Stevenson v. Baker

• Decision Date: 19 February 1932
• Docket Number: No. 21134.,21134.
• Citation: 347 Ill. 304,179 N.E. 842
• Parties: STEVENSON v. BAKER.
• Court: Illinois Supreme Court

347 Ill. 304

179 N.E. 842

STEVENSON

v.BAKER.

No. 21134.

Supreme Court of Illinois.

Feb. 19, 1932.

Election contest by James V. Stevenson against Clayton Baker. Judgment for contestant, and the contestee appeals.

Affirmed.

Appeal from La Salle County Court; Harry Reck, Judge.

Arthur H. Shay, of Streator, for appellant.

Duncan & O'Conor, and Hibbs & Pool, all of Ottawa, for appellee.

DUNCAN, J.

Appellant, Clayton Baker, a candidate on the Independent ticket, and appellee, James V. Stevenson, a candidate on the Republican ticket, were opposing candidates for the office of supervisor of the town of Otter Creek, La Salle county, at an election held in that township April 7, 1931. The canvass of the votes showed that appellant had received 259 votes and that appellee had received 258 votes for that office. Appellee on May 1, 1931, filed in the county court of said county a petition to contest the election. An answer was filed by appellant, and after a hearing judgment was entered in favor of appellee, from which judgment this appeal is prosecuted.

There were two precincts in the town of Otter Creek. The returns of the election in the first precinct showed that appellee received 110 votes and that appellant received 89 votes. The total of all the ballots returned in that precinct was 206. There were two ballots returned as spoiled ballots, and it was stipulated in the lower court that another ballot cast in that precinct should not be counted for either candidate. There were four other ballots, marked for identification as 5A, 5B, 5C, and 5D, that were not counted by the judges of the election of that precinct for either of the candidates. These seven ballots specified were the only ballots in that precinct that were not counted by the election judges as legal votes.

After the ballots had been opened in the county court, it was stipulated that of the ballots cast in the first precinct 108 should be counted for appellee and 87 for appellant. One other ballot cast in that precinct was counted by the court for appellee and three others were counted for appellant, and there are no assignments of error by either appellee or appellant that question the correctness of the count of any one of those four ballots. Of the four ballots marked for identification, 5A, 5B, and 5D were counted by the court for appellee and 5C was counted for appellant. Appellant's objection to the counting of ballots 5A, 5B, 5C, and 5D was that the evidence did not show that those ballots had been so preserved that they were in the same condition as they were when cast. The judges and clerks of election in the first precinct completed their count of the ballots and made and signed their returns and sealed the ballots in envelopes. The four ballots in question, not having been counted for either candidate for supervisor, were placed in a separate envelope, which was marked ‘objected to,’ and sealed. Thereafter word came of the result of the election in the second precinct, and one of the judges in the first precinct, Arla Harber, contended and insisted that the envelope marked ‘objected to’ be opened and ballot 5A counted as a vote for appellee. Over the objection of one of the judges, Lester Gochanour, the envelope was opened by judge Arla Harber and ballot 5A was taken out of the envelope and inspected by the judges of that precinct, all of whom were present. There were a number of other people present, including appellee. After considerable discussion it was decided not to count any one of the four ballots that had been in the envelope marked ‘objected to,’ and the four ballots were again sealed in the envelope in the presence of all the judges and clerks of the election in the first precinct. They were preserved with the other ballots and no question is raised by appellant as to the sufficiency of the proof that they were properly preserved from the time they were re-sealed to the time the ballots were all opened in court for a recount. The testimony of Arla Harber and Anna Lucas, two of the judges of election in the First precinct, and of Alvin Riss and Bertha Chatham, two of the clerks of election in that precinct, who were called as witnesses for appellee, was to the effect that when Mrs. Harber opened the envelope containing the four ballots after it had been once sealed, she took from it only one ballot, ballot 5A; that that ballot was inspected by the judges of election but was handled by no one other than the election officials; that the ballot was then replaced, unchanged, in the envelope for the second time and it was again sealed. Lester Gochanour, the third judge of election in the First precinct, testified as a witness for appellant that when Mrs. Harber opened the envelope containing the four ballots she took out all of those ballots and laid them on the table; that ballot 5A, about which there was a discussion, was passed around and inspected not only by the election officials but by the bystanders before it was returned to the envelope. This witness was shown ballot 5A, and he stated that it was the ballot about which the discussion centered, and said: ‘I would think that the ballot is the same now as when it was taken out of the box; I would say it is in the same condition; I don't see anything different in the ballot, and I would say it is the same.’ The testimony of all the judges of election is to the effect that they believed that all four of the ballots were in the same condition that they were when removed from the ballot box. As contended by appellant, no election judge of that precinct had any right or authority to break open the sealed envelope containing those ballots over the protest of any one of the judges. The duties of the judges and clerks were ended when they completed their count and finished and signed their tally list and sealed the ballots and tally list and pollbooks, except to deliver all the packages to the proper custodian. It is conceded by appellant that no one testified that any of the four ballots were tampered with, and that no one testified that there is any difference between the four ballots as exhibited in court, and that the evidence of all the judges of that precinct shows that the ballots when counted in court were in the same condition as when they were removed from the ballot box. The law is, as stated by appellant, that the burden is on the petitioner in an election contest to show that the ballots counted in the contest were those cast at the election and that they were in the same condition as when cast. Clarke v. Bettenhausen, 296 Ill. 373, 129 N. E. 803;Rottner v. Buchner, 260 Ill. 475, 103 N. E. 454. The finding of the county court that the proof showed that ballots 5A, 5B, 5C, and 5D had been preserved so that there was no reasonable opportunity for tampering with them is supported by the evidence in the record, and we hold that there was no error in counting those ballots. They were counted by the court as it was agreed that they should be counted if the proof of their preservation was sufficient.

The court found that Leslie Baker and Mary Baker were not legal voters in the First precinct and that they voted there in appellant, and deducted two votes from the count for appellant. Two other votes were deducted from the count for appellee by the court, the same being the votes of John Voigts and Mary Voigts. The court found that the Voigts were not legal voters in the First precinct and that they voted for appellee.

Leslie Baker was a cousin of appellant. He and his wife, Mary Baker, lived on a small farm in Otter Creek township for many years. About four years before the election in question he sold his farm to Ralph Harber and thereafter lived on the farm as a tenant of Harber until March 1, 1931. On or about that date he and his wife moved with all their personal property from this farm to a farm across the line in Livingston county, where they resided up to and including April 7, the date of the election. When workers for appellee at the election brought John Voigts and Mary Voigts, his wife, to the polling place in the First precinct, Charles Riss, a worker at the election for appellant, told Floyd Harber, a worker for appellee, that if the Voigts voted he would bring the Bakers to vote. Thereafter a worker for appellant drove his automobile to the home of the Bakers, in Livingston county, and brought them to the polling place in the First precinct, where they voted. Both Leslie Baker and Mary Baker were called as witnesses by appellant, and they testified that they voted at the election for appellee. They testified that they lived in Livingston county and had lived there since about March 5, 1931. Mary Baker testified: ‘After we moved to Livingston county I intended to hold my voting place in the town of Otter Creek for this one election and after that find out where we were supposed to vote. I thought I couldn't be deprived of my vote. I couldn't vote in Livingston county and I thought I could vote in Otter Creek.’ Leslie Baker testified: ‘When I left Otter Creek township I intended to retain that township as my voting place, as long as I could not vote in Livingston county.’ The finding of the county court that the Bakers were not qualified voters in Otter Creek township on the day of the election is supported by the evidence in this record and cannot be held to be erroneous. After they abandoned their home in that township and took up their residence in Livingston county, they had no right to vote in Otter Creek township. This court stated in Kreitz v. Behrensmeyer, 125 Ill. 141, 17 N. E. 232, 252,8 Am. St. Rep. 349, that: ‘It does not follow because a man must have a domicile somewhere, and that a domicile once gained remains until a new one is acquired, that a man must be entitled to vote somewhere, or that the right to vote at a particular poll, being once established, is presumed to continue until a right to vote elsewhere is shown.’ When a voter of...