Tuthill v. Rendleman

• Decision Date: 18 September 1944
• Docket Number: No. 27838.,27838.
• Citation: 56 N.E.2d 375,387 Ill. 321
• Parties: TUTHILL v. RENDLEMAN.
• Court: Illinois Supreme Court

387 Ill. 321

56 N.E.2d 375

TUTHILL

v.RENDLEMAN. ^*

No. 27838.

Supreme Court of Illinois.

May 16, 1944.

Rehearing Denied Sept. 18, 1944.

Election contest by L. B. Tuthill against Ford L. Rendleman involving election to the office of county judge. From an adverse judgment, contestant appeals, and contestee assigns cross-errors.

Judgment reversed and cause remanded with directions.Peyton Berbling, Asa J. Wilbourn, Dorothy Wilbourn, all of Cairo, and Harold N. Lingle, of Anna, for appellant.

R. Wallace Karraker and Ford L. Rendleman, both of Jonesboro, for appellee.

STONE, Justice.

Appeal from Circuit Court, Union County; H. A. Spann, Judge.

This is an election contest over the election on November 3, 1942, for county judge of Union county. Plaintiff, the contestant, lost in the contest and appeals, assigning numerous errors. Defendant, the contestee, has assigned numerous cross errors. On the official returns defendant received 3423 votes and plaintiff 3405. The main issue was whether there were irregularities or illegal votes cast which changed the result of the election. The court recounted all. No question as to proper preservation of the ballots arises.

It was stipulated that a count of the undisputed ballots gave plaintiff 3316 votes and defendant 3288, or a majority of 28 votes for plaintiff. It was further stipulated that of the ballots returned from Cobden precinct No. 2, there were 170 ballots which bore the initials ‘E.L.M.’ Of these defendant received 89 and plaintiff 75, with 6 not voting for either candidate. The evidence shows, and it is not disputed, that the initials ‘E.L.M.’ on said ballots, were not the initials of a judge of that precinct, but that one Earl L. Morgan acted as a clerk of the election in that precinct. The court held these to be valid votes, on the ground that the provision of the statute relating to elections, requiring that a judge initial the ballots, was not mandatory but directory. On the recount 87 ballots bore no initials. None of them were counted. Ten ballots, marked exhibits B-1, 2, 4, 6, 8, 14, 20, 21, 22 and 24, involve factual questions and are certified to this court for examination. The trial court found ballots B-1, 8, 20 and 24 valid and counted them for plaintiff. B-6 and 21 were held valid and counted for defendant. Ballots B-2, 4, 14 and 22 were held not valid and not counted.

Defendant contended a large number of the voters were not qualified because not registered in accordance with the Permanent Registration Act. Ill.Rev.Stat. 1941, chap. 46, par. 153.1 et seq. The court held the applicable provisions of the Permanent Registration Act to be directory and not mandatory and that the voters whose ballots were objected to had complied with the requirements of the election officials who registered them, and that if their registration was incomplete such did not affect the validity of their ballots. They were counted for plaintiff and constitute the basis of certain cross errors assigned.Other ballots were objected to and will hereinafter be discussed.

The trial court added to the 3316 agreed ballots for plaintiff, 75 of those cast in Cobden No. 2 precinct; two of the B exhibits agreed upon, and exhibits B-1, B-8, B-20 and B-24, making a total of 3397 votes for plaintiff. From that total 19 votes for plaintiff. From that total 19 be discussed later in this opinion. The court found a total vote for plaintiff of 3378. By taking the agreed ballots for defendant, 3288, and adding thereto 89 cast in Cobden No. 2 precinct, six of the B exhibits not objected to, and exhibits B-6 and B-21, the court found a total of 3385 for defendant, and that defendant had been elected by seven votes.

Plaintiff's errors relied upon are, that the trial court erred in counting 164 ballots cast in Cobden precinct No. 2 endorsed ‘E.L.M.,’ and in refusing to count for plaintiff certain other votes hereinafter referred to.

Defendant's cross errors are that the court erred in holding the new Permanent Registration Act directory and not mandatory and in refusing to deduct from plaintiff's vote the 28 votes cast in violation of its provisions, and in refusing to deduct from plaintiff's total vote certain votes hereinafter referred to.

Defendant insists that plaintiff agreed and consented to count the 164 ballots cast in Cobden precinct No. 2, apparently initialed by a clerk of the election, claiming that it was agreed that there were 75 marked for Tuthill and 89 for Rendleman, and the trial judge in his statement of reasons for his decision found such had been stipulated. We cannot find, in the record, support for that conclusion. The only agreement or stipulation with reference to those 164 ballots appearing in the record, is as follows: ‘It is stipulated and agreed by the parties hereto, * * * that, in addition to the above, in the ballots brought in in a sack marked ‘Plaintiff's Exhibit 7,’ being Cobden precinct No. 2, there were 170 ballots which bore the initial ‘E.L.M.,’ presumably of Earl L. Morgan, a clerk of said election in said precinct, which ballots, on being counted, gave 89 for Rendleman, 75 for Tuthill, and 6 not voted for either candidate.' It will be noted that this stipulation recited the facts as to the number of ballots cast in that precinct and how they were marked for plaintiff and defendant, and that six were not marked for either candidate. There was no dispute as to how the ballots were marked, their validity depending upon whether the initials ‘E.L.M.’ rendered them invalid. The stipulation had the effect of waiving questions of their preservation and of an agreement as to their number and how they were marked. This, as we view it, amounted to no more than an agreement as to the condition of the ballots and what they showed. Plaintiff specifically objected to counting any of the ballots so initialed. Whether they should be counted was a question for the court to decide. Wood v. Hartman, 381 Ill. 474, 45 N.E.2d 864;Sibley v. Staiger, 347 Ill. 288, 179 N.E. 877.

Section 22 of the Ballot Act, Ill.Rev.Stat.1941, chap. 46, par. 311, provides: ‘One of the judges shall give the voter one, and only one ballot, on the back of which such judge shall indorse his initials in such manner that they may be seen when the ballot is properly folded, and the voter's name shall be immediately checked on the register list.’

Section 26 of the same act (par. 315) provides: ‘No ballot without the official endorsement shall be allowed to be deposited in the ballot box, and none but ballots provided in accordance with the provisions of this act shall be counted.’ Defendant's counsel argue that these provisions of the statute are directory only and not mandatory. They cite Neff v. George, 364 Ill. 306, 4 N.E.2d 388,Waters v. Heaton, 364 Ill. 150, 4 N.E.2d 41, and Boland v. City of LaSalle, 370 Ill. 387, 19 N.E.2d 177, in support of this contention. In the Waters and Neff cases, ballots were initialed by one judge with the initials of another judge. In the Waters case the cases of Laird v. Williams, 281 Ill. 233, 118 N.E. 73,McNabb v. Hamilton, 349 Ill. 209, 181 N.E. 646, and Blattner v. Dietz, 311 Ill. 445, 143 N.E. 92, holding illegal ballots initialed by one judge with the initials of another judge, were on that point overruled. The Boland case, where a clerk initialed ballots using his own initials, relied on the Waters and Neff cases in holding the statute directory and not mandatory.

Appellee relies upon Wood v. Hartman, 381 Ill. 474, 45 N.E.2d 864, in which the ballots bore a check mark, uniform in size, located to the right of the facsimile signature of the county clerk, but did not bear a judge's initials. This court cited section 26 providing that ‘no ballot without the official endorsement shall be allowed to be deposited in the ballot box, and none but ballots provided in accordance with the provisions of this act shall be counted,’ and held the provisions of sections 22 and 26 mandatory and ballots not in compliance therewith void.

Waters v. Heaton, Neff v. George, and Boland v. City of LaSalle, are in harmony with neither the earlier nor subsequent decisions of this court construing the language of section 22 of the act, requiring that one of the judges ‘shall indorse his initials' on the ballot. Sibley v. Staiger, 347 Ill. 288, 179 N.E. 877;Allen v. Fuller, 332 Ill. 304, 163 N.E. 675;Blattner v. Dietz, 311 Ill. 445, 143 N.E. 92;Kelly v. Brown, 310 Ill. 319, 141 N.E. 743;Neal v. Odle, 308 Ill. 469, 140 N.E. 31;McCreery v. Burnsmier, 293 Ill. 43, 127 N.E. 171;Wood v. Hartman, 381 Ill. 474, 45 N.E.2d 864;Barlick v. Kunz, 375 Ill. 318, 31 N.E.2d 283;Lacy v. Rhodes, 369 Ill. 167, 15 N.E.2d 683.

The right of franchise is the one act of sovereignty open to all qualified American citizens, and courts should be at least as jealous to safeguard that right as the General Assembly in passing the act. The rule stated in Sibley v. Staiger, 347 Ill. 288, 179 N.E. 877, 878, we believe to be the safe one to adhere to. That rule is: ‘While it is a rule that mistakes or omissions of the officers in charge of an election will not defeat the plainly expressed will of the voters, yet the rule does not apply where the officers have failed to perform mandatory duties of a precautionary character which safeguard the votes of the electors.’ Although proper application and construction of such statute may result in the loss of franchise to a voter in some instances, by far the greater good is to be derived from construing the language of a statute in accordance with its plain meaning and intent. As this court said in People ex rel. Vance v. Bushu, 288 Ill. 277, 123 N.E. 517, 518, ‘It is far better that the people of a town shall lose their vote in a single instance than that there shall be written into the law rules which permit election officers to disregard the plain mandates of those provisions of the law intended to protect and safeguard the ballot.’

The provision of section 22 of...