| Ill. | Nov 25, 1895
delivered the opinion of the court:
Appellant insists that the order and decree of the county court finding that appellee had received the greater number of votes, and was therefore elected president of the board of trustees of the village of Warrens-burg, must be reversed, for the reason that the ballots had not been carefully preserved, as required bylaw, but, on the contrary, had been left exposed to unauthorized handling by designing persons, and because the evidence showed that the ballots had in fact been tampered with and some of them changed since they were counted by the judges of election. By the count of the judges of election and the canvass of the returns by the board of trustees appellant was declared elected, and he thereupon qualified and was duly installed in office. By an unauthorized recount of the ballots by the village board while appellee was'president, and later by the recount in the contest in the county court, it was found that appellee had a majority of three, and the question is, had the ballots lost their controlling character as the best evidence of the result of the election.
- The rule is, that in a contested election proceeding the ballots are better evidence of the number of votes received by the respective candidates than the count made by the judges of election, where such ballots have been preserved according to law, and have not been so exposed to the reach of unauthorized persons as to afford a reasonable probability of their having been changed or tampered with. (Hudson v. Solomon, 19 Kan. 177" date_filed="1877-07-15" court="Kan." case_name="Hudson v. Solomon">19 Kan. 177; Kingery v. Berry, 94 Ill. 515" date_filed="1880-01-15" court="Ill." case_name="Kingery v. Berry">94 Ill. 515; People v. Burden, 45 Cal. 241" date_filed="1873-07-01" court="Cal." case_name="People ex rel. Freund v. Burden">45 Cal. 241; Cooley’s Const. Lim. (6th ed.) 788; McCrary on Elections, (2d ed.) secs. 555, 277; Murphy v. Battle, 155 Ill. 182" date_filed="1895-04-01" court="Ill." case_name="Murphy v. Battle">155 Ill. 182.) In the case at bar the evidence showed that the ballots had not been carefully preserved, but had been exposed to such risks of unauthorized handling, manipulation and change as to discredit them as the best evidence of the result of the election in question. The village clerk, Minson, who received from the judges of election the sealed envelope containing the ballots, and whose official duty it was to carefully preserve them for the length of time prescribed by the statute, placed the envélope containing the ballots in an unlocked desk, where he also kept the village seal, sealing wax and other similar envelopes belonging to the village. This desk was in a small office kept by one Burnham, opening into his meat shop, and was a place frequented by the public. Minson left the village five days after the election and removed to the State of Iowa to reside permanently. He did not resign his office as clerk and deliver the ballots and the village records and property in his hands to his successor, nor did he in any manner provide for their safe keeping, but left them to such care and safety as chance might provide. It does not appear when he placed the ballots in this desk, nor how long they had been there before the first day of May, when Williams, who was then appointed by appellee to fill the vacancy, took charge of them, so that from the time the ballots were delivered to the clerk, Minson, on the seventeenth day of April, until the first day of May, no light is thrown on the manner in which they were kept, except that they were found in the desk above mentioned. Before leaving the village, however, Minson informed appellee that he believed that he was elected over appellant. Upon what information this belief was founded does not appear. He was one of the clerks of the election and helped to keep the tally when the ballots were counted, but it does not appear that, he suggested at that time that there was any mistake in the count. After receiving this information, appellee, according to the testimony of Majors, who by the count had been defeated as a candidate for police magistrate, went to Majors and offered to bet five dollars to one that he, Majors, was elected by a majority of five votes, and stated that he, Albert, was also elected, and agreed to pay the costs if Majors would join him in the contest. Appellee was then president of the board of trustees. He seems to have known where the ballots were and that they were not being properly kept, for, eight days after Minson left, he took Williams to the office where they were, and directed him to put a lock ou the desk, lock them up and take charge of the key. These facts do not show that appellee tampered with the ballots, but they are recited from the record as tending to show that some one had obtained some information to the advantage of appellee, which might well have been obtained by an unlawful opening and manipulation of the ballots themselves. Minson’s testimony was not taken, and no presumption that he performed his official duty can be indulged, in the face of the clearly established fact that he disregarded and neglected that duty. Although the recount had at the meeting of the board of trustees called by appellee on May 3 was unauthorized by law, yet it is sufficiently clear, from the evidence, that no ballot was changed on that occasion. The recount then made showed the same result as the one made afterward in the county court, and it would seem clear that if any ballot was changed after they were first counted, such change was made between the seventeenth day of April, when they were delivered to Minson, and the first day of May, when Williams took charge of them. That any such change was made was not clearly proved, but there was evidence tending to prove that certain ballots had in fact been changed. The three judges of election testified that four ballots, which on the trial contained a cross in the circle at the head of the ticket containing appellant’s name and a cross in the square opposite appellee’s name, thus making the ballots for appellee, were not so marked when they counted them at the close of the polls. It was apparent, however, on cross-examination, that their recollection was not clear as to this fact. It will readily be seen that the crosses in these or other ballots could have been easily made by any one so disposed, thus changing the vote from one for appellant to one for appellee, without removing the ballots from the wire. While the evidence does not show that the wax seal in the middle of the flap of the envelope was broken, yet it does show, and the envelope which is certified here with the record shows, that part of the flap of the envelope was torn partly off, and it was proved that it was not in that condition when it was delivered to Hinson, but was in that condition when' opened for the recount before the village board. It was shown that the flap of the envelope was sealed down in a smooth condition when the package was delivered to Hinson. As to how it came to be partly torn off when the envelope was next examined no explanation is attempted.
While the count of the judges of the election was not as carefully made as it should have been, we are satisfied that it is far safer evidence upon which to rely to ascertain the result of this election than the ballots are when all of the evidence is considered. Under the present Ballot law, as the ballots are no longer numbered and the voter cannot be called to show that his ballot has been falsified, and as the ballot itself may be changed more easily than formerly and with less danger of detection, a greater degree of care should be used in the preservation of the ballots, and corresponding caution used in admitting them in evidence to change the result as announced by the judges and declared by the canvassing board.
We are satisfied that the trial court erred in holding that the ballots thus discredited were the best evidence of the result of the election, and in finding that appellee was elected to the office in question. The order and decree of said court are therefore reversed and the cause remanded, with directions to dismiss the petition at the costs of the petitioner. Reversed and remanded.