The opinion
Carter, C. J., and Cartwright, J., dissenting:
We do not agree with the conclusion reached in the foregoing opinion. We think, without question, under the statute and authorities, the name written on the back of the ballot Exhibit 2 is a distinguishing mark though the name is partially .erased. The letter “o” in the first name is very clearly distinguishable, as is the “h” in the second name. This court has held that where the name of a person is written on the back of a ballot such ballot should not be counted because the name was a distinguishing mark. (Caldwell v. McElvain, 184 Ill. 552 ; Tandy v. Lavery, 194 id. 372.) There was enough of the name unerased to show certain letters plainly, and one witness testified that he could make out the entire last name, “Horchem,” even after the attempted erasure. A distinguishing mark is such a mark as will separate and identify the particular ballot from, the others cast. It is the duty of a voter to follow the provisions of the Ballot law in marking his ballot. He has no right, through negligence or willfulness, to disregard that duty and make any mark upon the ballot which will tend to destroy its secrecy. (Kelly v. Adams, 183 Ill. 193 ; Pierce v. People, 197 id. 432.) There was no attempt made on'the hearing in the trial below to show how this name came to be written on the back of the ballot or who attempted to erase it. There is nothing to indicate whether it was attempted to be erased by the voter or by some of the judges or other election officials. If the voter by mistake wrote the name upon the back of the ballot, the ballot should have been considered, under section 26 of the Ballot law, as spoiled or mutilated, and ought to have been returned by the voter to the judges as a spoiled ballot and another ballot taken that was without any distinguishing mark upon it. (Teebe v. Smith, 108 Cal. 101 .) Of course, if any of the election officials erased the name after it was written there by the voter that' would not render the ballot legal even though the name were entirely erased.
The action of appellee in demanding that the ballots be re-counted and his apparent control of the judges in making this re-count cannot be too strongly condemned. It is true that it is stated that appellee said he called up the county clerk and the county clerk stated the judges could re-count the ballots. Such instructions from the county clerk should have been given direct to one of the judges, and they were very derelict in permitting appellee to make the inquiries of the county clerk and report to them. Some one of the judges should have inquired directly of the county clerk. It is apparent from reading the testimony in the record that appellee dominated the re-count and directed how it should be done, and it is apparent, also, that his advice was followed as to counting some of the disputed ballots. Such actions on the part of the appellee were very reprehensible. If it were not practically conceded in these briefs that the election turned on the three disputed ballots, the originals of which are made exhibits in this case, and the question as to preservation and proper return of all the ballots were properly raised here, there would be strong ground for arguing that appellee’s actions invalidated the election; but as we think, regardless of the other points in the case, ballot Exhibit 2 was improperly counted for appellee, the judgment should be reversed for further proceedings in harmony with this opinion and the statute in such case made and provided.