162 N.E. 835 | Ill. | 1928
This is an appeal from a judgment of the county court of Will county declaring Hugh H. Bolten, Samuel E. Shepley, William S. Strohm and William A. Hennessy elected commissioners of the city of Joliet.
The city of Joliet was organized under the general Cities and Villages act and adopted the commission form of government. *298 At a primary election held in the city on March 8, 1927, Hugh H. Bolton, Thomas C. Bothwick, John J. Cleary, William A. Hennessy, Samuel E. Shepley, William S. Strohm, Martin J. Whalen and David J. Emery were nominated for the four offices of commissioners, to be voted for at the April 19, 1927, city election. The city had previously been divided into fourteen election districts, numbered continuously from I to 14, and both the primary and the election were called by the city officers to be held in these fourteen districts. The city council, acting as a canvassing board, canvassed the returns of the election in the fourteen districts and declared Bolton, Hennessy, Shepley and Strohm elected commissioners, and they qualified as such. A petition was filed in the county court by Emery to contest the election, and all of the candidates were made defendants. The city clerk and the Joliet National Bank were also made defendants because of the fact that at the time of the filing of the petition the ballots and the returns were in the possession of the city clerk and in the vaults of said bank. While all of the candidates for commissioners were made defendants, it is conceded that Bolton, Shepley and Strohm were elected and that Bothwick, Cleary and Whalen were defeated. The contest is really only between Emery and Hennessy. The petition set out certain mistakes, illegal voting, alteration of ballots, duplicates of names on the poll-books and stuffing of the ballot-box, alleging fraud, particularly in the fifth election district, where it is alleged that there were 130 names duplicated on the poll-books, and that the election officers in the district made these duplications and also stuffed the ballot-box with ballots to correspond, and that illegal voting and other frauds were perpetrated with the knowledge of election officials, and that some of the acts of fraud were perpetrated by the election officials themselves in the fifth district.
The territory embraced in the fourteenth district was annexed to the city of Joliet by an ordinance of the city *299
passed and approved January 12, 1925. Hennessy, in his answer, set up that this annexation was not a valid annexation. Emery demurred to that portion of Hennessy's answer, and the demurrer was sustained. Repeated efforts were made by Hennessy during the progress of the hearing to raise the question of the legality of the annexation, but the trial court held that the annexation of the district could not be attacked collaterally in this suit. Prior to this proceeding a quo warranto
proceeding had been instituted in the circuit court of Will county questioning the right and authority of the city of Joliet to exercise governmental power over the annexed territory, and the circuit court decided that the annexation was valid. An appeal had been taken to this court, and we had reversed the judgment and remanded the cause to the circuit court of Will county without directions. The cause was reinstated in the circuit court of Will county, and a rehearing having been had in that court, the circuit court again decided that the annexation was valid. A second appeal was then prosecuted to the Supreme Court, and on the 21st day of December, 1927, this court reversed the decision of the circuit court and entered judgment of ouster. (People v. City ofJoliet,
But two main questions are involved in this case — the action of the trial court in excluding the entire vote of the fifth district and in excluding the entire vote of the fourteenth district. Appellant contends that the trial court's action with reference to the fifth district was right, and that in excluding the fourteenth district it was wrong. Appellees' position is, that while there was fraud in the fifth district the entire vote should not have been excluded; that the illegal votes could be easily separated from the legal votes and the trial court should merely have purged the returns of the fraudulent votes, and that if that were done, even though the fourteenth district should be included in the count, Hennessy would still have a majority of 39 of the legal votes cast in the election. If the trial court was right in excluding the entire vote of the fifth district and was wrong in excluding the vote of the fourteenth district then Emery, and not Hennessy, was elected.
The undisputed evidence shows gross irregularities and frauds in the fifth district. In the poll-books 130 names were duplicated, and the ballot-box was stuffed by the election officials to at least a like extent. Certain public questions were voted upon at this same election. In the fifth precinct, after the ballots for officers were taken out of the regular ballot-box, a large number of ballots for officers, estimated by the witnesses at about 200, were taken out of the public question box and counted by the election officials. During the progress of the election, at different times election officials went into the booths and came back therefrom with a number of ballots and placed them in the ballot-box, and explained that they were public question ballots which had been left by the voters in the booths. The evidence conclusively shows that the election officials fraudulently marked a large number of ballots and placed them in the ballot-box. Forty-one ballots were in the box not initialed and 15 illegal *301 votes were cast in the precinct. When four of the election officials were called as witnesses in the case they refused to testify on the ground that it would tend to incriminate them. Appellees offered in evidence the record of the circuit court showing that on their plea of guilty four of these election officials were sentenced for their illegal conduct as election officers at the election in this precinct.
There is a distinction, in the nature of things, between particular illegal votes which may be proven and exactly computed, and the effect of fraudulently stuffing the ballot-box by the election officials. Where the election officials participate in such glaring frauds as were shown by the evidence to have been perpetrated in the fifth district no one can estimate or compute to what extent the entire poll was permeated by such fraud. Questions affecting the fairness of an election are of vital importance in this country, as popular self-government depends upon their proper solution. It seems clear that courts must abnegate the power of preserving the freedom of elections and abandon the polls to the violent and unscrupulous, or must take the ground that wherever such practices or influences are shown to have prevailed, not slightly and in individual cases but to such extent that they cannot be computed, the whole poll must be rejected. (Patton v. Coates,
On January 12, 1925, the city of Joliet had authority of law to enlarge its territorial limits and annex territory by ordinance. On that day it attempted to exercise such authority and passed an ordinance annexing the territory known herein as district 14. On that day the lands now known as district 14 were such as might lawfully be annexed by the city of Joliet. No flaw appeared on the face of the annexation proceedings and in all respects they appeared to be perfectly regular and legal. After the passage of the ordinance the city of Joliet proceeded until December 21, 1927, to use its corporate franchise and exercise corporate powers over district 14. It is sufficient to constitute *303
a de facto municipal corporation that there shall exist a general law or special charter under which the corporation might be created, formed or organized, an attempt in good faith to incorporate or organize thereunder, and a subsequent actual user of the corporate franchise. (Cooper v. Town of ValleyHead,
Objection was made by appellees to a few ballots in this district. As these ballots could not affect the result if appellees' objections thereto were all sustained they will not be considered.
The judgment of the county court will be reversed and the cause remanded to that court, with directions to enter an order decreeing that Hugh H. Bolton, Samuel E. Shepley, William S. Strohm and David J. Emery were duly elected commissioners of the city of Joliet at the election held April 19, 1927.
Reversed and remanded, with directions.
Mr. JUSTICE THOMPSON, dissenting. *307