247 Ill. 176 | Ill. | 1910
Lead Opinion
delivered the opinion of the court:
The decision of this case depends upon whether the election for the establishment of the township high school was a legal election. Appellants insist that the election was illegal on account of the form of the ballot used. Both-parties agree that the election was not required to be held under the Australian Ballot law, and no official ballot was therefore required to be provided by the officers having charge of the calling and holding of an election. It is contended, however, by appellants that no other ballot than the one in the form set out in the statement preceding this opinion was used by any of the voters at said election; that this ballot was provided by the authorities calling the election, to which was appended the name of the township clerk, and the voters were therefore led to understand and believe that the ballot so prepared was the ballot required to be voted by those who wished to vote at said election. If the decision of the case depended alone upon whether the ballot as prepared and voted is ambiguous and misleading we would be disposed to hold that the election was not a valid election. While the voters were required to vote upon the proposition for or against the establishment of a township high school, the ballot was required to be in such form as to show, with reasonable certainty at least, how the voter intended to vote upon the proposition. It does not appear by any means clear that by making a cross after the word “yes” on the ballot as here prepared the voter intended to vote for the establishment of the school. In effect it was the same as submitting the question, in the form of an interrogatory, as to whether the voters were for or against the establishment of the school. A vote “yes” would indicate that the voter was for or against it, but which would not very clearly appear. A vote “no” would indicate that he was neither for nor against the establishment of the school, and would fall short of being a vote against its establishment in the form in which the question was submitted. If the ballot had been prepared “For the establishment of a Township High School” and “Against the establishment of a Township High School,” and a square had been left after each proposition, in which the voter could indicate by a cross how he voted upon the question, it would have been free from ambiguity. While the law did not require that the ballot should be prepared in the form suggested, it should have been so prepared, whether furnished by the election officers or provided by the voters themselves, that it would not be uncertain and ambigaious, but would indicate with reasonable certainty how each voter intended his ballot to be counted.
To explain how the voters understood the ballot should be marked to vote “for” or “against” the proposition and how they intended their votes should be counted, respondents presented affidavits of 180 of them, that being more than half of the voters who voted'at said election. These affidavits stated that the affiants favored and intended to vote for the establishment of a township high school; that they understood a cross in the square after the word “yes” was a vote for establishing the school and a cross after the word “no” was a vote against it, and that they made a1 cross in the square after the word “yes,” meaning and intending thereby to vote for the establishment of a township high school. Appellants contend that these affidavits were not competent to be considered by the court and should have been stricken from the files; that the proposition voted upon should have been stated in such clear and unmistakable terms as to remove all ambiguity and uncertainty, so that the voter would understand how to express his intention and so that it would clearly appear from the ballot how each voter intended to vote, and Harvey v. Cook County, 221 Ill. 76, is relied on to support that contention. In that case there was no question of the competency of evidence to explain the intention of the voter. The form of ballot to be used ip the election contested in that case was provided by the statute. A ballot prepared in the form pre-scribed would have been clear and unambiguous, and the voter could not have failed to understand how to mark his ballot so as to give effect to his intention. By the addition to the ballot, as prepared and voted at the election, of the words “yes” and “no,” which were not prescribed by the statute, its meaning was so changed that a voter desiring to vote against the proposition submitted could not do so by voting “no.” A ballot so marked, it was held, would indicate that the voter 'was not against the proposition, while a ballot marked to show the voter voted “yes” was clearly a vote in favor of the proposition, and the court said: “There was no clear and unmistakable way of voting against this proposition. Fairness and equal opportunity to all voters to express their choice required that a vote in the negative could be as clearly and certainly indicated as could a vote in the affirmative.” In the case now under consideration the ballot gave no advantage to either side of the proposition. Literally, a ballot marked “yes” indicated the voter was for or against the proposition, while a ballot marked “no” indicated that the voter was neither for nor against the proposition submitted. Notwithstanding that literal meaning, a majority of all those who voted at the election made affidavit that they understood a vote “yes” meant a vote to establish a township high school and that they voted accordingly, intending their votes to be counted in favor of the proposition. They were hot deceived or misled nor prevented from voting. ■ Appellants presented the affidavits of three voters that they were opposed to establishing a high school, but being unable to determine how to mark the ballot to express their intention they did not vote. If it was competent for respondents to show by the voters the matters set up in the affidavits filed by them, on 'the showing made the court was justified in refusing leave to file the information. We are of opinion the principles announced in McKinnon v. People, 110 Ill. 305, and Behrensmeyer v. Kreitz, 135 id. 591, sustain the competency of the affidavits to be considered by the court in passing upon the motion for leave to file the information.
It appears from the petition that at the election held for the purpose of voting on the question 334 votes were cast, and 252 of the ballots were marked with a cross in the square after the word “yes” and 82 after the word “no.” Ballots marked with a cross after the word “yes” were counted for the establishment of a township high school and those marked “no” against it. The 180 voters who made the affidavits constituted a majority of all those who voted at the election, and it is not shown that there were more than three voters who did not vote because they did not know how to mark the ballot. The voters were not restricted to the ballot prepared by the election officers. If they did not know how to mark it they were at liberty to prepare a ballot in such form as to express their sentiment upon the proposition submitted. The ruling of the court in considering the affidavits was justified by the authorities above cited and was in the interest of justice, as it gave effect to the will of the voters. Doubtless cases may arise where it would not be proper to consider the testimony of voters as to what they intended, but such is not this case. Whether leave shall be granted to file an information in the nature of quo warranto is in a large measure within the sound discretion of the court. Such discretion, however, is not to be exercised arbitrarily but in accordance with principles of law. People v. Town of Thornton, 186 Ill. 162; People v. North Chicago Railway Co. 88 id. 537; People v. Waite, 70 id. 25.
We think there was no abuse of discretion in denying leave to file the information in this case, and the judgment of the circuit court is affiáned.
Judgmmt affirmed.
Concurrence Opinion
I concur in the conclusion reached in the foregoing opinion, but I do not think that the affidavits of the voters were admissible in evidence to show the meaning they placed upon the ballot in question.
Dissenting Opinion
dissenting.
