15 N.E.2d 683 | Ill. | 1938
A township election was held April 6, 1937, in Salisbury township, Sangamon county, at which the poll-lists showed two hundred twenty-five electors voted. That township comprised but one voting precinct and only two hundred twenty-five of the electors voted for the candidates for the office of township supervisor. When the election officials opened the ballot-box it was found to contain two hundred twenty-six ballots and, of these, five bore no initials of a judge of elections. Without opening or unfolding these five, they drew one of the five ballots and sealed it in an envelope marked "Ballots objected to." They then counted all the other ballots, including the four remaining uninitialled ones. Rhodes was declared elected over his opponent Lacy by a vote of one hundred twelve to one hundred eleven.
In his suit in the county court of Sangamon county, to contest the election of Rhodes, Lacy did not charge fraud, but insisted that none of the uninitialled ballots should have been counted. The county court upheld this contention and declared him elected to the office by a vote of one hundred ten to one hundred nine. Rhodes has appealed from that decision.
The appellant contends that section 22 of the Australian Ballot law (Ill. Rev. Stat. 1937, chap. 46, par. 311, p. 1479) was declared to be directory and not mandatory by our decisions inWaters v. Heaton,
Section 22, supra, provides, in part, that one of the judges shall give each voter one and only one ballot, and that he shall endorse his initials on the ballot so that they may be seen when it is properly folded. Section 26 of the same act provides, in part: "No ballot without the official endorsement shall be allowed to be deposited in the ballot-box, and none but ballots provided in accordance with the provisions of this act shall be counted."
The Waters and Neff cases, supra, involved ballots initialled by one judge with the initials of another, and, under the facts presented in those cases, we held that such ballots were valid and should be counted. In the Waters case we referred to the different situation presented where a ballot bears no initials of an election judge, and our holdings that such ballots are void.
In Kelly v. Adams,
Although we held in both the following cases that uninitialled ballots were properly excluded, appellant relies on our language in Caldwell v. McIlvain,
In Sibley v. Staiger,
The appellant's remaining contention is that under section 57 of the General Election law, (Ill. Rev. Stat. 1937, chap. 46, par. 57, p. 1413,) it was error to draw one ballot out of the five uninitialled ballots rather than from the whole number, when it was discovered that the box contained one more ballot than the number of names on the poll-lists. He contends that because of the failure of the election officers to do this, the court should have withdrawn one ballot from the whole number, and should have destroyed it before the re-count.
Section 57 of the General Election law provides that if the ballots exceed in number the names entered on each of the poll-lists, the judges of election shall reject all unnumbered ballots, and if the number of ballots remaining still exceeds the number of names on the poll-lists, the ballots are to be replaced in the box; the box shall be closed, well shaken, reopened, and one of the judges shall then draw out and destroy "so many ballots unopened as shall be equal to such excess."
The appellant says that section 35 of the Australian Ballot law repealed all acts and parts of acts inconsistent with the provisions of that act, and that the reference to *171
numbered ballots in the General Election law is inconsistent with the later act and is, therefore, repealed. Where there is no cumulative voting for the particular office, we have held that a number, such as the figure 3, on a ballot, constitutes a distinguishing mark, (Hodgson v. Knoblauch,
In Talbott v. Thompson,
Judgment affirmed. *172