Foley v. Tyler

Mr. Justice Wilkin delivered the opinion of the court: It is first objected that incompetent testimony was admitted and competent testimony excluded upon the hearing of the case. We find no material error in the rulings of the court below upon either of these questions. If it' were otherwise, and all that is insisted upon under these assignments of error sustained, the substantial merits of the case would not be affected or the result changed. The only other ground of reversal urged is, that the finding of the court below is against the weight of the evidence, and the claim made under it is, that the answer, denying that illegal votes were cast for the defendants and averring that fraudulent and illegal „ votes were counted for petitioners, was sustained by the proofs. Each one of the votes claimed to have been illegally counted for the republican ticket is pointed out in the argument of counsel. The objection to most of them is, that the voters were not residents of the village and that some of them were paid to vote that ticket. We have examined the testimony relied upon to sustain this contention, and find as to a considerable number of them no satisfactory evidence that they voted at the election at all. As to others, the conclusion that they voted for petitioners is based on mere inference or conjecture. On the other hand, petitioners introduced evidence in support of their allegation that some fifty persons brought into the village for that purpose fraudulently and illegally voted for the defendants. There is evidence tending to show that men were induced to gain a fictitious residence in the village for the purpose of voting at this election, and that both parties, to at least some extent, resorted to that unlawful and reprehensible method of gaining votes; but it cannot be definitely determined how many, if any, ballots should have been thrown out for that reason. The finding below is to the effect that all the ballots actually cast were legal, and this we think was as favorable to the defendants as they could reasonably ask under the evidence. It cannot, we think, be seriously contended that, when all the testimony bearing on the question is considered, the allegations of the petitioners as to illegal votes is not as fully sustained as those of the answer. Manifestly, the right of petitioners Tyler and Mead to the offices to which they were declared elected by the county court, was based, upon the fraudulent and illegal conduct of the election board in counting seven ballots for the citizens’ ticket which were not voted, and destroying a like number actually cast for petitioners, and that its order on that ground is fully sustained by the evidence cannot be questioned. It is overwhelmingly established by the testimony, that immediately after the polls were closed all the ballots were taken out of the box by the judges and placed upon the table at which the officers of the election sat. They were then counted, and the whole number found to be one hundred and ninety, which corresponds with the whole number of votes cast, as shown by the poll-book. They were then divided, still remaining on the table, and those cast for each party placed in separate piles, and counted as they were divided. That this count showed ninety-seven ballots for each of the candidates on the republican ticket and but ninety-three for each of those on the citizens’ ticket is proven beyond all reasonable doubt. It is also clearly established that just as the last ballot was being counted, a bystander, having no right there, so far as the proof shows, called attention to the fact that certain ballots were upon the floor. There is no direct proof of the fact, but the circumstances strongly indicate that he, or some one acting with him in the interest of the citizens’ ticket, at that moment secretly dropped them near the table,—at least there is no pretense of direct proof that they fell from the ballot-box or table. The judges took up those ballots, which they say were seven in number, and after excluding from the room the republican challenger and watchers, who objected to their being counted, (which exclusion they claim was on account of disorderly conduct,) and calling in a representative of the defendant J. M. Foley, (who they pretend was village attorney, but who does not himself say so, and admits he was there solely in the interest of Foley and consulting with him,) put the ballots taken from the floor, in the box, with the one hundred and ninety already counted, and, as they would have the court believe, after thoroughly shaking them up, drew out and destroyed seven ballots, leaving in the box one hundred and ninety, —the whole number voted, as shown by the poll-book. These they counted, declaring the result to be one hundred votes for each of the candidates on the citizens’ ticket and but ninety for each of those on the republican ticket. It will be seen from the foregoing statement, that defendants, by their answer, admit there were but one hundred and ninety votes cast, as shown by the poll-book, but claim the count showed one hundred and ninety-eight. They do not deny the allegation of the petition that seven of that one hundred and ninety-eight, all purporting to be votes for the citizens’ ticket, were taken from the floor after the whole number taken from the box had been found to correspond with the poll-book. By their own answer and the undented allegations of the petition, fully sustained by the proof, they are driven to the flimsy pretext, without a particle of evidence to support it, that in taking the ballots from the box in the first place, seven tickets, all being for the citizens ’ candidates, accidently fell upon the floor, unnoticed by them until their attention was called to them by a third party, and the still more unreasonable contention that upon those ballots being placed in the box with one hundred and ninety others, and thoroughly shaken up, seven were honestly and impartially withdrawn and destroyed, all of which happened to be for the candidates on the republican ticket. To ask an impartial mind to believe that these remarkable coincidences were the result of mere accident and in no way brought about by collusion and fraud is an affront to common understanding. The only excuse that is offered for the conclusion that the ballots picked up from the floor had been regularly voted and placed in the box, is the fact that they were properly endorsed on the back, and that the number left, deducted from the whole number received, indicated that one hundred and ninety-eight had been voted. How and where the blank ballots were kept, and what effort, if any, was made to prevent their being wrongfully taken, is in no way explained. In view' of the clear, convincing proof that this election board was organized in the interest of the so-called citizens’ ticket, that no representative of the other ticket was permitted a place upon it, together with the admitted careless, not to say criminal, conduct of the judges in canvassing the votes, it is not an unreasonable presumption that some one, either willfully or through negligence, permitted those who discovered the ballots on the floor to get possession of the blanks with which to commit the forgery and consummate a gross fraud. Especially is this true since no reasonable explanation is attempted as to how all these ballots were voted and no record of them kept by the clerk. The most that either of the judges could say was, that they concluded it may have happened at a time when a considerable number of votes were being cast. That it did so happen there is no evidence whatever. The clerks do not testify to any fact tending in the slightest degree to show that they did not correctly keep the poll-book. As to the assignment of cross-errors, we think the county court properly held that it was without jurisdiction to determine the right of the contestants to the offices of village trustees. Section 6, chapter 24, article 3, of the Cities and Villages act, provides that “the city council shall be judge of the election and qualification of its own members.” Under that section we have held that county courts have no jurisdiction to hear the contest of an election in respect to the office of alderman, and for the reason that such jurisdiction is conferred upon the city council. (Linegar v. Rittenhouse, 94 Ill. 208, and cases cited.) By section 8, article 11, of the same chapter, relating to the organization of villages, it is provided that the village board, when organized, shall be considered, in law, a body corporate and politic, “by the name and style of ‘The Village of............,’” and “possess all other powers as a corporation in this act conferred upon cities not exceeding five thousand inhabitants, except as herein otherwise expressly provided; and wherever the words ‘city council’ or ‘mayor’ occur in this act, the same shall be held to apply to the trustees and president of such village, so far as the same may be applicable.” And the next section also provides that the president of the board of trustees shall perform the duties and exercise the powers conferred upon the mayor of a city not exceeding five thousand inhabitants, “and the trustees shall perform the duties and exercise all the powers conferred upon aldermen in cities, and the president and board of trustees may exercise the same powers-conferred upon' the mayor and city council of cities not exceeding five thousand inhabitants, and pass ordinances in like manner.” These provisions of the statute give the same right to a village board to pass upon the qualifications of its members as is conferred by section 6, supra, upon a city council. Whether the provision is a wise one or not we are not authorized to determine. On the whole record we think the judgment of the county court should be affirmed. Judgment affirmed.