4 N.E.2d 41 | Ill. | 1936
At the election on November 6, 1934, appellant, Charles E. Heaton, and appellee, Harry L. Waters, were, respectively, the Democratic and Republican candidates for the *152 office of county treasurer of Douglas county. Heaton was declared elected by a majority of 25 votes. He received his certificate of election and qualified. On November 28, 1934, Waters filed a petition to contest the election. Heaton moved to dismiss the petition and challenged the sufficiency of it and of the verification. The circuit court of Douglas county overruled the motion. Heaton filed his answer, and after a re-count of the ballots the court found that Waters had been elected by 4004.86 votes to 3978.14, or a majority of 26.72 votes. This appeal followed.
Appellant takes the position that an election contest petition must be drawn, as well as verified, in the same manner and with the same requirements as a bill in chancery, and that the verification is bad because too few allegations are sworn to as being true in substance and in fact. He points out that the petition contains allegations as to facts of record (particularly in the tenth paragraph, where the result of the canvass is referred to,) which were known or readily accessible to appellee, and that because all the grounds of contest appear subsequent to the first five paragraphs, which alone are sworn to as being true in substance and in fact, the case presented is similar to one where the whole petition is verified on information and belief.
The material part of the affidavit reads as follows: "Harry L. Waters * * * upon oath * * * says that he is petitioner * * * and that the allegations of said petition contained in paragraphs 1, 2, 3, 4 and 5 * * * are true in substance and in fact and that as to the remainder of the matters and facts alleged in said petition this affiant is informed and believes that the same are true and states that the same are true upon his information and belief."
In the first paragraph Waters alleged that he was a citizen of the county and precinct (naming them) and had been for more than two years prior to 1934, and that on the date named he was a resident and legally qualified elector in said county and precinct. The second paragraph *153 says that the election was held on November 6, 1934, and that Waters and Heaton were candidates for the office of county treasurer, etc., and that their names appeared on the official ballot, etc.; that the election was in all respects regular and the ballots and returns were properly preserved. The third paragraph says that the polls closed as prescribed by statute and that the judges and clerks of election proceeded to tabulate the votes. Paragraph 4 contains the statement that after tabulating the votes the judges and clerks made return to the county clerk, etc. The fifth paragraph states the number and names of the precincts in Douglas county. Paragraphs 6 to 14, inclusive, contain allegations as to irregularities in voting, counting ballots for the wrong candidate, failing to count ballots for the petitioner, voting by disqualified persons, mistakes in counting and tabulating votes, etc. These paragraphs are sworn to only on information and belief. After alleging irregularities in the attempt of voters to cast their ballots under the absent voters statute, the allegation is made that as a result of the illegal and incorrect canvass, etc., Heaton was declared elected, but that if the votes were correctly counted they would show that Waters received 4533 votes to Heaton's 3438. Then follows the prayer for relief and process.
Appellee contends that by filing his answer after the trial court denied Heaton's motion to dismiss, the latter waived his objections to the sufficiency of the petition. Appellee citesHaley v. Reidelberger,
In MacGuidwin v. South Park Comrs.
In Smith v. Township High School District,
In Farrell v. Heiberg,
The verification and allegations of the petition were sufficient, and this contention must be overruled.
The only point urged by the appellant that we need consider is that with reference to the validity of ballots initialed by one judge with the initials of another judge of election.
The contestant showed that a few persons voted who were not entitled to vote; that in several precincts the ballots *156 issued by the county clerk to persons who sought to vote in accordance with the Absent Voters act were put into the respective ballot-boxes by election judges without being initialed, and that in two precincts, referred to later, one of the judges initialed ballots with the initials of another judge. In the first of these precincts (Camargo No. 2) contestant claimed there were 140 such ballots, and in the other (Garrett precinct No. 1) that there were 46. However, the number of ballots cast by persons not entitled to vote and of uninitialed ballots was not sufficient to upset the returns, in view of the division of the two kinds of ballots between the two candidates. In the Camargo precinct the trial court found 47 ballots cast for Waters had been initialed by one judge with the initials of the other, and that 80 cast for Heaton should be excluded for the same reason. In the Garrett precinct, Waters lost 17 and Heaton 29 votes on this account. This net loss of 45 votes to Heaton reversed the result of the election.
Appellant contends that the provisions of the act with reference to the initialing of ballots are not mandatory but are directory, and that where there is no fraud shown, as in the case before us, a non-compliance by the judges of election does not invalidate the ballots. In Perkins v. Bertrand,
In Behrensmeyer v. Kreitz,
In Hehl v. Guion,
We have held in such a case that uninitialed ballots must be rejected, (Slenker v. Engel,
No great ingenuity is required to make use of the holdings that ballots are thus rendered void and to thwart the will of the voters in any political subdivision. In a close election, through seeming courtesy, one judge of either political party in a single precinct could initial ballots with the initials of another unsuspecting judge and hand them to voters whose political party affiliation is known to the judge doing the endorsing until a sufficient number of ballots would thus be made void to change the entire result of the election. It has been said that it is the duty of the voter to determine whether the ballot handed to him is a proper one and that it is properly initialed, etc., but in the case before us the two judges of election and an expert on handwriting could not agree as to what ballots were such as a voter was entitled to receive and to cast.
The section of the statute as to the initialing of ballots contains no words stating that votes shall not be counted if they are not initialed in strict conformity with the statute. In the absence of proof of fraud or other improper conduct which would affect the result of the election, the statutory provisions, and the section itself, should be held to be directory and not mandatory, and this in spite of the fact that we have held ballots initialed by one judge with the initials of another to be illegal and therefore void in many cases. The words of the section, so far as material, are as follows: "One of the judges shall give the voter one, and only one ballot, on the back of which such judge shall indorse his initials in such manner that they may be seen when the ballot is properly folded, and the voter's name shall be immediately checked on the register list." State Bar Stat. 1935, chap. 46, par. 225; 46 S. H. A. 311. *160
Statutes giving directions as to the mode of conducting elections will generally be construed as directory unless a failure to comply therewith is expressly declared to be fatal. If such statute merely provides that certain things shall be done in a given manner and time and there is no declaration that conformity to these provisions is essential to the validity of the election, the statute will be construed to be directory and not mandatory. No discretion is given where the terms of the statute are peremptory and explicit and where penalties are imposed against a violation of the terms of the act, the penalties have the same effect as express negative provisions in the statute. 20 Corpus Juris, 181;Kreitz v. Behrensmeyer,
We hold that the ballots in Garrett precinct No. 1 and Camargo precinct No. 2, which were initialed by one election judge with the initials of another such judge, should have been counted for the candidates for whom these ballots were cast and that it was error to exclude them.
Such cases as Laird v. Williams,
The judgment of the trial court is reversed, and appellant, Charles E. Heaton, is declared elected county treasurer of Douglas county by 4087.14 over appellee, Harry L. Waters, who received 4068.86 votes.
Judgment reversed.
STONE and WILSON, JJ., dissenting. *161