Clark v. Quick

At the election which was held November 8, 1938, in Clark county, Wilbur Clark was the Republican candidate for county clerk and John Quick was his opponent on the Democratic ticket. Quick was declared elected and from that election the contest developed from which this appeal has followed. The canvassing board gave Quick 4787 votes and Clark 4770. On trial of the election contest the circuit court found that Clark had won over Quick by a majority of 12.0064. Every conceivable error and cross-error has been assigned, based on an enormous record — nearly 300 exhibits and over 400 pages of brief and argument. In order to confine this opinion to any reasonable length, it will be necessary to consider the questions raised by groups and the qualifications of the various voters individually, regardless of the point questioned, and finally to tabulate the results arrived at.

In order to summarize the questions of law which must be considered, we wish to point out at the beginning of this opinion that in recent cases, Pope v. Board of Election Comrs. 370 Ill. 196, Park v. Hood, 374 id. 36, and Coffey v. Board of ElectionComrs. 375 id. 385, we have given careful consideration to a review of all our previous cases concerning matters of residence and qualifications to vote. These three cases have occupied much of our time, have been fully considered, and each of them, after long discussion and full argument, has been adopted. We consider those cases to state the law of this State on the points involved, and we will, therefore, refrain from further consideration or discussion of prior cases, many of which are cited in the briefs.

In the Pope case we endeavored to make it clear that there is a distinction between place of residence and domicile and that, although it may be true that a person retains one domicile until he acquires another one, it does not necessarily follow that his residence or place of abode coincides with his domicile. In that case we decided that residence for voting purposes means an actual place of abode and we pointed out that domicile and residence are not synonymous. In the Park case we reiterated our holdings in the Pope case and held that the term "residence" as used in the election law is equivalent to "permanent abode." In that case we said: "A real and not an imaginary abode, occupied as his home or dwelling, is essential to satisfy the legal requirements as to the residence of a voter. One does not lose a residence by temporary removal with the intention to return, or even with a conditional intention of acquiring a new residence, but when one abandons his home and takes up his residence in another county or election district, he loses his privilege of voting in the district from which he moved." These two holdings were reaffirmed in the Coffey case, supra, and the holdings of these cases are the basis for decision in this one.

Another preliminary observation will dispose of considerable argument in the briefs. A great deal is said on both sides concerning the right of every voter to express his will at the polls and it is clearly inferable from the arguments that this is considered to be an absolute right. It is enough to point out that it is not an absolute, but a conditional right. It is conditional, in some cities, upon previous registration; it is conditional upon not moving from one precinct to another within thirty days; it is conditional upon reaching the polling place while the polls are open, even though failure to do so might be entirely without fault on the part of the voter, and it is conditional in the case of absent voters, on the proper application being made within the proper time and in accordance with the statute. The right to vote is conditional upon many other things which might be mentioned and upon circumstances which may or may not appear to be within the control of the voter. No good purpose can be served by discussing any of the bad results which might follow from a failure to meet the conditions. No one doubts the legislative power to prescribe reasonable conditions and any fault which may be found with them must be taken up with the legislative rather than the judicial branch of government.

It is one of these conditions that raises the first serious point of argument which concerns the validity of forty-six absent voter's ballots. The statute which controls the voting by absent electors is quite specific in its directions as to how such ballots shall be applied for, how they shall be voted and how they shall be returned. The subject is covered by the Absent Voters act. (Ill. Rev. Stat. 1939, chap. 46, pars. 462-475.) It is provided by this act that an elector who expects to be absent from his place of residence on election day may apply to the proper official within the times mentioned in the statute for an absent voter's ballot and that he may receive the same to be used by him as in the act specified. So far as material here the pertinent section is section 6 (par. 467) of the act, which is as follows: "Such absent voter shall make and subscribe to the affidavits provided for in the application and on the return envelope for said ballot before an officer authorized by law to administer oaths and such voter shall exhibit the ballot to such officer unmarked, and shall thereupon in the presence of such officer and of no other person mark such ballot or ballots, but in such manner that such officer cannot see or know how such ballot is marked, and such ballot or ballots shall then in the presence of such officer be refolded by such voter in the manner required to be folded before depositing the same in the ballot box, and be in the presence of such officer deposited in such envelope and the envelope securely sealed. Such officer shall then endorse his certificate upon the back of said envelope and said envelope shall be mailed by such voter, postage prepaid, to the officer issuing the ballot or, if more convenient, it may be delivered in person, but in any event it must be returned into the hands of the officer in sufficient time for said ballot or ballots to be delivered by such officer to the proper polling place before the closing of the polls, on the day of the election."

A subsequent paragraph of the act provides severe penalties for any willful violation of its provisions including fines up to $2000, imprisonment up to one year and disfranchisement up to five years, with a forfeiture of any right to hold any elective or appointive office in this State.

It will not be necessary to go into detail as to each of the 46 absentee ballots because they all fall into one group and all are necessarily subject to the same rules. Neither is there any serious question but that they were all Republican ballots and all handled in substantially the same way. These ballots were obtained on affidavits taken before an active officer of the party with the assistance of a sister of the plaintiff who was a stenographer. Instead of being returned by mail to the county clerk as required by the statute, these ballots were given to John Hollenbeck, who was secretary and treasurer of the Republican county organization in Clark county, who testified he placed some additional tape on the envelopes, including some which had been left for him at the office of the Marshall Herald and some which had been left at the office of his father. He held part of these ballots until November 6, 1938, and some until the morning of election day, November 8, 1938, when they were mailed or delivered to the county clerk. In the meantime those ballots which he held he said were kept in a safe in his office to which a sister of the plaintiff had access and which safe was not always kept locked. These ballots were received by him at various times and he said he put the extra tape on them for fear the country clerk or someone else might tamper with them. He received and held absent voter's ballots from various other Republican workers, some of which were voted in the Herald office and others in other places. Hollenbeck is State's attorney of Clark county, elected on the Republican ticket and precinct committeeman for precinct No. 2 in Clark county. Some other precinct committeemen had control of these absent voter's ballots, none of which were mailed within the statutory provision and some of which were held as long as ten days and probably, as to many of them, for a much longer period. Many of these ballots were notarized by the plaintiff's sister and then kept by her for future handling.

These ballots were void. There is nothing in the record before us to indicate that any of them were actually tampered with by any unauthorized person, but it is entirely obvious that the opportunity to do so was present. It is the entire theory of our ballot law, as expressed in all of the cases, that once a ballot has been marked by a voter in secret, from that time on it shall not be subject to any opportunity for any other person to mar, change or erase it. It will be found in all of the cases that the question for consideration by the court is not whether the ballot has been tampered with, but whether or not an unauthorized person has had an opportunity to do so. If the opportunity has been present the presumption seems to follow that it has been used.

It is urged that the provisions of the Absent Voters law requiring the voter to mail the envelope containing his ballot is directory only and not mandatory; that he may substitute an agent to perform this duty for him and that in such event no harm has been done. These arguments are not in accord with the spirit and intent of our election law. Our system requires not only that the ballot must be secret, but that the voter himself must be given no opportunity to satisfy some other person how he has voted.(Gill v. Shurtleff, 183 Ill. 440.) Thus, a ballot voted outside the booth is void. (Rhyan v. Johnson, 364 Ill. 35.) Where the terms of a statute are peremptory and exclusive, where no discretion is reposed or where penalties are provided for its violation, the provisions of the act must be regarded as mandatory. Behrensmeyer v. Kreitz, 135 Ill. 591; Perkins v.Bertrand, 192 id. 58; Gill v. Shurtleff, supra; Siedschlag v.May, 363 Ill. 538; Waters v. Heaton, 364 id. 150; People v.Bushu, 288 id. 277; Allen v. Fuller, 332 id. 304.

It is the clear intention of the Absent Voters law that the legislature was willing and intended to commit the temporary custody of a ballot to the United States mails for delivery to the proper officials. It is equally clear that there was no intention that such custody should be committed, even temporarily, to any other person or agency. It has been suggested that an absent voter might be in the hospital where it would be impossible for him personally to mail his ballot. The existence of such a circumstance, although it might deprive a voter of his ballot, would only be one of those unfortunate events which we mentioned at the beginning of this opinion, as being one of the things which might deprive a person of his vote. As we said above, the right to vote is conditional upon compliance with the reasonable rules for the exercise of the franchise.

It is conceded that these 46 absent voters' ballots were all Republican. Three of them, however, were ruled out by the trial court on grounds of residence, so the net result of our holding as respects them is a net loss of 43 votes for the Republican candidate.

In the trial of this case more than 4000 pages of testimony were taken, several hundred exhibits, several hundred pages of depositions were offered and rejected. The rejection of these depositions by the trial court is one of the errors discussed in the briefs. Since we do not feel that this ruling could have affected the result of the case, it will be unnecessary to discuss that matter. Neither will it be necessary to consider or discuss any of the court's rulings as to party affiliations. In each case his holding is sustained by evidence and supported by the record. We take the same view as to the findings of fact made by the trial court on disputed questions of residence. No case is pointed out in which there has been any arbitrary finding of fact not sustained by some competent evidence and since the trial judge saw and heard the witnesses, observed the conduct of the parties, their attorneys and their witnesses at the trial, was fully informed as to which party was calling the witness or was objecting to his testimony, and personally knew all of those shadings, conduct and demeanor which are familiar to every trial lawyer and trial judge, we feel that he was in a much better position than we are, to pass on these questions of fact. Furthermore, we have observed from this record that the circuit judge conducted the trial with great fairness and much patience. We have, therefore, adopted in its entirety his findings of fact, differing with him only in certain interpretations of those facts within our decisions which we have above referred to.

Before considering those few cases in which we find it necessary to disagree with the trial court's interpretation of the facts it is necessary to note that certain questions are raised by cross-error which apparently were not submitted to the trial judge. It appears from his findings that bills of particular were furnished by each side to the other but that briefs were submitted to him only as to 166 voters. The trial judge passed on the 166 voters and we do not think that in this state of the record it would be proper for us to review the evidence as to any of the others. In any event, there are not enough of them to affect the result if every claim made were to be sustained. Neither would it affect the result of this case if we were to review the evidence as to the party affiliations as to which the trial court found that there was not enough evidence to make a determination of the question and which votes were pro-rated.

We will, therefore, proceed to a consideration of the facts and rulings in those few cases in which we find it necessary to disagree with the rulings of the trial court. Of these cases there are 12 Democratic ballots which we believe were improperly counted for the Democratic candidate and 5 Republican ballots which we believe were improperly counted for the Republican candidate. Since neither the briefs of either party nor the abstract of record have arranged these voters in any alphabetical or other logical sequence, we will have to refer to them by name and the number arbitrarily given to them in the trial court's findings of fact.

MANFORD ROBINSON-SADIE ROBINSON, Wabash precinct 2. (3-4). This husband and wife testified to their intention to hold residence in Wabash 2 and have voted in that precinct for many years. The father of the husband was 96 years old and had owned a farm in Wabash 2 which he had deeded to his son in 1938. However, the parties had lived in Terre Haute, Indiana, for nearly five years before the election and had been receiving relief in Terre Haute. There is nothing to indicate that these parties have a permanent place of abode in Wabash 2 even though they did own some property there. We feel that the trial court erred in holding them to be legal voters and that two votes should be deducted from the Democratic candidate.

CLEMMIE FARRIS, Marshall precinct 3. (7). This voter was apparently separated from her husband and was living in Terre Haute where she had made affidavit that she was a citizen of Indiana on application to become registered as a voter in that State and had become so registered. Her husband was living in Marshall 3 and the court held that his residence fixed hers and held her to be a legal voter. We think in this that the court erred, confusing a question of domicile with one of residence for voting purposes. The vote is illegal and should be deducted from those counted for the Democratic candidate.

ERNEST PINE-LULU PINE, Marshall 1. (33-34). This husband and wife voted in precinct 1, Marshall township, although they admittedly lived in precinct 2. The husband is superintendent of the waterworks in Marshall and until three or four months prior to the election had lived in precinct 1 but at that time had moved to a home in precinct 2. In passing on these two votes the court said, "I have not been able to find any authority for the proposition that one who works for a city, as Ernest Pine, comes under the same classification as the constitutional provision, providing that employees of the State and Federal government do not lose their voting residence, but because the court is holding that the Republican, Judge Booth, and other Republican employees of the Treasury Department did not lose their voting rights in Marshall county, the court feels that the same reason, under the peculiar fact of Ernest Pine's employment, ought to apply to him and his wife." We think that in this the court was being over-anxious to be fair. Obviously the same reason does not apply to a simple municipal employee, such as this voter was, as applies to State and Federal employees under the constitution. These two Democratic votes were illegal and should have been deducted from those counted for the Democratic candidate.

MAYME T. LEE, Parker township. (36). This voter had once lived in Parker township where she owned a farm left by her husband who died in 1936. However, long prior to the election she had moved to Westfield township where she owns her home. The mere fact that she owned property in Parker township which she might claim as her home at some time if she so desired did not qualify her as a voter in that township. The vote was illegal, was Democratic, and should be deducted from those counted for the Democratic candidate.

JOE TURMAN-FRANCIS TURMAN, Marshall 3. (37-38). This case is not free from doubt but we are unable to agree with the trial court that this man and his wife had a home or permanent place of abode in Marshall precinct 2. He moved to Peru, Indiana, five or six years prior to election, and prior thereto had lived in precinct 2. When he moved to Indiana he left some household goods with his father in precinct 3, from which he voted. He testified that if he lost his job in Peru he would return to Marshall, but he also testified that on November 8, 1938, his home was in Peru. We have concluded that these two votes are illegal and should be deducted from those counted for the Democratic candidate.

ALEX STILLWELL-PRISCILLA STILLWELL, Martinsville 1. (43-43A). In this case the trial court stated that he considered the question rather close and the evidence not very satisfactory but that he thought it a fair inference that they could have claimed the home of Mr. Turner, who was related to Mrs. Stillwell, as a place of abode and that he found that it was their intention to claim Martinsville 1 as their voting residence. There was, however, no satisfactory evidence that they had any definite place of abode in Martinsville 1 and it was quite clear that they had been living at Terre Haute, Indiana, for about two years before the election. We think these two Democratic votes were illegal and should be deducted from those counted for the Democratic candidate.

FRANK McDANIEL-PEARL McDANIEL, Marshall 1. (70-71). The only evidence to sustain these challenged votes is that Frank McDaniel's mother was an heir to a place in the north part of Marshall 1 and that he regarded this place as his home. There is no evidence at all that he ever lived there, at or near the time of election, and evidence to the contrary that neither he nor his wife lived in that precinct. These two votes were illegal and should be deducted from those counted for the Democratic candidate.

ROBERT CUSTER, Anderson township. (129). This voter was a wandering farm hand who died after election leaving no relatives. One witness testified that Custer had been staying at his house but had left in September, nearly two months before the election and had not been there since. He did leave clothes at this witness' house and came back late in the fall, apparently after the election, and got them. There is nothing to indicate that the house of this witness, any more than the house of any other farmer where the voter might have temporarily resided, could be regarded as his permanent place of abode or that he had any abode for voting purposes. The vote is illegal and should be deducted from those counted for the Republican candidate.

J.B. PENDELL-DOROTHY PENDELL, Westfield township. (130-131). No review as to these voters is necessary as appellee concedes in his brief on page 33 that the votes were illegal under our holding in the Coffey case, supra, and that they should be deducted from those counted for the Republican candidate.

LESTER NOYES, Martinsville 2. (143). This voter had been divorced about five years before the election and during that time had moved around from place to place working at Martinsville, Terre Haute, Carlyle, Farmersburg and Vincennes — wherever he happened to have a job. He had an interest in a farm in Martinsville 2 which was leased to one Clifford Lowry and he testified that he had an arrangement with Lowry that he could come and stay there any time he wanted to. At the time of the divorce his wife got all the furniture and there is nothing in the record to indicate that he had any place of abode whatever. We think the court erred in holding him to be a legal voter, and that his vote should be deducted from those counted for the Republican candidate.

As above indicated there were four illegal votes found by the trial court which were apportioned .5008 to Quick and .4992 to Clark. These fractions are so near 50-50 that it is apparent it could make no difference in the result and the fractions may therefore be disregarded. Without these long decimals the final results found by the circuit court gave John Quick 4730 votes and Wilbur Clark 4742 votes, or a majority of 12 for Clark. Summarizing our findings in the foregoing opinion we have arrived at the following result: We have found the 46 absent voters' ballots to be illegal. Three of these however, were thrown out by the trial judge on questions of residence so the net loss to the Republican candidate because of this holding is 43 votes. In addition to these 43 votes, we have differed with the trial judge as to 5 Republican votes making a total loss to the Republican candidate of 48 votes. On the other hand we have differed with the trial judge as to 12 Democratic votes making a net loss to the Democratic candidate of 12 votes. It is, therefore, our conclusion that John Quick received 4718 legal votes and that Wilbur Clark received 4694 legal votes and that John Quick was the winner in the election and should be so declared. It is, therefore, the judgment of this court that the judgment of the circuit court of Clark county be reversed and the cause remanded to that court, with directions to enter a judgment in accordance herewith.

Reversed and remanded, with directions.