#### W. R. Kelly *v.*W. S. Adams.

*Opinion filed December 18, 1899.*

1. *Elections*— ballot *not officially endorsed by judge of election cannot be counted.*Under section 26 of the Election law of 1891 (Laws of 1891, p. 117,) a ballot not bearing the official endorsement of any judge of election cannot be counted.

2. Same — voter *must follow the law in marking his ballot.*It is the duty of every voter in marking his ballot to ascertain and follow the provisions of the statute.

3. *Same*— when *ballot must be rejected.*A ballot so prepared by a voter as to contain distinguishing marks which, if permitted to be passed, would enable it to be identified cannot be counted.

Appeal from the County Court of Effingham county; the Hon. David L. Wright, Judge, presiding.

Wood Bros., for appellant.

R. C. Harrah, William B. Wright, and Charles Kelley, for appellee.

Mr. Justice Phillips

delivered the opinion of the court:

At an election held April 4, .1899, appellant and appellee were rival candidates for supervisor in the town in which they lived. Each was nominated by his political party. The election was opened, closed and proclamation made according to law. Each candidate was declared *194to have received ninety-five votes. Under the direction of the town clerk lots were cast and appellant was declared selected. One hundred and ninety-three votes were cast at the election. Two electors appeared to have made no attempt to vote for supervisor. One ballot by the unanimous vote of the judges was rejected. It was not endorsed on the back by the initials of either judge of the election. A copy of it is as follows:



A petition for contest of election was filed in the county court of Effingham county, where it was held this ballot should be counted for the appellee, from which this appeal is prosecuted.

A statement made by appellee obviates anything further as to the facts: “Under the pleadings in this case, and according to the evidence submitted .to the trial court, no question. was raised concerning the election and the conduct of the judges of said election, except the rejection of the disputed ballot by the judges of said *195election from the count. The only question submitted to the trial court was, did the judges of said election erroneously reject said ballot from the count, and should it have been counted for appellee?”

By section 26 of the Australian Ballot law of 1891 it is provided: “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.” The evidence shows that this ballot had no endorsement to show that it was an official ballot provided in accordance with the law. To ignore this provision of the statute and allow ballots to be counted which do not contain the official endorsement would authorize the voting of ballots that might have been surreptitiously obtained or copied, and one of the purposes of the Ballot law be entirely frittered away and the door opened for fraud. The absence of the official endorsement would have been sufficient cause for the rejection of this ballot. It was said in *Parker*v. *Orr, 158*Ill. 609: “Observing this mandatory language, if a voter’s intention can be gathered from his ballot, without laying down a rule which may lead to a destruction of its secrecy, that intention should be given effect.”

It is the duty of every voter, under the Ballot law, to ascertain and follow the provisions of the statute. He has no right, through negligence or willfulness, to disregard that duty, which is a duty enjoined by the legislature for the purpose of subserving the interests of a pure ballot by maintaining its secrecy and preventing the casting of ballots without reference to and in disregard of the statute. *(Parker*v. *Orr, supra.)*In *Apple*v. *Barcroft,*158 Ill. 649, it was held: “The statute must be substantially complied with. To permit the voter to substitute some *196other *method*of his own of marking his ballot to express his choice, for the one provided, would practically nullify the statute. It would not only lead to uncertainty in ascertaining the voter’s intention, but would destroy the secr.ecy of the ballot by means of distinguishing marks by which the ballot of each voter could be identified.” And in that case it was held that a ballot showing" mere pencil erasures of the name of one of the candidates and all other names on the same ticket bore such a distinguishing mark that it should properly be rejected. The ballot in this case rejected by the judges of election contained distinguishing marks which, if permitted to be passed, would be a means of designation of the ballot and a description thereof which would effectually destroy its se-, crecy and avoid the purpose of the Ballot law. For this additional reason this ballot was properly rejected.

The county court erred in holding that the ballot should be counted for the appellee, hence its judgment must be reversed and the cause remanded.

*Reversed and remanded.*