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(Rejection of polls.)

opinion seems to be, that such votes, being illegal when received, cannot be made legal by the production of evidence of qualification, on the trial, which ought to have been, but was not, produced to the election officers. Sheppard v. Gibbons, 2 Brewst. 129; Myers v. Moffet, 1 Brewst. 230.

Though the vote of an idiot ought not to be received, yet the vote of a man, otherwise qualified, who is neither a lunatic nor an idiot, but whose faculties are merely greatly enfeebled by old age, is not to be rejected. Sinks v. Reese, 19 Ohio St. R. 307.


In the Circuit Court of Cass County, Illinois.

MAY TERM 1869.


[Rejection of polls.]

Where the provisions of the election law have been entirely disregarded by the officers, and their conduct has been such as to render their returns utterly unworthy of credit, the entire poll will be rejected.

But, even in such case, legal votes proved to have been actually polled, must be computed.

The facts of this case are fully stated in the opinion of the court, which was delivered by

SMITH, J. On the 9th of April 1867, an election was had, for and against the removal of the county-seat of Cass county, from Beardstown to Virginia in said county. The election was authorized by an act of the legislature passed in that year; the act provides that any citizen of said county, who may legally vote at said election, may contest its legality, by giving a notice in writing of his intention so to do, to any other citizen of said county, who may legally vote at said election in opposition to the

(Rejection of polls.)

vote cast by the person contesting; and said contest shall be conducted in compliance with existing laws of this state, with reference to the contest of elections for county officers, so far as the same may be applicable. R. S. 1845, ch. 37. This proceeding was commenced in the mode prescribed by statute, and was heard before three justices of the peace in said county, who made their certificate in favor of H. H. Littlefield, the contestant, and thereupon, Green, the respondent, perfected his appeal to the circuit court of Cass county.

The principal contest was made on the returns from the Virginia precinct. It was claimed that illegal votes were cast in the Beardstown and Lancaster precincts, but no particular irregularity was shown to have occurred in the election. It was admitted in the argument, that if the Virginia vote was thrown out, the majority would be against removal; if counted, there would be a majority for removal. Virginia precinct cast, at that election, 2820 votes, and the judges certified that 2820 votes were cast for removal and none against removal; that precinct had, at the date of the election, an entire population of between 1700 and 1800, and about 450 legal votes. The names of the first 668 voters, as appears from the pollbooks, appear to have been registered and voted in alphabetical and numerical order; as, for example, John Needham is the first name that appears upon the pollbooks, as having voted on the 9th day of April; his name appears first upon the register, under "N," and the next name on the poll-books that begins with N is registered immediately under the name of Needham, and so on; through these poll-books and registers, up to about No. 668, the voters appear to have been registered and voted in this exact alphabetical and numerical order; from 668 to 955, the voters appear to have voted in alphabetical order from A, running through the alphabet to Z, and then from Z to A in the inverse order; from 955 to 985, this order is changed, and the names on the poll-books

(Rejection of polls.)

appear, from 4 to 6, together, commencing with the same letter of the alphabet; from 986 to 1191, the alphabetical order is resumed, and this continues, with an occasional break, through the entire poll-books to 2820.

It was not, however, claimed upon the argument, by the respondent, that the names upon the poll-books were genuine after 668, but that, up to that number, they were legal voters. But the proof showed, that there were but 453 legal voters in the entire Virginia precinct, and that the names of these voters, instead of appearing first upon the poll-books, in consecutive order, as they should have done, were scattered through the entire poll-books from No. 1 to No. 2500. Take, for example, the name of S. B. Freeman, who swears that he voted at about two o'clock P. M., his number is 480; H. D. Freeman states, that he voted not long after, and his name is 2572; and that J. M. Stribling and Joseph Hunt voted about the time he did, and their numbers are 2571 and 2573. The Freemans could not have voted so near together in point of time, and their numbers be so far apart; and then H. D. Freeman, Stribling and Hunt were legal voters, and their names should have appeared within 453, or, at least, within 667, upon the theory of the respondent, that the first part of the poll-books are genuine up to No. 667, and the balance fabricated; and not one of the witnesses is able or willing to explain, how the names of these legal voters got into company of those that are admitted to be spurious and fictitious.

It was insisted, upon the argument, by the respondent, that the poll-book of the Virginia precinct, should be taken as evidence, that as many as 400 or 450 legal voters had voted at the election, for removal; and the question. is here presented, whether these irregularities and frauds, appearing upon the face of the poll-books, in connection with the other testimony in the case, destroys them as evidence of what they purport to be. It is, undoubtedly, the rule, that if the canvassing court can separate the

(Rejection of polls.)

legal from the illegal votes, and reject the illegal ones, they are bound to do so, and that mere irregularities in the manner of conducting an election, or a fraud on the part of the officers, will not vitiate, unless it be of so gross a character as to destroy all means of ascertaining the true results. Piatt v. People, 29 Ill. 72; 8 N. Y. 68. Our own supreme court has laid down this rule: "if an irregularity of which complaint is made, be shown to have deprived no legal voter of his rights, nor admitted a disqualified person to vote, if it cast no uncertainty on the result, and have not been occasioned by the agency of a party seeking to derive a benefit from it, it may be overlooked. Piatt v. People, 29 Ill. 72; Ang. & Ames Corp. 94.

How, then, does the vote of the Virginia precinct appear in the light of this law? do the irregularities and frauds, admitted to have been practised, place the true result in uncertainty? were disqualified persons admitted to vote? and was this procured by those seeking to derive benefit from their own frauds? It was admitted, that out of the 2820 votes cast in that precinct for removal, not more than 453 could be legal votes; but it is insisted by the respondent, that, inasmuch as they have proved that upwards of 400 legal voters were in the Virginia precinct, at that time, they should be counted for removal. But which 400 names on the poll-book, can the court count as legal voters? the first, second, third or fourth 400? For, it is in proof, that a large number of the names of those claimed to be legal voters, do not appear upon the poll-books within the first 400, or the second 400, but many of them appear as high up as 2500. It would be impossible, then, for the court to count the first 400 names on the poll-books as legal votes. Where shall the court commence to count the legal votes, and where shall it draw the line between. the legal and illegal votes? Do not these facts cast an uncertainty over the whole result?

But how do the poll-books, registers and ballots appear in the light of the testimony of the officers, who conducted

(Rejection of polls.)

the Virginia election? It appears from the evidence, that the Virginia interest was determined, from the first, to carry the election for removal at all hazards; and hence, two of the board of registry, after acting two days, declined to act further, one, for the reason that he would not be a party to the frauds that were about to be perpetrated, and the other, for the reason that he could do more off the board, than he could do on it, to further the ends to be obtained. Other men were selected who were not so tender-footed upon questions of honesty, and the registers were completed; and they contain, as the board say, 2820 names of legal voters, in a precinct that contained about 1700 inhabitants, all told. When one of this board was asked, if any other person assisted in making the registers, he refused to answer, because it might subject him to a criminal prosecution; and when asked, what guide they had to enable them to make the corrected registers for the Virginia precinct, he refused to answer, for the same reason.

On the day of election, these officers shut themselves up in a school-house; an aperture in the window was prepared, through which to receive the ballots; and there these officers of the law, after having solemnly sworn "that they would studiously endeavor to prevent fraud, deceit and abuse in conducting the election" (with their false and fabricated registers before them), commenced receiving the 2820 votes, which they certify were cast on that day, for removal, in the Virginia precinct, when they must have known, there were not more than 453 legal voters in the precinct. When one of the judges was asked, if 2820 different persons actually presented themselves to vote, on that day, he refused to answer, because it might subject him to a criminal prosecution; when asked, how many names were on the poll-books when the polls closed, he refused to answer for the same reason; when asked, how many bona fide ballots were counted out of the box, after the polls were closed, he refused to answer, because it

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