. C. Gray for assistant supervisor, and Ed Neal, appellee, for highway commissioner-and there were squares to the left of their names. At the top of the Democratic ticket were the words ‘For Supervisor,’ with a blank space thereunder for the name of the candidate for that office to be written. Gray's name occupied the next space as a candidate for assistant supervisor, and his name was followed by two blank spaces, in which the voter might write the names of two other candidates for assistant supervisor. The next name on that ticket was that of appellee as a candidate for highway commissioner, his name being opposite that of appellant. Thereafter followed three other blank spaces, headed by the words ‘Assessor,’ ‘Town Clerk,’ and ‘School Trustee.’ There were no squares printed on this ticket to the left of the blank spaces. At the bottom of both the Republican and Democratic tickets there was a blank space under the words ‘For Poundmaster,’ and there were no squares printed to the left of those blank spaces. There was no circle printed to the left of the party designations ‘Republican’ and ‘Democratic.’

There were three voting precincts in the town, referred to in the record as polls, or precincts, 1, 2, and 3. At the close of the election the judges and clerks counted the votes and prepared their returns, which were canvassed on April 6, 1922, by the board of canvassers of the town, who found that appellant had received 557 votes and appellee 552 votes. Appellant was thereupon declared elected, and a certificate of election was issued to him. Thereafter appellee filed his petition to contest the election in the county court of Franklin county, verified by affidavit. Appellant filed an answer which was not verified by affidavit, to which appellee filed a replication. The issues were tried by the county court, who found from the evidence that appellant had received 519 legal votes for said office, and that appellee had received therefor 572 legal votes, and adjudged that appellee had been duly and legally elected to said office, and ordered that a certificate of election be issued to him, etc. Appellant has prosecuted an appeal to this court.

It was alleged in the petition by appellee that he is a legally qualified elector of the town. This allegation was positively denied by the answer of appellant, and there is absolutely no proof in the record that appellee is an elector of the town. It was also averred in the petition that at said election there were cast a large number of ballots that were counted by the judges and clerks of the election as straight Republican ballots, which were only marked by the voter placing a cross in the square to the left of the name of W. C. Finney, the first name at the head of the Republican ticket, and which were counted by the judges as votes for appellant for highway commissioner, and that there were a large number of other votes that were illegally counted for appellant, and that upon a correct count appellee would be found to have received a greater number of legal votes than appellant.

The first contention made by appellant is that the burden of proof that appellee was an elector of the town at the time he filed his petition for contest was upon him, and that the judgment must be reversed for want of proof on that issue. The substance of the provision of section 112 of the Elections Act (Hurd's Stat. 1921, p. 1388) is that the election of any person declared elected to any office in a town or precinct may be contested by any elector of such town or precinct in and for which such person is declared elected. The omission of a petitioner to allege that he is an elector of such town or precinct is fatally defective on demurrer. Blanck v. Pausch, 113 Ill. 60. The failure to prove such material allegation is necessarily fatal in a contest of such an election by the contestant.

It is the claim of appellee that the facts that the petition in this case was verified by affidavit, and that there is no denial of the allegations of the petition in the answer not under oath, or in the evidence of appellant, obviate the necessity of proof of the allegation. It has been decided in a number of cases by this court that the same rules governing chancery proceedings govern the pleadings in an election contest. Talkington v. Turner, 71 Ill. 234;Dale v. Irwin, 78 Ill. 170;Quartier v. Dowiat, 219 Ill. 326, 76 N. E. 371;Brents v. Smith, 250 Ill. 521, 95 N. E. 484. The rule in chancery is that, where a bill is sworn to and the answer under oath is not waived therein, such an answer to such sworn bill is a nullity, if properly taken advantage of in apt time, and that the complainant in the bill is entitled to a default for want of a sworn answer. The petition in this case did not waive the answer under oath.

It is also the rule under our present chancery practice that an answer not verified by oath is a mere pleading, and not evidence in the case; but, if a replication is filed to an unsworn answer, the answer under oath is waived. 22 Ency. of Pl. & Pr. 1049-1052. It is also the rule that a sworn bill is not evidence for the complainant, and that under such a bill he is required to prove all of the material allegations therein contained not admitted by the answer. The same rule must prevail in petitions to contest elections, and the failure of appellant to make proof of his allegation is necessarily fatal.

The only other contention made by appellant on this appeal is that the returns of the judges and clerks of the election are the best evidence of the result of the election, becausethe ballots were not properly preserved and guarded, according to the provisions of the statute, against unlawful handling and changing by unauthorized persons. The arguments presented by counsel for the respective parties on this latter question are of little assistance to this court in passing upon that issue for the reasons hereinafter stated.

The record discloses that in this contest the court appointed tellers to tally the votes counted for the respective parties and to report the result of such count to the court. It is very evident from the record that the bill of exceptions or certificate of the evidence and the record do not disclose the rulings of the court, if any were made, as to how the ballots were counted or ruled upon by the court. The record does not disclose the result of the count in any one of the precincts. The tellers' tally sheets, all of the ballots cast at the election in those precincts and returned by the judges and clerks, all the poll books, the tally sheets and returns made by the judges and clerks, and certain other files designated as exhibits before the trial court, have been certified to this court by the clerk of the court by order of the trial judge. The tally sheets of the tellers simply show the tallies made by them of all votes counted for appellee and for appellant and the total result of those tallies, but they do not show how many votes each candidate received in any one of the precincts.

Neither the abstract nor the briefs filed in this case give any light on the rulings of the court or as to how the ballots were counted. The abstract is only an abstract of the oral evidence upon the questions how the judges and clerks of the election in precinct 1 counted the ballots and how they were strung and sealed; the manner in which the same and the returns, etc., were returned by the judges of election; who returned them, and how they were kept and preserved after they were returned; and all this evidence is very meager, incomplete, and unsatisfactory. In other words, the record, the abstract, and the briefs do not enlighten us at all as to the rulings of the court on the recount on any ballots certified to us, and furnish no evidence or information whatever as to how the judges of election in precincts 2 and 3 counted the ballots, or any of them, or whether or not they followed the law fully in counting the ballots and making their returns. The rules of this court require that the record shall contain all rulings of the court, if any, that are to be reviewed, and that all the evidence and the rulings of the court shall be abstracted, and that all contested facts and points be put before us plainly, clearly and concisely, so we may readily comprehend the issues presented for decision.

After performing the extraordinary labor of examining minutely and in detail all of the original evidence in the record, our conclusion is that it is not possible from the present record to determine whether the returns of the judges of election or the ballots returned by them are the best...