Weston v. Markgraf
| Decision Date | 24 February 1928 |
| Docket Number | No. 18626.,18626. |
| Parties | WESTON et al. v. MARKGRAF. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Election contest by Alvah M. Weston and others against Albert E. Markgraf. From a judgment adjudging defendant elected, petitioners appeal, and defendant files cross-error.
Affirmed.
Appeal from Will Court; Ralph C. Austin, Judge.
D. R. Anderson, of Joliet, for appellants.
William C. Mooney and Robert W. Martin, both of Joliet, for appellee.
At the November 2, 1926, election in Will county Alvah M. Weston was the Republican and Albert E. Markgraf the Democratic candidate for sheriff. The canvassing board found that Markgraf received 14,338 votes and Weston 13,412, thus giving a majority of 926, whereupon Markgraf was declared elected sheriff and duly qualified. A petition was filed by Weston and three others in the county court of Will county to contest the election. The petition set out certain mistakes, illegal voting, alteration of ballots, and other frauds in certain of the election districts. An examination of the ballots showed mistakes in the original count in nearly all of the election districts of the county, and there was evidence of fraud in the First, Fourteenth and Eighteenth election districts in the town of Joliet, beneficial to Weston in the Eighteenth district and beneficial to Markgraf in the First and Fourteenth districts. The fraudulent ballots in the Eighteenth district are clearly distinguishable and were excluded by the trial court, and there is no dispute concerning the Eighteenth district or the court's action in regard to it. The court refused to exclude the First district from the poll, and the petitioners maintained, and now maintain, that the First district should have been excluded. The court held that there was so much fraud shown in the Fourteenth district that it was impossible to distinguish the fraudulent acts to arrive at a conclusion as to what the result of an honest election in this district would have been, and over the protest of the defendant excluded the Fourteenth district from the poll. On the recount made by the trial court Markgraf's majority was 190 2/3, and he was adjudged elected. From this judgment petitioners have appealed to this court.
Appellants' first assignment of error is that the trial court erred in its decision concerning the objections of the petitioners and in counting the ballots objected to, of which [328 Ill. 578]326 were objected to by defendant and 1,221 by petitioners, classified as follows: Not initialed, 33; no cross, 42; cross outside the circle, 8; cross outside the square, 15; erasures, 82; distinguishing marks, 145; two crosses, 26; spoiled ballots, 35; crosses made by different persons on the same ballot, 1,157; defaced or mutilated ballots, 4. These ballotshave been certified to this court for reexamination.
With reference to this assignment of error appellants say:
‘Unless this question is discussed in the brief and argument of appellee I am content to let the count of the trial court stand.’
With reference thereto, appellee says:
‘We join with counsel for appellants in this position except as to the court's ruling on the ballots cast in the Fourteenth district, all of which were excluded by the court from the count, and to which ruling we have assigned cross-error.’
While this court will not shirk its duty of examining the evidence in a case, however onerous that duty may be, we will not impose upon ourselves the arduous task of examining these 1,547 ballots, since both sides are agreed that we shall not do so.
In the Twenty-Fifth election district in Joliet the election was held in an undertaking establishment, the ballot box and judges being in the front room or office of the establishment and the booths in an adjoining room, the entrance to which was gained from the office by a door, the booths being set in a continuous semicircle extending around this door, the side of each end booth being flush with the partition. The door could not be closed, and the booths were so arranged that the only access to and egress from them was through this open doorway. The judges and clerks were all in the front room. One judge was at a table close to the open doorway, giving out ballots, and another was standing near the north side of the doorway, about a foot from it. The third judge was standing on the south side of the open doorway, taking the ballots and putting them in the box. Each of the judges, standing by the open doorway, could see all of the booths except one, but no booth was not visible at all times to one or more of the judges. The table used by the clerks was at the north side of the doorway and about 5 feet west of it. The evidence discloses that the booths were under the observation of the election officers and that none of them were more than a few feet therefrom. The ballot boxes and election officers were in plain view of all who might come in the front door, as were all of the booths, with the exception of one or two of them. No person was admitted in the room where the booths were except voters to mark their ballots, and there was no opportunity for any person to interfere with a voter while he was using a booth.
Paragraph 310 of the Election Law (Smith's Stat. 1927, p. 1249, c. 46), provides that:
Voting booths shall be provided and so equipped that ...
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