Laird v. Williams
| Decision Date | 19 December 1917 |
| Docket Number | No. 11827.,11827. |
| Parties | LAIRD v. WILLIAMS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Pike County Court; Paul F. Grote, Judge.
Election contest by U. T. Laird against Morris Williams. Judgment for defendant, and plaintiff appeals. Reversed.
W. E. Williams and A. Clay Williams, both of Pittsfield, for appellee.
At the spring election in April, 1917, for town officers U. T. Laird and Morris Williams were opposing candidates for the office of supervisor of the town of Pleasant Vale, in Pike county. Laird was the candidate on the Democratic ticket, and Williams was the candidate on the Republican ticket. At the close of the election the election board counted the ballots cast, and determined that out of a total poll of about 600 votes Williams was elected by a majority of 44 votes over Laird. Laird filed a verified petition in the county court of said county to contest the election of Williams. The court at its July term, 1917, after hearing the evidence submitted, found that Williams had received a majority of the ballots cast for supervisor over Laird, and that Williams was elected supervisor at the election and was entitled to the office, and entered an order and judgment accordingly and for costs against Laird, who has prosecuted this appeal.
At the hearing of the cause all of the judges of election and some other witnesses were sworn and testified. The evidence showed without any conflict therein, and the answer of appellee to appellant's amended petition admitted, that there were three judges of the election, to wit, S. W. Crewes, R. E. Funk, and J. N. McNary; that McNary acted as judge in the place of A. J. Kendrick, the supervisor, and at Kendrick's suggestion or appointment, who had declined to act as judge; that McNary did not hand out to voters, as such judge, any of the ballots voted at that election, but that all of the ballots were handed out to the voters by the other two election judges; that McNary sat near the ballot boxes and received the ballots from the voters as they voted and deposited them in the ballot boxes; that five of the ballots cast at that election had no initial or initials of any one of said election judges indorsed on the backs thereof; that each and every one of the other ballots voted bore on the back thereof the initials or letters ‘Mc,’ intended as the initials of McNary, and that they had no further initials thereon; that McNary did not write the letters ‘Mc’ on the back of any ballot ‘in his own handwriting,’ but that all of the ballots so marked or indorsed were indorsed by the other election judges, Crewes and Funk, i. e., by one or the other of them, with a lead pencil;and that the judges wrote said letters or initials on the backs of the ballots with the knowledge and consent of McNary. The evidence further showed that McNary was present at the ballot boxes during the whole of the polling period at said election, except for one short absence at dinner and another while he was getting a drink. Men and women voted at the election, and there was only one polling place in said town. The election judges Crewes and Funk indorsed about an equal number of said ballots with McNary's initials, ‘Mc,’ thereon. The evidence does not disclose for certain whether any of said ballots were so indorsed by them while McNary was absent. The reasons given by the judges in their testimony, over objection by appellant, for McNary not indorsing and delivering the ballots to the voters, were two: First, that he had before that day had an attack of paralysis, and could not ‘grip a pencil to do any good’; and, second, that in that town they had a practice or custom that the supervisor, or the judge acting in his stead, should place or cause to be placed his initials on the back of all the ballots. The letters or initials ‘Mc’ were so placed on the ballots aforesaid by common consent of all of said judges, and they were intended as the initials of McNary.
All of the ballots cast at said election were illegal, as contended by appellant. Sections 22 and 26 of the Australian Ballot Law (Hurd's Stat. 1916, pp. 1185-1887), so far as material in this case, provide as follows:
It is hardly possible for language to be used in the statute that would express the intention and direction of the Legislature in plainer and more positive terms than does the language of these two sections with reference to the indorsing of initials on the backs of the ballots by the election judges and with reference to the depositing and counting of the same. Those provisions are clearly mandatory. Section 22 positively provides that one of the judges of the election shall indorse his initials on the back of the ballot in such manner that they may be seen when the ballot is properly folded. The indorsement of his initials by another judge of the election is not a compliance with the provisions of this section. Section 26 just as positively provides that no ballot without the official indorsement shall be allowed to be deposited in the ballot box, and none but ballots provided in accordance with the provisions of the act shall be counted. It cannot be said that a ballot is officially indorsed when one judge of election writes another judge's initials on the ballot in violation of the section positively providing that the latter shall indorse his own initials thereon, and which is the official indorsement spoken of in section 26.
‘Whether a particular statute is mandatory or directory does not depend upon its form but upon the intention of the Legislature, to be ascertained from a consideration of the entire act, its nature, its object and the consequences that would result from construing it one way or the other.’ 36 Cyc. 1157.
‘When the statutory provision relates to acts or proceedings immaterial in themselves, but contains negative or exclusive terms, either express or implied, then such negative or exclusive terms clearly indicate a legislative intent to impose a limitation, and therefore the statute becomes imperative and requires strict performance in the manner prescribed.’ 36 Cyc. 1159.
If we follow these rules of construction, we are compelled to hold that section 26 is mandatory, and that we must exclude all ballots from the count that are not indorsed as the statute requires, i. e., by the initials of the judge who handed out the ballots. Section 26 positively provides, in substance, that no ballots not so indorsed shall be allowed to be deposited in the ballot box or counted.
This court has frequently held that said sections 26 and 22, with reference to the indorsement of the judge's initials, are mandatory. In Kelly v. Adams, 183 Ill. 193, 55 N. E. 837, after quoting section 26, the court said:
The ballot under consideration in that case did not have the initials of any judge indorsed thereon.
In Choisser v. York, 211 Ill. 56, 71 N. E. 940, this court said:
The court there had under consideration ballots that were stamped with one of the judge's initials with a rubber stamp, the stamp being used not only by himself, but by one of the other election judges also.
The question for decision in this case was before this court in the case of Winn v. Blackman, 229 Ill. 198, 82 N. E. 215,120 Am. St. Rep. 237. The decision of the case, however, did not turn upon that point, and the court did not decide it. One member of the court took no part in the decision of the case, and the other six members appear to have been evenly divided on the question.
We have no hesitancy in saying, after thoroughly considering the matter, 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...
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McDunn v. Williams, 74613
...initialling provisions are designed to prevent. Their purpose is to permit ready identification of legal ballots cast (Laird v. Williams, 281 Ill. 233, 238, 239 [118 N.E. 73] ); * * * to prevent the voting and counting of ballots that may have been surreptitiously obtained and copied (Kelly......
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Craig v. Peterson, 40835
... ... (See discussion in majority and dissenting opinions, Laird v. Williams, 281 Ill. 233, 238--239, 243--244, 118 N.E. 73.) Likewise the same considerations have been held to apply to absentee ballots in an ... ...