Keenan v. People

Mr. Presiding Justice Waterman delivered the opinion of the Court. Section 27 of an act approved June 22,1891, in force July 1, 1891, Eevised Statutes, 1893, Chap. 46, Sec. 314, in pursuance of which, the election had in Chicago April 3,1894, was held, provides that— “ When the canvass of the ballots shall have been completed, as now provided by law, the clerks shall announce to the judges the total number of votes received by each candidate; each judge of election in turn shall then proclaim in a loud voice the total number of votes received by each of the persons voted for, and the office for which he is designated, and the number of votes for, and the number of votes against any proposition which shall have been submitted to a vote of the people; such proposition (proclamation) shall be prima facie evidence of the result of such canvass of the ballots. Immediately after making such proclamation, and before separating, the judges shall fold in two folds, and string closely upon a single piece of flexible wire, all ballots which have been counted by them, except those marked ‘ objected to,’ unite the ends of such wire in a firm knot, seal the knot in such a manner that it can not be untied without breaking the seal, inclose thé ballots so strung in an envelope, and securely tie and seal such envelope with official wax impression seals, to be provided by the judges, in such manner that it can not be opened without breaking the seals, and return said ballots, together with the package containing the ballots marked ‘ defective or objected to,’ in such sealed package or envelope, to the proper clerk or to the board of election commissioners, as the case may be, and such officer shall carefully preserve said ballots for six months, and at the expiration of that time shall destroy them by burning; without previously opening the package or envelope. Such ballots shall be destroyed in the presence of the official custodian thereof, and two electors of approved integrity and good repute, and members, respectively, of the two leading political parties. The said electors shall be designated by the county judge of the county in which such ballots are kept; provided, that if any contest of the election of any officer voted for at such election, shall be pending at the expiration of said time, the said ballots shall not be destroyed until such contest is finally determined. In all cases of contested elections, the parties contesting the same shall have the right to have said ballots opened, and to have all the errors of the judges in counting, or refusing to count, any ballot corrected by the court or body trying such contest, but such ballots shall be opened only in open court, or in open sessions of such body, and in the presence of the officer having the custody thereof.” There is to be found in the law under which the election of April 3, 1894, was held, no provision permitting the election commissioners to open the sealed packages in which the ballots are by the judges of election inclosed, save in the case of a contested election; and it is manifest that the commissioners are forbidden to open such packages under any other circumstances. • - Courts do not make the law; they may and do declare what it is, and may compel obedience to it; they have no power to command any one to disobey the law, or to do that which it does not enjoin. The election commissioners being forbidden to open the packages in which the ballots intrusted to their care are contained, except in the case of an election contest, a court has not power to, under other circumstances, require them to produce and submit to examination the ballots in their keeping. It is immaterial what the public agency may be which seems to demand that public officers or private citizens violate the law; neither for the purpose of convicting the guilty or acquitting the innocent, have courts authority to direct any one to act in disregard of the law. In considering the validity of an order ■ collaterally attacked, as is the order directing the plaintiff in error to produce certain election ballots, the distinction between orders which are merely erroneous, and hence liable to reversal, ' and orders which are void because the court has no power to make them, must be kept in mind. An order of cour-t which is' merely erroneous must be obeyed; he who disobeys such a mandate commits a contempt for which he may be punished. Kerfoot v. The People, 51 Ill. App. 409. If the only reason for refusing to produce the ballots was that the evidence that might be afforded by them would be immaterial, irrelevant, or not competent in the matter under examination in the Criminal Court, a very different question from that presented by the record of this cause would be before us. People v. Lester, 150 Ill. 408-423; Kerfoot v. The People, 51 Ill. App. 409; In re Brown, 91 Cal. 83. The order of the Criminal Court being in excess of its powers was without jurisdiction and therefore void. Its disobedience was not contempt. The order imposing a fine upon the plaintiffs in error is reversed.