APPEAL from the Circuit Court of Cook County; the Hon. HARRY
G. COMERFORD, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 24, 1971.
The plaintiff, Bernard Carey, defeated candidate for the office of sheriff of Cook County, brought this action as an elector, and not as a defeated candidate, under the provisions of section 23-5 et seq. of the Election Code (Ill. Rev. Stat. 1969, ch. 46, par. 23-5 et seq.), to contest the election of Richard J. Elrod to that office. The circuit court of Cook County, as a condition of hearing the election contest, ordered the plaintiff to pay to it the sum of $220,642.80, to cover the costs of the contest and recount, which sum was to be disbursed upon further order of the court. Upon the plaintiff's failure to deposit this sum, his petition was dismissed and this appeal followed.
The official canvass indicated that the plaintiff was defeated for the office of sheriff of Cook County by a margin of 10,479 votes out of a total of 1,763,577 votes cast. Prior to the filing of this action, the plaintiff, as a candidate, filed for "discovery recount" under the provisions of section 22-9.1 of the Election Code (Ill. Rev. Stat. 1969, ch. 46, par. 22-9.1). This particular provision permits a defeated candidate, who has received at least 95% of the votes cast for the successful candidate, to file a petition, for discovery purposes only, asking that the ballots be examined and counted in those precincts or districts in which paper ballots were used. The right of discovery is limited, however, to 25% of the total of the precincts or districts involved, and the candidate must pay, with the filing of his petition, the sum of $5 per election district or precinct specified. The plaintiff deposited the $3,245 required for the "discovery recount" of 649 precincts.
As a result of errors revealed in the "discovery recount," and a consequent net gain in the voting for him, the plaintiff, as an elector, filed this action. He alleged that irregularities had occurred in all of the voting precincts which necessitated a recount in all of the precincts in the city of Chicago and the county of Cook.
The defendant, Elrod, filed a motion asking that the plaintiff be required to deposit with the court a sum of money sufficient to cover the costs and expenses of a full recount in all of the precincts. At the direction of the court, the Cook County clerk and the Board of Election Commissioners of the city of Chicago, submitted an itemized statement to the court of the estimated costs of the recount, totaling the sum of $220,642.80, which the plaintiff was ordered to deposit.
The plaintiff contends that there was no statutory provision requiring him to make or permitting the court to order such a deposit upon threat of dismissal of his suit if he failed to do so. The plaintiff also urges that the requirement that he make such a deposit would, in any event, be unconstitutional and deny to him due process and equal protection of the law as required by the fourteenth amendment to the Federal constitution, and by section 2 of article II of the Illinois constitution (1870), and would also violate sections 18 and 19 of article II, and section 22 of article IV thereof.
In this litigation, the parties address themselves particularly to section 23-23 of the Election Code (Ill. Rev. Stat. 1969, ch. 46, par. 23-23), and the question of whether this section permits costs, of the nature for which the plaintiff was required to make the deposit, to be assessed.
Prior to its amendment in 1969, section 23-23 of the Election Code provided:
"The case shall be tried in like manner as other civil cases, * * * and shall have preference in the order of hearing to all other cases. The court may make and enforce all necessary orders for the preservation and production of the ballots, poll books, tally papers, returns, registers and other papers or evidence that may bear upon the contest.
"Whenever a petition for a recount has been filed as provided in this Article, any opposing candidate or any elector * * * may file a petition within 10 days after the completion of the canvass of the precincts specified in the petition for a further recount of the votes cast in any or all of the balance of the precincts in the county, municipality or other political subdivision, as the case may be.
"In event the court, in any such case shall be of the opinion that such action will expedite hearing and determination of the contest, the court may appoint a Board of Election Commissioners or a Canvassing Board, as the case may be, and refer the case to it to recount the ballots, to take testimony and other evidence, to examine the election returns, to make a record of all objections to be heard by the court that may be made to the election returns or to any of them or to any ballots cast or counted, and to take all necessary steps and do all necessary things to determine the true and correct result of said election and to make report thereof to the court. Such Board of Election Commissioners or Canvassing Board, as the case may be, shall have authority to count the ballots or cause the same to be counted under its supervision and direction, to conduct such hearing or hearings as may be necessary and proper, to apply to the court in the manner provided by law for the issuance of subpoenas or for any other appropriate order or orders to compel the attendance of witnesses, and to take such necessary steps and perform such duties and acts in connection with the conduct of any such hearing or hearings in like manner and to the same extent as in hearings conducted by masters in chancery in chancery actions. Such Board of Election Commissioners or Canvassing Board, as the case may be, may, with the approval of the court, employ such assistants as may be necessary and proper to provide for counting the ballots, examining the election returns and for taking all necessary steps and doing all necessary things to determine the true and correct result of said election under the direction and supervision of the Board of Election Commissioners or the Canvassing Board, as the case may be. Such Board of Election Commissioners or the Canvassing Board, as the case may be, shall receive such compensation for its services and such allowances for the services of its assistants and for reimbursement of expenses incurred by it as shall be approved by the court, and all such compensation and allowances when approved by the court shall be taxed and allowed as costs in such cause. The court may from time to time, upon the court's own motion or upon the application of the Board of Election Commissioners or the Canvassing Board, as the case may be, or of any party to said cause, require the parties to said cause or any of them to deposit such amounts of money with the court or give such other security for costs as the court may deem reasonable and proper, and the court may award such costs as between the parties to said cause in like manner as costs may be awarded by the court in chancery actions.
"Any petitioner may amend his petition at any time before the completion of the recount by withdrawing his request for a recount of certain precincts, or by requesting a recount of additional specified precincts. The petitioner shall deposit or shall cause to be deposited, such amounts of money as the court may require as security for costs for such additional precincts as the court may deem reasonable and proper." (Italics ours.) Ill. Rev. Stat. 1967, ch. 46, par. 23-23.
In 1969, this section was amended and the entire paragraph in italics was deleted. The rest of the ...