delivered the opinion of theconrt.
This was a proceeding in quo warranto, challenging the right of appellant to hold and exercise the office of aider-man of the city of Springfield. Upon final hearing the trial court found that appellant had unlawfully usurped and was unlawfully holding and exercising said office, and rendered judgment of ouster against him.
Appellee was not, in the first instance, required to support the information by evidence or proof. In the filing of the information, the state challenged appellant’s right, and threw upon him the duty and burden of showing perfect lawful authority for holding and exercising the functions of the office in question.
Appellant undertakes to establish by plea and proof, that he was duly elected and qualified to the office. He sets up in his plea that at a regular election, he and another were candidates of their respective parties for alderman from the third ward of the city of Springfield; that the city council canvassed the returns of the election and declared his opponent elected; that thereupon he gave notice that he would contest the election and pray a recount of the ballots; that the city council took cognizance of the contest and recounted the ballots and declared appellant elected and that he thereupon qualified and entered upon the exercise of the functions of the office.
With the exception of some irregularities which, with our view of the case, we do not deem it necessary to discuss, the evidence shows proceedings of the city council substantially as pleaded.
Counsel for appellant contends that this presents a state of case over which the trial court had no jurisdiction. He insists that there having been a contest before the city council, the action of that body is final and conclusive. This position would be sound as between the parties to the contest, but the proceeding here is not between the parties to the contest.
“The right to inquire into the authority by which any person assumes to exercise the functions of a public office or franchise belongs to the people, as a part of their sovereignty.” Snowball v. The People ex rel., 147 Ill. 260.
“ A city council has exclusive jurisdiction in a contest between two persons for the office of alderman; and its decision is conclusive upon the contestants themselves, but is ineffective to conclude the people in their sovereign capacity to call in question, by proceedings in the nature of quo warranto, the right of the successful contestant to hold such office.” “ Whenever the right to such office is challenged by proceedings in the nature of quo warranto by the people in their sovereign capacity, the successful incumbent must show a clear title by election.” Latham v. The People ex rel., 95 Ill. App. 528.
In this proceeding, neither the result as shown by the tally sheets, nor the result as shown by the recount, is final or conclusive. The question as to whether appellant actually received the requisite number of votes to elect him, is one of fact to be determined from all the evidence and facts and circumstances properly in evidence, and is the only remaining question in this case of sufficient importance to call for discussion.
As evidenced by the returns shown on the tally sheets which were most amply and fully supported and sustained by the concurrent testimony of the election officers and party challengers of both parties, appellant received 661 votes and his opponent received 667 votes. By the recount in the city council, when it had the contest under consideration, it appeared that appellant had 668 votes and his opponent 659.
Appellant’s counsel contend that the recount of the original ballots is the best evidence and should prevail over the election returns. This is true where the original ballots have been properly preserved, but only in such case.
“ Ballots are the best evidence of the result of an election if they have been preserved in the manner and by the officers prescribed by the statute, and have not been so exposed to the reach of unauthorized persons as to raise a probability of their having been tampered with.” “ Whether ballots have been properly preserved is a question of fact to be determined from all the circumstances proven.” Perkins v. Bertrand, 192 Ill. 58; Collier v. Anlicker, 189 Ill. 34.
The evidence shows that on the night of the day of the election, the ballots were strung, placed in a bag, sealed with wax, placed in a box which was locked and taken to a room in the city building, somewhat remote from the city clerk’s office and out of sight or hearing of the same, and that the door to this room was locked; that this room had one door and three windows, and that at least seven persons and probably more had keys to the door; that the box containing the ballots was left unguarded in this room, until four o’clock on the afternoon of the next day.
There is some testimony tending to show that the seal on one of the bags containing some of the ballots, at the time of the recount, was not the same size as the one placed on it by the election officers. Testimony was heard pro and con as to whether the mark appearing in the square opposite the name of appellant' on each of certain nine ballots in evidence, was probably made at the same time, by the same person, with the same pencils, or by nine separate persons, as would usually be the case if they were the original ballots unchanged; and also as to whether these nine ballots were found together on one part of the string, or were selected from the whole lot.
Whatever view we might feel disposed to take as to the weight of this evidence, as an original proposition, it is quite apparent that it is not sufficiently conclusive to place appellant’s right to the office out of the domain of dispute. It can not be held as matter of law that under these circumstances the result of the recount must be held to overthrow the returns of the election officers, supported, as the returns in this case are, by the concurrent testimony of all who had anything to do with them. The evidence presents a contested issue of fact to be determined by the trial court, not from a part of the evidence but from all the evidence and all the facts and circumstances in evidence.
“ Where the parties waive a jury and the cause is tried by the court sitting as a jury (as was done in this case) the court stands in the place of the jury and the decision will be reversed or affirmed by the same rules which govern when the facts are tried by a jury, and the same force and effect will be given to the finding of a judge as to the verdict of a jury.” Field v. C. & R. I. R. R. Co., 71 Ill. 458.
We find no error in the record in this case that warrants a reversal, therefore the judgment of the Circuit Court is affirmed.