leave his vote at 2062, and properly deducts from the vote of York 20 votes in the same district, which would leave his vote at 2060 and give Choisser two majority, but in addition to this the majority opinion, improperly, as we think, rejects the entire vote of Carrier Mills precinct, thereby reducing Choisser's vote to 1849 and York's vote to 1895, resulting in a majority of 46 for the latter, and the conclusion is thereby reached that the appellee, York, was duly elected to the office of county superintendent of schools. This results from the holding that all the votes cast at the precinct of Carrier Mills should be rejected and not counted, for the reason the initials of one of the judges of the election at that poll were, it seems, placed on the ballots with a stamp. This ruling deprives the legal voters of Carrier Mills of the right to have the votes cast by them at that election counted because of the honest mistake of an election officer in believing that he could endorse his initials on the ballots with a stamp. If this holding be correct, the right of legally qualified electors to exercise the elective franchise may be taken away from them without any wrongful act or negligence on their part, by the honest mistake of an election officer as to the true construction of a provision of the statute. It would also follow that the like disfranchisement of voters might be accomplished by the fraud or wrong of such an officer. If the ruling be correct, the right of every legal voter to cast his ballot and have it counted is held in the hands of and is at the mercy of the judges of the election. We cannot assent that an election officer, by intentional fraud or wrong or by innocent misconception of the true meaning of the statute, can deprive legally qualified electors of the right to vote.

The right to vote is created by the constitution of the State. Section 1 of article 7 of the constitution of 1870 reads as follows: "Every person having resided in this State one year, in the county ninety days, and in the

election district thirty days next preceding any election therein, who was an elector in this State on the first day of April, in the year of our Lord 1848, or obtained a certificate of naturalization before any court of record in this State prior to the first day of January, in the year of our Lord 1870, or who shall be a male citizen of the United States, above the age of twenty-one years, shall be entitled to vote at such election." Section 7 of the same article empowers the legislature to exclude from the right of suffrage persons who have been convicted of infamous crimes, and according to the familiar rule of construction, the grant of power to deny the elective franchise to those convicted of infamous crimes implies the denial of power to deprive one who is entitled to vote under the first section of the article, of that right for any other reason than that he has been convicted of an infamous crime. The denial of power to exclude voters for any other cause is declared by a rule of construction that is so fundamental and uniformly established as to make any citation of authorities entirely useless. The right to vote being a constitutional right, it cannot be taken away by legislation, and the right to vote carries with it the right to have the vote counted. (McCrary on Elections, sec. 48; Moyer v. Van de Vanter, (Wash.) 41 Pac. Rep. 60; Attorney General v. Detroit, 78 Mich. 545.) The General Assembly, it is freely conceded, may prescribe reasonably proper and necessary regulations controlling the manner and mode of exercising the right, but regulations which destroy or substantially impair the constitutional privileges of the elector by reason of the mistake or fraud of an election officer are beyond the power of the legislature, and cannot be enforced because in contravention of the organic law of the land. (McCrary on Elections, sec. 133; Moyer v. Van de Vanter, supra; Attorney General v. Detroit, supra; Monroe v. Collins, 17 Ohio St. 665.) In the latter case it was said, in substance: The legis lature have no power, directly or indirectly, to deny or

abridge the constitutional right of citizens to vote or unnecessarily to impede its exercise, and laws passed professedly to regulate its exercise or prevent its abuse must be reasonable, uniform and impartial.

In Moyer v. Van de Vanter, supra, it is said: "Can the legislature enact a law whereby election officers can practically disfranchise all the electors of a precinct, where the electors themselves are not at fault? If so, the constitutional guaranty is of small consequence.

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The individual voter may well be called upon to see that the requirements of the law applying to himself are complied with before casting his ballot, and if he should willfully or carelessly violate the same there would be no hardship or injustice in depriving him of his vote; but if, on the other hand, he should in good faith comply with the law upon his part, it would be a great hardship were he deprived of his ballot through some fault or mistake of an election officer in failing to comply with a provision of the law over which the voter had no control. It is also a question in which the public has a direct and important interest, for the loss of such votes may have a controlling effect upon a public matter. The constitutional provision aforesaid guarantees the right to vote, and this, of necessity, carries with it the right to have the vote counted. Of course, the manner of voting and canvassing votes must be subject to all reasonable legislative requirements."

In Attorney General v. Detroit, supra, it was said: "The power of the legislature is limited to laws regulating the enjoyment of the right by facilitating its lawful exercise and by preventing its abuse. The right to vote must not be impaired by the regulation," and, as supporting that proposition, the Michigan court cited Page v. Allen, 58 Pa. St. 338, Dills v. Kennedy, 49 Wis. 555, Edmonds v. Banbury, 28 Iowa, 267, Monroe v. Collins, 17 Ohio St. 665, Daggett v. Hudson, 43 id. 561, State v. Baker, 38 Wis. 71, and State v. Butts, 31 Kan. 554.

Again, McCrary, in his work on Elections, (sec. 240,) says: "The citizens possess the prerogative of voting, and the legislature cannot take that right away by encompassing an election law with unconstitutional provisions."

In recognition of this principle we said in Caldwell v. McElvain, 184 Ill. 552, "that ballots not having the initials of the judge of election endorsed thereon cannot be counted, in the absence of evidence tending to show fraud or mistake on the part of the judges." In the case at bar the mistake of the judges at Carrier Mills is shown by undisputed evidence, and clearly the ballots cast there ought to be counted.

In Perkins v. Bertrand, 192 Ill. 58, it was urged that ballots should be rejected for the failure of the judge of the election to endorse his initials on the ballots. The judge had endorsed one letter, only, on the ballot, but that was one of his initials, and we held the voter not deprived of the right to vote by the failure of the judge of the election to comply literally with the provisions of the statute.

If the law be as held in the majority opinion, it is in the power of any election judge to disfranchise a voter known by him to be of the opposite political faith, by failing to endorse his initials on the ballot of that voter, unless, indeed, the voter should observe the omission and be able to induce the officer to correct it. Electors do not so hold their constitutional privileges at the will of election judges. The statute provides for the punishment of an election judge who willfully neglects to perform his duty or who shall willfully perform it in such a way as to "hinder the object" of the election laws. The enforcement of these provisions may be resorted to to secure compliance with official duty, and it seems indefensible to visit the sins or omissions of the officials on the innocent voter, even if no constitutional provision existed for his protection.

In Harrisburg district No. 2, as found by the court. below, Choisser received 167 votes and York received 341 votes. The majority opinion reduces Choisser's vote by deducting therefrom George Abney's vote and 10 of the 30 votes which were marked outside the booths, thereby leaving his total in that district stand at 156, and reduces York's vote by deducting therefrom 20 of said 30 votes, leaving his total in that district at 321, thus giving him a majority of 165 at that polling place. In this district the election judges selected by the board of supervisors in the regular manner were Ira Gibbons, F. C. Glasscock and J. E. Jobe. Neither of these men appeared on the morning of the election, and the voters present did not select judges to act in their places, as the statute requires. Instead, C. A. Taylor, M. B. Gaskins and G. W. Abney appeared and announced that they would hold the election. It is not shown how or by what authority these men obtained possession of the official ballots. Taylor testified that he acted as judge at the request of D. D. Lockwood, who was an election judge in Harrisburg district No. 1, as shown by the supervisor's record. Gaskins testified that he acted at the request of Mr. Bauder, supervisor of the township. Neither Bauder nor Lockwood was present at the opening of the polls. How Abney came to act does not appear. These men, in conducting the election, did not use the register made in accordance with the statute, but instead used the poll-list or pollbook of Ed. M. Stricklin, who was the republican challenger at that polling place. They permitted persons to vote to whom objection was made, without requiring any affidavits showing their qualifications and without it being made to appear that they were registered. The room in which the election was held did not open upon the street, as required by the statute. There was a partition extending part way across the room, and the polling place and the booths were on one side of this partition. During the day, voters, at the direction of those acting