
    (No. 24945.
    Thomas S. Hayden, Appellee, vs. Frank E. Bacon, Appellant.
    
      Opinion filed December 20, 1938.
    
    Shelton F. McGrath, and Arthur B. Copeland, for appellant.
    C. E. McNemar, for appellee.
   Mr. Chief Justice Shaw

delivered the opinion of the court:

At the primary election held April 12, 1938, Thomas Hayden and Frank Bacon were opposing candidates for precinct committeemen for the second precinct of Chillicothe township .in Peoria county. As a result of the election Bacon received 89 votes and Hayden 82. Hayden filed a petition to contest the election in the circuit court and, after hearing evidence, the court entered a decree finding that the appellee, Hayden, was the duly elected committeeman, by a vote of 83 to So. Bacon prosecutes this appeal.

Five of the ballots cast for the appellant were not initialed by a judge of the election and these were deducted from his total vote. One ballot, which had been rejected by the judges, was a valid ballot and was counted for the appellee . bringing his total to 83. The action of the court in respect to these ballots is not questioned by the appellant but he does contend that the court erred in deducting four illegal ballots from his total and, instead, should have deducted two from each, relying upon our holding in Flowers v. Kellar, 322 Ill. 265, which states the general rule to be that where the evidence does not disclose the recipient of illegal votes, such votes will be eliminated by dividing them between the candidates in the proportions that the number cast for each bears to the total cast in the precinct.

The evidence with respect to these four illegal votes discloses that none of the four electors were legal residents of the second precinct but were brought to the polls in a car that was carrying voters for 'the faction represented by Bacon. The right of two of them to vote there was challenged by the appellee, and the other two by a judge, on appellee’s insistence. Affidavits that they were qualified voters in that precinct were made by the appellant and they were then allowed to vote. It is true that this is not direct evidence that these four ballots were cast for the appellant, but the trial judge saw and heard the witnesses and found they were cast for Bacon and that finding will not be disturbed.

Judgment affirmed.  