meeting in the month of July next after such November election, re-divide or re-adjust the election district, or divide such election preChets, so that no district or undivided election precinct shall contain more than the amber of voters above specified. If said division or readjustment is not made at such July meeting, it may be made at an adjourned or special meeting of said county board, to be held in the month of August next thereafter. * * Provided, that the county beard may, if it deem it to be for the best interest of the voters of any town or precinct divide any election precinct which contains more than three hundred legal voters into two election precincts, same precincts to contain as near two hundred voters as is possible." The omitted portions of the section Lave no relation to the power of county boards to divide or readjust election districts, and are not set forth for mere purposes of brevity.

At the session of the General Assembly in 1901 three enactments, each purporting to amend said section 30, were approved on the same day, namely, May 10, 1901. Laws 1901, pp. 166, 167, 170. These three enactments are, or may be thought to be, in some respects repugnant. Neither refers to or purports to expressly repeal the other, or to repal section 30 as amended by the act of 1809. Whether these amendatory acts of 1901 must all fail for uncertainty or repugnancy, and section 30, as amended by the act of 1899, be held to be unaffected by them, and be in full force, or whether one or more of said amendatory acts of 1901 shall be held to declare the legislative will, are questions by no means free from difficulty. Interests in which neither of the parties hereto are concerned may be affected by the decision of such questions, and therefore the decision thereof is not here imperative.

The provisions of section 30 as amended by the act of 1899, and as purported to be amended by the three acts approved May 10, 1901, so far as such provisions relate to the power and authority of the county board to redivide or readjust existing election precincts or districts during the month of September of any year, are not inharmonious. The repugnancy or uncertainty, if any there be, is in respect of other provisions of the acts. Section 30, as amended by the act of 1869, or by either of the acts of 1901, after providing that election precincts which contain more than 450 voters shall be so divided into election districts that each district shall contain, as near as may be practicable, 400 Voters, and not more, in any case, than 450, and that as often as it shall appear by the number of votes cast at the general election held in November of any year that any election district or precinct contains more than 450 voters the same shall be redivided or readjusted so that no district or precinct shall ntain more than 450 voters, provides that the county board may, at the regular or spe

cial meeting to be held in certain specified months the month of August being the latest of the months so specified-make such division or readjustment. As to the latest period of time when the power invested in the board may be exercised the various enactments are in harmony, an adjourned or special meeting to be held in the month of August being fixed in each of the various enactments as the latest period at which such action may be taken by the board. And we think this is not merely directory, but mandatory. The language employed in all of the enactments is that the county board, if it acts at all, "shall" make the division or readjustment at the earlier meeting of the board specified in the acts, and that, if said division and readjustment is not then made, it "may" be made at any "adjourned or special meeting of said county board to be held in the month of August next thereafter." The exercise of the right of the elective franchise is involved in the action to be taken by the board. If the board should be held to possess unrestricted power to change the boundaries of election districts or precincts at any time, the power might be exercised at such time immediately preceding an election as to practically disfranchise electors by placing them in new districts or in other precincts less than 30 days before the day of election.

It is also manifest that in conferring power on county boards to make such changes, the effect whereof is to require some voters to repair to other voting places than those at which they have been accustomed to vote, it could not escape legislative consideration that it was important that the change should be made in ample time to enable those to be affected to become advised that they could not vote at their accustomed polling place, but must go elsewhere to vote. None of the various enactments we have been considering require or provide for giving the voters notice, by way of publication or otherwise, that a change had been ordered. It was clearly the legislative intent that the board should act at some of the times specified, and not, in any event, later than the month of August, in order that changes should not be made at a time which would place voters in a district or precinct less than the time required for them to be residents of such district in order to be entitled to vote therein, and also that a reasonable period should elapse between the adoption of the order making the change and the date fixed for the election, to enable voters to become apprised of the changes. The enactments read that, if county boards desire to make changes they "shall" act at specified meetings, or, if they do not take action at such specified meetings, action "may" be taken at some adjourned or special meeting to be held in the month of August. The section does not purport to give the county boards power to act at any later period than at

some meeting in the month of August. Those boards are creatures of the statute, and may exercise such power only as may be conferred upon them by the Legislature. The provision that such boards, if they do not act at earlier meetings, "may" act at a meeting to be held in August, under a proper construction of the section must be held to imply a denial of the power to act at any later time than the month of August. No contrary doctrine is held in People ex rel. v. Board of Supervisors of Adams County, 185 Ill. 288, 56 N. E. 1044. In that case it became the duty of the county board of Adams county, at its July meeting in the year 1899, or at some adjourned or special meeting in the month of August next thereafter, to redivide or readjust the election districts of the town of Riverside, in that county, for the reason that at the preceding general election held in November, 1898, more than 450 votes had been cast at one of the election precincts in said town. As in discharge of that duty, the county board, at the July, meeting, 1899, adopted a resolution redividing and readjusting the election districts in said town, but did not properly discharge such legal duty, in that some or all of the election districts as readjusted contained more than 450 voters. An original petition was filed in this court on the 6th day of December, 1899, praying that a writ of mandamus issue commanding the board of supervisors of said Adams county to revise their action taken at said July term, and properly discharge the legal duty which then devolved upon them; and at the April term of this court in the year 1900 we decided the cause and granted the writ, commanding said board of supervisors to revise the action taken by them at their July meeting in the year 1899, and properly and legally discharge their duty with reference thereto. The power of the board to act originally at any other meetings than those held in the months of July and August was not involved in that case. Counsel for the board of supervisors construed the statute, as we have here construed it, to deny to the board of supervisors power to redistrict or readjust election districts except at a meeting of the board in July or August, and in support of that contention suggested that, unless the statute received that construction, election districts might be changed within less than 30 days preceding the day fixed for holding the election, and voters thereby deprived of the right to vote in either the old or the new district; and also suggested that it was the legislative intent that the boundaries of election districts should be permanently fixed and known a sufficient time in advance of the day of the election to enable voters to be advised of the changes, and argued that, as the board did not possess such power at later periods than in August, it was not in the power of this court to coerce the board by mandamus to act at any time after the

month of August. We considered this argument of counsel, and in reference thereto said (page 293, 185 Ill., page 1046, 56 N. E.): "If it were asked to coerce a board, by the writ of mandamus, to take action at a period intervening between the month of August and the date of the election to be held in November, these arguments and considerations advanced by counsel would no doubt be worthy of consideration, for courts, in granting or refusing writs of mandamus, exercise judicial discretion, and are governed by what seems necessary and proper to be done in the particular instance for the attainment of justice." The action of the board of county commissioners of Monroe county, taken on the 17th day of September. 1902, was without authority of law. The board did not possess power to change the boundaries of precincts or districts at its September meeting.

Thomas Havey, August Simpson, Peter Dehn, and Owen J. Fahey, who, among other voters, resided in that portion of New Design Precinct which the board of county commissioners so illegally ordered should be attached to and become a part of the precinct of Prairie du Long, were permitted to and did cast ballots in the precinct of Prairie du Long. They were not residents of the precinct of Prairie du Long, and the county court erred in counting their ballots. The three first named voted for the appellant and Fahey voted for the appellee.

Louis Dehn and Henry Dehn voted for the appellant in Prairie du Long Precinct. They were sons of Peter Dehn, who, as before said, lived in the territory that the order of the county court directed should be transferred from New Design to Prairie du Long Precinct. Whether either of them had any settled place of residence is left in doubt by the proof. Neither appeared as a witness. Louis was of about the age of 25 or 26 years at the time of the election. He had not lived with his father for five or six years, or had any settled place of abode. In 1900 he voted in New Design Precinct, and in 1901 he voted in Prairie du Long, and again voted in Prairie du Long in 1902 at the election in question. These acts of his in voting in Prairie du Long in 1901 and 1902, and the presumption that he voted legally, inclines us to the view his ballot was properly allowed to remain in the counted ballots. Henry Dehn was of the age of 23 years. When he arrived at age he lived with his father, Peter Dehn, in New Design Precinct. Since then he had not lived at any other place as a permanent home. There is a lack of proof to show that he acquired any other residence. At the time of the election in question he was at one Braun's, a relative who lived in Prairie du Long Precinct; but how long he had been there, and whether he was merely a.visitor there, does not appear. His stay there was but temporary. He then went to Randolph county, where he was at the time of the trial. The vote deposited by him

in Prairie du Long Precinct was the first cast by him. His home, when he arrived at age, was that of his father. We find nothing in the evidence to indicate that he changed it, or that he thought he had, or intended to do so. The more consistent view is that his home was at his father's, in New Design Precinct, and that he voted in Prairie du Long because he regarded his home as at his father's home, and he supposed, as did his father, that the order of the county board had transferred that portion of New Design Precinct wherein his father lived to Prairie du Long Precinct, and that for that reason he had the legal right to vote in Prairie du Long. The order of the county board, as we have seen, was ineffectual to change the residence of the father, and neither the father nor the son was rendered a legal voter of Prairie du Long Precinct by that order.

It was not shown for whom Henry Dehn roted. It was proven that he was a member of the same political party of which the appellant was the nominee, and it is urged that such proof is sufficient to authorize the deduction of his vote from those cast for the appellant in that precinct. Circumstantial evidence may be resorted to in order to purge the ballot of illegal votes. The party affiliations of the voter have been uniformly held sufficient to raise the presumption that he cast his ballot for the nominees of the political party of which he was a member, and this proposition, in the absence of any countervailing proof or circumstances, is, it seems, to be accepted as determining for whom the voter cast his ballot. Sorenson v. Sorenson, 189 Ill. 179, 59 N. E. 555; People ex rel. v. Pease, 27 N. Y. 45, 84 Am. Dec. 242; People ex rel. v. Teague, 106 N. C. 576, 11 S. E. 665. The ballot cast by Henry Dehn should therefore be deducted from those counted by the trial court for the appellant.

We think that the votes cast in Moredock Precinct for the appellant and for the appellee were properly counted for them, respectively. One F. J. Fischer was nominated at the precinct convention of a political party in Moredock Precinct for the office of justice of the peace, but for some reason, not material to be known, his name was not printed upon the official ballots. The official ballots for that precinct were prepared and printed by the county clerk, and by that official were furnished to the precinct judges of election. On

the morning of the election the judges of the election consulted, by means of a telephone, with the county clerk with reference to the fact that the official ballots did not contain the name of said Fischer as a candidate for justice of the peace. Afterward the judges of the election determined the name of Fischer should be written by one of the judges of the election on each of the official ballots so furnished by the county clerk, in a space left on each ballot for the name of the candidate for justice of the peace of that precinct. This action of the officials of the election was without

authority of law, but, however it might be regarded in a contest between candidates for the office of justice of the peace of that precinct, should such a contest arise, it is, we think, clear, to be deemed but an irregularity, affecting in no way the rights or interests of either of the parties litigant in this cause. It is a general rule that the votes of innocent electors are not to be rendered invalid by mere irregularities on the part of election officials which do not affect or change the result of the election, unless the statute expressly declares such irregularities fatal. This doctrine may be deduced from the expressions of this court in Hodge v. Linn, 100 Ill. 397; Blankinship v. Israel, 132 Ill. 514, 24 N. E. 615; Behrensmeyer v. Kreitz, 135 Ill. 591, 26 N. E. 704; Parker v. Orr, 158 Ill. 609, 41 N. E. 1002, 30 L. R. A. 227; and Schuler v. Hogan, 168 Ill. 369, 48 N. E. 195. And, also, see 10 Am. & Eng. Ency. of Law (2d Ed.) pp. 670, 722, 766, and also McCrary on Elections, 227, 231. In Moredock Precinct 76 votes were cast for the appellant and 73 votes for the appellee, and were properly so counted by the county court.

Objections were preferred by the one or the other of the parties to 44 ballots. The original ballots so cast and objected to have been certified to this court as part of the record herein. They are numbered consecutively from No. 1 to No. 44, inclusive. The objections urged by the appellant to ballots Nos. 4, 5, 6, 11, and 37, and by the appellee to ballots Nos. 1, 2, 7, 8, 9, and 10, are the same in character, and will be considered together.

Ballot No. 1 bears the name "H. Riebling" written with a pencil in the space or margin of the ticket below the column of Republican candidates, and in the same space on ballot No. 2 appear written with a pencil "H. Riebling" and "Plutoski, Jr." These two ballots were cast in Columbia Precinct, and were marked for appellant for county treasurer. The record shows there were vacancies in the office of justice of the peace and in two offices of constable in that precinct, and that Henry Riebling and Andrew Plutoski qualified as constables and that Louis Weihl qualified as justice of the peace as the result of the election in that precinct. The county court refused to count these ballots, regarding the words written thereon as distinguishing marks. Appellant insists that the penciled words on the tickets clearly indicated an attempt to vote for Riebling and Plutoski for constables. Below each group of candidates whose names were printed on the printed ballots were the printed words, "For Justice of the Peace," below which was a printed dotted line with a square at the left of the line, and also the printed words, "For Constable," and below these words was also a printed dotted line with a printed square opposite such dotted line. Voters desiring to cast votes for either of those offices could have lawfully written in the name of the candidate or candidates of their choice on the

dotted line or lines and placed a cross in the square at the left and in front of such line or lines. The names H. Riebling and Plutoski, Jr., were written below the dotted line, under the words "For Constable," though on the margin of the ticket. Writing the name of a person, though that person be a candidate, on the sheet of paper on which the official ballot is printed, but on some other part of the paper than that whereon the name of a candidate should appear, it cannot be denied distinguishes that ticket from other official ballots which have been prepared by the voters in accordance with the requirements of the statute. In Pierce v. People, 197 Ill. 432, 64 N. E. 372, we said (page 436, 197 Ill., page 374, 64 N. E.): "The distinguishing mark prohibited by the statute is such a mark as will separate and distinguish the particular ballot from the other ballots cast at the election. It is some sort of mark put upon the ballot to indicate who cast it, and to furnish the means of evading the law as to secrecy." Therefore not every mark made by a voter on his ballot which may separate and distinguish the particular ballot from other ballots cast at the election will necessarily result in the declaration that the ballot is invalid. If it appears from the face of the ballot that such marks or writings were placed thereon as the result of an honest effort on the part of the voter to indicate his choice of candidates among those to be voted for at the election, and that the voter did not thereby intend or attempt to indicate who voted the ballot, the ballot should not be rejected as to candidates for whom there is thereon a choice expressed in compliance with the requirements of the statute. The name of Riebling on ballot No. 1 and the names of Riebling and Plutoski, Jr., on ballot No. 2 were, beyond any doubt, written there by the voters in an honest effort to indicate the choice of the voters for the office of constable. That they, or the initials "H. A." on ballot No. 37, hereinafter considered, were intended to serve as distinguishing marks for the purpose of indicating who cast the ballots is a conjecture too remote and too highly improbable to be entertained and be allowed to operate to deprive electors of the right to vote. These two votes should have been counted for the appellant.

Ballot No. 37 bears a cross in the circle at the head of the Democratic column. At the foot of the column there was printed a square and a dotted line following it, and the words "For Constable" above the dotted line. On the dotted line were written in pencil the capital letters "H. A." This ticket was also rejected by the court from the count on the ground these initials were to be regarded as distinguishing marks. The square and the dotted line and the words "For Constable" above it invited the voter to write in the name of some one as his choice for the office of constable. The manner in which the letters are placed on the

ballot by the voter indicates to us that he wrote the letters as the initials of some one for whom he wished to vote, and by an oversight did not complete the name, or that he changed his mind, and concluded not to vote for any one for that position. There was no constable to be elected in that precinct, and this may have occurred to the voter, and he may for that reason have failed to complete the name. This ballot should have been counted for the appellee.

Ballots Nos. 4, 5, 6, and 11 were cast in Columbia Precinct, where, as stated before, there were candidates to be elected for justice of the peace and constable. On each of these tickets the voter wrote the name of some one of the candidates for constable. On ballots 4 and 5 the names were written on the appropriate printed dotted line. On ballots 6 and 11 the first name of the candidate is on the proper printed dotted line, but the surname extends, in both instances, beyond that line. The ballots were counted for the appellee. Ballots numbered 7, 8, 9, and 10 were also cast in the Columbia Precinct, and were counted for the appellant. The names of candidates for constable appear also written in pencil on each of these tickets, but practically upon the appropriate lines. To hold the names written on these tickets shall be regarded as distinguishing marks would be wholly unjustifiable, and would raise a rule so technical as to prac tically defeat the right of the voter to write on his ticket the name of the candidate of his choice, though blank or dotted lines are on the ticket for the name of such candidate.

Ballot No. 3 shows some very peculiar markings in the circle, but was counted for the appellant, and that action of the court is not assigned as for cross-error.

In the square opposite the name of the appellant on ballot No. 12 there is a distinct cross. Near the square opposite the name of another candidate for another office in which there is a cross appears a mark made with the pencil without the square. It may have been made from a slipping of the pencil or through inadvertence. It was properly held not a distinguishing mark fatal to the ballot. The ballot was correctly held a good vote for the appellant.

On ballots numbered 13 and 18 each voter made a cross in the circle at the head of the column of Republican candidates, the appellant being a candidate of that party, and between the square and the name of the appellee, in the column of Democratic candidates, the voters had made a cross on each of said ballots. The county court refused to count these ballots for either of the candidates. It is urged with much force the intention of these voters cannot be a matter of doubt; that each intended to cast a ballot for each candidate in the column of Re publican candidates except the appellant, and that each intended to cast a ballot for the appellee for county treasurer. Such

would have been the effect given to the tickets had the crosses been placed in, or substantially in, the square opposite the name of the appellee. But the crosses are entirely without and beyond the square, and, conceding that the intention of the voters to vote for the appellee is very strongly indicated, still the voter did not in a legal manner indicate his intention in marking his ballot-that is, did not make a cross in, or substantially in, the square in front of the appellee's name, but put the cross entirely without and beyond the square-and for that reason the ballot cannot be counted for the appellee. Parker v. Orr, supra. Placing the cross in the space between the square and the name of the appellee indicates plainly that it was the intention of the voter not to vote for the appellant, though he desired to vote for all other candidates of the Republican Party. We think the court properly refused to count these ballots for either candidate.

In ballots Nos. 14, 23, 28, and 38 crosses appear in the circle at the head of the column of Democratic candidates. These ballots were cast in different precincts. In two of such ballots an attempt was made to make a cross in the circle at the head of the elumn of Republican candidates, and in each of the other two a cross in the same circle bad been practically completed by the voter, but in all of these tickets the marks in the circle at the head of the Republican column had been erased by the voters. These erasures were regarded by the county court as the result of an effort on the part of the voters to correct mistakes made in endeavoring to mark their ballots, and were held by the county court not to constitute distinguishing marks, and that holding was correct.

In ballot No. 31 the voter attempted to indicate his choice of candidates for every office by placing a cross in the square opposite the name of each of such candidates. An erasure in the square opposite appellee's Came indicates he first made a cross in that square either by mistake, or that he afterward changed his intention. He placed a cross in the square opposite the name of appellant, and voted the ticket thus marked. The distinct cross in the square opposite the name of the appellant must be held to show the intention of the voter. The county court correctly ruled the erasure did not constitute a distinguishing mark, and counted the ballot for the appellant. This ruling manifestly gives effect to the voter's intention.

In the circle at the head of the group of Democratic candidates in ballots Nos. 15 and 35 the voter in each ballot first made a circle or flourish and then made a distinct and clear cross in the circle, and in ballot No. 17 a cross appears below and in the greater part outside the circle at the head of the RepubBean group of candidates, and also a cross in the circle. These ballots were held to be valid. Nos. 15 and 35 were counted for the

appellee and No. 17 for the appellant. The circular marks or flourishes were no doubt the result of the habit frequently noticed of making movements of that nature before beginning to write. The cross outside the circle was plainly an inadvertence, which the voter discovered and corrected. The court ruled correctly as to these ballots.

Ballot No. 27 has a cross in the circle at the head of the Republican column and also some other pencil marks in the circle. Appellee concedes these additional marks were apparently caused by nervousness in the voter, or unskillfulness, and that it ought not to be regarded as a distinguishing mark. The county court properly counted the ballot for the appellant.

The cross in the circle at the head of the Democratic column in ballot No. 34 has, an additional pencil mark from one arm of the cross to the lower right-hand circumference line of the circle, most probably caused by an involuntary twitching of the muscles or nerves. It was correctly counted for the appellee, and the appellant so concedes.

Ballot No. 16 has an unusually heavy penciled cross in the Democratic circle, but there is nothing to indicate it was so made for any other purpose than that of plainness and certainty, and appellant so concedes. It was properly counted for the appellee.

Ballot No. 26 was counted for appellant, and appellee concedes the irregularity therein is not fatal.

Ballot No. 19 was counted for appellant. This voter indicated his choice by putting crosses in the squares. A number of the crosses made in different squares were blurred, as if the pencil had been moistened and the hand rubbed over the marks. Appellee, in his brief, concedes it is a good ballot.

Ballots Nos. 20 and 21 have no marks upon either of them except in the circle at the head of the Democratic column. These marks are indistinct, and are visible as scratches on the paper, rather than as pencil marks. They were doubtless made with the wood of a pencil that needed sharpening to expose the lead. Both were cast in Renault Precinct, and no doubt the same pencil was used by both voters. A cross in each of the circles, though faint, can be discerned. The ballots were plainly cast with the intention to vote for the appellee, and were properly so counted.

Ballot No. 22 has a blue-penciled cross in the circle at the top of the Democratic column. The voter did not use the pencil placed in the booth by the election officers, which made a bluish-purple mark. This ballot was cast at the polls in Renault Precinct. It was in this precinct that ballots Nos. 20 and 21 were cast, in both of which the cross was found to be indistinct, and but faintly discernible, as though made with a broken or dull pencil. The voter who cast ballot No. 22 at the same polls probably decided to use a pencil of his own. The use, without im