McSorley v. Schroeder

Mr. Justice Magruder delivered the opinion of the court: First—Did the circuit court err in refusing to count the ballots, on which the stickers or pasters were pasted by the voters? Section 26 of the Ballot law of June 22, 1891, provides that, “if the voter marks more names than there are persons to be elected to an office, or if for any reason it is impossible to determine the voter’s choice for any office to be filled, his ballot shall not be counted for such office. No ballot without the official endorsement shall be allowed to be deposited in the ballot-box, and none but ballots provided in accordance with the provisions of this act shall be counted.” (2 Starr & Cur. Ann. Stat.— 2d ed.—p. 1690.) The ballots, upon which these stickers were pasted, were not the ballots prepared by the clerk who was authorized to prepare them. They were certainly not ballots provided in accordance with the provisions of the act of 1891. The only provision of the statute, which authorizes the use of pasters, is found in section 12 of the act. (Ibid. p. 1684). By that section “it is made the duty of the election officer, having charge of the ballots, to place the name of a candidate supplied to fill a vacancy, in certain contingencies, upon the ballot by affixing a paster, or by writing or stamping, before the ballot is delivered to the voter.” (Roberts v. Quest, 173 Ill. 427). In the case at b,ar, there was no such vacancy as is contemplated by section 12. Even under the terms of that section, the paster can only be used “when furnished as a part of the official ballot by the proper officer, when a vacancy has happened after the ballots have been printed.” (Ibid). Here, no official ballots were furnished to the voters by the proper officer with pasters upon them, but the pasters were placed upon the ballots by the voters after they entered the voting booth. In Fletcher v. Wall, 172 Ill. 427, we held that the insertion of the names of candidates, not printed on the official ballot, by attaching to the ballot tickets or slips of paper, on which such names are printed, is unlawful, and is not authorized by section 23 of the Election law of 1891. Section 23 provides that “on receipt of his ballot the voter shall forthwith, and without leaving the inclosed space, retire alone to one of the voting booths so provided and shall prepare his ballot by making in the appropriate margin or place a cross (X) opposite the name of the candidate of his choice for each office to be filled, or by writing in the name of the candidate of his choice in a blank space on said ticket, making a cross (X) opposite thereto.” In Sanner v. Patton, 155 Ill. 553, we held that “section 23, which points out the mode or manner of voting, after.the voter receives the ballot, clearly confers upon the voter the power to insert in the ballot the name or names of such person or persons as he may desire to vote for for any office to be filled at the election, and vote for such persons. * * * He may write the name of a candidate on the ballot and place a cross opposite the name, and the ballot shall be counted for such person.” (Ibid. p. 562). In the case at bar, if any voter, who placed a yellow paster over the name of one of the trustees upon the official ballot, had desired to vote for Stephen Bunker, instead of one of the trustees, whose names were thereon printed, he had, under the statute, the privilegie of writing the name of “Stephen Bunker” on the ballot and placing a cross opposite the name. ' Such was the mode of voting for a trustee, whose name was not on the official ballot, as prescribed by the statute. We have said “that it is the duty of every voter, under this law, to ascertain and follow the provisions of the statute and the directions of the Secretary of State in his instructions sent out with the ballots, and that whenever, either through negligence or willfulness, he disregards that duty, he does so at the peril of losing his vote.” (Parker v. Orr, 158 Ill. 609). The voter has no right to substitute the pasting of a new name over the name on the official ballot for the writing of the new name thereon and the placing of a cross opposite the new name, as directed by the statute. In Fletcher v. Wall, supra, after referring to the provision of the statute requiring booths to be furnished, and “shelves, pens, pen-holders, ink, blotters and pencils” also to be furnished to enable the voter to prepare his ballot, we said: “The mere fact the methods thus provided may be less convenient than the use of pasters or stickers furnishes no sufficient reason for changing or modifying the requirement of the law, wisely designed for the purposes above mentioned. The inconvenience here would have been no greater than in any other case where the voter writes the name of a candidate on the ballot.” It does not follow that, because, under the provisions of section 23, the voter may prepare his ballot by writing the name of the candidate of his choice in a blank space on the said ticket, he may also indicate his choice by pasting a printed name on the ticket. Such pasting of the name does not come within the meaning of the words, “writing in the name of the candidate of his choice in a blank space on said ticket.” (Fletcher v. Wall, supra). In Roberts v. Quest, supra, we held that, under the Election law Of 1891, a voter has no authority to insert the name of the candidate of his choice on the official ballot by using a paster, on which the name of such candidate is printed; and we there said: “It is, however, plainly prescribed by the statute that the ballot, furnished by the judges to the voter, must be prepared by him individually, after he enters the booth, except in so far as he may be assisted as an illiterate voter, under the provisions of section 24, and that he shall be allowed to do so uninfluenced or in any way controlled by being electioneered or furnished with tickets or pasters by outsiders. * * * It is manifest that, if pasters may be resorted to by one candidate, they may be by all, and the official ballot might become but little more than a convenient card upon which to paste private tickets printed and circulated in secret. The use of such tickets would revive the evils sought to be guarded against by the Ballot law.” It is claimed, however, on the part of appellant, that the rule, which thus forbids the use of pasters, merely holds that the ballot containing a paster cannot be counted for the candidate in whose favor the paster is used, that is to say, that a ballot containing a paster can not be counted for the candidate named on such paster, but that, as to other candidates upon the same ballot for whom pasters have not been used, the ballot of the voter is to be counted. In the present case, it is said that, inasmuch as the pasters were placed over the name of a candidate for trustee, and not over the name of a candidate for president of the board, the vote should not be counted as a vote for such trustee, but that the voter is entitled to have it counted as a vote for the president of the board. The trouble with the contention of the appellant is that the sticker or paster, as used upon the ballot, made the whole ballot invalid because it was not, by reason of such pasting, such a ballot as was provided for by the law; nor was it such a ballot as was prepared by the clerk who was authorized to prepare the ballots. We are of the opinion that the circuit court properly rejected the ballots containing the pasters as above described. Second—One of the ballots, rejected by the court below and not counted, as not having been cast for either party, had a cross in the circle at the top of the column headed “Union Ticket," in which appellant’s name appeared, and a cross in the square opposite the name of appellee in the column headed “Petition Ticket,” and also had three lead-pencil marks, drawn lengthwise across the name of the appellant in the column headed “Union Ticket.” It is not necessary to consider the question whether the circuit court did or did not err in refusing to allow this ballot to be counted, as, without counting it, the appellee had a majority of the ballots after the rejection of all the ballots containing pasters. For the reasons above stated, the decree of the circuit court, declaring the appellee to have been elected president of the board of trustees, was correct, and is affirmed. Decree affirmed.