Appeal from the Circuit Court of Coles County; the Hon.
WILLIAM J. SUNDERMAN, Judge, presiding. Affirmed.
Rehearing denied May 2, 1966.
Defendant, Everett L. Green, appeals from a judgment of the Circuit Court of Coles County, Illinois, declaring plaintiff, Alma Crum, winner of the election for Township Supervisor of Mattoon Township.
Defendant's first contention is that his motion to dismiss the proceeding to contest the election should have been allowed for the reason that § 23-20 and § 23-26 of chap 46 (Ill Rev Stats 1965), are unconstitutional in that they permit a contest to be held and decided upon the results obtained in precincts specified by the plaintiff contestant. The defendant in this case sought and obtained a recount of the ballots in all of the precincts involved in the election. If the contest proceeding was properly conducted, the defendant was not, in fact, elected to the office on the basis of all precincts involved in the election. We believe that defendant, having had a consideration of all precincts involved as a matter of right under the statutes complained of, was in no way injuriously affected by the statute, and therefore could not assert the unconstitutionality of the statute. The cases of Ryan v. City of Chicago, 369 Ill. 59, 62, 15 N.E. 708; People v. Diekmann, 285 Ill. 97, 101, 120 N.E. 490; and People v. Huff, 249 Ill. 164, 169, 94 N.E. 61, sufficiently illustrate this principle.
Defendant complains that the ballots were not properly preserved and that, accordingly, the results announced by the judges of the election must be allowed to stand.
The parties stipulated as follows:
"It is hereby stipulated and agreed by and between the parties hereto, through their respective counsel, that after the polls had closed in the Township Election for the Town of Mattoon, Illinois, held on April 6, 1965, the ballots cast in said election were properly wrapped, sealed and secured in canvas bag containers by the respective judges of the election in each precinct and thereafter delivered to the Township Clerk of said Town at the Township office in the evening of said date.
"It is further stipulated that no proof will be required from the judges of the election as to the above facts."
There were 22 precincts and the ballots for each precinct were delivered to the town clerk in a separate corrugated box approximately 18 inches by 24 inches by 2 1/2 inches. On April 7, 1965, the day after the election, the canvass of the election was held and the boxes were stacked in one pile, according to precinct numbers, behind a cabinet in the office. On April 15, 1965, pursuant to a petition for discovery recount, the canvassing board conducted a discovery recount. The town clerk, Mr. King, testified that the ballots had been kept in the same place from April 6th to April 15th.
In the discovery recount each box was opened, the canvas bag removed from the box and opened. Mr. Slover, a member of the canvassing board as town assessor, then turned the package of voted ballots face down and checked for initials of the judges. The voted ballots were then handed to the clerk for counting the voted ballots. The ballots in the other envelopes, both disputed and spoiled, were examined after the envelopes were opened by Mr. Slover. The attorneys and members of the board discussed them. After the ballots in each precinct were counted, the clerk put the voted ballots back in the original brown paper package, sealed the package with scotch tape, placed the package in the canvas bag and tied them with a heavy string. The clerk tied each bag with two knots, a clove hitch and a square knot. He put each bag in its box and stacked them in the corner. On the discovery recount the clerk did not count any spoiled or defective ballots which had been contained in the envelopes marked spoiled or defective.
After the recount of April 15, 1965, the ballots remained in the boxes stacked in the same place in the town clerk's office until April 23, 1965, when they were turned over to Sheriff Paul Smith.
The town clerk testified that on April 6, 1965, other ballots, being the unused ballots, were brought to him by the election judges. They were separated by the clerk from the voted ballots, removed from the boxes and placed in one big box. The unused ballots were not picked up by the sheriff but were kept in the one big box and were in the town clerk's office at the time of the trial. The unused ballots were not examined during the discovery recount.
Mrs. Alma Crum, plaintiff, was the incumbent town supervisor and had her office in the same building in the same room as the town clerk's office. The boxes containing the ballots were separated from the supervisor's desk by a cabinet. Mrs. Alma Crum did not touch the ballots during the discovery recount. When the town clerk delivered the boxes to the sheriff he put scotch tape around them.
At the time of the trial each box was handed to the clerk and examined and stated to be in the same condition as when handed to the sheriff on April 23rd, and each canvas bag was stated to be in the same condition as when retied by the clerk at the time of the discovery recount on April 15th. During the recount in court, the bag was cut separately as each precinct was counted, and each brown paper package containing the ballots removed, the seal broken and the package opened. At the trial the tally certificates, applications for ballots, and envelopes containing spoiled and defective ballots were observed, and in each case by precinct the ballots were ...