The Act of 1859, under which the election was held in this case, provides that in all cases when such election shall result in favor of the subscription herein authorized, it shall be the duty of the supervisor of such township to make such subscription, and to receive from said company the proper certificate therefor; he shall also execute, in the corporate names, and under the corporate seal of said township, the bonds of said township, and deliver the same to the president or secretary of said company, in proportional installments, as calls shall be made for payment of other subscriptions to the capital stock of said railroad company. Such bonds shall be signed by the supervisor, etc. (Session Laws 1859, p. 528.)
It will be seen, the supervisor has no discretion, should the vote be favorable to the subscription. The act is mandatory— “ it shall be the duty of the supervisor to make such subscription,” etc.—he “shall” also execute the bonds and deliver the same to the president or secretary of the coibpany, etc.—such bonds “shall” be signed by the supervisor, etc. His act is ministerial only, having no judgment to render, and no power to adjudicate. Stronger language of command need not be used.
To justify himself in refusing to make the subscription, the supervisor, in his return to the alternative writ, questions the legality of the election for the subscription, in these particulars :
1. That a majority of the legal votes cast at the election, in said writ mentioned, was not in favor of the subscription therein referred to, as in said writ is alleged, but was against said subscription.
2. That said election was not conducted according to law, as in said writ is alleged, but, on the contrary thereof, was conducted in violation of law, in this, to wit: that the polls were not closed at the hour of five o’clock p. m., as required by law, but were kept and continued open after said hour, on the said day of election, by the judges thereof, and after notice of the arrival of said hour and demand that the polls be closed by divers electors of said town, then and there present ; and this respondent further certifies to said court, that, after said hour on said day, and after notice thereof and demand as aforesaid, the said judges, with the knowledge, and at the request of divers servants and agents of the said relator, and against the protest and remonstrance of divers electors of said town, unlawfully, knowingly, and with intent to change the result of said election, from a vote against said subscription, to a vote in favor thereof, received, counted and returned twelve votes—all of which said twelve votes were in favor of said subscription, and the exclusion and rejection of which said twelve votes, or any nine thereof, would have defeated said subscription.
3. That said election was further fraudulent, and inoperative to oblige him to issue the bonds of said town for said subscription, in this, to wit: That the members of the Bishop Hill Colony, entitled to vote at said election, were about equally divided upon the question to be determined thereby, and being so divided, for the purpose of avoiding loss of time and labor and other inconveniences, it had been, and was agreed by and on behalf of said several parties, members of said colony as aforesaid, that none of said members would vote at said election, but would submit the said question to the vote of other electors of said town, voting at said election, of which said agreement the said judges, before the opening of said polls on said day, had notice; that before and at the time for closing said polls, as fixed by law, it became and was apparent, that a majority of the votes cast at said election were against said subscription, and thereupon the agents of said relator and the judges of said election, conspiring together and contriving and intending to prevent this result, fraudulently procured ten members of said colony of those who were in favor of said subscription, to attend and cast their votes for said subscription, in violation of said agreement, and although all the members of said colony who were opposed to said subscription were induced by the means aforesaid to withhold, and did withhold their votes at said election, and which said ten votes so cast, counted and returned by said judges, were necessary, with the other votes cast in favor of said subscription, to constitute, and did so constitute a majority therefor of all the. votes cast, received, counted and returned at said election; and this the said respondent is ready to verify, wherefore he prays judgment, etc.
To the truth of this return the defendant made an affidavit.
Upon the first two grounds of refusal, issues of fact were made up and tried by a jury, who found against the defendant. Objections were made, on the trial, to some of the evidence offered on the part of the relator, and exceptions taken by the defendant to the giving certain instructions for the relator, and also in refusing to give instructions asked by the defendant.
To the third objection presented in the return, the relator demurred, and the demurrer was sustained. These matters form the ground of the appeal, and we will dispose of them in their order.
The first objection. to the evidence arose on offering, by relator, a certified copy of the poll book of the election for the subscription. This poll book seems, from the copy, to be made out in reasonable conformity with the act authorizing the election. It was signed by the judges and clerk of the election, and filed in the clerk’s office of the County Court, and,: by him certified, under the seal of the court, to be a true copy. The statute on the subject, section 5, provides that it shall be the duty of the judges and clerks of said township election, at the close thereof, which shall be at five o’clock in the evening of said day, to certify at the foot of the poll books of said election the result thereof, and to deliver such poll books and certificates to the clerk of such township, whose duty it shall be to file one of the same in his office, and the other in the office of the clerk of the County Court of said county, within ten days from the day of such election. (Sess. Laws 1859, p. 528.)
The poll book as returned, .gives the name of each voter, with the number of his vote, then follows the tally of the judges an'd clerks, by which it appears the whole vote was 69, and the vote for subscription was 39, against subscription 30, and so certified and signed by the judges and clerks. The county clerk certifies, after copying the above in full, that “ the foregoing is a true and correct copy of an election held at the time and place and for the purposes therein specified.” This is somewhat informal, but it is substantially good, connected with the evidence of the clerk of the election that it was a true copy of the poll book, and identical with it, as made out at the time, as such.
. The twelfth section of the act of 1859, would, it would seem, cure this informality, for that provides that “ no neglect, omission, irregularity, informality, or want of technicality on the part of any persons authorized to carry out the provisions of this act, shall inure to the loss, defeat or disadvantage of said railroad company, or other holders of the bonds of said township, nor to the defeat or delay of [on] the subscription to the capital stock of said railroad company, etc., nor forLny other matter or thing done under or by virtue of this act, provided the provisions of the same shall have been substantially complied with.” (Session Laws 1859, p. 529.)
Matters of substance seem to have been all that is required, and this certified copy is, substantially, a copy of the poll book of that election. The result of the election fully appears by the tally marks and count of the judges and clerks, all which are plainly set forth and certified. i
Now as to the instructions given for the relator. They are as follows :
1. Whether a majority of the legal votes polled at the election in question, held at Bishop Hill, in the town of Weller, were cast in favor of subscription to the capital stock of railroad company in question, or not.
2. Whether the judges 'of said election knowingly, and with the wilful and unlawful intention of changing the result of said election, from a vote against to a vote in favor of subscription, and thus violating their duty, kept .open the polls of said election after the hour of five o’clock p. m.‘, at the instigation and request of the duly authorized agents or servants of said railroad company.
3. The certificate of the judges and clerks of said election, of the result thereof on the poll books of said election, is proper and complete evidence of said result, for the consideration of the jury, and to enable them to determine, in connection with the other proof, what was in fact the result of such election.
4. If the jury are satisfied, from the evidence, that a majority of the legal votes cast at said election, were cast in favor of said railroad subscription, they should render a verdict in favor of the plaintiff or relator, unless they also believe, from the evidence, that the polls of said election were corruptly kept open after the hour of five o’clock p. m. on the day of said election, wilfully and with the intent and purpose of disregarding the law and violating their duty, and that said polls were kept open at the instigation and request of said railroad company or their agents.
5. If the jury should believe, from the evidence, that the judges of said election kept the polls of said election open until after five o’clock p. m., on the day of said election, this alone will not defeat or affect the validity of said election, or establish the defendant’s defense, unless the jury shall also find, from complete and satisfactory evidence, that this was done at the instigation and request of the said railroad company, or its agents duly authorized to act in the premises, and the fact that the said railroad company was interested in the result of said election, alone, is no legal evidence what ever, to establish any improper act or interference on the part of said railroad company or their agents.
6. The presumption of law is, that judges of elections, and all other officers acting under the- authority of law, have done their duty and acted legally, and it is incumbent upon the party asserting the contrary, to prove satisfactorily that said judges and officers have violated their duty and disregarded the law.
7. It is the duty of the court and jury, under the provisions of the law applicable to the case, to give to the acts, conduct and certificates.of the judges and clerks of the election, and all other officers acting under the authority of the provision of the act incorporating said railroad company, and the act amendatory thereof, in reference to said election, or otherwise, a liberal construction, and to disregard every mere neglect, omission, irregularity, informality or want of technicality on the part of any person or persons authorized to carry out the provisions of said act, provided, only that they are satisfied “that the provisions of the same shall have been substantially complied with.” And if the jury are satisfied in this case, notwithstanding the irregularities, informalities, etc., attending said election, if any exist, or pertaining to the acts and certificates of said judges and officers, that the substance of the law has been complied with, and its substantial object and purpose attained, they will find in favor, and not against the validity of said acts and proceedings.
8. It is not incumbent on the plaintiff or relator, to prove a compliance on the part of said railroad company with all the pre-requisites and conditions provided by law preliminary to said election, but only such as are denied by the defendant’s return. And other facts stated in the petition and writ and not denied in the return, are in law to be deemed and taken as true.
9. In this case, it is necessary for the defendant to prove, to the satisfaction of the jury, that after the hour of five o’clock p. m., enough votes were cast at said election in favor of said subscription, to change the result from a vote in favor of to a vote against said subscription, in order to establish his defense.
The defendant also asked the court to instruct the jury as follows, which the court refused to do:
The burden in this case is upon the relator, to prove that the election in the town of Weller, on the 25th day of May, 1859, was a legal, valid election, by proving a substantial compliance with each and all the .provisions of the act of the legislature of this State authorizing it; and unless the jury believe, from the evidence in this case, that said act was so complied with, they should find a verdict for the defendant.
Unless the relator has proved to the satisfaction of the jury, by the evidence in this case, that the town of Weller, or some portion of it, is within four .miles of the located line of the railroad in question, they should find for the defendant.
Unless the relator has proved to the satisfaction of the jury, by the evidence in this case, that the sum of $12,800 does not exceed sixty cents per acre on the land embraced in the town of Weller, on the 25th day of May, 1859, they should find for the defendant.
Unless the relator has proved to the satisfaction of the jury, by competent evidence in the case, that previous to the alleged election, five or more of the voters of said town delivered to the town clerk thereof, or left at his place of residence, a requisition as required by the third section of the act aforesaid, they should find for the defendant. And the printed election notice attached to the poll book in evidence, is not, of itself, competent evidence of such requisition.
Unless the plaintiff has proved to the satisfaction of the jury, by competent evidence in this case, that the town clerk of said town, at least ten days before said election, gave notice of said election by posting, or causing to be posted, three notices thereof in three public places in said town, they should find a verdict for the defendant. And the printed notice referred to in the last preceding instruction, is not of itself competent evidence that such notice was so given.
Where, as in this case, the issue presents the question whether the votes cast at an election were legally cast, and consequently, whether the election was legally authorized, there is no presumption of the law that the officers of such election, or those calling the same, performed their duty.
We think the instructions asked by the defendant were properly refused, for the reason, that the matters contained in them were not in issue to the jury. The questions before them could only be the facts set up in the return to the alternative writ of mandamus, and they were, first, that the election was not conducted according to law, as alleged in the writ; second, that the polls were not closed until after five o’clock, and the charge that if the votes taken after that hour had been rejected, the election would have been against the subscription. All other facts stated in the petition of the relator, and in the alternative writ of mandamus, are admitted, except these two facts, and they were the only facts in issue to the jury, upon which they could pass, and, consequently, the only ones to which their attention could be directed by instructions from the court. Because points are made in argument, it does not follow, the court must instruct as to them, unless those points are in issue to the jury. No points having been made to the jury to which these instructions applied, they were properly refused. The issue being the taking of votes after five o’clock, by which the result of, the election was changed, shut out all inquiry whether the preliminary steps required by law to authorize the election, were taken or not, and so of all the other matters contained in the refused instructions which were alleged in the petition and alternative writ, and not denied by the return. This is a well established rule in pleading.
The plaintiff’s instructions give a fair exposition of the law of the case on the facts proved. A mere irregularity in conducting an election, which deprives no legal voter of his vote, and does not change the result, never has been held to invalidate an election.
The rules prescribed by the law for conducting an election, are designed chiefly to afford an opportunity for the free and fair exercise of the elective franchise, to prevent illegal votes, and to ascertain with certainty the result. Such rules are-directory, merely—not jurisdictional or imperative. If an irregularity, of which complaint is made, is shown to have deprived no legal voter of his right, or admitted a disqualified person to vote—if it casts no uncertainty on the result, and has not been occasioned by the agency of a party seeking to derive a benefit from it—it may well be overlooked in a case of this kind, when the only question is, which vote was the greatest, that for subscription or that against subscription.
The allegation of the defendant, that votes were cast after five o’clock, is not clearly established, and is not so found by the jury. Had it been so, it was necessary for him to show how they voted. We cannot presume one way or the other. This has not been shown, and it is impossible to say, if votes were received after five o’clock, such votes would have changed the result, and if they did not, it would be going very far indeed, to say, such an irregularity so vitiated the election as to render it void. If necessary, the aid of the twelfth section of the act before cited might be invoked, but it is unnecessary. On general principles, no election could be made void on such grounds.
How as to the matters growing out of the demurrer to the third branch of the defendant’s return, it is sufficient to say that the agreement therein set out between certain voters of the township to “ pair off,” and be absent from the polls, was of no validity, nor were the judges of the election required to regard it. The voters, notwithstanding the agreement, had the right to vote, and their votes when offered could not, legally, be rejected. But if the agreement was an illegal one, the relators are not shown to have been a party to it, or under any obligation to regard it, and therefore could not be assailed. Even if they had procured a portion of those who were a party to the agreement to come to the polls and vote for the subscription, they had a clear right to do so, the agreement having no binding legal obligation. This is the gist of the matter set up in that branch of the return. It has no substance, and the demurrer was properly sustained to it.
Upon the remaining point made by the appellant, that the act of 1859 is unconstitutional, we consider that settled by the decisions of this court. Johnson v. Stark County, 25 Ill. 75 ; Prettyman v. The Supervisors of Tazewell County, 19 Ill. 406.
The law giving the supervisor no discretion in this matter, a majority having voted for the subscription, a peremptory mandamus must be awarded.
Peremptory mandamus a/warded.