Sibley v. Staiger

• Decision Date: 19 February 1932
• Docket Number: No. 21036.,21036.
• Parties: SIBLEY v. STAIGER.
• Court: Illinois Supreme Court

347 Ill. 288

179 N.E. 877

SIBLEY

v.STAIGER.

No. 21036.

Supreme Court of Illinois.

Feb. 19, 1932.

Petition by Frank C. Sibley to contest the election of Kelley P. Staiger to the office of mayor of the city of Carmi, opposed by Kelley P. Staiger. From a decree declaring the election of Jesse Grissom, defendant appeals.

Affirmed.

Appeal from the Circuit Court, White County; A. E. Somers, judge.

Conger & Elliott, of Carmi, for appellant.

Randolph & Pearce, of Carmi, for appellee.

DE YOUNG, J.

Frank C. Sibley, a qualified elector, filed a petition in the circuit court of White county to contest the election of Kelley P. Staiger to the office of mayor of the city of Carmi. Staiger answered the petition, and, after a hearing the circuit court, by its decree, declared Jesse Grissom elected to the office. From that decree Staiger prosecutes this appeal.

On April 21, 1931, a general election was held for city officers in the city of Carmi, in White county. Kelley P. Staiger, the appellant, and Jesse Grissom were the candidates for the office of mayor. The city was divided into three election precincts or districts. The returns of the election were canvassed by the city council, and that body, finding that Staiger had received 883 votes and Grissom 869 votes, declared the former elected. Staiger qualified, and entered upon the performance of the duties of the office.

The evidence further shows that, after the polls were closed, the ballots in each precinct were counted, strung on a wire, and placed in a cotton bag; that the bag was closed, tied with a string and sealed with wax, but no impression was made on the seal; that on the next morning a judge of election of the first precinct took the ballots and the election returns from that precinct to the office of the city clerk's father and laid them on a desk; that an hour elapsed before the city clerk arrived, but his father was present in the meantime; that on the same morning the ballots and returns from the second precinct were delivered to the city clerk personally by a judge of election of that precinct, and that the city clerk shortly thereafter called at the place of employment of a judge of election of the third precinct, and there received the ballots and returns from that precinct.

It further appears from the evidence that at about 9:00 o'clock in the morning of the day succeeding the election, the city clerk took the ballots and the returns to his home; that he first placed them in the basement, the doors and windows of which were closed but not locked; that on the following day he first placed the ballots and returns under his bed on the second floor, but later locked them in a cedar chest; that his wife carried the key to the chest, and the ballots and returns were kept in it until the sheriff took them to the clerk of the circuit court, and that the latter placed them in the vault of his office.

The evidence shows that the ballots and returns were not disturbed while they remained in the office of the city clerk's father; that, after they were placed in the chest, it was not opened until its contents were delivered to the sheriff; that no person other than the clerk of the circuit court and his deputy had access to the vault in the former's office; and that the vault was kept locked, unless one or the other went inside. Both the city clerk and the clerk of the circuit court testified that they surrendered the ballots and returns in the condition in which they had received them. There was no evidence that the city clerk's house had been entered by a stranger while the ballots and returns were in the possession of that officer.

Before the circuit court ordered a re-count of the ballots, the bags containing them were examined by the judges and clerks of the several election precincts. The officers of election of the first and second precincts testified that the condition of the bags from those precincts was the same as when they were sealed on the evening of election day. Owing to the omission of marks, two of the judges of election of the third precinct were unable to identify the bag containing the ballots from that precinct. The third judge and the two clerks, however, testified that the particular bag appeared to be in the condition it was when one of the judges sealed it. None of the judges or clerks of election found that a seal on a bag containing ballots had been broken. The ballots were counted in the present proceeding, and the circuit court found that Staiger received 839, and Grissom 855, votes.

The appellant contends that the circuit court erred in holding that the ballots were properly preserved and in allowing them to overcome the returns of the election. Section 27 of the act to provide for the printing and distribution of ballots at public expense, commonly called the Ballot Law (Cahill's Rev. Stat. 1931, p. 1312, c. 46, par. 230, Smith-Hurd Rev. St. 1931, p. 1361, c. 46, § 316), reads in part: ‘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.’ The probative force of the ballots, however, depends upon the care with which they have been preserved. The contestant is the moving party, and the burden...