In disposing of such contention we say (p. 618): "The word 'yes' or 'get' tended to indicate the voter's choice upon the proposition submitted; and that it served the further purpose of distinguishing the ballot, is, to say the least, a very remote conjecture.”

Sixth-The court counted a number of ballots found in the envelopes containing "defective and objected to" ballots. Before counting the same the judges of the precincts from which the ballots came were called and testified that the ballots were voted by legal voters, and gave their reasons for not counting the same, none of which appear to be valid. Said ballots were official, had the initials of one of the judges of the respective precincts on the back thereof, were properly marked by the voter, and were enclosed in envelopes securely sealed and so marked and endorsed as to disclose their contents, as provided by section 26 of the Ballot act. The court did not err in counting such ballots.

Seventh-The court counted a number of ballots which, it is contended, should not have been counted because not properly marked, of which the following are examples: "Ballot with no marks on its face except two in the circle at the head of the democratic ticket; two penmarks meeting at a point. The court thinks, on close examination, these two pen-marks cross. Counted for Perkins." "Ballot with a cross in the circle at the head of the republican ticket. There are two pen-marks that look like blots, one immediately to the left in the first square and the other one over the square before the names Bertrand and Weil and partially over Schmidling. The court thinks they were made by accident. Counted for Bertrand." The trial court saw the original ballots and in some instances examined them with a magnifying glass, and was in a much better position to judge than we whether or not the same were properly marked by the voter. It is therefore impossible for us to say they were not properly marked and entitled to be counted.

Eighth-Appellant objects to the counting of ten ballots that did not have the initials of any judge of election on the back thereof. Under the authority of Kelly v. Adams, supra, such ballots were not entitled to be counted. The record in this case, however, does not disclose for whom they were counted, nor that at the time they were counted appellant objected to the count thereof. It is now too late for him to make such objection. For aught that appears they were all counted for the appellant.

Ninth-Ballots were counted which had figures thereon, placed thereon by the judges at the time they were cast, under a mistaken view of the law and without the knowledge of the voter, of which the following are examples: "Ballot marked for Perkins has on back figure '3,' counted for Perkins." "Ballot marked for Bertrand has on back, in lead pencil, figure '13,' counted for Bertrand." In Pennington v. Hare, 60 Minn. 146, where ballots had been numbered, without the knowledge of the electors casting them, by the judges of election, by reason of a misunderstanding of the law on their part, the ballots were held to be properly counted for their respective parties, the court say (p. 147): "To hold otherwise would place it in the power of election officers to disfranchise electors at their pleasure." Such votes were properly counted.

We have examined each question presented by this record with care, and while it is impossible to comment in this opinion upon each of the numerous ballots to which objections have been made, we have carefully considered the same, and have reached the conclusion that the county court properly held the ballots to be the best evidence from which to determine the result of said election, and that said court committed no reversible error in the re-counting of said ballots.

The decree of the county court will therefore be affirmed. Decree affirmed.

210

192

THE PEOPLE ex rel. James A. Glenn et al.

v.

HUGH A. BINNS et al.

Opinion filed October 24, 1901.

295 1. MUNICIPAL CORPORATIONS-territory is not disconnected from a 68 village until ordinance is passed. Disconnection of territory from a 213 3336 village under the act of 1879 (Laws of 1879, p. 77,) is not consummated by the filing of the petition containing the statutory requirements, but the passage of the ordinance is also essential.

2. SAME-legislature had the power to make the act of 1901 apply to pending proceedings to disconnect territory. The legislature had full power to repeal the act of 1879 for the disconnection of territory from cities and villages, as was done by the act of 1901, (Laws of 1901, p. 96,) and to make the act of 1901 applicable to proceedings pending under the act of 1879.

3. SAME-laws governing municipal corporations are not in the nature of private grants. The legislature may, by general law, fix the boundaries of municipal corporations and extend or restrict them, as may be deemed best for the public good; but such laws are not in the nature of private grants, in which parties may acquire a vested right to have them remain unchanged.

ORIGINAL petition for mandamus.

BLINN & HARRIS, for petitioners.

KING & MILLER, for respondents.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the court:

At a former term we granted to the petitioners leave to file their petition against the defendants, as trustees of the village of Middletown, for a writ of mandamus to compel said trustees to pass an ordinance, by a majority of the members elected to their board, disconnecting the lands of petitioners from said village. The petition was filed and answered. A demurrer to a part of the answer and a replication to a part was filed, but it is now stipu lated by the parties that all the allegations of fact in

the petition are true, and that the only questions involved are the construction of an act entitled "An act in relation to the disconnection of territory from cíties and villages," in force May 29, 1879, (Laws of 1879, p. 77,) and the effect to be given to an act passed since this proceeding was begun, entitled "An act in relation to the disconnection of territory from cities and villages, and to repeal an act therein named," in force May 10, 1901. (Laws of 1901, p. 96.) We do not find it necessary to pass upon any other question than the effect to be given to the latter act, under which, in our opinion, the petitioners can have no right to the writ in this or any other court. We have therefore not considered the question whether leave to file the petition ought to have been granted, or whether leave was improvidently given and should be recalled.

In Young v. Carey, 184 Ill. 613, it was decided that where a petition was filed with the president of a board of trustees of a village in compliance with the provisions of the above mentioned act of 1879, the trustees were bound to pass an ordinance, by a majority of the members elected to the board, disconnecting from the village the territory described in the petition. Petitioners filed such a petition to have their lands disconnected from the village of Middletown, and the defendants having refused to pass the ordinance petitioned for, this proceeding was begun. After the filing of the petition and commencement of the suit said act of 1901 was passed, which made it discretionary with the trustees whether they would pass an ordinance and disconnect territory as requested, and it repealed said act of 1879. It also contained the following provision, as section 4: "This act shall apply to and affect all cases where property has not been disconnected by such city council or trustees of such village, whether application has been made for disconnection or not."

It is first contended on the part of petitioners that by the filing of a petition their lands were actually disconnected from the village, and the disconnection was com

plete before the passage of the act of 1901. In Young v. Carey, supra, it was held that by the act of 1879 the legislature had determined that the existence of certain facts to be stated in the petition settled the question as to the advisability of the disconnection, and that the trustees, upon finding the averments of the petition to be true as a matter of fact, were bound to pass an ordinance and disconnect the lands. The provisions of that act were, that the trustees should, by ordinance, disconnect the territory, and that a copy of the ordinance disconnecting the territory from the village should be filed for record and recorded in the recorder's office of the county. It was not only necessary that the petition be presented containing the statutory requirements, but that the ordinance should be passed in order to consummate the disconnection. Petitioners would not have been asking for a writ to compel the passage of an ordinance disconnecting their lands from the village of Middletown if they were already disconnected by the filing of their petition with the board of trustees. The final step for the disconnection of the lands had not been taken and the lands were not disconnected when the act of 1901 was passed.

The next proposition is, that it was not within the power of the legislature to repeal the act of 1879 and make the act of 1901 applicable to this proceeding,—and this is on the ground that petitioners had acquired a property right to have their lands disconnected, which had become vested in them and which could not be taken away by subsequent legislation. As the lands had not been detached from the village, the act of 1901 did not change their status or put them back within the corporate limits, but it repealed the act under which petitioners would have had a right to the disconnection and established a new rule. It cannot be denied that the legislature had a right to do this, unless the effect would be to deprive petitioners of a property right or to impair the