Appeal from the Superior Court of Cook county; the Hon.
MATTHEW D. HARTIGAN, Judge, presiding. Judgment reversed.
MR. JUSTICE ROBSON DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 19, 1955.
Plaintiff, a defeated Republican candidate for the office of state representative in the general election held November 2, 1948, brought an action to recover damages against defendants Mabel G. Reinecke, Harry A. Lipsky and William B. Daly, individually, and as members of the Board of Election Commissioners of the City of Chicago, complaining of their conduct in failing to preserve and in destroying certain ballots cast in that election by the city electors.
Trial was before a jury. A verdict was returned for $7,500 on which the court entered judgment. Defendants made the usual post-trial motions which were overruled.
Defendants on this appeal make numerous contentions, but we deem it necessary to consider only the following: (1) that an election contest is given by Article 23, Section 12 of the Election Code (Ill. Rev. Stat. 1947, ch. 46, par. 23-12 [Jones Ill. Stats. Ann. 43.1007]) only to a qualified voter and not to an unsuccessful candidate as such and, therefore, assuming defendants' duty to preserve the ballots, their duty ran solely to the public, generally, and not individually to plaintiff as a candidate; (2) that the Code does not provide for civil liability and, therefore, it denies such liability; and (3) that, assuming their duty and their failure to preserve the ballots, they are not liable to plaintiff because they had no actual notice of the pendency of his contest.
The pertinent facts pertaining to these contentions are that plaintiff was one of four candidates for the office of state representative from the Fifth Senatorial District in the November 1948 general election. Three were to be elected. Of the four, two, Louis G. Berman and Charles M. Skyles, were the Democratic candidates. Noble W. Lee and plaintiff were the Republican candidates. Cumulative-voting procedure governed the manner of their election.
Defendants, as members of the Board of Election Commissioners, together with the county judge and the city attorney, were members of the city canvassing board whose duty it was to open and canvass the election returns certified by the precinct clerks and judges of election. On November 14, 1948, the canvassing board was completing its canvass of the precinct election returns for the office of state representative from the Fifth Senatorial District. Stradford, the plaintiff, was present, as were several of his watchers who supported his candidacy. While the canvass was proceeding, they called attention to large discrepancies between the tallies and the totals of the votes credited to Stradford appearing in a significant number of the returns. To take but one of several examples, the tallies recorded by the clerks and judges of election in the 1 1/2 and the 3-vote columns of one precinct return gave plaintiff, respectively, 135 and 60 votes, which entitled him to 382 1/2 votes; however, the total recorded vote for plaintiff in that return gave him only 78 1/2 votes. Plaintiff's claimed loss, based on the discrepancies between tallies and totals appearing in the returns of the 55 precincts concerning which there was testimony totaled more than 11,000 votes. The final results of the election for state representative from the Fifth Senatorial District, as proclaimed by the governor on the following day, November 15, 1948, gave Berman, 118,890; Skyles, 114,239; Lee, 69,716; and Stradford, 66,716. Berman, Skyles and Lee were proclaimed elected.
On the previous day, November 14, when the canvassing board was completing the canvass, defendants' reporter officially noted plaintiff's objections. Plaintiff and one of his watchers continued to complain of the discrepancies in the precinct returns to William Daly, one of the defendants, and to request that the canvassing board in making its abstract of the returns revise and conform the totals to the tallies or otherwise correct the errors. Daly informed them that the canvassing board had no authority to make such changes and could only abstract the total votes as they appeared in the returns; that they were "slowing up the canvass," "disturbing the count"; that he "knew" that plaintiff was going to contest the results of the canvass; that therefore there was no need to further slow the canvass; that the board would understand that he was objecting to the entire canvass. Stradford and his watchers then desisted from making further formal objections to defendants' reporter. That same day the canvassing board completed its canvass, transmitted the results to the county clerk of Cook county and adjourned as a canvassing board.
On December 3, 1948, within thirty days from the date that the results of the election had been determined, plaintiff served notice of his intention to contest the election on Berman, Skyles and Lee, and also delivered a copy of his petition to contest the election to the Secretary of State, as required under Article 23, Section 13 of the Election Code (Ill. Rev. Stat. 1947, ch. 46, par. 23-13 [Jones Ill. Stats. Ann. 43.1008]). On December 14, 1948, the Secretary of State acknowledged receipt of plaintiff's petition and thereafter transmitted it to the Speaker of the House of Representatives. The matter was referred to the House Committee on Elections which thereafter referred it to a subcommittee. On May 27, 1949, the subcommittee met, considered the matter and, after dismissing the contest as to Berman and Skyles, directed the Board of Election Commissioners to count the ballots of election in its custody and determine the votes received by Lee and Stradford. The first notice the board had of the contest was when the order was served on it on May 31, 1949.
On March 4, 1949, the Board of Election Commissioners adopted a resolution, the pertinent parts of which are:
"Whereas, a General Election . . . was conducted . . . on November 2, 1948, and
"Whereas, the ballots . . . used in . . . said . . . election are retained in sealed vaults under the supervision of the Chief Clerk of the Board; and
"Whereas, the statutory period for which the Chief Clerk . . . must retain the . . . ballots . . . viz: Two months after the day of election has expired; and
"Whereas, the Board . . . have received no official notice of contests pending involving . . . ...