Champaign County IL Archives Court.....Carlo, V The People 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 23, 2008, 11:30 pm

Source: Records Of Cases Illinois
Written: 1850

Albert G. Carlo, plaintiff in error, v. The People, defendants in error.

Error to Champaign.

The proper mode of recovering a penalty from a person for voting, who does not 
possess the proper qualifications, is by an action of debt. (a)

The facts of this case are sufficiently stated in the opinion of the court.

A. Gridley and O. Peters, for plaintiff in error:

No indictment will lie against a person for voting, who is not qualified, but 
the remedy is by an action on behalf of the people to recover the penalty: 
Revised Stat., sec. 20, ch. 38.

The indictment is sufficient, because it does not show that the election at 
which the voting took place was a legal election, or an election held in 
conformity to law: nor that the vote was received or deposited in the ballot 
box, as required by the law of 1849; nor for whom he voted, whether for county 
officer or otherwise; nor that he knowingly, corruptly or willfully voted: 
McGuire v. The State, 7 Humph., 55; Lequat v. The People, 11 Ill., 330.

The indictment does not show what was the want of qualification, whether 
nonage, non-residence, etc.

D. Campbell, district attorney, for The People, cited: Rev. Stat., ch. 35, 
secs. 17, 20, 30, 40, 41; 2d Hawk's P. C., ch. 25, sec. 4; 1 Russel on Crimes, 
pp. 9, 44, 47, 48, 49.

Treat, C. J. The plaintiff in error was indicted and convicted, for voting at 
an election, without possessing the qualifications of a voter. The indictment 
was framed on the twentieth section of the thirty-seventh chapter of the 
Revised Statutes, which reads thus: "If any person shall vote at any election, 
who is not a qualified voter, he shall forfeit and pay any sum not exceeding 
fifty dollars, nor less than twenty-five, to be recovered in the same manner 
as other penalties under this chapter." Upon a careful consideration of this 
section in connection with the other provisions of the chapter, we are clearly 
satisfied, that the penalty is not recoverable by indictment. By a reference 
to the other parts of the chapter, the intention of the legislature will be 
apparent. There are five provisions in this chapter, in which the penalties 
are imposed for the violation of particular duties connected with elections, 
in each of which it is declared, that the party offending "shall forfeit and 
pay" a specified sum, "to be recovered by an action of debt."
 
The chapter also defines five distinct offenses, which are punishable by 
indictment. Of one, it is provided that the offender "shall be fined, in the 
sum of one hundred dollars, to be recovered by indictment;" of three, "he 
shall be liable to be indicted," and fined and imprisoned; and of the other, 
he "shall be liable to indictment," and "fined in any sum not exceeding one 
thousand dollars." The penalty in question falls directly within the first 
class of cases, and is recoverable in an action of debt, in the name of the 
people. The same language is employed in imposing this penalty, as in those 
for the recovery of which the action of debt is specifically given; and the 
direction as to the mode of recovering it, must be understood as referring to 
the remedy prescribed in these cases. 

The judgment will be reversed.

Judgment reversed.

---------------------
(a) When forfeitures or penalties are imposed by statute, and no form of 
action is given debt will lie: Vaughn v. Thompson, et al., 15 Ill., 39; St. L. 
A. & T. H. R. R. Co. v. Miller, Adm'r, 43 Ill., 190 (annotated edition) and 
note 1.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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