County of Lawrence v. Schmaulhausen

Mr. Justice Magruder delivered the opinion of the Court r The sixty-first section of chapter 46 of the Revised- Statutes, entitled “Elections,” (Hurd’s Rev. Stat. 1885, p. 536,) provides,, that, when the votes shall have been examined and counted, the clerks shall set down in their poll-books the name of every person voted for written at full length, the office for which such person received such votes, and the number he did receive, the-number being expressed in words at full length, such entry to-be made, as nearly as circumstances will admit, in the following form, to-wit: “At an election held at * * * in the county of * * * and State of Illinois on the * * * day * * * in the year * * * the following named persons, received the number of votes annexed to their respective names for the following described offices, to-wit: (name of candidate) had (number of votes) for (title of office), (and in the same manner for any other persons voted for.) Certified by us. A. B. } C. D. > Judges of election.” E. F. ) The sixty-second section provides, that one of the lists of voters with such certificate thereon, and one of the tally papers footed up so as to show the correct number of votes cast for each person voted for, shall he carefully enveloped and sealed up and put into the hands of one of the judges of election, who shall, within two days thereafter, deliver the same to the county clerk, or his deputy, at the office of said county clerk, “who shall safely keep the samethat another of the lists of voters, with such certificate written thereon, and another of the tally papers footed up as aforesaid, shall he carefully enveloped and sealed up and duly directed to the Secretary of State and by another of the judges of election deposited in the post-office, within twelve hours after the close of the polls, which poll-book and tally list shall he filed and kept by the Secretary of State for one year, “and certified copies thereof shall he evidence in all courts, proceedings and election contests;” that another of the lists of voters, with such certificate written thereon, and another of the tally papers footed up as aforesaid, shall be carefully enveloped and sealed up and delivered by the third one of the judges without delay, in counties under township organization, to the town clerk of the town, in which the district may he, and, in counties not under township organization, they shall be retained by one of the judges of election, and safely kept by said town clerk and judge, for the use and inspection of the voters of such district, until the next general election; that before said returns are sealed up as aforesaid the judges shall compare said tally papers, footings and certificates and see that they are correct and duplicates of each other and certify to the correctness of the same. Section 11 of said chapter 46 provides, that, within seven days after the close of the election, the county clerks of the respective counties, with the assistance of two justices of the peace of the county, shall open the returns and make abstracts of the votes, etc.; that “the foregoing abstracts shall be preserved by the county clerk in his office.” In this case, the poll-hook or list of voters, returned hy the judges of election in the town of Petty to the county clerk, did not have upon it or in it or attached to it the certificate required by the statute as above set forth. Such certificate was also absent from the poll-hooks or lists of voters returned from the town of Petty to the Secretary of State and to the town clerk. The county clerk and two justices of the peace, who constituted the canvassing board in Lawrence county, acted upon the returns from the town of Petty, notwithstanding the absence of the certificate in question from the poll-book, and, in making up the total vote cast in the county, they counted the votes cast in the town of Petty, as shown by the defective returns. The total vote of the county, including the votes alleged to have been cast in the town of Petty, showed a majority against the issuance of the bonds, while there was a majority in favor of their issuance, if the votes from that town had not been counted. According to the “abstract” of the votes made and signed by the canvassing board, there were 1375 votes for issuing the bonds to build the new court house and 1582 votes against issuing them. Upon the authority of The People v. Nordheim, 99 111. 553, the board was not authorized to count the votes shown by the returns from the town of Petty, owing to the failure of the judges and clerks of election in that town to make and sign the certificate required by law; it should have declared the result without taking those returns into consideration. The proof does not show, that any offer was made to amend the returns before the close of the canvass by attaching the necessary certificate and having it signed by the judges of election. There seems to have been an inexcusable neglect of duty by the judges and clerks, who officiated in the town of Petty, notwithstanding the heavy penalties imposed by the statute. But the question in this case is whether, under the provision made by our statute for contesting an election, the circuit court can substitute itself for the canvassing board, set aside the canvass made by the board, reject the returns from the town of Petty, declare the result of the election as shown by the other returns, and amend the abstract of the vote, as preserved by the county clerk. The prayer of the petition is, that the votes in the town of Petty may be excluded from the count ; that the abstract of votes, reported by the canvassers, may be corrected by the exclusion of the votes from that town; that the vote of the county on the question submitted may be declared upon the balance of the returns after throwing out those from the town of Petty. The petition nowhere charges, that 17 votes were not cast for the issuance of the bonds in the town of Petty, or that 307 votes were not cast there against the issuance of the bonds. It is not alleged, that 324 voters did not properly and lawfully vote upon the question submitted at the election in the town of Petty. It is not claimed that any of these 324 votes were illegal or fraudulent. The only charge made in the petition, which is insisted upon in argument, is that the poll-book, returned to the county clerk, did not have the required certificate signed by the judges and attested by the clerk. The certificate, together with the list of voters and the tally sheet, is the evidence which the statute requires, that certain votes have been cast. The canvassing board can only act upon the particular form of evidence, so specified in the statute. {The People v. Nordheim, supra.) That board can receive no other proof than the list of voters, with the statutory certificate, and the tally paper. The petition in this case does not contest the election; it contests the canvass; it merely asks that the canvass already made be set aside and amended, because the canvassing board acted upon insufficient evidence; it seeks to review such canvass or count as being erroneous, and specifies the want of proper proof as constituting the error. The decree is, not that the 324 votes, alleged to have been cast in the town of Petty, were not cast as matter of fact, or were illegal or fraudulent, but that all the votes counted as cast in that town be excluded from the canvass and the abstracts thereof, and that the papers, purporting to be returns from that town, are null and void, and that the votes returned and counted in favor of the bonds are 1378 and those returned and counted against them are 1275. We do not think, that the statute providing for the contest of an election was designed merely to furnish a mode of reviewing or appealing from the action of the board of canvassers. An examination of sections from 113 to 123 inclusive in chapter 46 above referred to will show, that the proceedings there prescribed for contesting an election were so prescribed for the purpose of finding out how many votes were east for or against a candidate or for or against a measure and thereby ascertaining the will of the people. We have held that the practice in these procéedings under the statute is the same as in chancery suits. Talkington v. Turner, 71 Ill. 234; Dale v. Irwin, 78 id. 170; Kingery v. Berry, 94 id. 515. Even if it was true, that the list of voters and the tally sheet returned from the town of Petty were not accompanied by the necessary certificate, it may have been none the less true, that the 324 votes, shown by the tally sheet to have been cast, were actually cast and were Iona fide and lawful votes. The circuit court is not limited to the particular form of evidence, to which the canvassing board is restricted by the statute. The people of Lawrence county ought not to be saddled with a debt of $50,000 to build a new court house if, at the election called for the purpose of deciding the question, there was a majority of some 200 votes against incurring such debt. The petition and the proceedings under it should have been directed to the matter of ascertaining the true vote of the people upon the subject, and not to the mere amendment of the canvass. For the reasons here stated the decree of the circuit court is reversed and the cause is remanded. Decree reversed.