Talbott v. Thompson

• Decision Date: 22 October 1932
• Docket Number: No. 20929.,20929.
• Citation: 182 N.E. 784,350 Ill. 86
• Parties: TALBOTT v. THOMPSON.
• Court: Illinois Supreme Court

350 Ill. 86

182 N.E. 784

TALBOTT

v.THOMPSON.

No. 20929.

Supreme Court of Illinois.

Oct. 22, 1932.

Petition by Eller Talbott, contesting the election of George B. Thompson to the office of County Clerk of Jefferson County. From an adverse judgment, petitioner appeals.

Affirmed.

JONES, J., dissentingAppeal from the Circuit Court, Jefferson County; Julius C. Kern, judge.

June C. Smith, of Centralia, for appellant.

E. M. Peavler and Gilbert & Gilbert, all of Mt. Vernon (G. Gale Gilbert, of Mt. Vernon, of counsel), for appellee.

DE YOUNG, J.

Eller Talbott and George B. Thompson were opposing candidates for the office of county clerk of Jefferson county at the general election held on November 4, 1930. The result of the canvass of the votes cast in the several precincts of the county was that Thompson had been elected. Talbott filed a petition in the circuit court of Jefferson county to contest the election. The court declared Thompson elected, and Talbott prosecutes this appeal.

The appellant, Eller Talbott, and the appellee, George B. Thompson, were respectively the candidates of the Democratic and Republican Parties. At the time of the election, the appellee was the county clerk of Jefferson county. The ballots and returns of the election were therefore returned to him, and he retained possession of them in his official capacity until December 5, 1930, when, pursuant to an order of the circuit court, they were placed in the keeping of the clerk of that court. While the county clerk had possession of the ballots and returns, they were kept in a small room connected with his office. This room had no outside entrance, and the door to the office was locked with a padlock, to which there were only two keys, one carried by the county clerk and the other by his deputy.

When the ballots and returns were delivered to the county clerk, one bag containing ballots was not sealed. The judges and clerks of election of the particular precinct testified that they were unable to seal the bag because they had no sealing wax. In several other precincts the poll books and tally lists were placed in the bags with the ballots and sealed. These bags were opened by the county clerk in order to withdraw the poll books and tally lists for the purposes of the canvass. The county clerk testified that the ballots were in the same condition when he delivered them to the clerk of the circuit court as when he received them.

The clerk of the circuit court placed the ballots and returns of the election at the end of the vault in his office. There was a table between the ballots and the door of the vault and old records and papers were placed under this table. The door to the vault had not been locked for years. The front door of the office had a lock to which the clerk, his deputy, and the janitor had keys. Another door, which led to the courtroom on the floor above, was fastened on the office side with a bolt. The public was admitted to the vault and records kept in it were examined by not less than ten persons each day. From their desks, the employees in the clerk's office could look into the vault, but the table with the records under it obstructed their view, and how a person near the ballots was occupied might not be discovered. About ten days after the clerk of the circuit court received the ballots and returns, he transferred them to a vault in the Ham National Bank, across the street from the courthouse. The ballots were placed in a compartment in the rear of the vault. This compartment was approximately eight feet square, and was separated from the remainder of the vault by a grill. The door to the grill was locked and the clerk of the circuit court retained custody of the key. The spaces between the bars of the grill were approximately two inches in width, and part of the ballots were stacked against the grill, and a hand could be inserted between the bars.

The janitor of the courthouse testified that he had a key to the county clerk's office, but not to the adjoining room; that, while the ballots were kept in that room, he did not part with his key, nor admit any person to the office; that during the time the ballots were stored in the vault of the clerk of the circuit court he did not enter the vault; that he retained sole custody of his key to the circuit clerk's office while the ballots were in the vault, except one night when, because of his absence from town, he left the key with his son, who was the sheriff of the county; and that no other person entered the office with his key. The clerk of the circuit court testified that in his opinion no person had tampered with the ballots while they were in his possession, and that they were in the same condition when they were offered in evidence as when he received them. The testimony of the deputy clerk of the circuit court was to the same effect.

The county canvassing board found that the appellant received 5,954, and the appellee 5,963, votes at the election. At the opening of the trial, the appellant offered the ballots in evidence. The appellee moved to exclude them on the ground that unauthorized persons had been afforded access to them. Disposition of the motion was reserved, without prejudice to either party, until after the ballots had been counted. An examination by the court of the bags containing the ballots followed, and it disclosed that eight of the thirty-eight bags were open and unsealed. The open bags came from the following precincts: Second, Grand Prairie township; second, Rome township; second, McClellan township; Second, Dodd's township; first, Elk Prairie township; first, Spring Garden township; tenth, Mt. Vernon township; and first, Webber township. The court then appointed a commissioner to count the ballots. The result of the recount, exclusive of 36 ballots disputed with reference to their markings, and 144 absent voters' ballots not bearing the initials of a judge of election, gave the appellant 5,868, and the appellee 5,864, votes. Of the 36 ballots whose markings were the subject of dispute, the court credited ballots 19, 22, 24, 26, 27, 30, 31, 32, 33, 34, 35, and 36, twelve in number, to the appellant, and ballots 2, 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, and 18, fifteen in the aggregate, to the appellee. Ballots 20, 21, 23, 25, 28, and 29, claimed by the appellant, and ballots 1, 8, and 9, claimed by the appellee, were rejected by the court. Of the 144 uninitialed absent voters' ballots, 54 were marked for the appellant and 90 for the appellee. None of these ballots was counted or credited to either candidate. Upon the recount of all the ballots thus completed, the appellant had 5,880, and the appellee 5,879, votes.

The recount was rejected because the court found that the ballots had not been preserved as required by law, and that, lacking probative force, they could not overcome the result of the election as shown by the returns. The court further found that the ballots of nine absent voters had been cast in the first precinct of McClellan township; that these ballots had been placed in the ballot box without the initials of a judge of election indorsed upon them, but that they were later withdrawn and so initialed; that there was no evidence for whom 7 of the absent voters' ballots had been cast; that the action of the judges of election with respect to these 9 ballots was unlawful; that the intermingling of the legal and illegal ballots made it impossible for the court to separate them; that the ballots in the ballot box exceeded the names of voters on the poll list by one; that the judges of election discovered a ballot marked for the appellee but not initialed by one of the judges; that this ballot was removed from the ballot box, and was not counted; that the returns of the precinct, based upon all the ballots, both legal and illegal, showed 150 votes for the appellant and 50 for the appellee; that the ballots and returns from the first precinct of McClellan township were therefore impeached and left the number of ballots there cast for each candidate uncertain; that neither the ballots nor the returns from that precinct should be considered in arriving at the number of legal votes cast for each candidate, and that it appeared from the returns of the remaining thirty-seven precincts of the county that the appellant had received 5,804 and the appellee 5,913, votes. The circuit court accordingly declared the appellee elected, and the petition of the appellant was dismissed.

The first contention made by the appellant is that the circuit court erred in holding that the ballots had not been properly preserved and in consequence rejecting them as evidence of the result of the election. The returns of the judges and clerks are prima facie evidence of the result of the election, but the ballots are the original evidence of the votes cast, and, in case of a contest, are better evidence of the result if they have been preserved in the manner prescribed by the statute to secure their integrity. Section 27 of the Ballot Law (Cahill's State. 1931, p. 1312, c. 46, par. 230, Smith-Hurd Rev. Stat. 1931, p. 1361, c. 46, § 316) provides that the judges shall fold all the counted ballots in two folds and string them closely upon a single piece of flexible wire; that they shall unite the ends of the wire in a firm knot and seal the knot so that it cannot be untied without breaking the seal; that they shall inclose the ballots so strung in a secure canvas covering and securely tie and seal the covering with official wax impression seals in such a manner that it cannot be opened without breaking the seals; and that they shall return the ballots in the sealed covering to the proper clerk or board of election commissioners, whose duty it shall be to preserve them carefully for six months, unless at the expiration of that period an election contest shall be pending in which case the ballots must be preserved until the contest is finally...