The daily Argus. (Rock Island, Ill.) 1873-1877, 1874-02-05
THE CONTESTED ELEcTIoNcA
The Demurrer Sustained.
JUDGE PLEAsANTs DECIDES THAT SAM
PORTER Is TREASURER,
The Attempt to Disfranehlse the People Of Buff
falo Prairie Proves q Failure.


Judge Peasants, on the demurrer, in the
case of John H. Cleland who contested
the right of Samuel R. Porter to be treasur-
er of this county because, as he alleges, the
polls at Buffalo Prairie were closed before
O'Clock 1t was argued by G.. NJ. Osborn
ESQ.,, and j. T. Kenworthy, ESQ.,, on the
part of Porter, and by VIM. II. Gest, Esq.
and r. 7. McNeal Esq. for Cleland.
This Thursday morning, Judge Peasants
rendered his decision in the matter, sus-
tanning the demurrer. which Is defeat OF
the claims of Cleland The substance of
his opinion is as follows:
/ In this case the petition does not charge
fraud upon the judges of election, nor COM
plicity upon the respondent, aud it is con-
ceded that the irregularity does not ofitself
avoid the election.
The only remaining inquiry is-were the
consequences of the irregularity injurious,
either to the respondent or the public, in
this particular case. If they were so it
must have been in one of three ways, viz
|. By depriving some legal voter OF his
rights.
2. By admitting some disqualified per-
son to vote.
D 8. By casting an uncertainty upon the
0 result.
The irregularity charged is in closing
the polls one hour before the proper time.
That could not admit any disqualified per-
son to vote nor is it specifically charged
that any legal voter was in fact disfran-
i, chised. But it is claimed that uncertainty
y was cast upon the result. The facts
averred on this subject are that there were
24O legal voters in the precinct, and that
t only lis had voted when the polls were
: closed showing majority at this poll Of
b As tor respondent, and, counting this vote,
! respondent had Is majority in the county
The uncertainty, then, must consist in the
fact that not all voted who were legally
entitled to do so, for if they or any or more
of them had voted, no man can say what the
n result would have been. But does it at
= Tentatively appear, from the petition, tina
h any Is of those entitled to vote were de
= tered from voting on account of the pre-
u mature closing of the polls. Possibly they
e may have been-but this is not certain
J, The very fact of uncertainty cast upon TIL
,e result is the groand on which the com
:, plainant seeks relief; and it is a rule o
pleading that that fact must certainly AM
=. affirmatively appear That fact must b
I'd directly charged, or else other facts mus
n be averred from which the Court can Sc
that the principal fact did certainly result
The only other facts are that the polls wer
closed, so that if any desired or attempte
b thereafter to vote, or would, otherwise
~ have attempted to vote, they could not hav
10 done so. But the IF remains did an
r so desire or attempt ?-or would they hay
I'd so attempted if the polls had not been pc
N manently closed ?
The court does not certainly know thl
III from anything in the petition. The a
81 gument of the petition is that the eiecto
p. were entitled to the whole day in which
as cast their votes, and that about one halt
those entitled to vote had not voted. b
, certainly they had the right to abstain
ly certainly some do always abstain
n often more than one-half This depen
on the Office to be filled, the activity OF Il
y. canvass the state of the weather, the co
dition of business, the accessibility OF t
polls, and other considerations.
Argument is not ayerment, and ave
ment is necessary.
nd 1t is said, in this case, that it is not pc
Isl sible to show how any 5 would have vot
ke, had they offered to do so, but if 1t we
true that any 3 were prevented from "
"n ing, by the premature closing Of the pol
it is, at all events, possible to prove tt
OF fact
lal- Judge Peasants referred at some leng
He to the opinion of our Supreme Court 10
ht- Dupage county case, in support of his vieV
any but the above comprises the substance
i Of his remarks though perhaps not always
mi his exact words.
ote The result is defeat of Mr.. Clelal
SEES. and this we presume will be the end of {
use, case, as the witnesses have been 81
les home.