adopted by that board as set out in the case of Porter v. Rockford, Rock Island and St. Louis Railroad Co. supra, or may follow any other appropriate method within the powers given him by the statute, that will lead to the assessment of the capital stock, including the franchise, of each corporation which he is authorized to assess.

Reliance has been placed upon the cases of People ex rel. v. Ward, 105 Ill. 620, and Pacific Hotel Co. v. Lieb, 83 id. 602, and it is said that in both of these cases it was held that the local assessor was without authority to assess capital stock. The corporation under consideration in each of those cases was one the capital stock of which was assessable by the State board, and the language used must be limited to the capital stock of such corporations.

It follows that paragraph 4, supra, does not violate the rule of uniformity established by sections 9 and 10 of article 9 of the constitution of 1870.

The decree of the superior court will be affirmed.

Decree affirmed.

DAN P. CHOISSER

V.

LEWIS E. YORK.

Opinion filed April 20, 1904-Rehearing denied October 13, 1904.

1. ELECTIONS-when ballots should not overcome returns. Ballots which have not been properly preserved, and which have been tampered with or exposed to the interference of unauthorized persons, should not prevail over the returns.

2. SAME when the ballots are properly rejected for containing colored papers. Ballots having pieces of colored paper folded up with them are properly rejected on re-count, where there is no explanation of the presence of the papers and there is evidence that a person working for one of the tickets exhibited pieces of paper of same color and stated that persons voting that ticket with such pieces folded in the ballot would receive money.

3. SAME—failure of judges to sign or certify returns is not an objection on contest. Failure of the judges of election to sign or certify the returns or fill out the proper blanks, although ground for the refusal of the canvassing board to canvass the returns until such irregularity is corrected, is not ground for objection on contest.

4. SAME-failure to make proclamation does not vitiate election. Failure of the judges in an election precinct to make proclamation announcing the result of the election does not vitiate the election in the precinct, since the statutory provision for such proclamation is merely directory.

5. SAME what does not vitiate election. That persons not properly selected acted as election judges in the places of those regularly appointed, who failed to appear, and that no register of voters was used, does not vitiate the election, where the persons acting as judges took the oath of office and it is not shown that any illegal votes were cast in consequence of the failure to use the register. (SCOTT and BOGGS, JJ., dissenting.)

6. SAME-the use of adjoining room for additional booth is unlawful. The use of a small room adjoining the one in which the election was held, for an extra booth, is unlawful, and the ballots marked therein cannot be counted.

7. SAME—unlawful votes should be apportioned where evidence does not show for whom they were cast. Where the evidence fails to show for whom ballots marked in a room adjoining the election room were cast, the number of such illegal votes should be apportioned between the candidates in the proportion that the vote cast for each bears to the whole vote cast in the precinct.

8. SAME-use of rubber stamp for initials of judge is unlawful. The use of a rubber stamp for endorsing the initials of an election judge upon the ballots is unlawful and all ballots so stamped must be rejected. (SCOTT and BOGGS, JJ., dissenting.)

9. SAME when vote is illegal. The vote of one of the judges of election who openly and publicly prepared his ballot in defiance of law is illegal.

RICKS, J., dissenting generally.

APPEAL from the Circuit Court of Saline county; the Hon. A. K. VICKERS, Judge, presiding.

C. S. CONGER, L. O. WHITNEL, ABNEY & BURNETT, and CHOISSER, CHOISSER & KANE, for appellant.

A. W. LEWIS, R. S. MARSH, W. F. SCOTT, and M. S. WHITLEY, for appellee.

Mr. CHIEF JUSTICE HAND delivered the opinion of the court:

This is an appeal from an order of the circuit court of Saline county dismissing the petition in a proceeding commenced by the appellant, against the appellee, in that court, to contest the election of the appellee to the office of county superintendent of schools of Saline county.

The appellant and appellee, at the general election held in Saline county on the fourth day of November, 1902, were candidates, respectively, of the democratic and republican parties for the office of county superintendent of schools. The votes cast at the election were duly canvassed by the canvassing board of said county, and it was determined that the appellee had received 2086 and the appellant 2083 votes for said office, and the appellee was declared duly elected, received a certificate of election and entered upon the duties of the office. contest was subsequently commenced by the appellant, and upon a trial the court found the appellee had received 2080 votes and the appellant 2073 votes for said office, and that the appellee was duly elected, and dismissed the proceedings at appellant's costs.

A

There are located in Saline county fifteen voting precincts, namely, Tate, Galatia, Carrier Milis, Stone Fort, Brushy, Long Branch, Raleigh, Harrisburg No. 1, Harrisburg No. 2, Independence, Rector, East Eldorado No. 1, East Eldorado No. 2, Cottage and Mountain.

The record is voluminous, and the appellant has assigned errors and the appellee cross-errors thereon, and the questions discussed in the briefs will be considered in their logical order, so far as is practicable, regardless of by whom they are raised.

First-It is said the court erred in holding that the returns of the judges of the election should prevail over the ballots in determining the result of the election. The

returns, as well as the ballots, in all of the precincts in which the correctness of the vote was challenged by either party were admitted in evidence, subject to objection. It appeared, however, when the evidence was all in, that the ballots had not been properly kept; that they had been tampered with and in many instances changed, and the court, while there is no specific ruling to that effect, seems to have given the ballots but little weight, and to have based its decision mainly upon the returns. In Perkins v. Bertrand, 192 Ill. 58, it was held that the ballots are the best evidence of the result of an election if they have been properly preserved and have not been exposed to the reach of unauthorized persons, and that whether ballots have been properly preserved is a question of fact, to be determined from all the circumstances in proof. The evidence found in this record shows that the ballots cast at said election were placed in the county clerk's office in a vault where they were accessible to unauthorized persons; that in some instances the seals upon the packages containing the ballots had been broken; that the ballots had been removed from the wires upon which they were strung, and that many of the ballots had been changed or disfigured, and in view of these facts we think the trial court was justified in holding that the ballots failed to overcome the returns, and properly grounded its decision upon the returns.

Second-It is said that the court erred in refusing to eliminate from the re-count a large number of ballots on the ground that they bore distinguishing marks. From the manner in which the ballots had been kept it was impossible to determine whether what are designated as distinguishing marks were upon the ballots when cast, or whether such marks had been placed upon the ballots since that time. The condition of these ballots, disfigured as they are in many instances, emphasizes the wisdom of preserving the ballots in the manner and by the officers designated in the statute, otherwise their value

as evidence on a contest is utterly destroyed. The court did not err in declining to eliminate from the re-count the ballots alleged to bear distinguishing marks.

Third-The trial court found that fifteen illegal votes were cast at said election, five of which were cast for appellant and four for appellee, and that it was unable to determine, from the evidence, for which candidate six of the said votes were cast, and apportioned the six votes between the parties in the proportion the vote of each bore to the whole number of votes cast; that is, the court deducted eight of the votes held to be illegal from the vote of the appellant and seven from the vote of the appellee. The illegality of said fifteen votes was predicated upon the fact that the persons by whom they were cast were not residents of and entitled to vote at the several precincts where they deposited their ballots. The testimony as to whether said persons whose votes were rejected were residents of the several precincts in which they cast their votes was conflicting, and the testimony upon which the court determined for whom nine of said illegal votes were cast was based entirely upon proof tending to show to which of the political parties,that is, democratic or republican,-the persons casting illegal votes belonged, and the presumption that members of a political party usually vote their party ticket. (Sorenson v. Sorenson, 189 Ill. 179; Rexroth v. Schein, 206 id. 80.) From an examination of the testimony in this record we think the court was justified in its conclusion as to the number of illegal votes cast at the election, that five thereof were cast for the appellant and four for the appellee, and that as to six it could not be reasonably ascertained for whom they were cast, and that they were properly apportioned between the candidates. (People v. Cicott, 16 Mich. 282.) These questions were determined. upon conflicting evidence heard in open court, and the court having seen and heard the witnesses, this court will not disturb the finding of the trial court unless its