(after stating the facts). It is true said complaint alleges that the plaintiff was duly and legally elected to the office, and, notwithstanding such election, that the defendant is exercising and usurping the office to which he was elected, without at any time or place ever having been legally elected thereto. But the complaint goes further, and sets out the facts fully upon which the cause of action is founded, and said allegations can not be considered more than a statement of legal conclusions which are in no way supported by the statement of the facts, constituting the cause of action as alleged.
The complaint, when its allegations are considered, can not be held to be more than a statement that if an election had been held in said township on the date alleged, as the law requires, and if the votes of the electors, as tendered to the election judges upon other than ballots furnished by the election commissioners under the law, had been in fact received and counted, and none others polled, then he would have been elected.
Nowhere does it state that an election was held, and it is expressly alleged that the polls were regularly opened by the election judges in the township, who announced that no tickets had been received to be used by the voters of the township, and that certain electors', twenty-five in number, of the two hundred and eighty residing in the township, actually prepared a ticket, voting for him, and presented it to the said *115judges, requesting that such ticket be received and deposited in the ballot box to be counted by them, “but that the said judges refused to receive any of said tickets,” and that “the defendant received no votes at all at said election, not a single ballot having been offered to be deposited for him. ”
The law prescribes how elections shall be held, and requires the election commissioners to provide printed ballots, all alike, one hundred and fifty in number, for each fifty, or fraction thereof, of electors in each township or ward of an incorporated city or town according to the number of votes polled in the last preceding election, and “no ballot shall be received or counted at any election to which this act applies, except it be provided by the county election commissioners, as herein prescribed.” Section 2789 and 2790, Kirby’s Digest.
Said commissioners are required to furnish such ballots to the sheriff or other election officer three days before the election, who is required to deliver them to the judges of the election when they have assembled at the voting place for the purpose of holding the election. Sections 2787 to 2794. One of such ballots is to be given to each elector upon entering the polling room, after at' least one of the judges has written his name or initials on the back of it, and no person is permitted to carry a ballot outside of the polling room, it being a misdemeanor to do so. Sections 2718 and 2721. And “no ballot shall be received from any elector or deposited in the ballot box which does not have the name or initials of at least one of the judges indorsed on the back of it.” Section 2820.
Penalties are denounced against all election officers who wilfully neglect or omit to perform the duties prescribed by the election laws, or who do anything which is by it forbidden, and it is made a felony for “an election officer * * * to Steal, destroy, secrete, or otherwise make way with any election ballots, * * * either before or after the closing of the polls, ” punishable by imprisonment in the penitentiary for not less than two nor more than seven years. Sections 2824, 2825 and 2826.
None of these provisions of the law were complied with. The judges in the first instance were not supplied with the official ballots, or had made way with them contrary to the law, and could not and did not furnish them to the electors, neither *116could they receive from the electors any ballots other than official onés and as prescribed and regularly provided in accordance with the terms of the law. Nor did they attempt to do so, but declined to receive ballots not officially prepared and presented by a few electors upon which plaintiff’s name had been written by each of them as they had the right to do. In fact, they did’ not hold any election, and expressly declined to do so, because of the fact that they had not-been supplied with the official ballots necessary for the purpose.
Article 3, section 11, of the Constitution provides: “If the officers of any election shall unlawfully fail or refuse to receive, count or return the vote or ballot of any qualified elector, such vote or ballot shall nevertheless be counted upon the trial of any contest arising out of said election. ”
But it can not be contended in this proceeding, which is not a contest of an election, that said ballots, as presented to the election judges on the day of the election shall be counted and will entitle plaintiff to the office under said provision of the Constitution, for it was not only not unlawful to refuse and fail to receive such ballots and count them, but unlawful for said judges to do so.
The voice of the people is supreme, and not to be thwarted, nor their choice overridden, when it is expressed under the form, of law as made for their protection and the security of their ballots and the prevention of fraud in the expression of such choice. But it can not be said that their, voice has been heard and rejected and their will thwarted and disregarded when they have not spoken at all, no election having been held.
The machinery provided furnishes ample opportunity for a fair expression and correct record of the people’s choice when the election officers do their duty as they are presumed to do, and the law requires they shall, under heavy, penalties for failure, but their failure to hold an election does not authorize the court in a proceeding of this kind to declare what might have been the choice of the voters of any township or county, in case such election had been held and the people permitted to vote, as it is alleged they desired to do.
The judgment is affirmed.