Appeal from the County Court of Franklin County; the Hon.
WILLIAM WEBB JOHNSON, Judge, presiding. Affirmed.
HOFFMAN, PRESIDING JUSTICE.
Two separate recall petitions were filed under former Section 19-58 of the Cities and Villages Act (now Section 4-7-2, 1961 Ill Rev Stats) demanding the election of successors to Paul Rice and Burton Melvin, incumbent Commissioners of the City of West Frankfort. Both Commissioners filed objections challenging the sufficiency of the petitions. After a hearing, the County Court of Franklin County decreed that each petition was sufficient and ordered the City Council to fix the time for holding the election provided by this statute.
It is from this decree that the Commissioners appeal to this court. They contend that the petitions are insufficient because they were not executed in conformity with the provisions of Section 19-58 of the Cities and Villages Act in the following respects:
(a) They were not sworn to.
(b) The affidavits were false.
(c) The signatures signed by mark should not be counted.
(d) The signatures not in the handwriting of the signers should not be counted.
(e) Those signatures should not be counted where the signers did not write their residences and dates of signing opposite their name.
In both petitions, the same charges of misconduct in office were set forth. The Commissioners filed identical objections to the validity of the petitions. The hearing in the County Court on the two petitions was consolidated, it being stipulated that the evidence should be considered, where applicable, to both cases. Both matters have been consolidated for appeal in this court.
The petition against Commissioner Rice contained 161 sheets and the petition against Commissioner Melvin consisted of 159 sheets. The Melvin petition contained 2612 signatures, and the Rice petition 2628 signatures. The statute provides that the petition contain signatures amounting to at least 55 per cent of the number of votes cast for mayor in the last quadrennial municipal election. See: Ill Rev Stats 1959, chap 24, sec 19-58. Based thereupon, the number of signatures required to recall in this case was 2462.
The parties stipulated that after deducting for signatures withdrawn and for non-resident signatures, it appeared that there remained on the Rice petition 136 signatures over and above the amount required, and on the Melvin petition there was an overage of 121 signatures. Thus, insofar as the signatures are concerned, in order to invalidate the Rice petition there would have to be a determination that least 137 signatures were invalid, while on the Melvin petition 122 invalid signatures would have to be found.
It is first argued by the Commissioners that the petitions should be rejected in toto because they were not sworn to as required by law. The claim is based upon the argument that no oaths were administered by any of the notaries public who acknowledged the signatures of those who circulated the petitions.
The statute provides the form of affidavit and prescribes that it be "signed by a resident of the municipality in which the signers of the sheet reside." The statute then provides that "This affidavit shall be sworn to before an officer, residing in the county in which the municipality is located, who is qualified to administer oaths therein." Although each sheet of the petitions involved here contained a duly executed and notarized affidavit in the form provided, the Commissioners argue that the method of administering the oath to the circulator did not conform to the requirements of Chapter 101, Section 3, which is as follows:
"Whenever any person shall be required to take an oath before he enters upon the discharge of any office, place or business, or on any other lawful occasion, it shall be lawful for any person empowered to administer the oath to administer it in the following form, to-wit: The person swearing shall, with his hand uplifted, swear by the ever-living God, and shall not be compelled to lay the hand on or kiss the gospels."
The three notaries involved, Clyde M. Lewis, Robert H. Ritchason and Eileen Patton were called to testify. Clyde M. Lewis, who signed most of the sheets, stated that he did not have the circulators raise their hands, but that he asked them if they swore the signatures were made in their presence and at the time shown. They all said, "Yes." He stated that the people came into his office and that he acknowledged their signatures; that each circulator signed the sheet in his presence. He testified he saw the oath of verification on the papers and that his intent was to "notarize" the signatures of the circulators; that that was the only purpose those people came in to see him. One of the circulators, Thora Swofford, said that notary Lewis looked the petition over first and asked if she, Swofford, would swear it was legal and that she said she would. Another circulator, Robert Sparks, said he signed "under oath" as administered by Notary Public Lewis and that his conscience charged him with the duty to tell the truth.
The second notary public, Robert H. Ritchason, who signed three sheets of both petitions, stated that the circulator came into his office and asked him to "notarize" his signature and that he did so after asking the circulator if the signers had signed in his presence. He testified that in each case "I ask if it is a true thing, if they seen it done and asked them to sign in my presence." He likewise said he did not have the man hold up his right hand. The circulator signed in his presence and asked if he, the notary, would "notarize his signature." He didn't know if that would be called swearing or not. He stated that his only purpose was to notarize the signature "by the notary verification."
The third notary public, Eileen Patton, who only notarized one sheet containing 22 signatures on each petition, stated that the circulator came into her place of business and asked her to notarize the petition. Nothing else was said. The notary asked the circulator to sign and then she "notarized" it, that the circulator was not required to raise her hand. This notary said she did ...