The City of Beardstown v. the City of Va.

• Decision Date: 31 January 1876
• Citation: The City of Beardstown v. the City of Va., 81 Ill. 541, 1876 WL 10046 (Ill. 1876)
• Parties: THE CITY OF BEARDSTOWN et al.v.THE CITY OF VIRGINIA et al.
• Court: Illinois Supreme Court

81 Ill. 541

1876 WL 10046 (Ill.)

THE CITY OF BEARDSTOWN et al.

v.THE CITY OF VIRGINIA et al.

Supreme Court of Illinois.

January Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cass county; the Hon. LYMAN LACEY, Judge, presiding.

This was a contest of an election, by bill in chancery, between the cities of Beardstown and Virginia, respecting the removal of the county seat. The case was submitted, and decided by this court at the January term, 1875, and is reported in 76 Ill. 34, where the facts are more fully stated. A rehearing having been granted, the following opinion was filed.

Messrs. HAY, GREENE & LITTLER, Mr. A. THORNTON, Mr. I. J. KETCHAM, Messrs. GARLAND & POLLARD, and Mr. THOS. H. CARTER, for the appellants.

Messrs. LAWRENCE, CAMPBELL & LAWRENCE, Mr. C. G. WILNEY, Mr. J. N. GRIDLEY, and Mr. ISAAC L. MORRISON, for the appellees.

Per CURIAM:

A rehearing was granted in this case, and a re-argument has been had. We have reviewed the legal questions involved in our former decision, after the further discussion of them in the additional and able arguments with which we have been favored.

Upon full consideration, we have to say, that the majority of the court find no sufficient reason to depart from the legal conclusions which we before reached, and we still adhere to them. This, however, with one exception. By our former decision, it was held that the court below rightly refused to count, in favor of appellants, the votes of ten persons alien born, who were minors at the time their fathers obtained certificates of naturalization from the former county courts in this State, organized under the constitution of 1848, following in that respect the decision in the case of Knox County v. Davis, 63 Ill. 405, that said county courts had no jurisdiction to grant naturalization.

Since the former decision in this suit, this court has expressly overruled, in this respect, the case of Knox County v. Davis, supra, in the case of The People ex rel. v. McGowan, 77 Ill. 644, holding that said county courts had jurisdiction to grant naturalization. These ten votes, then, under the decision in the last case, should have been counted in favor of appellants, as also the two other votes, of Charles Thilenius, a voter against removal, rejected because the naturalization of his father was in the St. Louis Criminal Court, and Arthur W. Loosely, a voter who did not vote, whom the court refused to count as a voter because his father was naturalized in the county court, in all, twelve votes. From these should be deducted the four votes in favor of removal, which were rejected by the court below, of John Hobig and Peter Doran, naturalized in the St. Louis Criminal Court, Michael Dowling, naturalized in the county court, and George Klopfer, naturalized in the Probate Court of Seneca county, Ohio, all whom were duly naturalized according to the doctrine laid down in the McGowan case.

As to Doran, however, appellants claim that his rejection was not on the ground the court had not authority to naturalize, but that his rejection was proper for the reason that the certificate of naturalization produced by him was issued to another person. His name, he testifies, is Patrick Peter William Doran. The certificate is to Patrick W. Doran, and there appears some discrepancy in his statement as to his being of full age at the date of the certificate. We think, however, from his evidence, the certificate should be taken as having issued to him. Thus, then, of the number of votes standing affected by the decision in the McGowan case, there is a majority of eight in favor of appellants, entitling them in the count to eight additional votes, and that being the majority found by the court below against them, makes, upon the whole count, as so far considered, a tie vote. This renders it necessary, as was not done in the former opinion, to go into a review of the several alleged erroneous rulings of the court below on both sides, in matters of fact, in admitting and rejecting individual votes, in order to determine where lies the legal majority.

The two voters, C. M. Easum and William Mains, voted for removal, and the vote of neither was counted by the judges of election, because, by mistake, two ballots were placed in the box by each, instead of one by each. These votes, upon satisfactory evidence there produced, were, by the court below, allowed and counted for removal, and erroneously so, it is insisted by appellants, because there was no sufficient allegation in that behalf in the pleadings; that the votes were allowed on the evidence alone, without any thing in the pleadings to sustain the finding.

The bill alleges “that a majority of the legal votes cast at said election were not for removal, but against it.” The answer denies this allegation. Under such allegation and denial, we regard the evidence as properly admitted.

In the case of several foreign born persons, they testify that they had been naturalized, or their fathers had been when they were minors. In contradiction of the testimony of the witnesses, there were offered and received in evidence the certificates of the clerks of the circuit and county courts in which the witnesses testified that certificates of naturalization had been taken out, or of the counties in which the party claiming to have been naturalized had resided since arriving in the country, to the effect that there was no evidence on the records of their courts that such persons had been naturalized therein. It is insisted by appellants that these certificates were not competent evidence, and their admission erroneous. In the case of Cross v. Pinckneyville Mill Co. 17 Ill. 54, where a certificate of the Secretary of State had been introduced in evidence, that, on a certain date, or prior thereto, no certificate of organization of the company had been filed in his office, SCATES, Ch. J., in reference thereto, said: “I deem it a misapprehension of the true object of such a certificate, when offered to prove what is not of record, or that this certificate is not of record. Any person who has examined offices or records may swear and so prove the matters as not there of record.” If this be accepted as a correct statement of the law, these certificates were incompetent evidence.

Appellants claim that six votes against removal, viz: those of William Lovekamp, Henry Lovekamp, John F. Nolte, William Jockish, F. W. Meyer, and Henry Schneider, and one for removal, that of Charles Fink, rejected by the court below, depend upon the decision of this question.

We have examined the evidence pertaining to each one of the above named six votes against removal, and find that, in the case of only two of the voters, Jockish and Meyer, was the certificate material for their rejection.

The Lovekamps and Nolte testified that they were foreign born; that they had never been naturalized, and did not know that their fathers had been. Schneider testified that he was foreign born, and had no naturalization papers to show, and testified further to taking out his first papers, but not to taking out any other. We are of opinion the evidence rebutted the presumption of the legality of the votes, and that their rejection was not dependent upon the certificates.

It is otherwise as to Jockish and Meyer. Deducting from these two against removal, Charles Fink, for removal, admitted by appellants to have been erroneously rejected upon the certificate, leaves a balance of but one vote denied to appellants on account of this ruling in the admission of certificates. We will call this, for convenience of after reference, the vote of F. W. Meyer.

The court below, after having counted as voting against removal, 149 persons who did not vote, but whom the court found to be voters in the county on November 12, 1872, the day of the election, erred, appellants insist, in refusing to count certain other named persons, who did not vote, as voters of the county, and so as against removal, 32 votes in all.

The question involved in most of these cases is that of the residence of the voter, one which often it is quite difficult to determine, and may be found either way without doing any marked violence to principle or the facts. A different rule of presumption, too, applies with respect to these alleged voters, than in regard to the persons who actually voted. All legal voters who did not vote, being counted as against removal, whether in truth they were so or not, there is no presumption to be indulged in their favor, but in order to count them against removal, the burden is upon appellants to show clearly that they were legal voters. One of this number, Arthur W. Looseley, rejected because of the naturalization of his father in the county court, we have already allowed and counted against removal. We have gone through the evidence pertaining to all the other cases, and in view of it, we can not say that it so clearly appeared the persons were legal voters, that the finding of the court that they were not, should be reversed, except in the cases of David Black, Richard Eyre, Jerry Gentry, C. M. Lane and Charles Wilbur. We are of opinion these persons were entitled to vote upon the question, and that they should have been counted as against removal.

Appellants insist that the votes of...