Waters v. Heaton

• Decision Date: 07 October 1936
• Docket Number: No. 23284.,23284.
• Citation: 364 Ill. 150,4 N.E.2d 41
• Parties: WATERS v. HEATON.
• Court: Illinois Supreme Court

364 Ill. 150

4 N.E.2d 41

WATERS

v.HEATON.

No. 23284.

Supreme Court of Illinois.

June 10, 1936.

As Modified on Denial of Rehearing Oct. 7, 1936.

Appeal from Circuit Court, Douglas County; Joseph S. McLaughlin, judge.

Election contest by Harry L. Waters against Charles E. Heaton.From a judgment, entered after a recount of the ballots, finding that plaintiff had been elected, defendant appeals.

Reversed.

STONE and WILSON, JJ., dissenting.Pate & Collord and W. W. Reeves, all of Tuscola, for appellant.

D. H. Wamsley and Cotton & Nichols, all of Tuscola, for appellee.

FARTHING, Justice.

At the election on November 6, 1934, appellant, Charles E. Heaton, and appellee, Harry L. Waters, were, respectively, the Democratic and Republican candidates for the office of county treasurer of Douglas county.Heaton was declared elected by a majority of 25 votes.He received his certificate of election and qualified.On November 28, 1934, Waters filed a petition to contest the election.Heaton moved to dismiss the petition and challenged the sufficiency of it and of the verification.The circuit court of Douglas county overruled the motion.Heaton filed his answer, and, after a recount of the ballots, the court found that Waters had been elected by 4,004.86 votes to 3,978.14, or a majority of 26.72 votes.This appeal followed.

Appellant takes the position that an election contest petition must be drawn, as well as verified, in the same manner and with the same requirements as a bill in chancery, and that the verification is bad because too few allegations are sworn to as being true in substance and in fact.He points out that the petition contains allegations as to facts of record (particularly in the tenth paragraph, where the result of the canvass is referred to), which were known or readily accessible to appellee, and that, because all the grounds of contest appear subsequent to the first five paragraphs, which alone are sworn to as being true in substance and in fact, the case presented is similar to one where the whole petition is verified on information and belief.

The material part of the affidavit reads as follows: ‘Harry L. Waters * * * upon oath * * * says that he is petitioner * * * and that the allegations of said petition contained in paragraphs 1, 2, 3, 4 and 5 * * * are true in substance and in fact and that as to the remainder of the matters and facts alleged in said petition this affiant is informed and believes that the same are true and states that the same are true upon his information and belief.’

In first paragraph Waters alleged that he was a citizen of the county and precinct (naming them) and had been for more than two years prior to 1934, and that on the date named the was a resident and legally qualified elector in said county and precinct.The second paragraph says that the election was held on November 6, 1934, and that Waters and Heaton were candidates for the office of county treasurer, etc., and that their names appeared on the official ballot, etc.; that the election was in all respects regular and the ballots and returns were properly peserved.The third paragraph says that the polls closed as prescribed by statute and that the judges and clerks of election proceeded to tabulate the votes.Paragraph 4 contains the statement that after tabulating the votes the judge and clerks made return to the county clerk, etc.The fifth paragraph states the number and names of the precincts in Douglas county.Paragraph 6 to 14, inclusive, contain allegations as to irregularities in voting, counting ballots for the wrong candidate, failing to count ballots for the petitioner, voting by disqualified persons, mistakes in counting and tabulating votes, etc.These paragraph are sworn to only on information and belief.After alleging irregularities in the attempt of voters to cast their ballots under the absent voters statute, the allegation is made that, as a result of the illegal and incorrect canvass, etc., Heaton was declared elected, but that, if the votes were correctly counted, they would show that Waters received 4,533 votes to Heaton's 3,438.Then follows the prayer for relief and process.

Appellee contends that, by filing his answer after the trial court denied Heaton's motion to dismiss, the latter waived his objections to the sufficiency of the petition.Appellee cites Haley v. Reidelberger, 340 Ill. 154, 172 N.E. 19,Kreitz v. Behrensmeyer, 125 Ill. 141, 17 N.E. 232,8 Am.St.Rep. 349, andJackson v. Winans, 287 Ill. 382, 122 N.E. 611.But since the adoption of the Civil Practice Act(110 S.H.A. § 125 et seq.) and rule 21 of this court(110 S.H.A. § 259.21) such a waiver does not occur when the defendant answers after his motion questioning the sufficiency of the petition has been overruled.

In MacGuidwin v. South Park Com'rs, 333 Ill. 58, 75, 164 N.E. 208, 215, we held that a petition to contest an election must set forth in points on which the election is to be contested, must be verified by the proper affidavit, must be filed within the time prescribed by statute, must allege that the contestant is an elector of the political subdivision in which the election was held, and must comply with all other statutory provisions necessary to give the court jurisdiction.We said: ‘This court has held that in an election contest, where a contestant states by proper allegations generally that he received a certain number of votes cast in the entire voting municipality or district more than his opponent received, who by the election returns was declared to be elected, such contestant has the right to have the entire ballots counted to determine the true result of the election.’And we quoted from Leonard v. Woolford, 91 Md. 626, 46 A. 1025, 1027, to the effect that, if we were to require the precision and certainty in an election petition as in the pleadings between parties to a suit at law, which pleadings have for their object the production of a single issue, the difficulty of stating precisely the manner in which a fraud had been committed or an undue or incorrect return had been made would to a great degree nullify the law itself, which designs that such charges should be investigated.The Maryland court said: ‘The rule must not be held so strict as to afford protection to fraud, by which the will of the people is set at naught, nor so loose as to permit the acts of sworn officers, chosen by the people, to be inquired into without an adequate and well-defined cause.’

In Smith v. Township High School District, 335 Ill. 346, 351, 167 N.E. 76, 78, we recognized the rule that in an election contest the statute must be strictly followed, but we said: ‘To hold that a petition to contest an election should only contain such allegations of fact as are within the contestant's personal knowledge would be impracticable, for the very nature of the proceeding compels him largely to rely upon information obtained from other persons, and it is obvious that as to such information the contestant can only make oath that he believes the allegations to be true.Jackson v. Winans, 287 Ill. 382, 122 N.E. 611;Farrell v. Heiberg, 262 Ill. 407, 104 N.E. 835.’We held the petition sufficient and that the general charge that illegal votes were cast at the election and counted in favor of the proposition submitted, and that without such vote that proposition would have been defeated, to be a sufficient ground of contest.

In Farrell v. Heiberg, 262 Ill. 407, 104 N.E. 835, 836, objection was made to the verification, which said that the matters stated to be true were true in substance and in fact, and that as to statements made on information and belief the affiant believed them to be true.We held the verification to be good and said: ‘The general rule applicable to the verification of bills in equity is that the affidavit should be in such form as to subject the party making it to a prosecution for perjury in case the matter sworn to proves to be false.The usual form of verification of bills in equity is that the party verifying has read the bill subscribed by him (or has heard them read) and knows the contents thereof, and that the same is true of his own knowledge, except as to matters which are therein stated to be on his information and belief, and as to those matters he believes them to be true.[Citing authorities.]The statute should have a reasonable construction in order to accomplish the purpose intended.To hold that a petition to contest an election should only contain such statements as were within the contestant's own personal knowledge would be impracticable, since from the very nature of the proceeding the contestant must rely largely on information obtained from others, and as to such information the contestant could only make oath that he believed the statements to be true.’

The verification and allegations of the petition were sufficient, and this contention must be overruled.

The only point urged by the appellant that we need consider is that with reference to the validity of ballots initialed by one judge with the initials of another judge of election.

The contestant showed that a few persons voted who were not entitled to vote; that in several precincts the ballots issued by the county clerk to persons who sought to vote in accordance with the Absent Voters Act were put into the respective ballot boxes by...