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Scribner v. Sachs

OPINION FILED JANUARY 22, 1960.

GILBERT H. SCRIBNER, JR., ET AL., APPELLANTS,

v.

BENJAMIN J. SACHS ET AL., APPELLEES.



APPEAL from the Circuit Court of Lake County; the Hon. SIDNEY H. BLOCK, Judge, presiding.

MR. CHIEF JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT: This appeal is from an order of the circuit court of Lake County dismissing appellants' statement of contest to obtain a recount of all ballots cast at the general election of November 4, 1958, on the proposed amendment to article VI of the constitution of Illinois. The contestants appeal directly to this court pursuant to section 23-30 of the Election Code. Ill. Rev. Stat. 1959, chap. 46, par. 23-30.

On December 8, 1958, the State Electoral Board announced its determination that the judicial amendment to the Illinois constitution had not been adopted. Thereafter, on the same day the statement of contest was filed by ten residents of Lake and Cook counties pursuant to section 23-24 of the Election Code. (Ill. Rev. Stat. 1957, chap. 46, par. 23-24.) A temporary injunction order was entered enjoining all appropriate public officials from destroying or otherwise failing to preserve all ballots and other relevant documents they might have in their custody. The Attorney General filed his answer and five residents of Cook, Iroquois, Will, Winnebago and Macon counties were permitted to intervene and file answers. The intervenors were given leave to withdraw their answers and they joined in a single motion to dismiss the statement of contest. After extensive oral argument, the circuit court rendered a memorandum opinion and on May 21 the final order dismissing the statement of contest was entered.

No evidence was heard by the circuit court and all questions on this appeal are limited to the pleadings consisting of the statement of contest and intervenors' motion. The contestants alleged, in substance, that election officials throughout the State erroneously failed to count as valid votes ballots marked with a check (?) or the word "yes" and that if such ballots had been counted there would have been sufficient affirmative votes to secure the adoption of the proposed amendment. The intervenors advanced several grounds in support of their motion to dismiss, but those pertinent to this appeal are that the statement of contest was not filed within the time prescribed by statute and that the contestants' allegations with regard to ballots marked with a check or the word "yes" are contrary to law. The circuit court held that the statement of contest was filed within the time prescribed by statute but that only ballots marked with a cross (X) are valid, and entered the dismissal order.

The first question is whether the contestants' statement was filed within the time prescribed by statute. Section 23-24 of the Election Code provides that the written statement of contest is to be filed in the circuit or superior court "within thirty (30) days after the result of the election shall have been determined." Here the result of the election was determined and announced in the morning of December 8, 1958, and this suit was filed in the afternoon of the same day.

The intervenors contend that since the result of the election was determined on December 8 and since the contestants' statement had to be filed within thirty days after the result of the election was determined, the earliest possible day on which the statement could legally be filed was December 9. This contention is based on the familiar rule that in counting time where an act is to be performed within a particular period the first day is to be excluded and the last day included. (Ill. Rev. Stat. 1957, chap. 131, par. 1.11.) They conclude that since the statement was not filed "within" the statutory thirty-day period the circuit court never acquired jurisdiction to enter the injunction order or hear the case. We cannot agree with this contention.

There is an evident legislative intent in the judicial contest provisions of the Election Code to provide an expeditious procedure for final determination of election results. Thus, in section 23-23 it is provided that the contest may be heard by "the judge in vacation," and that the contest "shall have preference in the order of hearing to all other cases." We are of the opinion that "within thirty (30) days after the result of the election shall have been determined" means that the judicial contest of an election cannot be commenced before the administrative procedure for canvassing the votes has been completed and not later than thirty days after the canvass has been completed. (Cf. Zimmerman v. Cowan, 107 Ill. 631.) The contestants' statement was, therefore, filed within the time prescribed.

This brings us to the crux of the case, namely, whether a vote on a proposed constitutional amendment must be indicated by the use of a cross. There is no constitutional requirement that a cross be used to indicate a vote in any election. Section 2 of article XIV of the constitution of 1870, as changed by the "Gateway Amendment" in 1950, provides that an amendment to the constitution shall be submitted to the electors of the State for adoption or rejection, at the next election of members of the General Assembly, in such manner as may be prescribed by law, prescribes the proportion of electors requisite for adoption, and further provides for printing a proposed amendment on a separate ballot or in a separate column. The section is silent with respect to the use of a cross and was likewise silent prior to the amendment. Thus, the constitution leaves the manner of calling and holding an election upon a constitutional amendment within the discretion of the legislature, save only that it must be submitted at the next ensuing election of members of the General Assembly.

In order to reach the problems with which we are confronted, the entire legislative pattern concerning elections must be considered. We believe, however, that for a better understanding of contestants' position we should first turn to the historical background of sections 16-6, 16-7 and 17-11 of the Election Code, (Ill. Rev. Stat. 1957, chap. 46, pars. 16-6, 16-7, 17-11,) which the contestants rely on as being determinative of whether a vote on a proposed constitutional amendment must be indicated by the use of a cross.

The Australian Ballot Law was enacted in 1891. Section 16 thereof provided that a constitutional amendment or other public measure appear on the ballot. Apparently the ballot contemplated was the general ballot. Section 16 was amended in 1899 to require the use of a separate ballot on a proposed amendment or a public measure. The section, however, both before and after the amendment, prescribed the use of a cross. Similarly, section 4 of the statute on amendments to the constitution, (Cahill's Stat. 1927, p. 97) which provided the form of ballot for a constitutional amendment prior to 1929, included instructions for the use of a cross. In 1929 section 16 of the Ballot Law (Cahill's Stat. 1929, p. 1187,) was amended by deleting any mention of constitutional amendments but leaving it applicable to public measures in substantially its original form, which included instructions for the use of a cross. At the same time section 15 1/2 (p. 1187) was added covering the form of ballots for constitutional amendments, but directions for marking by cross were omitted. A companion measure in 1929 amended section 4 of the act relating to constitutional amendments (Cahill's Stat. 1929, p. 98,) by eliminating entirely the form of ballot and instructions for use of a cross and provided that the ballot should be printed in accordance with the provisions of the Ballot Law of 1891. Other amendments, not pertinent here, were later made and, under the present Election Code, section 16 is incorporated as section 16-7 and section 15 1/2 is incorporated as section 16-6. Section 23 of the original Ballot Law of 1891 is the antecedent of present section 17-11 of the Election Code, and has always provided for voting by the use of a cross both for candidates and on questions submitted to a vote of the people.

Contestant's theory that the use of a cross in voting on a constitutional amendment is unnecessary may be fairly summarized as follows: first, they assert that there is no express requirement that a vote be indicated by a cross and that the legislative pattern of a separate ballot, with separate treatment from other subjects of election and comparison of statutory terminology, furnishes no persuasive authority for exclusive use of the cross; second, they contend that the omission of the prior requirement in section 16 of the Ballot Law that a vote on a constitutional amendment be by a cross is indicative of a legislative intent to do away with that requirement; third, they ask that any provision for use of the cross be held directory where the voters' intention is reasonably ascertainable and not violative of the principle of secrecy of the ballot, and that we hold a check mark or the written word "yes" in the appropriate square not to constitute an identifying mark or gound for rejection of the ballot; and fourth, they contend that to require the use of a cross in voting on a constitutional amendment would be violative of the voter's constitutional rights.

It is fundamental that to determine the legislative intent embodied in a statute covering a general subject all of the provisions must be considered. (City of East St. Louis v. Touchette, 14 Ill.2d 243,) and if there is more than one statute on the general subject all the statutes must be considered. (People ex rel. Schwartz v. Fagerholm, 17 Ill.2d 131.) Attention must first be given to the statute on amendments to the constitution, (Ill. Rev. Stat. 1957, chap. 7 1/2 pars. 1-8,) because it is special in scope and would be controlling on this issue. (Routt v. Barrett, 396 Ill. 322.) Since that statute is silent as to how a ballot may be marked in voting on proposed constitutional amendments, it is necessary to turn to the Election Code, (Ill. Rev. Stat. 1957, chap. 46, pars. 1-1 et seq.,) which provides for elections generally, to ascertain whether its provisions are pertinent. People ex rel. Schwartz v. Fagerholm, 17 Ill.2d 131.

There was a studied intention on the part of the legislature to group the 546 separate sections of the Election Code by their subject matter into some 30 articles, each article gathering into itself the law relating to that particular subject matter. In order to gain the legislative intent with regard to sections 16-6, 16-7 and 17-11, consideration must be given to articles 16 and 17 of the Election Code as a whole.

Prior to 1891 there was no such thing in Illinois as an "official" ballot. Until then the ballots in this State were provided by the individual candidates or the political parties; and, of course, such ballots were not uniform in size, form or color. The Australian Ballot Law of 1891 originated the plan of having a uniform "official" ballot at all elections, printed and distributed at public expense by the election authorities. Article 16 is a continuation of this plan. Its eleven sections deal with the preparation and distribution of an "official" ballot and card of instructions at public expense for elections coming within the Election Code.

Section 16-3 provides the form of ballot for offices such as President, Senator, Governor and State and county officers, section 16-4 provides the form of ballot for certain judicial elections, section 16-6 provides the form of ballot for proposed constitutional amendments or the calling of a constitutional convention, and section 16-7 provides the form of ballot for public measures. In none of these sections is there any direction by the legislature as to the manner in which the ballot ...


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