I am unable to agree with the majority opinion in so far as it holds that 43 of the 46 absent voters' ballots were illegal. The far reaching effect of the opinion, and its importance to the general public, impels me to state the grounds of my dissent. Three of the 46 absentee ballots were cast by persons found not to be legal voters. This leaves only 43 to be considered.
The majority opinion holds that the applicable provision of the Absent Voters act is mandatory and a failure of the voter to comply with that provision renders the ballot illegal, solely because it is mandatory.
Section 6 of the Absent Voters act (Ill. Rev. Stat. 1939, chap. 46, par. 467) provides that the ballot, after it has been marked and sealed by the voter, shall be mailed by him, postage prepaid, to the officer by whom it was issued. There is no declaration in the statute that conformity with this provision is essential to the validity of the ballot so voted. The holding of the majority opinion that this provision is mandatory is not based on the ground that conformity *Page 438 therewith is essential to the validity of the ballot, but solely on the ground that it is held to be peremptory in form and that a penalty is provided for its violation. Laying aside for the moment any question as to whether this particular provision of the statute is directory or mandatory, which, according to my view, is wholly immaterial, as I read the statute, no penalty is provided to be imposed upon a voter who merely fails to return his ballot to the officer by whom the same was issued, strictly in the manner provided in section 6 of the act. The penalties provided by the act are found in section 13. (Ill. Rev. Stat. 1939, chap. 46, par. 474.) That section provides inter alia: "If any person who having procured an official ballot or ballots as heretofore provided, shall wilfully neglect or refuse to cast or return same in the manner heretofore provided, or shall wilfully violate any provision of this act, he shall be guilty of a misdemeanor," etc.
This section does not impose a penalty upon an elector for his mere failure to return his ballot in the manner, or by the agency, provided in the act. The penalties are imposed only upon the elector who "wilfully" neglects or refuses to do so. The word"wilfully," when used in connection with a penal statute, has a definite, fixed and accepted meaning. It means not merely a voluntary act, knowingly done, but an act committed with an evil intent. Odin Coal Co. v. Denman, 185 Ill. 413.
In 68 Corpus Juris, p. 290, section 4, it is said that the word "wilfully," when used in connection with a criminal or penal provision of a statute, has an accepted and restricted meaning and denotes an evil or criminal design and intent. In support of that definition, literally hundreds of cases are cited from practically every State in the Union, together with decisions of the Federal courts, textbooks and law dictionaries. Under this universal rule the voter who violates the letter of section 6 of the Absent Voters act by permitting someone else to actually deposit his ballot *Page 439 in the mails, instead of mailing it personally himself, is not subject to a penalty under section 13 of the act, unless such act on his part is for an unlawful purpose and is accompanied by an evil or criminal intent. With this analysis of the penal section of the act, the whole basis on which the majority opinion is grounded disappears.
There is here no claim by anyone that either of the 43 absent voters, in authorizing someone else to deposit his ballot in the mails, was actuated other than from the most lawful and laudable purposes. His sole purpose was not to violate the law or to perpetrate a fraud, but to insure compliance with the law and to prevent the recurrence of acts which he believed had theretofore occurred in his county, in connection with prior elections. Under the facts shown here, no one would contend that he committed any crime or did, or omitted to do, any act for an unlawful purpose or with an evil or criminal intent. He did nothing which would subject him to a penalty under any reasonable construction of the act. No one of the 43 voters here involved committed any act which would subject him to the penalties of section 13. This statutory provision cannot, therefore, be held to be mandatory because a penalty is provided for any omission charged against the 43 voters here involved. There is no such penalty provided in the entire act.
As I view it, the requirement of the statute that the voter shall mail his ballot is purely directory. The failure to comply with the letter of the statute may, or may not, render the ballot illegal, depending on whether or not such failure affects the result of the election. It is not, and cannot be, contended in this case that the result of the election would have been any different had each of the 43 absent voters personally mailed his ballot, or delivered it personally, to the clerk, in strict compliance with the letter of the statute. Indeed, the only purpose here is to change the result of the election by invalidating the ballots and *Page 440 disregarding them in arriving at the result. The result of the contentions here made, if sustained, would not be to purge the election of fraud or fraudulent votes, but, by construction, to create a fraud by which legal voters will be disfranchised and the will of the majority expressed in the election defeated and set aside. A salutary provision of the statute designed to prevent fraud would be converted into a vehicle of fraud. It is not only conceded but proved by appellant, and stipulated by appellee, that all of the 43 ballots in question were voted for appellee. The majority opinion expressly so finds. It is also established, and not controverted, that no one of these ballots had been opened, changed, or tampered with. They were still sealed as the voter sealed them. It is clearly shown, and not disputed, that they reached the hands of the judges on the day of the election in exactly the same condition they were in when they were marked by the voters and by them sealed in the envelopes in which they were delivered to the judges of the election.
It should be remembered that there was no re-count of the ballots. The returns of the election officials were accepted as correct by all parties. Each of the parties relied upon his ability to show that illegal ballots were cast and counted for his opponent. No effort was made to impeach the official returns except to deduct therefrom alleged illegal votes. In this situation appellant undertook to show that as to the 43 absentee ballots counted for appellee, the voters did not mail the ballots personally to the clerk and nothing more. The record shows that each of the 43 voters involved was a legal voter and was entitled to an absentee ballot; that he made proper application therefor; that the ballot was issued to him; that he complied with every provision of the statute by marking his ballot in the presence of an officer authorized to administer oaths, and that he then, in the presence of such officer, sealed his ballot in the envelope provided for its return, strictly in the manner provided *Page 441 by statute. Up to this point there is no contention that every act taken in connection with each of the ballots involved was not strictly legal and in conformity with both the letter and spirit of the statute. When the ballots were sealed in the envelopes provided for their return, each of these voters departed from the strict letter of the statute and instead of the ballots being actually deposited in the mail by the voters themselves they were left with other legal voters, with instructions to preserve the ballots and to mail them to the officer by whom they were issued, as provided by statute. Their purpose in doing this is explained in the record by the testimony of many of the voters themselves and other witnesses. There had been rumors in connection with prior elections in the county that ballots had not always been preserved in the office of the county clerk with that degree of strictness required by statute. This is not necessarily a reflection on the county clerk. Anyone who has practiced law in rural counties for any considerable period of years, and who has been engaged in election contest cases, knows that generally the office of the county clerk in which he conducts his business has neither the space nor the equipment to enable him to preserve ballots in the manner required by statute. Both before and after the election they are kept in such places as are available and not then in use for other purposes. The rumors current in Clark county were no different from the rumors and facts existing in many other like counties. These 43 voters, for the sole purpose of insuring a compliance with the law that their ballots might be properly preserved and their right of suffrage be not denied, failed to follow the strict letter of the statute but adopted what they honestly believed to be a safer method for the return of their ballots. They left them with an agent whom they trusted, to be, by him, mailed in time to reach the office of the county clerk so that they could be delivered to the judges of election on the day of the election. As a further *Page 442 precaution that the ballots should not be tampered with, transparent adhesive tape was placed over the sealed flap of each envelop in order that the envelopes could not be opened without detection. It cannot be said, as I view it, that this conduct on the part of the 43 voters involved was accompanied by any evil or criminal intent, or with any purpose to violate the statute. It certainly would not subject them to the penalties provided therein. On the contrary, it is established beyond question that they were moved only by a desire to prevent a violation of the law and only had the most laudable and commendable purposes in mind. Their ballots reached the judges of election in the various precincts in exactly the same condition they were in when they left the hands of the voters. Whether the ballots were mailed by the voters themselves, or by their designated agent, had no effect whatever on the result of the election. Neither can it be said that anything they did in any way violated the secrecy of the ballot. Their ballots went into the ballot boxes inviolate and untampered with. They were counted exactly as they were marked and cast.
Whether the statutory provision involved was "mandatory" or "directory" is a matter of no importance. As this court well said, in Siedschlag v. May, 363 Ill. 538, strictly speaking all provisions of the election laws are mandatory in the sense that they impose the duty of obedience on those who come within their purview, but it does not therefore follow that every slight departure therefrom should taint the whole proceedings with a fatal blemish.
The question here is not whether the statutory provision in question is mandatory or directory, but is: Did the failure to comply with the letter of that provision affect the result of the election? It has been the trend of the decisions of this court for many years in election contest cases to discard technical and outmoded rules and to determine by logical and reasonable processes the result of an election. It has been held in many cases that the failure *Page 443 to observe some provision of the statute which does not in any way affect the result of the election will not be considered as invalidating the election or the ballots cast therein. This rule was particularly applied in the late case of Talbott v. Thompson,350 Ill. 86. There the ballots had not been preserved in the manner provided by statute. No one would contend that the provision of the statute for the preservation of the ballots was not equally as mandatory as the provision of the statute here involved. For a violation of that provision a definite penalty is provided. In that case the ballots were kept in an unlocked room or vault to which the public had access at all times during business hours. The court found that there was reasonable opportunity for interference with the ballots by unauthorized persons. The court rejected the ballots in the eight bags which were found open; however, as to all the bags on which the seals had not been broken the ballots contained therein were held to be legal ballots and considered and counted by the court. The rule followed was that even though the statute had been violated in regard to the preservation of the ballots, and the ballots had been exposed and an opportunity given to unauthorized persons to tamper with the same, nevertheless, as to the bags on which the seals were intact this was conclusive proof that the ballots had not been tampered with and that they should be considered and counted, and that their probative force as evidence was sufficient to overcome the official returns of the judges of election. Under this rule, even where the law has not been followed, if it appears that the result of the election has not been affected and would have been no different had the law been strictly observed, such violations or omissions will be regarded as mere irregularities not affecting the result.
This rule particularly applies in this case, as I view it. Here, there is no claim that what these voters failed to do, in compliance with the strict letter of the statute, resulted *Page 444 in destroying the secrecy of the ballot or changed the result of the election. Any attempt, therefore, to distinguish between mandatory and directory provisions Of the statute is a mere technical distinction which has not been followed by this court, and places an unwarranted emphasis on an unimportant provision of the statute.
In the case of Siedschlag v. May, supra, this is clearly demonstrated. In that case seven absent voters' ballots were involved. It was proved and found by this court that these ballots were never deposited in the ballot box. There was also a question there raised as to whether the ballots were initialed by a judge of election. It has been held in many cases that the provision of the statute requiring a judge of election to initial the ballots is mandatory and without such endorsement the ballots cannot be counted. It was also held in Siedschlag v. May, supra, that the failure of the judges to deposit the ballots in the ballot box was the violation of a provision which was directory only and did not affect the validity of the ballots, notwithstanding the provision requiring the ballots to be initialed by a judge of election and the provision requiring them to be deposited in the ballot box, are found, not only in the same section of the statute, but in the same sentence of that section, (Ill. Rev. Stat. 1939, chap. 46, par. 470,) and notwithstanding the same penalty is provided for their violation. Ill. Rev. Stat. 1939, chap. 46, par. 474.
In the above case the court quoted with approval from the case of Jones v. State, 153 Ind. 440, as follows: "All provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose, but after election all should be held directory, only, in support of the result, unless of a character to affect an obstruction to the free and intelligent casting of the votes or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or *Page 445 unless it is expressly declared by the statute that the particular act is essential to the validity of an election or that its omission shall render it void."
As I view it, the rule deducible from all the decisions is that the effect on the legality of a ballot, or an election, of an omission to strictly observe a provision of the statute, cannot be determined by any attempt to classify the provisions as "mandatory" or "directory," by any technical or conventional rule.
The purpose of an election is to ascertain the will of a majority of those entitled to vote in such manner as to preserve the free expression of the voter and at the same time protect the secrecy of the ballot. Any failure to follow the strict letter of the statute, either on the part of the voter or election officials, which does not affect such free expression or destroy the secrecy of the ballot, and which does not alter or change the result, should not be held to invalidate either the election or ballots cast therein. This is the rule announced in Siedschlag v.May, supra.
In the cases of Laird v. Williams, 281 Ill. 233, McNabb v.Hamilton, 349 id. 209, and Blattner v. Deitz, 311 id. 445, it was held that ballots endorsed by one judge with the initials of another could not be counted. Nearly twenty year later, in the case of Waters v. Heaton, 364 Ill. 150, those cases were expressly overruled. This court refused to follow the rule of those cases further. In that case, speaking with reference to the peremptory requirements of the statute that one of the judges of election "shall endorse his initials" on each ballot, it was said: "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 *Page 446 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."
In Hodge v. Linn, 100 Ill. 397, it was said that any irregularity not proceeding from any wrongful intent and which deprived no legal voter of his vote, and which did not change the result, will not invalidate the election or the ballots cast. This holding was cited and approved in Behrensmeyer v. Kreitz,135 Ill. 591. In People v. Graham, 267 Ill. 426, it was held that the failure to provide necessary polling places, as required by the peremptory provisions of the statute, was a mere irregularity which did not affect the result. In Talbott v. Thompson, supra, it was held that ballots which had not been properly preserved, but which had been exposed to unauthorized persons with ample opportunity to tamper with them, where it was shown they had not in fact been tampered with, were properly counted because the irregularity did not affect the result. Many other cases in which like holdings are found might be cited. Certainly the irregularities in each of those cases were violations of statutory provisions equally peremptory and mandatory as the requirement in section 6 that the voter shall personally mail his ballot after it is marked and sealed by him. In none of the cited cases was the proof any more conclusive that the irregularity did not affect the result.
The construction placed on this statutory provision by the majority opinion disfranchises the 43 legal voters involved in this case, notwithstanding their ballots were properly and legally marked and sealed by them, and which ballots, it is conceded, were preserved and delivered to the judges of election in the same condition they were in when they left the voters' hands. Moreover, it will hereafter disfranchise every elector unavoidably absent from his precinct who is confined in a hospital or for any cause is unable to go to a post-office or mailbox and deposit his absent voter's ballot in person. *Page 447
In my opinion, if the legislature contemplated a construction which would lead to such absurd consequences it would have found more appropriate language in which to express its intention, and would have definitely provided that the failure of the voter to personally mail his ballot would invalidate his vote.
Giving to appellee the 43 votes cast for him by the absentee ballots, to which, in my opinion, he was clearly entitled, he was elected by a majority of 19 votes.