Blattner v. Dietz

• Decision Date: 03 April 1924
• Docket Number: No. 15832.,15832.
• Citation: 143 N.E. 92,311 Ill. 445
• Parties: BLATTNER v. DIETZ et al.
• Court: Illinois Supreme Court

311 Ill. 445

143 N.E. 92

BLATTNER

v.DIETZ et al.

No. 15832.

Supreme Court of Illinois.

Feb. 19, 1924.

Rehearing Denied April 3, 1924.

Suit by J. A. Dietz and others against Calvin J. Blattner. From a decree for plaintiffs, defendant appeals.

Affirmed.

Appeal from Madison County Court; Barney C. Overbeck, Judge.

Faulkner & Moore, of Granite City, and Alvin C. Bohm, of Edwardsville, for appellant.

Hiles, Newell & Brown, of Edwardsville, for appellees.

DUNN, J.

At the general election in November, 1922, Calvin J. Blattner was the Republican candidate for county clerk of Madison county, Joseph Hotz was the Democratic candidate, and Tony Acardi was the Farmer-Labor candidate. The returns of the election showed that Blattner received 11,893 votes, Hotz 11,696, and Acardi 902. J. A. Dietz, John Butler, and Joseph Hotz, electors of Madison county, filed a petition in the county court to contest the election, making Acardi and Blattner defendants. Acardi made default, and Blattner answered. The evidence was heard, the ballots were recounted, the court found that Blattner received 11,578 votes, Hotz 11,845, and Acardi 866, and entered a decree that Hotz was elected county clerk, from which Blattner appealed.

The grounds urged for the reversal of the decree are: (1) That the court counted ballots on which one of the judges of election had written his initials, but which were handed to the voters by another of the judges; (2) there was no evidence identifying the ballots from precinct No. 6 of Edwardsville township counted by the court as the ballots cast in that precinct; (3) the election at precinct No. 3 of Edwardsville township was void, and the vote of that precinct should have been excluded because one of the judges withdrew about noon and a little less than an hour later was replaced by another person whose authority does not appear; (4) ballots bearing distinguishing marks were counted for the appellee and ballots for the appellant bearing no distinguishing mark were not counted for him; (5) 139 ballots in precinct No. 3 of Venice township which should have been counted for the appellant were counted for the appellee.

1. Section 22 of the Ballot Act (Smith-Hurd Rev. St. 1923, c. 46, § 311) provides:

‘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.’

We have held that a ballot which bears no official indorsement of the initials by a judge of the election cannot be counted (Kelly v. Adams, 183 Ill. 193, 55 N. E. 837;Caldwell v. McElvain, 184 Ill. 552, 56 N. E. 1012), and that a ballot indorsed by one judge with the initials of another cannot be counted (Laird v. Williams, 281 Ill. 233, 118 N. E. 73). In this last case it was said that--

‘The statute is mandatory in its provision that the judge of the election must indorse his own initials upon the ballots that he hands out to the voters to be voted, and that ballots cannot be legally counted upon which a judge of election indorses the initials of another judge and hands them out to the voters to be voted and without indorsing his own initials thereon. The statute is evidently made mandatory for the purpose of preventing fraudulent voting, not only by means of the endless chain system of voting, but to prevent any ballot from being counted that bears a counterfeit indorsement of a judge's initials. By following the requirements of the statute each judge can generally readily recognize an indorsement of his own initials in his own handwriting, and much more readily than he can identifyas genuine his indorsement of the initials of some other judge, although in his own handwriting.’

In that case the case of Choisser v. York, 211 Ill. 56, 71 N. E. 940, is cited on this point, in which the court said:

‘The statute is, not only that the initials of one of the judges shall be placed upon the ballot, but that the particular judge who hands the ballot to the voter shall indorse his initials thereon.’

The court there had under consideration ballots that were stamped with the initials of one of the judges with a rubber stamp, and in Laird v. Williams, supra, the ballots under consideration were ballots on which the initials of one of the judges were written by another judge. Neither case was like the present, in which the ballots were identified by the initials of a judge who had himself indorsed them on the ballot, and the reasoning of those cases does not apply. Those cases did not require a holding that the particular judge who hands the ballot to the voter should indorse his own initials upon the ballot. The reason for requiring the indorsement is to prevent any ballot from being received or counted which is not identified by the genuine indorsement of the initials of one of the judges. It is true, the statute says that one of the judges shall give the voter a ballot on the back of which such judge shall indorse his initials, but the thing that is essential is that the ballot handed out shall be identified by the genuine indorsement of the initials of one of the judges upon the ballot, and not that the judge who hands the ballot out shall indorse his initials on the ballot. The thing sought is the certain identification of the ballot, and the indorsement of his initials by any one of the judges is as complete and satisfactory an identification whether he himself hands out the ballot or another of the judges.

In determining whether the provisions of a statute regulating elections are mandatory or directory, courts must consider the necessity or importance of the exact performance of the requirement of the law to secure the object the Legislature had in view. Whether a statute is mandatory or directory does not depend upon its form but upon the legislative intention, to be ascertained from a consideration of the entire act itself, its nature, its object, and the consequences which would result in construing it one way or the other. In general, statutes directing the mode of proceeding by public officers are deemed advisory, and strict compliance with their detailed provisions is not considered indispensable to the validity of acts done under them. Where a statute does not declare the performance of certain duties by public officials in connection with the election to be essential to the validity of the election, it will be regarded as mandatory if such matter affects the real merits, but will be considered directory only and not fatal to the election, unless they are such in themselves as to change or render doubtful the result. People v. Graham, 267 Ill. 426, 108 N. E. 699, Ann. Cas. 1916C, 391.

‘In an unbroken line of decisions this...