dissenting:
We have been unable to concur in the opinion prepared by Mr. Chief Justice Hand.
In Independence precinct the vote as counted and certified by the election judges gave York 201 votes and Choisser 104 votes. After the return from this precinct had been properly made and sealed up, one of the judges, W. T. Glass, took possession of the returns that were to go to the county clerk and Secretary of State, carried them to the house of a man by the name of Jenkins, put them on a bed and left them there until eight or nine o’clock the next morning, and finally on that day delivered one set of the returns to the county clerk about two o’clock P. M. In the meantime someone in York’s interest, without the consent of the election judges, fraudulently altered the returns so that they showed that York’s vote was 205 and Choisser’s 101 in this precinct. The canvassing board gave to.each the number of votes shown by the mutilated returns, and reached the conclusion that York had received 2086 votes and Choisser 2083 votes in the county, and thereupon declared the former elected. Had the returns of Independence precinct been canvassed as made by the election judges, the result of the canvass would have shown that York received 2082 votes and Choisser 2086 votes in the county. It appears that the unlawful alteration of the returns from this precinct deprived Choisser of the certificate of election and resulted in the same issuing to York.
In the trial of this contest below the following" result was declared by the court in the various precincts of the county:
For Choisser. For York.
Tate precinct.............. ...118 62
Galatia precinct............ ...108 155
Brushy precinct*............. ...162 91
Carrier Mills precinct....... ...213 105
Stone Fort precinct......... ...60 109
Long Branch precinct...... ... 94 70
Raleigh precinct............ ...238 115
Harrisburg No. 1 district.. ...110 304
Harrisburg No. 2 district----...167 341
Independence precinct...... ...101 200
Rector precinct............. ...105 49
East Eldorado No. 1 district ...186 144
East Eldorado No. 2 district ...172 101
Cottage precinct............ ...119 73
Mountain precinct.......... ...120 101
Total.................... ..2073 2080
From the vote of Choisser the majority opinion in this court properly deducts the vote of George Abney and 10 other votes in Harrisburg district No. 2, which would leave his vote at 2062, and properly deducts from the vote of York 20 votes in the same district, which would leave his vote at 2060 and give Choisser two majority, but in addition to this the majority opinion, improperly, as we think, rejects the entire vote of Carrier Mills precinct, thereby reducing Choisser’s vote to 1849 and York’s vote to 1895, resulting in a majority of 46 for the latter, and the conclusion is thereby reached that the appellee, York, was duly elected to the office of county superintendent of schools. This results from the holding that all the votes cast at the precinct of Carrier Mills should be rejected and not counted, for the reason the initials of one of the judges of the election at that poll were, it seems, placed on the ballots with a stamp. This ruling deprives the legal voters of Carrier Mills of the right to have the votes cast by them at that election counted because of the honest mistake of an election officer in believing that he could endorse his initials on the ballots with a stamp. If this holding be correct, the right of legally qualified electors to exercise the elective franchise may be taken away from them without any wrongful act or negligence on their part, by the honest mistake of an election officer as to the true construction of a provision of the statute. It would also follow that the like disfranchisement of voters might be accomplished by the fraud or wrong of such an officer. If the ruling be correct, the right of every legal voter to cast his ballot and have it counted is held in the hands of and is at the mercy of the judges of the election. We cannot assent that an election officer, by intentional fraud or wrong or by innocent misconception of the true meaning of the statute, can deprive legally qualified electors of the right to vote.
The right to vote is created by the constitution of the State. Section 1 of article 7 of the constitution of 1870 reads as follows: “Every person having resided in this State one year, in the county ninety days, and in the election district thirty days next preceding any election therein, who was an elector in this State on the first day of April, in the year of our Lord 1848, or obtained a certificate of naturalization before any court of record in this State prior to the first day of January, in the year of our Lord 1870, or who shall be a male citizen of the United States, above the age of twenty-one years, shall be entitled to vote at such election.” Section 7 of the same article empowers the legislature to exclude from the right of suffrage persons who have been convicted of infamous crimes, and according to the familiar rule of construction, the grant of power to deny the elective .franchise to those convicted of infamous crimes implies the denial of power to deprive one who is entitled to vote under the first section of the article, of that right for an;r other reason than that he has been convicted of an infamous crime. The denial of power to exclude voters for any other cause is declared by a rule of construction that is so fundamental and uniformly established as to make any citation of authorities entirely useless. The right to vote being a constitutional right, it cannot be taken away by legislation, and the right to vote carries with it the right to have the vote counted. (McCrary on Elections, sec. 48; Moyer v. Van de Vanter, (Wash.) 41 Pac. Rep. 60; Attorney General v. Detroit, 78 Mich. 545.) The General Assembly, it is freely conceded, may prescribe reasonably proper and necessary regulations controlling the manner and mode of exercising the right, but regulations which destroy or substantially impair the constitutional privileges of the elector by reason of the mistake or fraud of an election officer are beyond the power of the legislature, and cannot be enforced because in contravention of the organic law of the land. (McCrary on Elections, sec. 133; Moyer v.Van de Vanter, supra; Attorney General v. Detroit, supra; Monroe v. Collins, 17 Ohio St. 665.) In the latter case it was said,, in substance: The legislature have no power, directly or indirectly, to deny or abridge the constitutional right of citizens to vote or unnecessarily to impede its exercise, and laws passed professedly to regulate its exercise or prevent its abuse must be reasonable, uniform and impartial.
In Moyer v. Van de Vanter, supra, it is said: “Can the legislature enact a law whereby election officers can practically disfranchise all the electors of a precinct, where the electors themselves are not at fault? If so, the constitutional guaranty is of small consequence. * * * The individual voter may well be called upon to see that the requirements of the law applying to himself are complied with before casting his ballot, and if he should willfully or carelessly violate the same there would be no hardship or injustice in depriving him of his vote; but if, on the other hand, he should in good faith comply with the law upon his part, it would be a great hardship were he deprived of his ballot through some fault or mistake of an election officer in failing to comply with a provision of the law over which the voter had no control. It is also a question in which the public has a direct and important interest, for the loss of such votes may have a controlling effect upon a public matter. The constitutional provision aforesaid .guarantees the right to vote, and this, of necessity, carries with it the right to have the vote counted. Of course, the manner of voting and canvassing votes must be subject to all reasonable legislative requirements.”
In Attorney General v. Detroit, supra, it was said: “The power of the legislature is limited to laws regulating the enjoyment of the right by facilitating its lawful exercise and by preventing its abuse. The right to vote must not be impaired by the regulation,” and, as supporting that proposition, the Michigan court cited Page v. Allen, 58 Pa. St. 338, Dills v. Kennedy, 49 Wis. 555, Edmonds v. Banbury, 28 Iowa, 267, Monroe v. Collins, 17 Ohio St. 665, Daggett v. Hudson, 43 id. 561, State v. Baker, 38 Wis. 71, and State v. Butts, 31 Kan. 554.
Again, McCrary, in his work on Elections, (sec. 240,) says: “The citizens possess the prerogative of voting, and the legislature cannot take that right away by encompassing an election law with unconstitutional provisions.”
In recognition of this principle we said in Caldwell v. McElvain, 184 Ill. 552, “that ballots not having the initials of the judge of election endorsed thereon cannot be counted, in the absence of evidence tending to show fraud or mistake on the part of the judges.” In the case at bar the mistake of the judges at Carrier Mills is shown by undisputed evidence, and clearly the ballots cast there ought to be counted.
In Perkins v. Bertrand, 192 Ill. 58, it was urged that ballots should be rejected for the failure of the judge of the election to endorse his initials on the ballots. The judge had endorsed one letter, only, on the ballot, but that was one of his initials, and we held the voter not deprived of the right to vote by the failure of the judge of the election to comply literally with the provisions of the statute.
If the law be as held in the majority opinion, it is in the power of any election judge to disfranchise a voter known by him to be of the opposite political faith, by failing to endorse his initials on the ballot of that voter, unless, indeed, the voter should observe the omission and be able to induce the officer to correct it. Electors do not so hold their constitutional privileges at the will of election judges. The statute provides for the punishment of an election judge who willfully neglects to perform his duty or who shall willfully perform it in such a way as to “hinder the object” of the election laws. The enforcement of these provisions maybe resorted to to secure compliance with official duty, and it seems indefensible to visit the sins or omissions of the officials on the innocent voter, even if no constitutional provision existed for his protection.
In Harrisburg district No. 2, as found by the court below, Choisser received 167 votes and York received 341 votes. The majority opinion reduces Choisser’s vote by deducting therefrom George Abney’s vote and 10 of the 30 votes which were marked outside the booths, thereby leaving his total in that district stand at 156, and reduces York’s vote by deducting therefrom 20 of said 30 votes, leaving his total in that district at 321, thus giving* him a majority of 165 at that polling place. In this district the election judges selected by the board of sujo ervisors in the regular manner were Ira Gibbons, F. C. Glasscock and J. E. Jobe. Neither of these men appeared on the morning of the election, and the voters present did not select judges to act in their places, as the statute requires. Instead, C. A. Taylor, M. B. Gaskins and G. W. Abney appeared and announced that they would hold the election. It is not shown how or by what authority these men obtained possession of the official ballots. Taylor testified that he acted as judge at the request of D. D. Lockwood, who was an election judge in Harrisburg* district No. 1, as shown by the supervisor’s record. Gaskins testified that he acted at the request of Mr. Bauder, supervisor of the township. Neither Bauder nor Lockwood was present at the opening of the polls. How Abney came to act does not appear. These men, in conducting the election, did not use the register made in accordance with the statute, but instead used the poll-list or poll-book of Ed. M. Stricklin, who was the republican challenger at that polling place. They permitted persons to vote to whom objection was made, without requiring any affidavits showing their qualifications and without it being made to appear that they were registered. The room in which the election was held did not open upon the street, as required by the statute. There was a partition extending partway across the room, and the polling place and the booths were on one side of this partition. During the day, voters, at the direction of those acting as judges, instead of going into the booths went upon the other side of this partition and there prepared their ballots. How many voters prepared their ballots there does not appear with any certainty. One witness roughly estimated thirty or thirty-five voters. In the portion of the room in which they so prepared their ballots there was a window and a door, the latter opening into a hall.
Paragraph 186 of chapter 46, Starr & Curtis’ Statutes, provides: “Any person desiring to vote shall give his name and, if required to do so, his residence, to the judges of election, * * * and if such name is found on the register of voters by the officer having charge thereof, he shall likewise repeat said name and the voter shall be allowed to enter the space inclosed by the guard-rail. * * * If the name of any person so desiring to vote at such election is not found on the register of voters, he shall not receive a ballot until he shall have complied with the law prescribing the manner and conditions of voting" by unregistered voters. ” ■
While it is true that we have held that the failure to use the register will not, of itself, invalidate the election in any particular precinct, we have never gone to the length of holding that the act of the judges in not only failing to use the register, but in using instead thereof a list of voters prepared by those .representing one of the political parties for the use of the challenger of that party, would not constitute fatal irregularity. Experience teaches that such a list contains the name of every person who could possibly be claimed to be a legal voter whose political belief is that of the persons making the list, and excludes those of the opposite party whose right to vote is subject to any doubt whatever or indicates that such persons last mentioned are without right to vote. To use such a list instead of the register places all political parties except the one for whom the list was made at a serious disadvantage. Again, the act of these judges in permitting persons to vote to whom objection was made, without requiring them to establish their qualifications in the manner prescribed by the law, destroys entirely those safeguards provided by the law to prevent voting by persons not qualified.
These men who acted as judges were mere intruders. They were acting without any right or authority whatever. In the case of People v. Logan County, 63 Ill. 374, relied upon by appellee, it did not appear, as it does here, that the acting election judges were not properly selected, under the law, to act as judges in the absence of those regularly chosen for that purpose; and that case was decided prior to the passage of the present Election law, providing for printing and distributing official ballots at public expense.
Section 179 of chapter 46, Starr & Curtis’ Statutes, provides that the official ballots shall be delivered, not less than twelve hours before the time for opening the polls, to the judges of election. This must mean the judges selected by the board of supervisors, in counties under township organization. When so delivered such judges are certainly without authority to deliver them to any other persons with a view to having such other persons perform the duties of election judges, unless such other persons have been selected in the manner provided by section 37 of chapter 46, Starr & Curtis’ Statutes. No such selection was here made.
The irregularities occurring at this polling place were: First, the election was not held by the regularly chosen judges or by any persons legally selected to fill the places; second, the persons acting as judges did not use the register of electors, but instead used a poll-list prepared for the purposes of one, only, of the political parties participating in the election; third, there was no method by which the official ballots could rightfully have come into possession of those who acted as judges; fourth, the persons acting as judges permitted persons to vote whose right to vote was questioned, without requiring the affidavits which the law contemplates and without ascertaining that such voters were registered; fifth, voters were permitted to prepare their ballots outside the booths, in a portion of the room separated from the polling place by a partition extending partly across the room, and which portion of the room communicated with the outside both by a door and a window.
It seems to us that these irregmlarities are of a much graver character than that which occurred in Carrier Mills precinct, and if the view of the majority is to control and the vote of a precinct to be entirely rejected for any irregular action on the part of the judges not knowingly and willfully participated in by the voters, then we deem the many derelictions of the judges in Harrisburg district Ho. 2 sufficient to require the rejection of all the ballots cast therein.
If both Carrier Mills precinct and Harrisburg district Ho. 2 be excluded, appellant, Choisser, will have a majority of 119, and if neither be excluded his majority will be two, after rejecting 30 votes in the latter precinct, being the lowest estimated number of ballots which were marked outside the booths.
The court below did not reject any of the ballots which were marked in the portion of the room beyond the partition. We agree with the majority that the ballots marked there should, in any event, be rejected, for the reason that the voters who there marked their ballots knew that they were not marking them in the booths provided by law, and therefore willfully and knowingly participated in the wrong.
We therefore do not concur in the conclusion that the judgment of the circuit court should be affirmed.
Mr. Justice Ricks, also dissenting.