This cause comes before us on petition for *Page 795 rehearing and it appears that there is confusion as to the meaning of the command of the Alternative Writ, a part of which is quoted in the original opinion filed herein on September 27, 1932.
In the case of Nuccio vs. Williams, 97 Fla. 159, 120 So. 310, we said:
"It is the duty of the inspectors and clerks in election districts to correctly and accurately count, tabulate and make due return of all the votes and ballots cast at an election; and in performing such duty the inspectors may in some cases of ambiguity or apparent uncertainty determine from the face of the ballots as cast, the person for whom a vote was intended by the voter (see State ex rel. v. Deane, 23 Fla. 121, 1 So.2d R. 698, 11 Am. R. 343); but where there is no uncertainty or ambiguity in the name voted for or in the method used on the ballot to indicate the name voted for, the inspectors should count and return the vote and ballot as cast whatever may be the name or the mark used, the legality of the vote being for judicial determination if duly presented in appropriate proceedings. See State ex rel. v. Anderson, 26 Fla. 240, 8 So.2d R. 1. Where the statutes require a vote to be cast in a certain way, as by placing an X mark to the left of or before the name of the person intended to be voted for, the statute should be substantially complied with or the vote should not be counted among the votes that are properly cast. What is a substantial compliance with the requirement of the statute is ultimately a judicial question. Where a ballot contains an X mark after a name on the ballot when the statute requires the X mark to be placed before the name, or when there is a mark that has no semblance of an X mark before a name on a ballot such irregular votes should be separately counted, tabulated and returned, and the ballots should be duly preserved subject to judicial procedure in which the courts may determine whether the vote so irregularly cast should be counted with those that were properly and regularly cast."
A separate tabulation and return of what may be *Page 796 deemed regular ballots does not mean that only regular ballots are to be counted; if the marking of the ballot should be irregular, but the voter casting such ballot has clearly indicated by an X mark the candidate of his choice, the ballot should be counted as intended.
Only ballots where the voter has indicated his choice by the use of an X mark, that is by a cross mark of some character, should be counted. The use of any other mark than a cross mark could be used as the vehicle of fraud and identification of the ballot. Therefore, we hold that the provision of the statute which requires the use of a cross mark to indicate the choice of the voter is mandatory. Neither will the fact that a voter has placed his cross marks opposite the names of two candidates where only one is to be nominated vitiate the ballot as it applies to other candidates properly voted for.
The statute governing the primary elections as amended by chapter 13761, Acts of 1929, prescribes the form of ballot, which form indicates that the mark of the voter is to be placed on the right side of the ballot, but, there is nothing in the statute which mandatorily requires the mark indicating the choice of the voter to be placed on one side or the other of such ballot.
Section 362 R. G. S., 420 C. G. L., provides:
"The primary election required by this article, except as herein otherwise provided, shall be held in accordance with the provisions of Article 1, Chapter 1, of Title 4, First Division of these Compiled General Laws."
Section 331 of such Compiled General Laws provides in part:
"On receiving the ballot the elector shall forthwith and without leaving the polling place, retire alone to one of the booths or compartments provided for that purpose, and there prepare his ballot by marking *Page 797 with pen and ink or pencil, in the appropriate margin or place a cross mark (X) before the name of the candidate of his choice for each office to be filled, or by filling in the name of the candidate of his choice in the blank space provided therefor, and marking the cross mark (X) in the appropriate margin," * * *
Therefore, the indicating of the choice of the voter must be done by the use of the cross mark, but, as there is conflict between the implied requirement that the cross mark be placed on the right side of the ballot in primary elections and the requirement in terms that such mark be placed "before the name of the candidate of his choice," in general elections, we hold that a primary ballot should be counted if the cross mark is placed either on the right or the left of the name of the candidate, so as to clearly indicate the choice of the voter, and, although ballots in primary elections, to be entirely regular, must be marked on the right side, as is indicated by the form of the ballot in the statute, those marked on the left, though being irregular, should be counted and returned separately as valid votes. Ballots marked otherwise should be tabulated and returned separately but not counted for any candidate.
The Alternative Writ refers to "the square provided on the ballot at the right of the name of the candidate." The word " square" must be construed to mean that space immediately to the right or left of the name of the candidate which may be used by the voter for placing the mark indicating his choice and not in its technical sense a square space enclosed by straight lines.
The question as to whether or not the ballot boxes, and the contents thereof, are in the same condition in which they were at the time they were delivered to the proper custodian is not finally determined by the holding of the Circuit Judge at the hearing in response to the Alternative Writ, but is only determined by that *Page 798 judgment for the purpose of determining the right to a recount and if the evidence which may be discovered upon the opening of the boxes warrants some other judgment in that regard it may be entered then.
Having made this explanation and clarification of what is intended to be required by the terms of the Writ, motion for rehearing is denied.
WHITFIELD, TERRELL AND BROWN, J.J., concur.
DAVIS, J., concurs in part.