Because I agree with the majority, it is with some hesitation that I add anything.
1. A voter is required to mark his ballot with a cross mark opposite the name of the candidate or proposition voted for or with some other uniform mark so placed. M.S.A. 206.16, 206.50 (7). A voter is prohibited from placing "any mark as a means of identification" upon any ballot cast by him. § 206.17. It follows that a voter is permitted to mark a ballot for the sole purpose of indicating his choice of candidates or his will with respect to a proposition. "The intent of the voter must be shown and indicated as required by the statute." Pye v. Hanzel,200 Minn. 135, 138, 273 N.W. 611, 613.
A distinguishing mark on a ballot is one made by a voter which is not an honest effort to indicate his choice of candidates or his will with respect to a proposition and which is effective to identify his ballot, but a mark placed on a ballot in an honest effort to indicate his choice and not to identify his ballot is not a distinguishing mark even though such a mark might identify his ballot. Aura v. Brandt,211 Minn. 281, 1 N.W.2d 381. A mark placed upon a ballot is no less a distinguishing one, even though it is indicative of the voter's choice or will, if it is not made for the purpose of indicating the voter's intention in the manner required by statute, if the mark is inappropriate to express such intention, or if the mark is so distinct and individual in character as to furnish means of identifying the ballot. Hanson v. Emanuel, 210 Minn. 271, 274, *Page 347 297 N.W. 749) 752, where, quoting from Bloedel v. Cromwell,104 Minn. 487, 489, 116 N.W. 947, 948, we said:
"Mere irregularities in the marking of ballots, such as neither create uncertainty as to the voter's choice nor serve as distinguishing signs, violative of secrecy, are not cause for rejecting ballots. * * * It is otherwise where the marksused are inappropriate to express the voter's intention, or areso distinct and individual in character as to furnish means ofidentifying the ballot as that of the particular voter."
In applying these rules, we have held to be indicative of honest effort to express the voter's intention such marks as a cross mark (or the uniform mark used by the voter in marking his ballot) placed in the space intended for the purpose or so near thereto as to show the voter intended to make it there, erasures, obliteration of cross marks, retracings, heavy cross-mark lines, flourishes, other lines incidental to making cross marks, a cross mark opposite a blank line for writing in names but under the line having the name of a candidate, a line showing an incomplete cross mark, a cross mark not in the square for the purpose but so close to it as to indicate an attempt to put it there, and other like marks and lines which are made in the process of attempting to vote. Murray v. Floyd,216 Minn. 69, 11 N.W.2d 780; and Aura v. Brandt; Hanson v. Emanuel; Pye v. Hanzel, supra.
on the other hand, we have held to be identifying marks such marks as are inappropriate for the purpose of indicating the voter's choice or will, or of attempting to do so. Examples of such are indecent remarks and drawings on the face of the ballot, cross marks and numbers on the back thereof, check marks placed after the cross marks used to mark the ballot, circles made around cross marks, cross marks so placed as to show that they were not made for the purpose of voting, parallel lines to right opposite name of candidate, and the like. Murray v. Floyd; Aura v. Brandt; Hanson v. Emanuel; Pye v. Hanzel, all supra. *Page 348
While both a cross mark and a check mark are appropriate to indicate the voter's choice or intent, the use of only one is permissible, and the use of both constitutes an identification mark. Pye v. Hanzel, supra. So, also, use of more than one cross mark, as where one is placed before and another after the candidate's name, constitutes identification of the ballot, even though a cross mark is a proper one for purposes of voting. Murray v. Floyd and Hanson v. Emanuel, supra. A ballot must be uniformly marked — a cross mark and other marks cannot be used on the same ballot without identifying it. Aura v. Brandt and Pye v. Hanzel, supra; Hughes v. Upson, 84 Minn. 85,86 N.W. 782. Likewise, writing on the ballot by the voter the name of another person, the word "tiffany," and the word "hillman" were held to be identifying marks under the rule. Doepke v. King, 132 Minn. 290, 156 N.W. 125. In this respect our rule is in accord with the authorities elsewhere. Hunt v. Campbell, 19 Ariz. 254, 169 P. 596 (writing the name "Wilson" on a ballot cast for Woodrow Wilson for President); Donlan v. Cooke, 212 Iowa 771, 237 N.W. 496 (writing "Lets have it wet" on a ballot for county officers); Matter of O'Brien, 180 App. Div. 853,168 N.Y. S. 71 (writing "O'Brien the Taxi man" on a ballot cast for Mr. O'Brien); Evans v. Reiser, 78 Utah 253,264, 2 P.2d 615, 620 (writing such words as " 'yes,' 'no,' 'void,' 'mistake,' 'except sheriff,' 'straight ticket,' 'Preece,' 'straight,' 'counted,' 'Kuminist,' 'prohibition enforced,' 'none other,' 'out,' 'Tony,' 'all,' 'now,' 'sc. Dem.' "); State ex rel. Orr v. Fawcett, 17 Wn. 188, 49 P. 346 (writing word "rats"). See, Boland v. City of LaSalle, 370 Ill. 387,19 N.E.2d 177. As said in the Evans case by the Utah court (78 Utah 273, 2 P. [2d] 623):
"As generally understood, an identifying or distinguishing mark is such a mark as will enable a person from a description of the mark upon the ballot to single it out and separate it from the rest of the ballots. It is difficult to perceive of any marking on a ballot other than those permitted by our statute that may not serve as an identification or distinguishing mark." *Page 349
Prior to our decision in the Murray case we had held that superfluous marks and irrelevant words written upon a ballot by a voter, expressive of his intention, which had been indicated by appropriate marking of his ballot, were not identification marks. Frajola v. Zanna, 193 Minn. 48, 257 N.W. 660; Elwell v. Comstock, 99 Minn. 261, 109 N.W. 113, 698, 7 L.R.A.(N.S.) 621,9 Ann. Cas. 270; Truelsen v. Hugo, 81 Minn. 73, 83 N.W. 500. In the Truelsen case, two of the justices (Mr. Justice Lewis and Mr. Justice Calvin L. Brown) expressed the view that such words and similar markings constituted identification marks. In the Pye case, we indicated that the views of the two justices mentioned were sound and said (200 Minn. 140, 273 N.W. 614):
"* * * Writing words such as 'square deal,' 'No good,' 'O. K.,' and abusive epithets serve to identify a ballot the same as other identifying marks and should be ground for rejecting the ballot. Justices Lewis and Calvin L. Brown were of the same opinion in Truelsen v. Hugo, supra. Our cases seem to have settled the rule otherwise."
Because the question had not been decided right, like Banquo's ghost, it would not "down." Apparently our decisions in the Frajola, Elwell, and Truelsen cases were not acceptable to the bench and bar. Obviously, they should not have been. In the Murray case the trial judge (Judge Freeman of the eleventh judicial district) and counsel requested us to reexamine the question. This we did. We could not do otherwise, because of our obligation to the bench, the bar, and the law itself to decide the question right. As a matter of law and common sense, we held such marks to be identification marks, overruling our prior decisions to the contrary, and said (216 Minn. 73,11 N.W. [2d] 784):
"After all, the fact remains that an indecent remark or drawing on a ballot serves to identify it as much as a superfluous cross or other mark and that such a remark or drawing has no legitimate connection with bona fide voting. We therefore hold that an indecent remark or drawing on a ballot, placed there by the voter, is a distinguishing mark and is ground for rejecting the ballot. *Page 350 Anything to the contrary in our prior cases, such as Truelsen v. Hugo, 81 Minn. 73, 83 N.W. 500, and Frajola, v. Zanna,193 Minn. 48, 257 N.W. 660, is overruled. Therefore, ballot exhibit F-2, which was counted for contestee under the rule of our prior cases, should not be counted for him."
Prior to our decision in the Murray case, the Washington court reached the same conclusion in State ex rel. Orr v. Fawcett, supra. When the Iowa court (also prior to the Murray case) was confronted in Donlan v. Cooke, supra, with the necessity of making a choice between the rule announced in State ex rel. Orr v. Fawcett and our rule as it was announced in Elwell v. Comstock, supra, it squarely refused to follow our rule and adopted that of Washington. The court said (212 Iowa 776,237 N.W. 498):
"Another ballot had written on its face 'Lets have it wet'. While the voter had the right to have his idea of the Eighteenth Amendment to the Constitution of the United States, that question was not submitted to the voters at this election, and there was no call for the voter's expression of his views thereon. While the Minnesota Supreme Court has expressed itself on a similar proposition in the case of Elwell v. Comstock [99 Minn. 261], 109 N.W. 113, 698 [7 L.R.A.(N.S.) 621, 9 Ann. Cas. 270], holding that it was not an identification mark, we are rather disposed to hold with the Supreme Court of the State of Washington in the case of State ex rel. Orr v. Fawcett [17 Wn. 188], 49 P. 346, that such writing is an identification mark, and, therefore, the ballot should not be counted."
In the Murray case, we settled our law in accordance not only with the weight of authority, but also with common sense and reason, to the effect that irrelevant remarks and drawings on a ballot constitute distinguishing marks and grounds for invalidating it.
As applied here, the rules stated require rejection of the ballot in question upon at least two grounds, either one of which is sufficient, viz.: (1) It was marked with the letters "AFL," which, while indicative of the voter's intent, were inappropriate for marking *Page 351 the ballot; and (2) assuming, contrary to the fact, that the use of the letters "AFL" was permissible as a voting mark, the ballot was not only marked with two separate marks, which was not only not permissible but also served to identify the ballot.
The letters "AFL" were inappropriate for expressing the voter's intention. He plainly was required to say either "Yes" or "NO." He said neither. In the language of the Bloedel case,104 Minn. 487, 116 N.W. 947, supra, quoted in Hanson v. Emanuel, 210 Minn. 271, 274, 297 N.W. 749, 752, the voter used marks which were not only "inappropriate," but also "sodistinct and individual in character as to furnish means ofidentifying the ballot" and which consequently constituted distinguishing marks.
By using the letters "AFL" in one space and the word "No" in another, the voter did not uniformly mark his ballot, and thus he identified it under the rule. See, Aura v. Brandt; Pye v. Hanzel; and Hughes v. Upson, all supra. Any person informed as to the manner in which this particular ballot was marked could have picked it out from the others. In fact, that is precisely what the conciliator did.
2. So far as the points stated are concerned, the Truelsen and Elwell cases, cited in the dissenting opinion, and the Frajola case are not law, for the reason that in the Murray case we overruled those cases so far as they held otherwise. Overruled cases are not authority and will not be followed. Ryan v. Hennepin County, 224 Minn. 444, 29 N.W.2d 385. Hence, the dissenting opinion finds no authoritative support in our law. Citation of overruled cases serves only to make muddy water which had been clear.
3. We have held many times, quoting decisions written by Mr. Chief Justice Marshall of the Supreme Court of the United States (these are cited in our cases found in 5 Dunnell, Dig. Supp. § 8820, note 86), that the authority of a decision is coextensive with the facts upon which it is based and with what was actually decided with respect to such fact situation. The language of a decision should be considered in the light of these factors. Language derives meaning from the circumstances and time of its use — the *Page 352 setting communicates both content and color to words. Hiber v. City of St. Paul, 219 Minn. 87, 16 N.W.2d 878. Language of a decision taken out of its context and considered without regard to the facts and circumstances thereof and what was actually decided is apt to be misleading. Ranum v. Swenson,220 Minn. 170, 19 N.W.2d 327. Transgression of this elementary rule for reading decisions is bound to produce a distortion of the law rather than an accurate picture thereof. Here, the dissenting opinion takes excerpts from prior cases with parts deleted and with utter disregard of what the cases decided, the fact situations which they involved, and the aids which such factors furnish in determining what the excerpts mean, and it exhibits those excerpts as holding precisely the opposite of what the cases from which they were taken decided.