I concur in the judgment. With respect to the ballots upon which crosses appear in the square or space after the words "No nomination," I concur, because I regard the proposition that such crosses constitute a distinguishing mark as the settled law of this state, under the decisions cited in the main opinion. As the legislature of 1903 changed the form of the ballot so that those words will not appear on the ballots in future elections, the matter ceases to be of sufficient prospective importance to justify further consideration, even if the principle of the cases were considered as unsound.
This proposition being established, there can be no modification of it on the ground that there happens to be so many similarly marked ballots in a single precinct that it is not possible to identify any one of them as the ballot of a particular voter. The principle underlying the decisions referred to must be that the statute is to be considered as declaring each of such marked ballots void, because, as the mark is purposely made, there is an intent presumed by law on the part of each voter, at the time he casts it, to mark it for identification. This presumed intent is not affected, nor can *Page 417 it be disproved, by showing other facts, necessarily unknown to the voter at the time, which tend to, or actually do, for that purpose make futile the act from which the intent is presumed. Hence, it is not material to show by a display of the ballots after the polls are closed, that so many other voters used the same mark that it failed to afford the means of identification which the law conclusively presumes the voter intended. It is the conclusive presumption of the law as to the intent of the voter by an illegal mark purposely made, and as to the effect of such illegal mark, which renders the ballot invalid, and not the actual intent, or absence of intent, of the voter, nor the actual effect of the mark to give the means of identification.
I do not mean to say, however, that where marks are found on a ballot which, if purposely made, might serve to identify it and make it void, but where the mark itself, or other appearances on the face of the ballot, shows that such mark was made accidentally, or unconsciously, and not with intent to mark or identify the ballot, the voter is to be thereby disfranchised and the ballot so marked declared invalid.