I concur in the result of this opinion and the holding that the ballots bearing only a check mark do not meet the requirement of the statute that "one of the judges * * * shall endorse his initials" on the ballot. Ill. Rev. Stat. 1941, chap. 46, par. 311-15.
I am further of the opinion that Waters v. Heaton, 364 Ill. 150, and Neff v. George, id. 306, in both of which cases I dissented, should be overruled as they are in harmony with neither the earlier decisions of this court construing the above-quoted language (Sibley v. Staiger, 347 Ill. 288; Allen v.Fuller, 332 id. 304; People v. Bushu, 288 id. 277; Blattner v.Dietz, 311 id. 445; Kelly v. Brown, 310 id. 319; Neal v. Odle, 308 id. 469; and McCreery v. Burnsmier, 293 id. 43) nor its later pronouncements holding not only that the language of the statute is clearly mandatory, *Page 485 but is necessarily so to safeguard the ballot. Barlick v. Kunz,375 Ill. 318; Lacy v. Rhodes, 369 id. 167.
The construction of this act in Boland v. City of LaSalle,370 Ill. 387, was justified under the rule announced in the Heaton and Neff cases on which that case relies, but it, with those cases, I am of definite conviction, not only ignores language of the statute as plainly mandatory as human expression can make it, but opens the door to carelessness and to fraud, and should not be adhered to.
The right of franchise is the one act of sovereignty open to all qualified American citizens, and courts should be at least as jealous in their protection of that right as the General Assembly passing the act to safeguard it. As was said in Sibley v.Staiger, supra, "While it is a rule that mistakes or omissions of the officers in charge of an election will not defeat the plainly expressed will of the voters, yet the rule does not apply where the officers have failed to perform mandatory duties of a precautionary character which safeguard the votes of the electors."
While the proper construction and application of the statute may result in the loss of franchise to a voter in some instances, by far the greater good is to be derived from construing the language in accordance with its plain meaning and intent. As this court said in People v. Bushu, supra, "It is far better that the people of a town shall lose their vote in a single instance than that there shall be written into the law rules which permit election officers to disregard the plain mandates of those provisions of the law intended to protect and safeguard the ballot."
Mr. JUSTICE SMITH took no part in the consideration or decision of this case. *Page 486