APPEAL from the Circuit Court of Kankakee County; the Hon.
JOSEPH C. MUNCH, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 5, 1976.
This is a proceeding under section 9-21 of the School Code (Ill. Rev. Stat. 1973, ch. 122, § 9-21) to contest the results of an election held April 13, 1974, for three members of the Board of Education of Kankakee School District 111 in which the names of five candidates were printed on official paper ballots. Notice of the election and the boundaries for 13 voting precincts established by the board were published March 15, 1974, as required and authorized by section 9-11 of the School Code (Ill. Rev. Stat. 1973, ch. 122, § 9-11). The canvass of the voting in the 13 precincts disclosed a total of 1644 votes and that the five official candidates received votes as follows: petitioner, Jamie C. Gibson, 658; J. Scott Swain, 762; Byron J. Wallace, 763; Anthony Reed, 865; and William S. Johnson, 789. Twenty-four others received write-in votes, the most received by any one of them being three.
In precinct 2, the number of total voters certified by the judges of election was 560, and their votes cast as follows: Jamie C. Gibson, 27; J. Scott Swain, 25; Byron J. Wallace, 26; Anthony Reed, 469; William S. Johnson, 385, and one write-in vote for each of two different individuals. By resolution of canvass of the Board of Education on April 15, 1974, Byron J. Wallace, Anthony Reed and William S. Johnson were declared elected.
On May 14, 1974, within the time permitted by statute (Ill. Rev. Stat. 1973, ch. 122, § 9-21, and ch. 46, § 23-20), petitioner commenced this cause by verified complaint; by a subsequent amended pleading filed June 12, 1974, he alleged that he "is informed and does believe that fraud, mistake and irregularities" occurred in precinct 2 in that (a) unregistered voters were permitted to vote, contrary to mandatory requirements of section 9-3 of the School Code (Ill. Rev. Stat. ch. 122, § 9-3); (b) unqualified voters were permitted to vote; (c) ballots included in the official count were not marked according to law, and (d) ballots marked according to law were not included in the official count. The pleading sets out by exhibit the numbers of votes counted for each candidate in each of the 13 precincts and alleges that as a result of the aforedescribed "fraud, mistake and irregularities" in precinct 2, petitioner is a legally elected member of the board. It prays a recount in that precinct only and that an order be entered setting aside the resolution of canvass by the Board and that a certificate of election issue to him.
After a lengthy hearing before the court, an order was entered August 21, 1974, finding in respect to precinct 2 that:
138 unregistered persons voted;
34 persons voted who were registered at an address different from the application;
34 persons voted without having signed the required voters' affidavit;
508 persons made application to vote and the canvass reports 560 voted;
29 ballots were declared defective while the total for all 13 precincts is 47.
The order then recites that "these many statutory violations constitute weighty evidence of fraud, though no specific fraud is charged or established," and that it was impossible to apportion the illegal votes. Relying on the decision in Drolet v. Stentz, 83 Ill. App.2d 202, 227 N.E.2d 114 (3d Dist. 1967), the court excluded the entire results in precinct 2 from consideration and after surcharging each of the official candidates with the respective totals reported for this precinct, decreed that Jamie C. Gibson, J. Scott Swain and Byron Wallace are the elected members of the board. Candidates Anthony Reed and William S. Johnson, each of whom received their heaviest support from precinct 2, where the total votes cast more than doubled the highest total cast in any other precinct, and was more than five times greater than the total votes cast in each of ten other precincts, appeal the order excluding consideration of all the votes cast in precinct 2.
A number of issues are raised in respect to the sufficiency of the amended complaint and various orders denying respondents' motions to dismiss. Because of the view we take of this appeal, however, it is unnecessary to consider these issues. The record manifestly fails to support the findings of fraud and does not support the order disenfranchising the votes of all persons voting at precinct 2.
The School Code (Ill. Rev. Stat. 1973, ch. 122, § 9-2) recites that the provisions of the Election Code (Ill. Rev. Stat. 1973, ch. 46) shall not apply to any school election unless expressly otherwise provided. At section 9-4 of the School Code, it is expressly provided in the first sentence of that section that "registration of voters shall be required * * * if the school district * * * includes all or part of any city having 80,000 or more inhabitants and having a board of election commissioners." (Emphasis added.) (See Ill. Rev. Stat. 1973, ch. 46, § 18-1.) No contention is made that this provision was applicable here, or that ...