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Vanderbilt v. Marcin

JUNE 29, 1970.




Appeal from the Circuit Court of Cook County; the Hon. HARRY G. COMERFORD, Judge, presiding. Affirmed.


Rehearing denied August 3, 1970.

This is an action brought to contest the validity of a local option election. Plaintiffs appeal from an order which struck and dismissed plaintiffs' amended complaint and dismissed the action with prejudice. On appeal the determinative question is whether the amended complaint was sufficient to state a cause of action.

The record shows that pursuant to the Liquor Control Act (Ill Rev Stats 1967, c 43, § 167 et seq.), at a general election held on November 5, 1968, the following proposition was submitted to the voters of the 8th Ward, 96th precinct:

"Shall the sale at retail of Alcoholic Liquor containing more than 4% of alcohol by weight except in the original package and not for consumption on the premises be prohibited in this 96th precinct of the 8th Ward of the City of Chicago?"

The results of the election were proclaimed by the defendant Board of Election Commissioners to be 222 Yes and 80 No.

On December 5, 1968, plaintiffs, registered voters in the precinct in question, filed a "Complaint to Contest a Local Option Election." Subsequently, the complaint was stricken, and plaintiffs were allowed to file an amended complaint, which was also stricken, as previously noted.

Summarized, the amended complaint alleged that the election was "void and defective" for the following reasons: (A) The polls were not opened nor closed as required by statute, and many voters were unable to vote; (B) the ballot boxes were not opened and exhibited as required by law; (C) throughout the day certain of the election judges were absent from the polling place and did not sign a time sheet; (D) the ballots on the proposition were handed to the voters without the separate Blue Ballot of the Constitutional Convention being placed on top of the other ballots, contrary to law; (E) that the judges of election failed to cause the arrest of proponents of the proposition who were causing a breach of peace and violation of the election laws; (F) that opponents of the proposition were not afforded a right to be present as challengers or watchers; (G) the judges of election made an incorrect count of the ballots cast in opposition to the proposition and failed to announce a canvass of the ballots cast in regard to the proclamation in question; "(8) That by virtue of the aforementioned violations of the Election Code of the State of Illinois, SHA Chapter 46, paragraph 18, the results of said election were materially affected so as to substantially alter the outcome of the balloting on the proposition in question and so as to render the election at the polling places in question to be void"; and "(9) That many of the voters who would have voted against the proposition were intentionally and fraudulently not given the proposition ballots on November 5, 1968; and the ballots were fraudulently and improperly counted and an incorrect figure recorded on the official canvass sheet; and the ballots were fraudulently counted as `yes' votes which were defectively marked as `no' votes; and had these irregularities not taken place, the election would have resulted in the defeat of said proposition."

Plaintiffs contend that the amended complaint was legally sufficient because the provisions of the Election Code which they alleged were violated were mandatory, but even if these provisions were directory, "the general and apparent wholesale disregard of a multitude of directory provisions would seem to cast such a cloud upon the election to at least require the respondents to provide the court with a reply to the charges." They note that "to allow defendants to merely allege that such facts and allegations are directory and have no bearing on the outcome of the election affords a catch-all behind which any election board or group of partisans might hide in the conduct of any election." Authorities include People ex rel. Milburn v. Huston, 267 Ill. App. 395 (1932); People v. Heilman, 263 Ill. App. 514 (1931); and Zbinden v. Bond County School Dist., 2 Ill.2d 232, 117 N.E.2d 765 (1954), where it is stated (p 236):

"We have said that it would be a dangerous rule to establish that election officials may disregard the plain provisions of the statute, and thereby defeat the intention of the law to prevent frauds from being committed and detected. . . . On the other hand, the courts must consider the primary purpose of laws such as those under consideration, i.e., the obtaining of fair elections and honest returns, as paramount in importance to the formal steps prescribed to reach that end."

Plaintiffs further contend that "in election contests the allegations of invalidity need not be spelled out precisely but may be generally stated." They argue that the nature of the right to contest election results requires that the averments contained in the complaint be general in nature because many of the allegations do not result from first-hand knowledge. Authorities include Farrell v. Heiberg, 262 Ill. 407, 104 N.E. 835 (1914), where the court stated (p 410):

"The statute should have a reasonable construction in order to accomplish the purpose intended. To hold that a petition to contest an election should only contain such statements as were within the contestant's own personal knowledge would be impracticable, since from the very nature of the proceeding the contestant must rely largely on information obtained from others, and as to such information the contestant could only make oath that he believed the statements to be true."

Plaintiffs further argue that the allegations set forth in their amended complaint fairly informed the defendants as to the causes for the lack of validity of the election and its results. Authorities include Zahray v. Emricson, 25 Ill.2d 121, 182 N.E.2d 756 (1962), where the court stated (p 124):

"And while the pleadings in contest proceedings are not required to comply with the strict technical rules applicable in civil actions, there should be such strictness as will prevent the setting aside of the acts of ...

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