I concur as to the holdings except as to ballots 1-5, 7, 9-12 designated as exhibits K and N.
Sec. 25-6-20 prescribes how a voter shall mark his ballot if he desires to vote for all the candidates upon the ticket. The cross (defined by Sec. 25-6-19) shall be placed
"In the circle above that ticket * * *."
I do not think the provision that the
"intent of the voter should be given full consideration and mechanical and technical defects in voting and failure * * * of the voter to follow strictly the rules for balloting as laid down in Sections 25-6-19 and 25-6-20 of the Revised Statutes of Utah, 1933, shall not invalidate a ballot" *Page 421 permits the judges of the elections or the courts to venture a guess as to the intent. There must be sufficient indication from the ballot as to what the voter really intended. The indications must be such as lead the mind naturally and without guess to infer the voter's intent. If the markings are in such position or of such nature that from the whole ballot one intent may be equally as inferable as another the result of trying to fathom what was really in the voter's mind would be a guess. In ballot represented by exhibit "K" the cross is not in the circle. It does not touch the circle above the list of Democratic candidates. It is about as far away from the circle as it can be and not be outside of the parallel double lines bounding the list of Democratic candidates. All that can be said for it is that it is inside the column formed by the extension of those double lines. I do not think this shows a substantial attempt to comply with Sec. 25-6-20. It seems to me that the indications must be that the voter was attempting to follow the instructions of the law.
In ballot marked Exhibit "N" there is a cross right in the Democratic circle thereby indicating a vote for that full ticket. There is a plain indication that the voter's mind considered the names of Hansen and Thompson. A distinct cross is placed in the square after their names. Had no faint lines been drawn through the name of Hansen I would say that even though no lines had been drawn through the name of Frantz on the Democratic side, it would suggest that the voter desired to vote for Hansen and Thompson on the Republican ticket. But that would not be certain. He may have put the cross before their names first and then decided to vote straight Democratic. This is somewhat borne out by the fact that very faint lines — much fainter than his crosses — are drawn through the name of Hansen, although no such line is drawn through the name of Thompson, but through the name of Peterson on the Republican ticket, although no cross appears in the square opposite Peterson's name as it does in the square opposite Hansen's name. But the ballot leaves us in a state of doubt as to what the real intentions *Page 422 of the voter were. Did he first vote straight Democratic then want to exclude from that vote the names of Frantz and Wallace and vote respectively for Hansen and Thompson and then again change his mind as to Hansen and try by the faint line to indicate that he wished that choice erased? But if so, why did he draw a faint line also through the name of Peterson whose name he had not signified with a cross? Was he just making strokes with his pen instead of stroking his chin while meditating? Or did he start to vote for certain individuals in the Republican column and then decide to vote straight Democratic and try to obliterate Hansen but by a feeble line only and fail to do the same with Thompson? One guess is as good as another. There are no indications which point preponderately to one intent and to the exclusion of all others. I think this ballot cannot be counted.
I have considerable doubt whether the judgment pronounced in the opinion is correct in view of our previous holdings. There were in this case cross-assignments of error but no cross-appeal. We have more than once held that cross-assignments can only have the effect of saving to the respondent the judgment of the lower court, even granted the appellant may prevail in his assignments of error. If the respondent desires a judgment reversed which he thinks also erroneous as to him, he must cross-appeal. After all a cross-appeal is another name for an appeal by the respondent and it would seem he would have equally to follow the methods laid down by statute. In this case the judgment was that the candidates should appear before the Mayor and City Recorder to draw lots pursuant to the provisions of Sec. 25-11-4, U.C.A. 1943, to determine which of them should be certified as elected to the office in question. Hansen alone appealed from this judgment. We find that the court was correct in setting aside Hansen's certificate of election, but we go further and say this decision results
"* * * in the assumption of the office of the four year councilman by Respondent Frantz," *Page 423 and our order reads as follows:
"That part of the decree of the lower court ordering the cancellation of the election certificate referred to is affirmed, and the cause is otherwise reversed and remanded with instructions to recast the findings and decree in particulars incidated by our views expressed herein; each party to bear his own costs."
If Hansen fails to prevail on appeal and the cross-assignments of error go no further than to preserve the judgment of the lower court as it is, the result would seem to be that Hansen having lost the appeal and the respondent not having himself appealed from the judgment, the judgment should be fully affirmed and the drawing proceed as ordered by that judgment. I do not think the stipulation reading, as far as this point is concerned
"* * * and upon such inspection and account the court to determine which of the parties is the duly elected Four-year Councilman of Park City,"
can effect the result. The lower court did inspect and recount the ballots and concluded that there was a tie and thereupon ordered the procedure prescribed by Sec. 25-11-4, U.C.A. 1943, to resolve this tie. We find that Frantz was really the one elected but in absence of a cross-appeal our judgment can go only so far as to hold that Hansen cannot prevail on his appeal which leaves the judgment as the lower court made it, to wit: the necessity of deciding by lot. The lower court has obeyed the stipulation. If the respondent desired to go further than merely preserving the lower court's judgment claiming the court erred not only in its holding in rejecting certain ballots as to him but in not giving judgment that he was elected, he should have cross-appealed on the theory that the court erred in the law and therefore found wrongly on the powers given it by the stipulation.
I can well see the awkwardness of the situation. If in drawing lots Hansen should win it would be a victory for him even in the face of our having found that Frantz was in *Page 424 fact the real winner in the election. Perhaps under our new rule-making power we should liberalize the procedure on appeal and treat cross-assignments as if they were cross-appeals but if so it should be done as part of a comprehensive body of rules and not by piecemeal and indirectly through decisions. While I think the order contained in the decision reaches a just result, I have some misgivings as to the uncertainty which may be created. In the above matter all I care to do is call attention to the situation in the hope that it may lead to a serious reconsideration of our rules relating to cross-assignments and cross-appeals. I do not care to register a dissent from the judgment pronounced by the main opinion in this regard.
However, in this case I see no reason why the prevailing party should not have his costs.