Mr. JUSTICE KLINGBIEL delivered the opinion of the court:
Allen H. Hester, a resident and qualified voter of the village of Phoenix, filed a petition in the county court of Cook County to declare void the election of John Falica as village clerk and of Louis F. Kamykowski as police magistrate of the village. The court found that the form of ballot used did not conform to the requirements of law, and judgment was entered declaring the election of respondents null and void. This appeal followed.
There is no dispute as to the facts. On April 16, 1957, a regular election was held for the offices of village president, clerk, trustees, and police magistrate. The respondents, who ran as candidates of the Good Government Party, were opposed by certain independent candidates for whom a write-in campaign was conducted. For the office of village clerk John Falica received a vote of 711 as against 443 for his opponent. For the office of police magistrate Louis F. Kamykowski received 694 votes to 451 for his opponent.
The form of ballot consists of only one column, in which the names of candidates of the Good Government
On the back or outside of the ballot there appears a facsimile of the signature of John Falica, the incumbent clerk, but nothing appears to indicate his official capacity. The back does not bear the designation "Official Ballot" nor does it show the date of the election. Neither on the face nor on the back is there a designation of the polling place for the particular ballot, although four polling places were used in the election. Examination of a ballot introduced as an exhibit further discloses that the printing thereon can easily be read through the paper.
It is required by statute that "On the back or outside of the ballot, so as to appear when folded, shall be printed the words `Official Ballot,' followed by the designation of the polling place for which the ballot is prepared, the date of the election and a facsimile of the signature of the clerk or other officer who has caused the ballots to be printed. The ballots shall be of plain white paper, through which the printing or writing cannot be read." (Ill. Rev. Stat. 1955, chap. 46, par. 16-3.) Respondents do not deny that except for the facsimile signature these provisions were not complied with. It is urged, however, that they are merely directory in nature, and that the defects in the form of ballot are inconsequential irregularities which do not affect validity.
A proper determination of the question presented depends upon whether the statutory requirements were intended to be mandatory or merely directory. Failure to comply with a mandatory provision will render void the
It is not intended, of course, that directory provisions may be disregarded. All the requirements of election laws are mandatory in the sense that they impose the duty of obedience on those who come within their purview. But it does not follow from this that every departure or omission should vitiate the ballot or proceeding in question. Where the effect of a failure to comply is not prescribed, the courts must determine the matter from a consideration of the entire statute, its nature, its object, and the consequences which would result from construing it one way or the other. (People ex rel. Agnew v. Graham, 267 Ill. 426, 436.) In such an inquiry a literal compliance with prescribed forms should not be required if it appears that the spirit of the law has not been violated and the result of the election has been fairly ascertained. (People ex rel. Woods v. Green, 265 Ill. 39.) The whole purpose of the ballot as an institution is to obtain a correct expression of intention; and if in a given case the voter's intention can be gathered from the ballot it should be given effect despite irregularities of form, unless they are such as would tend to destroy the secrecy of the ballot. Gulino v. Cerny, 13 Ill.2d 244; Parker v. Orr, 158 Ill. 609.
In the instant case the form of ballot failed to disclose on the back or outside the words "Official Ballot" and the date of the election, nor did it anywhere designate the polling place for the particular ballot although there were four polling places in the election. These omissions, so far as the record discloses, were the result of unintentional or inadvertent error, and nothing appears to indicate that any legal voter was deprived of his vote or that any harm or injury resulted therefrom. We are of the opinion that under the present circumstances these irregularities, standing alone, would not, of themselves, justify throwing out the entire number of ballots. (Tucker v. Coleman, 310 Ill. 450.) Expressions of this court to the contrary in People ex rel. Mattingly v. Snedecker, 282 Ill. 425, and other decisions relied upon by the appellee, insofar as they construe the requirements as mandatory regardless of the circumstances and effects in the particular case, represent
The irregularities in the form of ballot used in the present election are not confined, however, to the absence of required information on the outside thereof and the designation of a polling place. A defect of a more serious nature appears in the quality of paper used, which was such as to permit the printing or writing to be seen through the ballot. The evident purpose of the relevant statutory safeguard is to protect the secrecy of the ballot. To uphold the validity of ballots printed on paper which substantially fails to meet the requirement would defeat this purpose and tend to overthrow the safe conduct of elections. Moreover, inadequate provision was made for write-in votes on the ballots in question here, for no blank line appears to indicate the place where a name might be written in for a particular office, and a write-in voter would be obliged to identify or designate the office as well as the name of the candidate. Such deficiencies clearly tend to discourage any voting for candidates other than those whose names appeared on the ballot, and raise serious doubts as to whether the ballots were appropriate for obtaining a free and untrammeled expression of choice. The combination of irregularities present here indicate an infringement of the secrecy of the ballot and the possibility of disfranchisement or fraud, and compel us to agree with the trial court that the ballots in this election were fatally defective in form. It follows that the election of respondents was properly held invalid.
It is contended that the county court lacked jurisdiction because elections for two different offices were sought to be contested by the same petition. Respondents rely on Browning
It is also urged that the failure to join as defendants the persons elected as president and trustees was error requiring reversal. Under this contention respondents recognize that the petition does not seek a recount but a declaration that the election was void because of an improper form of ballot. They argue that if the election was void for the offices of village clerk and police magistrate it was also void as to the office of village president, and that the
Respondents finally complain that the court abused its discretion in refusing to transfer the case to the circuit court of Cook County, wherein a suit had been filed by the same petitioner seeking to contest the election of one Bernard G. Smuczynski as president of the village board. No citations of authority are afforded in support of the present contention. It appears that no request for transfer was made until the day of the hearing. We think that under the circumstances in this case there was no abuse of discretion in denying the motion to transfer.
The judgment of the county court will be affirmed.