Wood v. Hartman

• Decision Date: 15 January 1943
• Docket Number: No. 26582.,26582.
• Citation: 381 Ill. 474,45 N.E.2d 864
• Parties: WOOD v. HARTMAN.
• Court: Illinois Supreme Court

381 Ill. 474

45 N.E.2d 864

WOOD

v.HARTMAN.

No. 26582.

Supreme Court of Illinois.

Nov. 17, 1942.

As Modified on Denial of Rehearing Jan. 15, 1943.

Action by Ben F. Wood against Harry T. Hartman contesting the election of the defendant as county treasurer of Madison county. From a judgment for defendant, plaintiff appeals.

Reversed and remanded, with directions.

MURPHY, J., dissenting.Appeal from Madison County Court; Ralph Cook, Judge.

Jesse R. Brown and Perry H. Hiles, both of Edwardsville, for appellant.

John B. Harris, of Granite City, and Chester H. Farthing, of Belleville, for appellee.

THOMPSON, Justice.

On November 8, 1938, an election was held for the office of county treasurer of Madison county. The result of the canvass of the votes was that Harry T. Hartman, the nominee of the Democratic party, received 24,382 votes and Ben F. Wood, the Republican candidate, 24,262, this giving Hartman a margin of 120 votes. He qualified and assumed the duties of his office. Wood filed a petition in the county court of Madison county to contest the election, and on April 19, 1939, Hartman filed an answer to the petition of plaintiff. On February 3, 1939, Wood prayed a change of venue which was subsequently granted and, by agreement of the parties, one of the judges of the city court of East St. Louis was called in to hear the cause as provisional judge by the sitting judge of said court. An extended hearing followed in the county court of Madison county and the court found that Wood had received 24,224.892 votes and Hartman 24,323.108 votes, giving Hartman a margin of 98.216 votes. The petition was dismissed and Hartman's election confirmed. From that decision Wood has appealed to this court.

While the abstract of the record contains over 350 pages and covers all of the evidence taken at the hearing, the questions on this appeal are limited to those pertaining to the ballots as cast in precinct No. 1, Collinsville township. A decision as to those ballots determines the result of the election. The pollbook of this precinct contains 729 names. Out of the total vote cast in the precinct, only four ballots bore the initials of one of the judges of election. The only semblance of a means of identification of the other ballots was a check mark, uniform in size, which was located to the right of the facsimile signature of the county clerk. Wood's offer of the ballots voted for him made no distinction between those bearing an endorsement of initials and those endorsed with the check marks. Hartman made no objection as to the character of the endorsement and all were counted and included in Wood's total. The re-count gave Wood 217 votes. Hartman's offer of those ballots voted for him was the same as that made by Wood and included those endorsed with the check mark. Wood interposed an objection to all ballots not initialed. After disposing of objections of a different character directed to only a few ballots, the court overruled the objections as to initialing and counted them for Hartman. He received 452 votes in the precinct.

Apparently from the evidence there was no fraudulent motive in the judges' failure to initial the ballots and such failure was a mistake on their part under the belief that check marks were sufficient in order to comply with the statute. However, in either case, whether with fraudulent motive or an honest mistake, the failure to initial the ballots presents a serious question to be determined by this court.

The question to be determined is controlled by sections 22 and 26 of the Australian Ballot Law (Ill.Rev.Stat.1941, chap. 46, pars. 311 and 315.) That part of section 22 involved in this case 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 provides in part 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.’

Many cases involving the requirements of the statute as to initialing have been presented to this court. Wood's contention is, that the provisions of the above act are mandatory and that the prior holdings support such construction. His brief, as well as the brief of Hartman, is devoted to an analysis of those cases pertaining to the construction to be placed on the above statute as to whether or not it is directory or mandatory. Wood contends it is mandatory while Hartman contends that the statute, as applied to the facts in this case, is directory and relies upon the holdings in cases such as Waters v. Heaton, 364 Ill. 150, 4 N.E.2d 41;Neff v. George, 364 Ill. 306, 4 N.E.2d 388, and Boland v. City of LaSalle, 370 Ill. 387, 19 N.E.2d 177.

As an alternative, Hartman contends that even though the failure to initial the ballots rendered them fatally defective, Wood is in no position to object since he offered and counted ballots for himself which were not initialed.

When we observe the record as the bottom of page 310 of the abstract we see that attorneys for Wood both objected to counting the ballots of Hartman because they did not bear the initials of any judge in that precinct. At no time did attorneys for Hartman object to the introduction of similar ballots in favor of Wood.

From the record it appears at the time of the trial when the ballots were offered for Wood, there were no objections made by Hartman; that Wood did object to such ballots as offered on behalf of Hartman, which objections were overruled. The question to be considered, which goes to the merits, is whether or not the ballots not initialed should be counted. Wood contends that such ballots are made void by sections 22 and 26 of the Ballot Law, and cites in his brief a number of cases in support of his theory, two of which are Waters v. Heaton, supra, and Neff v. George, supra, in which it is contended the requirements of sections 22 and 26 of the Ballot Law as to the manner of initialing ballots are directory and not mandatory. Hartman contends that section 22 of the Ballot Law (Ill.Rev.Stat.1937, chap. 46, par. 311, p. 1479) was declared to be directory and not mandatory, and cites the decisions of Waters v. Heaton, supra, and Neff v. George, supra.

In reading the Waters and Neff cases, supra, we find that the involved ballots there were initialed by one judge with the initials of another, while in the instant case the ballots were not initialed by any judge. Under the facts presented in the Waters and Neff cases, supra, we held that such ballots were valid and should be counted. We find however, in the later case of Lacy v. Rhodes, 369 Ill. 167, 15 N.E.2d 683, where it was contended that section 22 of the Ballot Law was directory and not mandatory, citing the Waters and Neff cases, this court held that uninitialed ballots are made void by sections 22 and 26 of the Ballot Law and it was error to permit uninitialed ballots to be counted.

After reviewing the Waters and Neff cases, supra, this court, referring with approval to the case of Sibley v. Staiger, 347 Ill. 288, 179 N.E. 877, said: ‘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. Allen v. Fuller (332 Ill. 304, 163 N.E. 675);People v. Bushu, 288 Ill. 277, 123 N.E. 517. The circuit court properly excluded the proof offered by the appellant respecting the forty-nine ballots lacking the initials of a judge of election and it correctly decided that none of them should have been counted.’ [369 Ill. 167, 15 N.E.2d 684.]

This court further, in the recent case of Barlick v. Kunz, 375 Ill. 318, 31 N.E.2d 283, citing the case of Lacy v. Rhodes, supra, as authority, held that the initialing requirement of ballots is mandatory, and that while the rule that mistakes or omissions of officers in charge of election will not defeat the plainly expressed will of the voters, such rule is inapplicable where the officers have failed to perform mandatory duties of a precautionary character which safeguards the votes of the electors. We believe that sections 22 and 26 of the Ballot Law were enacted for this purpose, and if it is permitted in an election for ballots to be cast without the initials of the judges, we would be taking away the protection given by such sections. To make such a recommendation would be approving the conduct of election judges who failed to perform their mandatory duties and would not only militate against what we have been trying to do for many years,-protect and safeguard the votes of the electors,-but would be contrary to the statute as to its mandatory provisions. Uninitialed ballots are therefore made void by sections 22 and 26 of the Ballot Law and the county court of Madison county was in error in permitting such uninitialed ballots to be counted.

In presenting his alternative contention Hartman invokes the well-established principle that a party cannot complain of an error which he also committed. That this principle is well established in the law and has been applied in many cases on the introduction of the evidence and the giving of instructions, cannot be disputed. However, in election contests a different situation exists as to presenting evidence. The right to contest the election of an individual to office is not a common-law right, but exists only by statute, and the action is neither at law nor in equity, though the proceedings are governed by rules of chancery practice. Olson v. Scully, 296 Ill. 418, 129 N.E. 841;Brelsford v. Community High School District, 328 Ill. 27, 159 N.E. 237. It has been...