No.

IN THE

@,upr.em.e O!nurt nf If 11iunis

IRENE BURTON and EDWARD KALAFUT, Petition for Leave to Appeal

Plaillfiffs-Respo11dents,
vs.
THOMAS V. POWELL,
Defendant-Pe1itio11er,
and
FRED M. DUMKE and ERNEST F. KOLB,
Defe11da11ts.
from the Appellate Court
of Illinois, First District.
There Heard on Appeal
from the Circuit Court of
Cook County, Illinois.
Honorable
Harry G. Comerford,
Judge Presiding.

PETITION FOR LEA VE TO APPEAL.

PETERSON , Ross, RALL , BARBER ,

S E ID E L,
135 South LaSalle Street,
Chicago, 1llinois 6060 3,
AN 3-7300,
and
BURTON S . 0DE LSON ,
120 South LaSalle Street,
Chicago, Illinois 6060 3,
641-5678 ,
Attorneys for T homas V. Po well,
Defendant-Petitioner.
Of Counsel:
ELROY C. SANDQUIST, JR .,
JOHN W. McCULLOUGH.

Gunthorp-Warren Printing Company, Chicago • 346-1717

 IN THE

€,uprrmr Qrnurt nf Irlliunis

m ENE BURTON and EDWARD KALAFUT, Petition for Leave to Appeal

PlaintifJs-Respondents,
vs.
THOMAS V. POWELL,
Defendant-Petitioner,
and
FRED M. DUMKE and ERNEST F. KOLB,
Defe11da11ts.
from the Appellate Court
of Illinois, First District.
There Heard on Appeal
from the Circuit Court of
Cook County, Illinois.
Honorable
Harry G. Comerford,
Judge Presiding.

PETITION FOR LEA VE TO APPEAL.

PRAYER FOR LEAVE TO APPEAL.

To the Honorable Justices of the Supreme Court of the State

of Illinois:
Now comes Thomas V. Powell, Petitioner herein, by Elroy
C. Sandquist, Jr., Peterson, Ross, Rall, Barber & Seidel and
Burton S. Odelson, his attorneys, and pursuant to Rule 315 of
the Rules of this Court, prays that this Court grant him leave
to appeal from the judgment of the Appellate Court of Illinois,
First District ( Second Division), entered herein, which affirmed
a judgment entered by the Circuit Court of Cook County in
favor of the plaintiffs ,and against your Petitioner.
The Appellate Court entered judgment on February 11, 1975
and no Petition for Rehearing was filed by the Petitioner herein.
 2 3

POINTS RELIED UPON FOR REVERSAL. II.

THE APPELLATE COURT DISMISSED PETITIONER'S ISSUE
I. OF DOUBLE COUNTING AND IMPROPER MARKING OF
THE APPELLATE COURT ERRED IN ALLOWING A PAR· THE "OBJECTED TO" BALLOTS BY THE ELECTION
TIAL RECOUNT OF FEWER THAN ALL OF THE PRE- JUDGES AS BEING SPECULATIVE AND NOT SUPPORTED
CINCTS IN OAK LAWN AND SET A DANGEROUS PRE- BY THE RECORD EVIDENCE, WHEN THE RECORD WAS
CEDENT BY SUSTAINING THE TRIAL COURT'S DECISION REPLETE WITH EVIDENCE OF DOUBLE COUNTING, AND
TO ALLOW FEWER THAN ALL THE BALLOTS IN ANY THE ACTUAL BALLOTS THAT WERE INCORRECTLY
PRECINCT TO BE COUNTED. MARKED ON ELECTION NIGHT WERE BROUGHT BE·
FORE THE APPELLATE COURT FOR ITS EXAMINATION.
A. Recounting Only the "Objected To" Ballots Within a Pre-
cinct Caused a Double Counting of Votes Within That
Precinct with a Different Counting Standard Applied to the III.
Few Votes Recounted Than to Those Counted Election
TIIE APPELLATE COURT OF ILLINOIS, FIRST DIS'IRICT,
Night. SECOND DIVISION, FAILED TO FOLLOW THE MANDA·
B. The Record Was Replete with Testimony That, in the TORY REQUIREMENTS OF ILLINOIS REVISED STATUTES,
Partially Counted Precincts, Portions of the Ballot Were 1971, CHAPTER 46, PARAGRAPH 23-20 AND THE CON-
Counted and Other Portions Rejected by the Election Night TROLLING CASES WHICH SET FORTH THE JURISDIC·
TIONAL REQUIREMENTS CONCERNING WHAT MUST BE
Judges, Thus Resulting in Some Portions of the Ballot
INCLUDED IN AN ELECTION CONTEST PETITION BE-
Being Counted Once on Election Night and Then Again FORE THE 1RIAL COURT HAS JURISDICTION TO HEAR
During the Partial Recount, Which Procedure Gave Some THE PROCEEDINGS.
Candidates Two Votes Where They Only Received One.
A. The Appellate Court Incorrectly Relied on the Amendment
This Portion of Petitioner's Argument Was Dismissed by
Provisions of the Civil Practice Act in Upholding the Trial
the Appellate Court Virtually Without Comment and Ap·
Court.
parently Without Consideration of the Danger Resulting in
Allowing One Person's Vote to Be Counted Twice.
C. The Appellate Court's Reliance on That Portion of Section
23-23 of the Election Code (IDinois Rev. Stat. 1971, Ch.
46, Par. 23-23) Which Allows a Petitioner to Ask for a
Further Recount of Any or All Remaining Precincts After
a Partial Recount Has Been Ordered, Is Unfounded in
IDinois Law and Puts the Apparent Winner of an Election
in the Position of Requesting and Paying for a Full Re-
count.
 4 5
STATEMENT OF FACTS.
On April 17, 1973, Dr. Thomas V. Powell, of the United
Oak Lawn Party, was duly elected Village President of the
Village of Oak Lawn ( C9). Dr. Powell defeated his opponent,
Fred M. Dumke, of the Performance Party, by a total of 9997
votes to 9993 (C9).
On April 24, 1973, Irene Burton and Edward Kalafut filed a
verified "Complaint for Election Contest-Statement of Con-
test" in the County Department of the Circuit Court of Cook
County (C2-Cl 7). The complaint alleged certain irregularities
in the conduct of the election of April 17, 1973 and prayed
that the court below direct and supervise a "full, true and.
correct" count of the ballots cast in the election (C 16), declare
that the election of Dr. Powell was null and void and declare
that Fred M. Dumke was the duly elected President of the
Village of Oak Lawn.
The complaint did not allege that the plaintiffs had voted at
the election of April 17, 1973. Such an allegation is specifically
required by section 23-20 of the Illinois Election Statute ( 46
Ill. Rev. Stat. 23-20).
The trial court received testimony from the plaintiffs con-
cerning the alleged irregularities and heard rebuttal testimony
from the defendant, Dr. Powell.
At the conclusion of all of the testimony, and after the plain-
tiff had rested (R. 666), counsel for Dr. Powell moved to
dismiss the action. The ground for dismissal was that the plain-
tiffs' failure to allege that they had voted in the election deprived
the court below of jurisdiction because such allegation is a juris-
dictional requirement of the Election Statute (R. 721, 760-
765). Thus, failure to allege the fact of voting or to amend the
complaint to supply the allegation within the thirty days in
which the complaint must be filed deprived the trial court of
jurisdiction to allow amendment. It was also contended that no
amendment could be made to conform to the proofs because
the plaintiffs had not testified that they had voted ( R. 760-7 65) .
Plaintiffs' counsel moved orally to amend the complaint to
supply the required allegation that the plaintiffs had voted in
the election and to present testil)lony proving the allegation
(R. 769). The trial court granted the motion (R. 801, 806)
and entered an order affording the plaintiffs the requested relief
( C7 5). This defendant's motion to vacate the order ( C79) was
denied (R. 811-812).
On July 3, 1973, the court below ordered a recount of eight
(8) precincts in the Village of Oak Lawn (C87). This resulted
in a canvass of 1705 ballots ( C 116) out of a total of 20,029
which were cast (C136).
Four of the precincts-35, 44, 63 and 74-were to be
recounted in their entirety, including those ballots which had
been "objected to" on the date of the election and placed in the
"objected to envelope" (C87). In the balance of the precincts-
26, 75, 99 and 131-only the "objected 1:o" ballots were to be
counted (C87). (A single absentee ballot was also to be "found
and counted" in precinct 123.) Counsel for Dr. Powell objected
to such a truncated recount of only a portion of the precincts
and, also to the recount of only the "objected to'' portion of the
ballots in precincts 26, 75, 99 and 131 (R. 859-860; 895-896).
The recount was held under the supervision of Special Com-
missioner, Michael E. Lavelle on July 14, 1973. The report of
the Commissioner, dated July 26, 1973 (C116-C132), was
admitted into evidence on August 1, 1973 (R. 857) over the
objection of counsel for Dr. Powell.
 6 7
On July 18, 1973, this defendant filed a notice of appeal
from the trial court's order of July 3, 1973 (C89). A motion for
a stay of proceedings was made before the trial court on July
23, 1973, praying that the Special Commissioner cease his
activity until the determination of the issues on appeal by the
Appellate Court ( C 102-C 103). The trial court denied that
motion (R. 834-835).
A motion to stay enforcement of the trial court's order was
filed with the Appellate Court on July 25, 1973 and was denied
on August 13, 1973 (C168).
During the pendency of the :proceeding in the Appellate
Court, the trial court accepted the Commissioner's report, held
further hearings and made substantive rulings and, on August 8,
1973, entered the order declaring Fred M. Dumke elected by a
margin of five (5) votes (Cl35-C137).
An appeal to the Appellate Court of Illinois, First District,
Second Division was taken and Oral Argument heard on
November 19, 1974. The Appellate Court rendered its decision
affirming the lower court on February 11, 1975. This Petition
for Leave to Appeal is taken from that decision.
ARGUMENT.
I.
IBE APPELLATE COURT ERRED IN ALLOWING A PAR-
TIAL RECOUNT OF FEWER THAN ALL OF THE PRE·
CINCTS IN OAK LAWN AND SET A DANGEROUS PRE-
CEDENT BY SUSTAINING IBE TRIAL COURT'S DECISION
TO ALLOW FEWER THAN ALL THE BALLOTS IN ANY
PRECINCT TO BE COUNTED.
A. Recounting Only the "Objected To" Ballots Within a Pre-
cinct Caused a Double Counting of Votes Within That
Precinct with a Different Counting Standard Applied to the
Few Votes Recounted Than to Those Counted Election
Night.
On July 3, 1973, the trial court, after hearing certain testi-
mony, entered an, order that precincts 35, 44, 63 and 74
should be recounted in their entirety including all "objected to"
ballots (C87). The court also ordered that in precincts 26, 75,
99 and 131, "the objected to ballots shall be recounted ... ,"
and only "objected to" ballots were recounted in those pre-
cincts (C87) .
In the absence of a stipulation by the parties to recount fewer
than all of the precincts concerned in a contested election, there
is no authority in Illinois to recount only some of the precincts
contested.
This Court's decisions interpreting the Election Statute are
abundantly clear that when a court orders a recount, it must
order that all of the ballots cast in the election shall be recounted.
The leading case is Wood v. Hartman, 381 Ill. 474, 45 N. E. 2d
864 (1942), where the court held:
 8 9
In election contests, after the proper foundation has
been laid, the ballots are before the court to be counted,
and the sole question to arise and to be considered is as
to whether or not the ballots are legal or illegal. The con-
testant in an election contest is not confined on the recount
to the mistakes and errors alleged in his petition, and •if
the court undertakes a recount of the ballots it must count
them all and declare the result according to their legal
effect. Hennessy v. Porch, 24 7 Ill. 3 8 8, ( 381 Ill. at 481 )
Additionally, the case of Hennessy v. Porch, 247 Ill. 388, 93
N. E. 290 (1910), states that:
When . . . ( a contestant) states a case showing that errors
have occurred in the counting of the ballots, and when
the court undertakes to recount them, all the ballots will be
counted and the result declared according to their legal
effect. (247 Ill. at 390)
Clearly, a recount of only certain of the precincts-when
conducted by a special commissioner--causes a different
standard to be applied to those precincts than to the majority
which were tabulated on election day. The trial court's special
commissioner is presumably an expert on the validity of ballots.
Thus, the commissioner's standard of expertise was applied to
only 8.5% of the ballots in Oak Lawn. A partial recount in
these circumstances is virtually meaningless and surely does not
declare the result of all the ballots according to their legal effect
as reviewed by the court's expert.
The special commissioner and later the trial judge, when
making rulings on the various ballots in the precincts which were
counted, in effect gave more weight to those votes recounted in
some of the precincts than the judges of election gave to all the
votes on election night. This is a dangerous precedent to allow
inasmuch as it takes the one equal vote from those in the forty-
four precincts of Oak Lawn that were not recounted and makes
it less important than and on an unequal basis with those votes
in the eight recounted precincts under the scrutiny of the special
commissioner or the trial judge.
Counsel for this defendant also objected to the recount of
only a portion of the ballots in four of the eight precincts re-
counted (R. 895-896) and the court, overruling the objection,
proceeded to conduct the recount described. The court's order
of July 3, 1973 (C87), ordered a recount of only the "objected
to" ballots in precincts 26, 7 5, 99 and 131. The clear effect of
such an order was to make it possible to have counted ballots
twice for the office of President of the Village of Oak Lawn.
The objected to ballots did not indicate which votes for which
candidates ·gave rise to the objections ( except in precinct 99).
Thus, a ballot counted for Dumke on the date of the election
and placed in the objected to ballot envelope, because of an
objection to the method of voting for another office, would have
been counted for Dumke a second time during the recount in
this case. This would give a double vote for Village President
to those individuals who had cast "objected to" ballots, which
were objected to for an office other than Village ·President. This
defendant raised this objection in the trial court (R. 859-860).
As previously noted, precincts 26, 75, 99 and 131, were se-
lected by the court as those precincts in which only the ballots
which had been objected to on the day of the election were to
be counted in the recount ordered by the court. The contestant,
Dumke, received a total of seventeen ( 17) additional votes as a
re~ult of the examination of the objected to ballots ( C 13 5-13 6).
There is no way to determine whether Dumke thus received
twice as many votes among the objected to ballots as he re-
ceived on the date of the election, because there is no way to
determine whether these ballots were counted for Dumke on
election day, since these ballots were not properly marked pur-
suant to Sec. 17-16 of Ch. 46, Ill. Rev. Stat. 1971, as we argue
below.
 10
It is of consequence to note that in the precincts which were
totally recounted, Dumke gained a total of nine (9) votes and
lost two (2) votes for a net total of seven (7) additional votes
(C135-136). This petitioner, on the other hand, received a net
increase of five (5) votes from those precincts which were re-
counted in total. Thus, had only the totals from those precincts
which were completely recounted been considered, the defendant
Dumke would not have gained sufficient votes to prevail in the
election. The totals, after considering the votes gained by Powell
and Dumke from the precincts which were recounted in full,
were 10,001 votes for Powell and 10,000 votes for Dumke. Thus,
the election of a Village President, in a village of over 62,000,
where over 20,000 votes were cast for that office, was decided
in four partially counted precincts (26, 75, 99 and 131) in
which only forty-two votes were examined. Because of this
error, the present Village President of Oak Lawn holds office by
virtue of electors whose votes were counted twice.
B. The Record Was Replete with Testimony That, in the
Partially Counted Precincts, Portions of the Ballot Were
Counted and Other Portions Rejected by the Election Night
Judges, Thus Resulting in Some Portions of the Ballot
Being Counted Once on Election Night and Then Again
During the Partial Recount, Which Procedure Gave Some
Candidates Two Votes Where They Only Received One.
This Portion of Petitioner's Argument Was Dismissed by
the Appellate Court Virtually Without Comment and Ap·
parently Without Consideration of the Danger Resulting in
Allowing One Person's Vote to Be Counted Twice.
Contrary to the Appellate Court's statement that there was
no proof in the record that would show double counting of
ballots, there is substantial evidence of "double counting" in the
record. The Election Statute, for example, requires: that ,a n
11
"objected ,to" ballot must bear the markings of an election judge
that it was not counted on election night. ( 46 Ill. Rev. Stat.
par. 17-16) Certain ballots, which were found in "objected to"
envelopes, and which did not bear the markings showing that
they were not counted election night, were ordered counted by
the special commissioner and, thus, must be presumed to be a
double vote (R. 868, 870) . The record indicates that the judges
in Precinct 3 5, for example, marked certain ballots in the ob-
jected to envelopes to the effeot that they had not been counted
on election night and certa!in other ballots were not marked in
that fashion; nevertheless, all objected to ballots in every precinct
in which there was a recount, were counted hy the courit, regard-
less of the absence of such markings (R. 882-883).
There are numerous instances in the record where the judges
of election testified that they counted the vote for mayor and
clerk, while rejecting the trustee's votes because of an "over-
vote." In Precinct 99, Pat Stancik, a poll-watcher, testified that
numerous ballots contained an over-vote for the rtrustees but
that the mayor and clerk votes were counted (R. 539) . Gerald
F. Geibelhausen, also a poll-watcher in Precinct 99, testified
likewise (R. 552). Ronald M. Stancik, also of Precinct 99, also
testified that the mayor and clerk were counted where the trus-
tees were not (R. 556-557). Mary Schergern, a judge in Pre-
cinct 74, testified that where there was an over-vote for the
trustees, the mayor and clerk were still counted (R. 651 ) .
Esther Pitala, a judge in Precinct 44, testified likewise (R.
1019), as did other judges in Precinct 44 (R 1026, 1031,
103 6-103 7). There was additional testimony concerning double
voting by Judges Kisiel, Main and Ritter, of Precinct 35, at
pages 439, 469 and 482 of the record, respectively. Thus, the
Appellate Court's decision that ithere was nothing in the record
to support petitioner's "theory" is anomolous, since a cursory
 12
review of ,the record illustrates how a double count took place
and also shows that ipetirtioner was not formulating a theory but
merely setting out the facts.
C. The Appellate Court's Reliance on That Portion of Section
23-23 of the Election Code (Illinois Rev. Stat. 1971, Ch.
46, Par. 23-23) Which Allows a Petitioner to Ask for a
Further Recount of Any or All Remaining Precincts After
a Partial Recount Has Been Ordered, Is Unfounded in
Illinois Law and Puts the Apparent Winner of an Election
in the Position of Requesting and Paying for a Full Re-
count.
The Appellate Court goes on to rule that the Petitioner should
have asked for a full recount after the trial court ordered a
recount of only eight precincts of the fifty-two in Oak Lawn,
and of those eight, ordered a partial recount of only the "ob-
jected to" ballots. The statute set forth by the respondent and
the Appellate Court in its opinion ( 46 ill. Rev. Stat. Sec. 23-23)
specifically states that the petitioner may · "request" that 'an
additional number of precincts be counted. This is not to say
that the court must grant petitioner's mere request. Additional
proof would have to be adduced at trial to merit the counting of
those additional precincts. Indeed, it was this petitioner's posi-
tion below that he ·was the duly elected Village President of
Oak Lawn and that there need be no recount whatever. The
statute. allowing further precincts to be counted, is not man-
datory, but to the contrary, says that the petitioner may file a
petition asking for additional precincts to be counted. For this
petitioner to have done so would have been inconsistent with
his position at the trial. Respondents sought, by their argument
in the lower court, to suggest that the only way in which this
petitioner could preserve his objection to the· improper partial
13
recount was by requesting and paying for the total recount
which this petitioner opposed from the start of the proceedings.
The respondent's argument and that relied upon, unwisely, by the
Appellate Court, in essence, is that when the loser of the election
prays for a total recount ( as the respondent, Dumke, did ini the
case at bar) and the court allows one or four or eight precincts
to be counted, then the remainder of the precincts should be
at the expense of the candidate who had been declared the
winner of the election.
This concept of waiver by the apparent winner is anomolous
and establishes a dangerous precedent. If the Appellate Court's
decision is allowed to stand, it is not unlikely that the loser of
an eleotlion might prove that some type of recount is in order in
one precinct of fifty-two (for example, of "objected to" ballots
only), and thus, the declared winner, to protect his rights, must
ask that there be a rtotal recount and finance it himself. We re-
spectfully submit that the Appellate Court's opinion does not
serve the purpose or the legislative intent underpinning Seotion
23-23.
II.
THE APPELLATE COURT DISMISSED PETITIONER'S ISSUE
OF DOUBLE COUNTING AND IMPROPER MARKING OF
THE "OBJECTED TO" BALLOTS BY THE ELECTION
JUDGES AS BEING SPECULATIVE AND NOT SUPPORTED
BY THE RECORD EVIDENCE, WHEN THE RECORD WAS
REPLETE WITH EVIDENCE OF DOUBLE COUNTING, AND
THE ACTUAL BALLOTS fflAT WERE INCORRECTLY
MARKED ON ELECTION NIGHT WERE BROUGHT BE-
FORE THE APPELLATE COURT FOR ITS EXAMINATION.
The trial court ordered only the "objected to" ·ballots to be
recounted in four of the eight precincts in which the court
ordered a recount. Those precincts were 26, 75, 99 and '131.
 14
Crucial to the case at bar, but unfortunately ignored by the
Appellate Court, is Section 17-16 of ch. 46, [11. Rev. Stat. which
reads in part:
" ... No ballot without the official endorsement shall be
deposited in the ballot box .... Ballots not counted shall be
marked "defective" on the back thereof, and ballots to
which objection has been made by either of the judges or
challengers shall be marked "objected to" on the back
thereof, and a memorandum signed by the judges stating
how it was counted shall be written upon the back of each
ballot so marked, and all ballots marked defective or ob-
jected to shall be enclosed in an envelope securely sealed
and so marked and endorsed as to clearly disclose its con-
tents .. .. " (Emphasis added.)
The statutory provision cited above sets forth the requirements
for counting such "objected to" ballots.
The ballots contained in the "objected to" envelopes were re-
quired by the provisions of Section ·17.,1•6, cited above, to bear
two notations by the judges of election-placed on the ballots at
the time of the election. First, the ballots must have been initialed
by a judge of election prior to depositing the ballot in the ballot-
box. Second, when the ballots were "objected to" on election
night, another identifying set of initials and notations was re-
quired by the election code. The second notation the statute re-
quires is a memorandum, signed by the judges, stating how the
"objected to" ballot was counted on election night. There must
be an explanation on the "objected to" ballot concerning which
candidates for which offices received votes from that ballot on
election night and which candidates for which offices did not re-
ceive votes from that ballot on election night.
At the trial of this case the petitioner objected to the counting
of any ballots in the "objected to" envelopes which did not bear
the appropriate markings required by the statute on the grounds
that such ballots should not be counted at all, because improperly
15
marked, and also because of the fact that the a!bsence of any
marking would necessarily lead to double-counting of certain
ballots. This argument was rejected by the trial court and also by
the Appellate Court, which stated, " . .. we reject defendant's
theory as highly speculative, conclusory and without support in
the record."
It is respectfully submitted that not only was there evidence in
the record to support the proposition that there was double
counting of these ballots, but it is also obvious that, absent the
statutory markings, the ballots could not be counted at all. •T he
trial court, however, sustained objections to the ·counting of bal-
lots where the judge had not initialed the ballot prior to placing
it in the ballot ,box, but did not sustain objections to the counting
of "objected to" ballots which were not appropriately marked.
There is no distinction between a ballot improperly marked prior
to being placed in the ballot ,box and a ballot improperly marked
at the time it is objected to. An improperly marked ballot is an
improperly marked ballot and should not be counted.
Of the four precincts where only "objected to" ballots were
counted, in three of the precincts-precincts 26, 7 5 and 131-
there were no markings placed on the ballots at the time of the
election which would show which candidates received votes from
those ballots when they were ·counted. In one precinct-precinct
99-the "objected to" ballots were correctly marked pursuant to
the statutory provisions. It is petitioner's position that precinct
99 also should not have been counted because it is inappropriate
to count onJ.y a portion of the ballots in any one precinct. How-
ever, if precinct 99 is counted, the petitioner wins the election
by a margin of three votes.
It is quite significant to note that at the present date there are
markings on the exhibits which were submitted to the Appellate
Court which show that the "objected to" ballots were counted for
the candidates for Village President-and show for which candi-
 16
date the ballots were counted. These markings were placed on
the ballots by the trial court's special commissioner, Michael
Lavelle. Mr. Lavelle noted how he counted the ballot and ini-
tialed each one. Other than that, the only mark on the ballot is
that of the election judge who initialed the ballot before de-
positing it in the ballot box as required by Section 17-16.
Petitioner submits that, when the Appellate Court found no
record evidence of improperly mar~ed ballots, it may well have
been misled by the presence of commissioner Lavelle's proper
notations on the ballots in question. The cou.rt may well have
believed that these markings were placed on the ballots on elec-
tion night. As noted, these ballots were before the judges of
the Appellate Court; and were submitted to that court upon
the instructions of the judges as a supplement to the record on
appeal originally filed. The exhibits do not appear in the ex-
cerpts from record filed with the Appellate Court and submitted
to this Court. Pursuant to Rule 315 ( d), petitioner will request
that the record on appeal, containing such exhibits, be trans-
ferred to this Court.
The Appellate Court in affirming the trial court has paved the
way for future errors in later elections. Judges of election need
no longer obey the mandatory requirements of the statute and
paper ballots may be handled as the judges of election see fit
on election night.
The result of the trial below, now affirmed on appeal, has
been to remove the Village President of Oak Lawn, who won
the election. And it does so in a manner which confuses and
disturbs the people of Oak Lawn, and ill-serves our system of
fair play and equality for all. Those citizens who do not live
in the precincts that were recounted have now had their votes
designated as "secondary" when compared to those votes counted
in the recount by the legal experts.
l7
The margin of defeat for the petitioner lies within the ques-
tionable four precincts that were only partially counted. If
these were eliminated, which they must be because of the flag-
rant and very apparent violations of Section 17-16, and the
unfair result when only part of a precinct is recounted, then
petitioner would remain Village President by a one vote
margin.
The people of Oak Lawn, who were almost equally divided,
deserve better treatment and explanation from the Courts of
our State.
III.
THE APPELLATE COURT OF ILLINOIS, FffiST DISTRICT,
SECOND DIVISION, FAILED TO FOLLOW THE MANDA·
TORY REQUffiEMENTS OF ILLINOIS REVISED STATUTES,
1971, CHAPTER 46, PARAGRAPH 23-20 AND THE CON-
TROLLING CASES WHICH SET FORTH THE JURISDIC-
TIONAL REQUIREMENTS CONCERNING WHAT MUST BE
INCLUDED IN AN ELECTION CONTEST PETITION BE-
FORE THE TRIAL COURT HAS JURISDICTION TO HEAR
THE PROCEEDINGS.
A. The Appellate Court Incorrectly Relied on the Amendment
Provisions of the Civil Practice Act in Upholding the Trial
Court.
The Illinois statute governing election contests sets forth
requirements for the contents of the pleading which commences
such a proceeding. The pertinent section of the statute, Ill.
I Rev. Stat. 1971, ch. 46, par. 23-20, reads in full as follows:
Par. 23-20. PETITION-VERIFICATION-CONTENTS
The person desiring to contest such election shall, within
thirty (30) days after the person whose election is con-
tested is declared elected, file with the clerk of the proper
 18
court a petition, in writing, setting forth the points on
which he will contest the election, which petition shall
be verified by affidavit in the same manner as complaints
in other civil cases may be verified. Copies of such peti-
tion shall be delivered by mail to each proper clerk or
board of election commissioners who is a custodian of any
ballots involved in the contest. The petition shall allege
that the petitioner voted at the election, and that he be-
lieves that a mistake or fraud has been committed in
specified precincts in the counting or return of the votes
for the office or proposition involved or that there was
some other specified irregularity in the conduct of the
election in such precincts, and the prayer of the petition
shall specify the precincts in which the recount is desired.
(Emphasis added.)
It is apparent that the statute sets forth certain mandatory
requirements for any complaint. Thus, the person desiring to
contest an election must:
(i) file the complaint within thirty days;
(ii) verify the complaint;
(iii) serve a copy on the appropriate custodian of the
ballots involved in the contest;
(iv) allege that the individual voted at the election; and
(v) specify the irregularity in the conduct of the election
in the particular precincts in which a recount is
sought.
The Illinois courts have long held that the failure to fulfill
these mandatory requirements divests the trial court of jurisdic-
tion in an election contest. Thus, the failure to file a verified
complaint, or to remedy that failure by amending a complaint to
supply the verification within the thirty days in which filing is
to be accomplished, means that the trial court does not have
jurisdiction to entertain a motion to cure the defect by supplying
19
proper verification-nor any jurisdiction to continue to ad-
judicate the election contest. The action must be dismissed.
This principle is reiterated in Whitley v. Frazier, 21 Ill. 2d 292,
171 N. E. 2d 644 (1961), where the court stated:
Where a petition is unverified and the 30-day period ex-
pires before motion is made to amend, there is no longer
jurisdiction to cure the defect. (Doelling v. Board of
Education, 17 Ill. 2d 145.) (21 Ill. 2d 292 at 294.)
Numerous cases have also held that the failure to file within
a thirty day period, as well as the failure to verify, has the
effect that the jurisdiction of the trial court never attaches and
further proceedings are void. The requirements of this section
of the statute and their jurisdictional nature are well set forth
in Whitley v. Frazier, 21 Ill. 2d 292, 171 N. E. 2d 644 (1961),
as follows:
The right to contest an election is statutory, and the
statute must be strictly followed. (Daugherty v. Carnine,
261 Ill. 366.) The petition must be filed within 30 days,
and it must be verified by affidavit. The statute also re-
quires that "The petition shall allege that the petitioner
voted at the election, and that he believes that a mistake
or fraud has been committed in specified precincts in the
counting or return of the votes for the office or proposi-
tion involved or that there was some other specified ir-
regularity in the conduct of the election in such precincts."
(Ill. Rev. Stat. 1959, chap. 46, par. 23-20.) Where a
petition is unverified and the 30-day period expires be-
fore motion is made to amend there is no longer jurisdic-
tion to cure the defect. (Doelling v. Board of Education,
17 Ill. 2d 145.) On the other hand, if a timely verification
is merely defective in its statement of matters on informa-
tion and belief, amendment may be made even after the
statutory period has expired. Graves v. Needham, 379 Ill.
25. (21 Ill. 2d 292 at 294.)
 20
The petition filed in the trial court in this case omitted one
of the jurisdictional elements required by the statute set forth
above, in that the complaint failed to allege that the plaintiffs
had voted in the election which they sought to contest.
The complaint did allege that the plaintiffs were "citizens,
residents and legally qualified electors and voters" in the Village
of Oak Lawn (C2). However, the allegation that one is an
"elector" does not affirmatively allege that such elector voted
in the contested election. It is, of course, not necessary to have
voted in a previous election, to be an elector in the State of
Illinois, as defined by Ill. Rev. Stat. 1971, ch. 46, par. 3-1;
ch. 24, par. 1-1-2(3); and ch. 24, par. 7-1-1.1.
Counsel for this defendant moved to dismiss the action at
the close of the plaintiffs' case and after the plaintiffs had
rested (R. 721, 760-765) on the grounds that the complaint
did not allege that the plaintiffs had voted in the contested
election and that no proof that the plaintiffs had voted in such
election had been presented in the plaintiffs' case. At that
juncture, the trial court should have dismissed the election
contest proceeding for want of jurisdiction. It did not do so.
Rather, the court heard an oral motion to amend the complaint
by counsel for plaintiffs (R. 769), granted such motion (R.
80 1; 806), and entered an order ( C7 5) allowing the plaintiffs
leave to fil e an amendment to the first paragraph of the com-
plaint to the effect that "each of the plaintiffs voted at the
regular election held in the Village of Oak Lawn on April 17,
. 1973." (C72.) This defendant also moved to vacate the order
allowing the amendment after that order was entered (C79),
and that motion was denied ( R. 811-812) .
The trial court did not have jurisdiction to allow such an
amendment subsequent to the original thirty-day period in
which a jurisdictional defect in the allegations might have
21
been cured. This was the holding in Doelling v. Board of Educa-
tion, 17 Ill. 2d 145, 160 N. E. 2d 801 (1959) as interpreted
by the Supreme Court in Whitley v. Frazier, 21 Ill. 2d 292,
171 N. E. 2d 644 (1961), where the Justice who wrote both
opinions stated: "Where a petition is unverified and the 30-
day period expires before motion is made to amend, there is no
longer jurisdiction to cure the defect" (21 Ill. 2d at 294) . It was
clear from the discussion in the Whitley case that the Supreme
Court considered that the jursidictional requirements of the
statute are that a petition be filed within thirty days, that it be
verified, that it allege that the petitioner voted at the election
and that it specify the irregularities in the conduct of the elec-
tion ( Whitely supra, 21 Ill. 2d at 294). Whitley establishes
that the statute regulating election contests must be strictly
followed because that statute is the sole grant of judicial author-
ity to adjudicate such contests:
We argue here that the allegation that petitioner voted is
mandatory and not directive and , therefore, the plaintiffs' failure
to make the mandatory allegation prevented the attachment
of jurisdiction and there was no authority to grant the amend-
ment following the close of the plaintiffs' eviden.ce.
The mandatory effect of that provision of the statute which
requires an allegation that the contestants voted in the la~
election is illustrated by Johnson v. Pautler, 22 Ill. 2d 299,
174 N. E. 2d 675 (1961) , which discusses the requirement of
the same section of the statute that "copies of such petition shall
be delivered by mail to eaoh proper clerk or Board of Election
Commissioners who is a custodian of any ballots involved in
the contest." It was contended by the defendant in the Johnson
case that the petition was fatally defective because a copy of
the petition was personally delivered to the custodian of the
ballots rather than delivered by mail. This Court held that
 22 23

the method of delivery of the petition to the custodian of the The Appellate Court failed to realize, however, that if Sec.
ballots was not mandatory. It held that the legislative intent was 46 of Ch. 110, Ill. Rev. Stat., 1971 were followed with refer-
that the clerk receive notice, and that personal service com- ence to the jurisdictional allegations in election contests, then
plied with that intent. ·As the Court stated: "It was essential surely any amendment to an election petition to add a verifica-
that the county clerk be notified of the pendency of an elec- tion after the expiration of thirty days would be allowed. The
tion contest proceeding, but it is not essential that he receive Courts, however, have consistently held to the contrary. Addi-
such notice by mail." (Johnson v. Pautler, 22 Ill. 2d 299, 303, tionally, the plaintiffs were allowed to amend their petition
174 N. E. 2d 675 (1961) (Emphasis by the Court). after concluding their evidence; however, there was no proof
We submit that the requirement that a petition allege that the in the record for the amended pleading to conform to. It
petitioner has voted at the election which is contested is man- has been held that the refusal to allow an amendment under
datory in the same way that verification, service upon the such a circumstance is not an abuse of discretion. ( See Friestedt
proper clerk and the allegations of specific irregularities are v. Chicago Transit Authority, 129· Ill. App. 2d 153, 262 N. E.
mandatory. The object of the legislature was that the contestant 2d 771, 773 (1st Dist. 1970) and Hundt v. Proctor Commun-
vote at the election which that individual seeks to contest. The ity Hospital, 5 Ill. App. 3d 987, 284 N. E. 2d 676, 679 (3rd
statute requires only one fact to be alleged and verified within Dist. 1972) . )
thirty days-and that is the fact that the petitioner voted in Though amendments are liberally allowed, they cannot be
the contested election. To suggest that the absence of verification granted when contrary to established precedent and when per-
is jurisdictional but the absence of the single fact which the taining to a mandatory provision as in the case at bar.
legislature deemed fit to require as an allegation is not jurisdic-
tional, surely, defies logic.
The petition in this case was required to state as a sworn
fact that the petitioners voted in the election in Oak Lawn. The
inclusion of that fact, and its verification, was mandatory. We
submit that the trial court did not have jurisdiction to allow an
amendment after the plaintiffs had closed their evidence and
after the 30-day time period to file such a complaint had ex-
pired, to include the only fact which tlhe legislature required
the verified petition to contain when filed within the mandatory
thirty days. The trial court erred when it failed to dismiss the
action and the Appellate Court glossed over this issue relying
on respondent's arguments as to liberal amendment procedures
in the Civil Practice Act.
 24 Al

APPENDIX.
CONCLUSION.
No. 59385
5999'6
For the reasons herein expressed, Petitioner requests the fol-
lowing relief: IRENE BURTON and EDWARD KALAFUT,
Plaintiffs-Appellees,
A. That this Court grant Petitioner leave to appeal from Appeal from the Cir-
the judgment and opinion of The Appellate Court, vs. cuit Court of Cook
First District. THOMAS V. POWELL, County.
B. That this Court reverse the judgment of the Appellate Defendant-Appellant, Honorable
Court and the Trial Court. Harry G. Comerford,
and
C. That this Court reinstate Thomas V. Powell as the Judge Presiding.
duly elected Village President of the Village of Oak FRED M. DUMKE and ERNEST F. KOLB,
Lawn. Defendants.
Respectfully submitted,
PETERSON, Ross, RALL, BARBER, MR. PRESIDING JUSTICE DoWNING delivered the opinion of the
SEIDEL, court:
135 South LaSalle Street, The plaintiffs-appellees (hereinafter plaintiffs) petitioned be-
Chicago, Illinois 60603, low to contest the result of the April 17, 1973 election for
AN 3-7300, president of the Village of Oak Lawn, Illinois, Defendant-
and appellant, Thomas V. Powell (hereinafter defendant), prevailed
BURTON S. 0DELSON, in that election over ·F red M. Dumke, by a total vote of 9,997
120 South LaSalle Street, for defendant to 9,993 for Dumke. (Fred M. Dumke and Ernest
Chicago, Illinois 60603, F. Kolb, defendants below, are not parties to this appeal.)
641-5678, The complaint of plaintiffs was considered before a judge,
Attorneys for Thomas V. Powell, without a jury, and, on July 3, 1973, the trial court ordered a
Defendant-Petitioner. recount of the ballots cast in certain precincts of the Village.
On August 8, 1973, following a canvass of the contested ballots
Of Counsel: and extensive hearings before the trial court, an order was
ELROY C. SANDQUIST, JR., entered declaring Fred M. Dumke the duly elected president of
JoHN W. McCULLOUGH. the Village. It is from the August 8, 1973 order that this appeal
emanates.
 A2
The pertinent facts are as follows. On April 17, 1973, a
regular election was held in the Village of Oak Lawn for
president and other village officjals. Thereafter, the local can-
vassing board declared the defendant as the elected village
president of the Village of Oak Lawn, Illinois, defeat_ing his
opponent for the office, Fred M. Dumke, by four votes, 9,997
to 9,993. On April 24, 1973, plaintiffs, as citizens and duly
qualified voters of the Village, filed a verified complaint in the
court below to contest the election, alleging ·certain irregularities
in the conduct of the election and praying that the court below
direct and supervise a "full, true and correct" count of the ballots
cast in the election, declare the election of April 17 null and
void, and declare Fred M. Dumke president of the Village.
The complaint failed to allege that plaintiffs had voted in
the April 17 election, which allegation is required by Section
23-20 of the Illinois Election Statute. Ill. Rev. Stat. 1971, ch.
46, par. 23-20.
After the trial court had received testimony in support of
plaintiffs' claim of alleged irregularities and rebuttal testimony
on behalf of the defendant, the defendant moved to dismiss the
petition on the ground that plaintiffs' failure to allege in their
complaint that they had voted in the election deprived the trial
court of jurisdiction, as such allegation was a jurisdictional re-
quirement under Section 23-20 of the Election Statute.
After both plaintiffs and the defe]ldant had rested their
respective cases, plaintiffs' counsel orally moved to amend
plaintiffs' complaint to supply the allegation that plaintiffs had
voted in the election and further moved to present evidence in
support of the allegation. The trial court granted plaintiffs' mo-
tion, and, subsequently, a motion made by defendant to vacate
that order was denied.
A3
On July 3, 1973 the trial court entered an order for a re-
count, the pertinent part of which follows:
"The Court is of the opinion that as a result of the
aforementioned presentation precincts 63, 74, 35 and 44
shall be recounted in their entirety including all objected
to ballots. It is the further opinion of this Court that the
objected to ballots shall be recounted in precincts 99, 26,
7 5 and 131. In precinct 123 the absentee ballot that was
not counted shall be found and counted."
On July 14, 1973, the recount took place under the super-
vision of a special commissioner, whose report, dated July 26,
1973, was filed with the trial court on August 8, 1973.
On July 18, 1973, four days after the recount, defendant
filed a notice of appeal from the trial court's order of July 3,
1973, which had ordered the recount. On July 23, 1973, de-
fendant moved the trial court to stay the proceedings, praying
that the special commissioner cease activity until the determina-
tion of the issues on appeal was made by this court. The motion
for a stay was denied.
On July 25, 1973, defendant filed with this court a motion
for a stay of the enforcement of the trial court's July 3 order
(ordering the recount), which motion was denied on August 13,
1973. In addition, this court, as part of the August 13 order,
dismissed defendant's appeal upon the motion of plaintiffs.
On August 8, 1973, after having accepted the special com-
missioner's report and after having conducted further hearings,
the trial court entered an order declaring Fred M. Dumke to be
the duly elected "Mayor" of the Village of Oak Lawn.1
1. Although the order refers to the office as "Mayor" and the
statute describes the office as "President" the titles over a long
period of time in Illinois are used interchangeably and no question
on that point has been raised in this appeal.
 A4 \
This appeal was taken from the trial court's order of August
8, 1973.
The issues on appeal are:
1 ) whether the trial court lacked jurisdiction over the
matter because of plaintiffs' alleged failure to comply
with certain jurisdictional requirements of Section 23-20
of Illinois' Election Statute ( Ill. Rev. Stat. 1971, ch.
46, par. 23-20);
2) whether the trial court was without jurisdiction to pro-
ceed subsequent to the filing of a notice of appeal to
this court on July 18, 1973; and
3) whether the recount ordered by the oourt below was
unprecedented, inherently unfair, and inaccurate.
I.
Defendant's first contention on appeal is that the trial court
lacked jurisdiction over the instant matter owing to plaintiffs'
failure to allege that they had voted in the April 17, 1973 elec-
tion, which allegation is required by Section 23-20 of the
Election Statute (Ill. Rev. Stat. 1971 , ch. 46, par. 23-20); the
Section reads:
"§ 23-20 Petition-Verification--Contents. The person
desiring to contesit such election shall, within thirty (30)
days after the person whose election is, contested is de-
clared elected, file with the clerk of the proper court a
petition, in writing, setting forth the poinits on which he
will contest the election, which petition shall. be verified
by affidavit in the same manner as complaints, in other
civil cases may be verified. Copies of such petition shall
be delivered· by mail ito each proper clerk or board of
election commissioners who is a custodian of any ballots
involved in the contest. The petition shall allege that the
petitioner voted at the election, and that he believes that
a mistake or fraud has been committed in specified pre-
A5
cincts in the counting or return of the votes for the office
or proposition involved or that there was some other spe-
cified irregularity in the conduct of the election in such
precincts, and the prayer of the petition shall specify the
precincts in which the recount is desired."
Although plaintiffs' original complaint failed to allege that
they had voted at the April 17 election, plaintiffs later moved
to be allowed to amend the complaint to allege that they had
voted in the election. The motion was granted, and each of
the plaintiffs testified that they had, in fact, voted in the elec-
tion. Defendant's motion to strike that testimony was denied
by ithe trial court.
Election contest cases shall be tried in like manner as in
other civil cases. See Ill. Rev. Stat. 1971, ch. 46, par. 23-23.
Certain provisions of Illinois' CivH Practice Act govern our
determination on this issue. They are contained in Section 46
('Ill. Rev. Stat. 1971, ch. 110, par. 46), which reads, in its
pertinent portions:
"§ 46. Amendments
( 1) At any time before final judgment amendments
may be allowed on just and reasonable terms
* * * and in any matter, either of form or sub~
stance * * * which may enable the plaintiff to
sustain the claim for which it was intended to
be brought * * *.
(2) The cause of action * * * set up in any amended
pleading shall not be barred by lapse of time
under any statute * * * if ,the time prescribed or
limited had not expired when the original plead-
ing was filed* * * even though the origln.al
pleading was defective in that it failed to allege
the performance of some act or the existence of
some fact or some other matter which is a
necessary condition precedent to the right of
 A6
recovery • * "' if the condition precedent has in
fact been performed * "' • and for that purpose
only, an amendment to any pleading shall be
held to relate back to the date of the filing of
the original pleading so amended."
We believe that the amendment allowed in the court below
meets the requirements of paragraph two of Section 46. Accord-
ingly, the amendment relates back to the filing of the com-
plaint and was not barred by the 30-day limitation of Section
23-20 of the Election Statute. (Ill. Rev. Stat. 1971, ch. 46,
par. 23-20). We hold, 11:herefore, that the court below had
jurisdiction over the instant matter. See Whitley v. Frazie,
(1961), 21 Ill. 2d 292, 171 N. E. 2d 644; Gravesv. Needham
(1942), 379 Ill. 25, 28, 39' N. E. 2d 321; and: Joyce v.
Blankenship (1948), 399 Ill. 136, 141, 77 N. E. 2d 325.
II.
Defendant next argues that the trial court was without
iurisdiction to proceed subsequent ,to the filing of the notice
of appeal on July 18, 1973. To put matters in perspective, a
chronology of the events which transpired in the court ·below
was:
1) On July 3, 1973, a recount of eight precincts was
ordered by the trial court;
2) On July 14, 1973, the canvass and recounrt: was ac-
complished and the results were made known to the
parties;
3) On July 18, 1973, a notice of appeal from the July 3
order was filed with this court, as were the short record
and a motion to stay the enforcement of the trial
court's July 3, 1973 order;
4) On July 23, 1973, defendant moved before the trial
court for a stay of proceedings; the motion was denied;
and
A7
5) On July 26, 1973, the trial ,court ordered the matter
set for final hearing on August l, 1973.
On August 3, 1973, plaintiffs filed a motion to dismiss the
appeal which had been brought by the defendant, arguing, in
essence, that the trial cou11t's order of July 3, 1973 was not a
final judgment within the contemplation of either Supreme
Court Rules 301 or 304 (Ill. Rev. Stat. 1971, ch. llOA, pars.
301 and 304) or Section 23-26 of the Election Statute. Ill.
Rev. Stat. 1971, ch. 46, ,par. 23-26.
On August 13, 1973, this court entered an order dismissing
defendant's appeal, and it is dear to us that defendant is rais-
ing again a matter which was disposed of by the August 13
order. We find that, in accordance with the August ,13 order,
that the order of July 3, 1973, entered in the trial court, was
not an appealable order. To permit such an attempt to prema-
turely appeal an election contest at that stage of the proceed-
ings would clearly frustrate, delay, and defeat the prospective ad-
verse results of a recount, which as in this case had become
known four days before the filing of the notice of appeal.
ill.
Fin<ally, defendant contends that the recount ordered by the
trial court was unprecedented, unfair, and inaccurate, in that
the recount ordered was of fewer than all of the precincts in
the Village and of fewer than all of the votes in certain pre-
cincts. Defendant urges that in the absence of a stipulation by
the parties to an election contest to recount fewer than all the
precincts concerned in a contested election, there is no author-
ity in Illinois to recount only some of the precincts contested.
Section 23-23 of the Election Statute (Ill. Rev. Stat. 1971,
ch. 46, par. 23-23) provides in part:
 AS A9
"Whenever a petition for a recount has been filed as pro- done so. We have reviewed the record, exhibits and transcript
vided in this Article, any opposing candidate or any elec- of the hearing on the special commissioner's report and we
tor, under ,like provisions and in like manner may file a reject defendant's theory as highly speculative, conclusory and
petition within 10 days after the completion of the can- without support in the record.
vass of the precincts specified in the petition for a further
recount of the votes cast in any or all of the balance of For these reasons, therefore, we affirm the judgment of the
the precincts in the county, municipality or other political circuit court of Cook County.
subdivision, as the case may be.
J udgm.ent affirmed.
iAny petitioner may amend his petition at any time before
the completion of the recount by withdrawing his request STAMOS, and LEIGHTON, JJ., concur.
for a recount of certain precincts, or by requesting a re-
count of additional specified precincts. The petitioner shall
deposit or shall cause to be deposited, such amounts of
money as the court may require as security for costs for
such additional precincts as the court may deem reason-
able and proper."
'1n our opinion, the legislative intent underpinning the last-
quoted statutory provision could not be more clear: The recount
in a contested election can be limi<ted to those precincts where
errors and irregularities existed which might alter the out-
come of the election.
In the case at bar, the partial canvass of precincts was com-
pleted on July 14, 1973, and, thereafter, defendanit, pursuant
to Section 23-23, had ten days within which to petition "* * *
for a further recount of the votes cast in any or all of the bal-
ance of the precincts* * *." Defendant did not avail himself
of the rights under Section 23-23 and cannot now be heard
to complain.
Defendant also suggests in his brief on appeal that some
ballots may have been counted twice. However, there is ab-
solutely nothing in the record ito support such a theory, and,
defendant bad the responsibility and full opportunity-not
only before this court, but before the trial court as well--of
pointing to support in the record for his theory. He has not