APPEAL from the Circuit Court of La Salle County; the Hon.
WENDELL THOMPSON, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
This appeal is from the judgment of the circuit court of La Salle County after a bench trial granting the motion of respondent, Edward Caputo, to dismiss the action of petitioner-appellant, Robert Engel, at the close of petitioner's case. The underlying action was brought by petitioner to contest the election for road commissioner held on April 5, 1977, in Brookfield Township, La Salle County, Illinois. Respondent, Edward Caputo, the incumbent road commissioner, was a candidate in the election. Robert Engel, Edward Caputo and Andrew Hochstetler were the candidates whose names appeared on the official ballots for office. 330 votes were cast. Edward Caputo received 172 votes, Robert Engel received 151 votes and Andrew Hochstetler received 7 votes. Thirty absentee ballots were cast in the election. This appeal is brought by petitioner, Robert Engel.
The conduct of elections in Illinois is governed by the Election Code (Ill. Rev. Stat. 1975, ch. 46, pars. 1-1 though 30-3). (Drolet v. Stentz, 83 Ill. App.2d 202, 227 N.E.2d 114.) Petitioner alleges the following irregularities constituted violations of the Election Code:
1. The absentee ballots were not properly processed;
2. The absentee voter list for posting was not kept in a conspicuous place accessible to the public;
3. Absentee voters' names were not announced as required;
4. Absentee ballots may have been placed in the ballot box prior to the close of the polls;
5. Two of the five election judges were not properly appointed or certified;
6. Respondent and his wife approached and spoke with citizens as they came into the polling place; and
7. Respondent candidate took a portion of the ballots in hand, read from the ballot the names of the candidates voted for and orally announced the name of such candidate so that the same could be tallied.
Due to the view we take of this case the only contention we need deal with on this appeal regards the action of the successful candidate Caputo handling the ballots, reading the votes thereon and announcing the votes on each ballot. We feel this issue is dispositive of this appeal.
Respondent concedes he handled the ballots, read the votes thereon and announced the votes on each ballot. There is no evidence that any judge or poll watcher participated with the respondent in reading the ballots or verified the respondent's announcement of the votes on the ballots. Respondent contends that after the polls were closed and all the ballots were in the ballot box one of the judges received a foreign particle in his eye and therefore had difficulty seeing. The counting of the ballots was then held up. Respondent offered to assist in the counting. The election judges asked the two poll watchers if it would be all right for respondent to help. Petitioner's poll watcher said she didn't care and Caputo's poll watcher raised no objection. Caputo helped call somewhere between 40 and 50 ballots and when he had stopped counting he went over to petitioner's poll watcher who said she had been keeping her own tally and up to that time it showed Caputo was losing.
Respondent argues there was no fraudulent conduct or wrongful intent or any injury resulting to the election process or any candidate, relying on Hodge v. Linn, 100 Ill. 397. In this 1881 decision the Illinois Supreme Court held mere irregularities in conducting an election or in counting the votes which did not involve any wrongful intent, did not deprive any legal voter of his vote, or did not change the result of the election, will not vitiate the election. The court rejected the contention that the procedures of the Election Code were mandatory. Noncompliance with Election Code procedures in and of itself was insufficient to vitiate the election. However, we note in Hodge the factual situation was far different from that in the instant case. Here the candidate for election was the one who took possession of ballots and ascertained and announced the votes thereon, unverified by any judge. This has not been the factual situation in any case of which we are aware or to which respondent has directed our attention.
We find no support in the law for the contention that such a flagrant violation of the Illinois Election Code can be harmless error. The Code prohibits candidates for office from being election judges at the election. (Ill. Rev. Stat. 1975, ch. 46, par. 13-4.) We cannot imagine any circumstances which would justify a candidate taking possession of ballots and ascertaining and declaring the vote for his office from the individual ballots. Accordingly, in order to uphold the sanctity of ...