
    The People ex rel. A. E. Woods, County Collector, Appellant, vs. James A. Green, Appellee.
    
      Opinion filed October 16, 1914.
    
    1. Taxes—returns of hard roads tax election must be canvassed by supervisor, assessor and collector. While there is no provision in the Township Organization act or the Hard Roads act requiring the canvassing board designated in section 7 of article 7 of the Township Organization act to canvass the returns of an election on the proposition to levy a hard roads tax and to issue bonds for hard roads, yet it must be held that the legislature intended the returns to be canvassed by such board.
    2. Same—failure of a proper canvassing board to canvass returns is not fatal to the tax. If there is no question but that the vote of the people at a hard roads tax election was in favor of the proposition, the tax should not be defeated, on application for judgment and order of sale, because the returns were canvassed by the town clerk and a justice of the peace instead of by the proper canvassing board.
    3. Same—what not a valid objection to bond tax. It is not a valid objection to a hard roads bond tax that the highway commissioners did not hold a meeting to determine what action they should take in respect to presenting a petition to the supervisor of the town'and did not make any record in relation thereto. (People v. Gough, 260 Ill. 542, followed.)
    Vickers, J., dissenting.
    
      Appeal from the County Court of Edgar county; the Hon. Dan V. Dayton, Judge, presiding.
    W. H. Hickman, State’s Attorney, Shepherd & Trogden, and James W. & Edward C. Craig, for appellant.
    ■ H. S. Tanner, E. C. VanSellar, W. S. Lamon, W. V. ArbucklE, and Fred Rhoads, for appellee.
   Mr. Justice Carter

delivered the opinion of the court:

The collector of Edgar county applied to the county court of that county, at the June term, 1913, for judgment against the lands of James A. Green, appellee, for taxes alleged to be delinquent. Green filed objections, which were sustained. The People have prosecuted an appeal to this court from the order of the county court refusing judgment.

The taxes involved were levied for purpose of constructing hard roads in the town of Embarrass and for the payment of principal and interest on bonds issued to raise funds to build hard roads. The objections raised the question of authority in the commissioners of highways to levy these taxes, on the ground that the returns of the election at which was submitted the question of levying a tax for hard roads had never been canvassed by the officers designated by the statute for that purpose. The town of Embarrass has two voting precincts, and an election was held in each of these precincts to vote on a tax for hard road purposes. After the election was held returns were filed with the town clerk, and said returns were canvassed by him and one of the justices of the peace of said town. The proposition was'by these officers declared carried.

Section 3 of the Hard Roads law provides (Hurd’s Stat. 1911, p. 2036,) that “if a majority of all the ballots cast-at said election shall be in favor of said special tax, then it shall be the duty of the commissioners of highways of the township * *• * • to levy a tax in accordance with said vote.” Section 4a of that act, as amended in 1909, (Hurd’s Stat. 1911, p. 2036,) provides that the returns of the election shall be “made in the same manner as other special town (or district) elections are now or may hereafter be provided by law.” This last is the only portion of the act which might be construed as referring in any way to the canvass of the returns,, and only provides how the returns shall be made and not how they shall be canvassed. Section 7 of article 7 of the Township act provides (Hurd’s Stat. 1913, p. 2444,) that in organized townships “the supervisor, together with the assessor and collector, shall, within five days thereafter, meet and canvass said returns and declare the result of said election.” While this section does not refer specifically to canvassing the returns as to propositions, in our judgment the legislature intended that the elections held under the Hard Roads statute in counties under township organization should on any question be canvassed by the same board as under the law is required to canvass other township elections,—that is, the supervisor, assessor and collector. The town clerk and justice of the peace were therefore without authority to act as a canvassing board or to declare the result of this election.

Can this tax, as levied by the highway commissioners, be questioned in this proceeding because the canvass was not made by the proper officials? In considering the question as to ascertaining the result in elections on questions submitted for adoption or rejection by the electorate,- the usual rule seems to be that the votes are counted, and the returns made in the same manner as in other elections unless there is some provision to the contrary. The canvassing of the votes by the wrong officers, however, is but a mere irregularity. ( 5 McQuillin on Mun. Corp. sec. 2200.) In a township election in this State where railroad bonds had been voted and the ordinary judges of election had canvassed the votes instead of the moderator of the town meeting, it was held by the United States circuit court in Marcy v. Ohio, 17 Fed. Cas. 64, that this was not vital; that “the main thing in this election was to determine whether there was a majority of the voters in favor of the subscription upon the conditions named. There is no dispute but that there was such a majority, and the fact that certain persons named as judges by common consent received the votes and canvassed them is nothing more than an irregularity,” etc. This decision was affirmed in 85 U. S. 552. The canvass of the returns or the certificate of election is merely prima facie evidence as to the result. In a proper proceeding the authorities may go behind the certificate or the canvass and ascertain the real facts. The duties of the canvassing board are merely ministerial, and omissions or mistakes of that board can have no controlling influence on the election. (15 Cyc. 382, 387, and cases cited.) “The failure or refusal of the proper officer to issue a certificate of election to a person duly elected to an office cannot operate to deprive such- person of his rights. The certificate or commission is the best .but not the only evidence of an election, and if that be refused secondary evidence is admissible.” (McCrary on Elections,—4th ed.—sec. 205.) It is not in the power of election officials, by neglecting or refusing to give the proper certificate, to defeat the will of the people, for the ballots determine the election and not the certificate, and the person chosen from whom the certificate is withheld may nevertheless proceed to qualify and take possession of the office unless opposed by a de facto incumbent. The right to the office depends on the ballots and not on a commission. . (Cooley’s Const. Lim.—7th ed.—934, 940; State v. Draper, 50 Mo. 353.) The legality of the election and the rights, powers and duties of the office do not depend upon the fact of the declaration of the board of elections. “That declaration is proper and is the usual practice, but withholding it or neglecting causelessly or illegally to make it will not prevent the installation in and investment with the office. The authority, rights and powers of such officers are derived from the election and not from the returns, which are the usual prescribed evidences of it.” (People v. Kilduff, 15 Ill. 492.) In reaching the correct results in proper proceedings in election matters very little attention is paid to mere irregularities in the acts of election officers which do not affect the real merits of the case. If the statute expressly declares any particular act to be essential to the validity of the election or that its omission shall render the election void the courts must enforce the provisions of such statute, but in cases where the statute simply declares that certain things shall be done within a particular time or in a particular manner and does not declare that their performance is essential to the validity of the election, then they will be regarded as mandatory if they affect the actual merits of the case, but they will be considered directory, only, and not vital to the election, unless they are such, in themselves, as to change or render doubtful the result. (McCrary on Elections,—4th ed.— secs. 221, 225, 227.) The provisions of statutes which control the “recording and return of the legal vetes received and the mode and manner of conducting the mere details of the election are directory.” ("McCrary on Elections,—4th ed.—sec. 228.) In discussing the question of the sufficiency of the returns in an election matter this court has said: “The question in all such cases should be, whom did a majority of the qualified voters elect? Forms should be made subservient to this inquiry and should not rule in opposition to substance. A literal compliance with prescribed forms is not required in any case if the spirit of the law is not violated, and in all cases the intentions of the voters, clearly ascertained, should govern.” (People v. Hilliard, 29 Ill. 413.) This court has frequently held that the provisions of the election statutes as to the manner of conducting the details of an election are not mandatory but directory, and that mere irregularities in the manner of proceeding, and which deprive no legal voter of his vote and do not change the result, will not vitiate an election. (Ackerman v. Haenck, 147 Ill. 514; Behrensmeyer v. Kreitz, 135 id. 591; Hodge v. Linn, 100 id. 397.) “While the legal safeguards which are thrown around the ballot must be faithfully observed by those who have been entrusted with their enforcement, yet, under the pretense of enforcing them, the will of the people as expressed at the polls is not to be defeated by mere technicalities.” (People v. Nordheim, 99 Ill. 553; People v. Ruyle, 91 id. 525.) Ordinary citizens cannot be expected to observe every possible formality and the strict letter of the statutes concerning non-essentials. The success or failure of popular government in the end rests on the great mass of the citizens,—“the plain people.” The canvassing and returns of votes are made in the hurry and excitement of election. The will of the people should not be defeated by useless forms or idle technicalities. When the result of the election has been fairly ascertained it should be given full effect. McCrary on Elections, (4th ed.) sec. 243; People v. Chicago and Eastern Illinois Railroad Co. 214 Ill. 190.

In this case the returns of the judges and clerks were produced in the trial court and are in the record. Erom this record there can be no- question that “a majority of all the ballots cast at said election” were in favor of such tax. This seems to be conceded. ■ The failure of the p proper election officials to canvass the returns should not be permitted, in a proceeding of this kind,’to defeat the will of the people as manifested at the election. This court has held that “any error or informality in the.acts of the officers or proceedings for the levy of a legal', tax, not affecting its substantial justice, is to be disregarded or amended,” etc. People v. Worley, 260 Ill. 536.

It is argued, however, by counsel for appellee, that in the case just cited it was held that the election was illegal because the ballot was not in proper form, and that the conclusion in that case sustains their posititin here. In this they are in error. In that case the defect in the ballot prevented the ascertaining of the will of the people, it being impossible to decide, from the form of the ballot, whether a person was voting' for or against the borrowing of money. Section 191 of the Revenue act provides,'among other things, “no error or informality in the proceedings of any of the officers connected with the assessment, levying or collecting of the taxes, not affecting the substantial justice of the tax itself, shall vitiate or in any manner affect the tax or the assessment thereof.” (Hurd’s Stat. 1913, p. 2058.) The defect complained of here is a mere irregularity which does not tend to thwart in any way the will of the people nor affect the substantial justice of the tax.

The further objection of counsel for appellee that the tax in question is void, because road No. 1 described in the petition passed through an incorporated town is identical with an objection raised in People v. Worley, supra, and ruled on adversely to appellee’s contention. Appellee argues that the conclusion in that case was incorrect. We see no reason to modify or change that conclusion.

Some of the objections made to the hard road tax were also interposed as to the bond tax, and the bond-tax was also objected to on the ground that the highway commissioners did not hold a meeting to determine what action, if -any, they should take in respect to presenting a petition to- the supervisor of said town and did not make any record in relation thereto. This is the same objection that •was made to a bond tax in the case of People v. Gough, 260 Ill. 542. It was there held that the objection was without merit.

The objections of appellee should have been overruled by the county court. The order of that court will therefore be reversed and the cause remanded, with directions to the county court to overrule the objections and enter an order for judgment of sale.

Reversed and remanded, with directions.

Mr. Justice Vickers, dissenting.  