People v. Cover

• Decision Date: 31 January 1869
• Citation: 1869 WL 5182,50 Ill. 100
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, ex rel. JAMES C. THOMPSON,v.JOHN COVER, County Clerk of Jackson County.
• Court: Illinois Supreme Court

50 Ill. 100

1869 WL 5182 (Ill.)

THE PEOPLE OF THE STATE OF ILLINOIS, ex rel. JAMES C. THOMPSON,

v.JOHN COVER, County Clerk of Jackson County.

Supreme Court of Illinois.

January Term, 1869.

OPINION TEXT STARTS HERE

This was a PETITION FOR MANDAMUS, and an original proceeding in this court.

The opinion presents all the facts alleged as grounds for the issuance of the writ.

Messrs. ALLEN & WEBB and Messrs. MULKEY, WALL & WHEELER, for the relator.

Mr. THOMAS G. ALLEN, for the respondent.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This is an original proceeding in this court. The relator filed his petition in the name of the people, against respondent, in which he prays that a writ of mandamus may issue to compel respondent, as county clerk of Jackson county, to issue a certificate to relator, who claims to have been elected sheriff of that county on the 3d day of last November. The petition by consent is taken as an alternative writ, and to it respondent filed his return. In it he admits that he is clerk, as stated in the petition; that the election was held, and that within seven days thereafter the poll books were returned to his office, and being assisted by two justices of the peace of the county, they proceeded to open and canvass the vote cast at that election for sheriff of the county. That upon opening the returns from the several precincts of the county, the returns from two of them were informal, and for that reason were not counted in the canvass of the vote. That after casting them out, the votes returned from the remaining precincts showed that Gilbert J. Burr had more votes than relator, and certificate of election was given to Burr. That he had been commissioned, had qualified, and was then acting as sheriff of the county. That after Burr had been commissioned, relator had served a notice upon him that he would contest the election and his right to hold the office; that a trial was had before three justices of the peace in the mode prescribed by the statute, which had resulted in favor of Burr, and against relator for costs.

That from that judgment relator removed the case by appeal to the Circuit Court of Jackson county, which is still pending and undetermined in that court. To this return relator has filed a demurrer, which presents the various questions which have been argued on the trial.

We consider but one question presented by the demurrer as necessary for discussion, as it is conclusive of the case, and that is, whether this...