I concur. Eliminating all ballots and not counting any of them where the voter voted for two candidates for the office of recorder — we are all agreed on that — and considering all other challenged ballots in determining what of them *Page 296 should be rejected and what counted, I, by reason of the statute and in harmony with the prevailing opinion, base my result on the following:
1. All ballots containing writings, whether of words, letters, or figures, other than the writing of a name or names in the blank ticket of a person or persons voted for, and not shown to have been written on the ballot by the election judges, or by one other than the voter after the ballot left his hands, should be rejected.
2. All ballots containing blotches, scribblings, scrawls, or drawings, in the circle or square of a ticket, intentionally put there by the voter by pen and ink or pencil or otherwise should be rejected.
3. All ballots, though a cross-mark is in a circle of a ticket or in a square opposite a name on the ticket, yet where the voter drew lines or scrawls over the cross-mark, or scribbled over it, or with pen or pencil or other substance intentionally blotched or blotted or scribbled over the cross-mark or over the circle or square, or drew lines or circles around the cross-mark or the circle or square, or scribbled and blotched circles and squares or drew lines around them on other tickets, or intentionally and indiscriminately drew scrawls or lines up and down or over tickets or a portion of them, or with pen or pencil or other substance scribbled or blotched, or drew characters on them other than voting marks as defined by the statute, should be rejected.
4. All ballots containing erasures made by a voter in a circle or circles, or in a square or squares whereby the paper of the ballot is cut through, or the texture of the paper destroyed or substantially affected, should be rejected; such a ballot, if not mutilated, being a defaced or spoiled ballot.
5. Any pronounced or substantial mark or markings of any kind, other than as prescribed by the statute in voting, put on the ballot willfully and intentionally by the voter vitiates the ballot and requires it to be rejected.
6. A cross-mark by the voter put outside a circle or a square, or which merely touches a circle or square, cannot *Page 297 be counted as a voting mark. Nor under the great weight of authority, under statutes similar to ours, is it enough if only one or two end lines of the cross-mark is within the circle or square. To be a voting mark the intersection of the cross lines must be within or at least on the line of the circle or square. In such respect we do not go to the extent as do some of the courts that though the intersection of the two lines of the cross-mark is within the circle or square, yet, if one or more of the end lines extend beyond or are without the circle or square, the mark cannot be considered a voting mark.
7. Check marks or small circles or mere lines or other characters or markings, not amounting to a cross-mark as defined by the statute, placed by the voter in, or near or along the side of, a circle or square or squares, cannot be considered a voting mark and as such cannot be counted.
8. A cross-mark in a circle or square which is merely defective or incomplete should be considered a voting mark, if by the marking or markings an intent is evident to make a cross-mark. But I cannot regard a mere check mark, or a mere line, or a scrawl or scrawls, or a small circle, or a letter or a word, or a blotch, or scribbling, a defective or an incomplete cross-mark.
9. Three or more or a number of distinct and separate lines in a circle or square may not be considered a voting mark, unless by the marking it is evident that the extra lines made by the voter are a mere retracing of a cross-mark in a circle or square to make the cross-mark more distinct or complete.
10. A ballot containing two or more separate and distinct cross-marks in a circle or square, unless as a result of a mere retracing of a cross-mark, is to be rejected. The statute permits but one, not several, cross-marks in a circle or square.
11. A ballot containing a tear, if otherwise not defective, is not to be rejected, unless the tear is shown to have been made by the voter. *Page 298
12. Where it is apparent that a cross-mark, though irregular, was made by a nervous or shaky hand, or while the ballot was resting on a rough board or the like when the mark was made, the ballot is not to be rejected if a cross-mark is discernible and the intersection of the cross lines is within or on the line of the circle or square, and is not otherwise blotched, scrawled, or scribbled over.
13. Crossing out a name on a ticket and writing a name above or below the name crossed out is not marking a ballot as provided by the statute and may not be counted.
14. Small blotches of ink on a ballot apparently as the result of accident or droppings from the pen, or of folding the ballot, or other apparent mere accidental marks on the ballot, do not invalidate the ballot. But where the blotches apparently are the result of spilling ink on the ballot, or of an intentional daubing or blotching a ballot with a cork, stopper, or other substance wet with ink, or as the result of scribbling, or of an intentional daubing or blotching with pen and ink, or pencil, the ballot becomes a defaced or spoiled ballot and should be rejected.
Upon such consideration, which is in accord with the weight of judicial authority in jurisdictions having statutes similar to ours, counting or rejecting the challenged ballots — except those voting for two persons for recorder — for or against the contestant and contestee, gives the contestee a clear plurality of from ten to fifteen votes, depending upon a consideration of seven or eight ballots, which, if rejected, will give the contestee a plurality of at least ten votes, and if counted, some of which are favorable to the contestee and some favorable to the contestant, will give the contestee a plurality of fourteen or fifteen votes.
As stated in the prevailing opinion, what chiefly divides the parties is dependent upon what rule is considered in determining the validity of a ballot. The argument of the contestant is that if a ballot is found with a cross-mark or a mark resembling it within or partly within or touching the circle of the ticket on which the name of either of the *Page 299 parties appears, or where any kind of a mark resembling a cross-mark is within or partly within or touching a square opposite her name, and not anything else appearing on the ballot in conflict therewith or that the voter voted for another for the same office, the ballot should be counted, no matter how otherwise it may have been marked, blotched, scribbled, scrawled, or what language, word, letter, or figure may have been written on the ballot by the voter. The argument is carried even to the extent that though the word "yes" is written, instead of a cross-mark made, in a circle, the ballot should be counted, if on it not anything else appears to be in conflict therewith. In other words, in counting or rejecting a ballot, the contention is made by the contestant that the intention of the voter is the controlling factor, if such intention can be gathered from the face of the ballot, regardless in what manner the voter marked or prepared his ballot, unless it clearly is shown, not that some mark or marks or writing put on the ballot by the voter may serve as an identification of the ballot, but that such or some mark or writing was willfully and intentionally put on the ballot by him for the purpose of identifying it. Because of our statute, and as pointed out in the prevailing opinion, I cannot agree to that. There are some statutes which provide that in determining the validity of a ballot the chief and controlling factor is the intention of the voter as disclosed by the ballot, though the markings of it may not be in compliance with the statute, unless it clearly is shown that such or some mark or writing was put on the ballot by the voter with the intention and for the purpose of identifying it. I do not think our statute permits of such an interpretation. It is not a question of giving the statute either what is termed a strict or a liberal construction. The statute is to be taken and accepted what its language reasonably and fairly imports, and is not to be enlarged or abridged to meet exigencies of a particular case. The statute plainly and specifically points out how the intention and choice of the voter shall be expressed or indicated. He may not properly do it any other manner. As *Page 300 to that the Legislature has spoken and every voter must in substance and spirit comply with it.
Except writing the name of a person or persons for whom he intends to vote in the blank space of the ballot provided for such purpose, I think a voter is not privileged to write anything on the ballot, and if he does so, he destroys his vote. And if a voter, instead of indicating his choice by a cross-mark in a circle or in a square or squares, attempts to do so by writing "yes" or "no" or "straight" or other language to indicate his choice, he is marking the ballot in a manner not permitted by the statute and invalidates the ballot. So, too, instead of indicating his choice as by the statute provided, the voter attempts to do so by scribblings, drawings, scrawls, or blotches, in circles and squares, drawing straight or curved or irregular lines over tickets on the ballot from top to bottom in some instances only over a portion of them, blotting circles and squares, some with pencil marks, others with ink as though blotted with a cork or stopper wet with ink, making erasures in circles or squares, some as though done with a knife, others with a hard or rough substance, in some instances cutting or tearing the paper of the ballot and in others destroying the texture of it, spilling ink on the ballot, placing a seal on it, putting not one but several distinct cross-marks in the circle, or placing cross-marks outside the circle or square, etc., he thereby mutilates, or defaces or spoils the ballot, or marks it in violation of the statute, and invalidates the ballot. None of such markings as here made, except perhaps as to one ballot spilling ink on it, in no sense was made accidentally or unintentionally. To the contrary, it is evident that all such markings were willfully and intentionally made by the voter, and all may well serve as an identification of the ballot, whether the marks or writings were so put on the ballot for such purpose or not. No one may successfully claim that a voter writing "yes," or "no," or "prohibition enforced," or writing other words, letters, or figures on a ballot, or drawing lines with arrow heads at one end or curved or irregular lines over a ballot, or scribbling, blotching, *Page 301 and blotting squares and circles with a pencil or pen, or drawing characters in them, is accidental or unintentional. If a voter chooses to so willfully and intentionally deface or spoil his ballot, and fly in the very teeth of the statute in preparing his ballot, he must suffer the consequences. Language of the statute may not be bent and stretched to excuse such nonsense and permit the ballot to be counted.
Some of the divergent views of the parties relate to certain markings or characters in circles or squares as to whether they are mere retracings of a cross-mark, or whether they may be regarded as mere defective or incomplete cross-marks. The prevailing opinion proceeds on the theory, and in that I fully concur, that where it is fairly or reasonably evident by an inspection thereof, that the marking is a mere retracing of a cross-mark, or is a mere incomplete or defective cross-mark, the marking is regarded a voting mark and the ballot counted, if not otherwise defective. Such rule is applied to both parties, where a retracing or a defective or incomplete cross-mark is fairly apparent; and is applied to a defective marking resembling the letter "Y" or the letter "V," with one or two of the lines slightly or perceptibly extending below the union of the two lines, and where it is apparent the character was made with two strokes of the pencil or pen. But such rule is not applied to a mere check mark clearly made with but one stroke of the pen or pencil and without lifting it and where it is evident there was no attempt or intention to make a cross-mark but an intent to make a mere check mark, or some mark other than a cross-mark, such as drawing or marking, in a circle or square three or four or more separate and distinct lines or only one line or small circles or other characters, with no apparent attempt or intent to make a cross-mark, or by scribbling or blotching the face of the circle or square with a pen or pencil or other substance.
As to a few ballots a difference of opinion may well arise as to whether the markings are a defective or incomplete cross-mark and as to a few whether the markings are a *Page 302 mere retracing of a cross-mark, in which case and where there is a substantial doubt it is resolved in favor of the validity of the ballot and the ballot counted. There are about as many ballots of such character counted for the contestant as for the contestee. If all ballots of such character favorable to the contestee were rejected and all such favorable to the contestant counted, the final result still gives the contestee a plurality.
There were three candidates for the office of recorder, all women. The printed name of each was on her respective ticket. In a few ballots a cross-mark was placed in the square opposite the name of one of them, a cross-mark in a square opposite the name of another, and then a line drawn through the name of such other and through the cross-mark opposite her name. If such ballots are rejected, the contestee would lose about as many ballots as would the contestant, and if counted the one would gain about as many as would the other. In either event, the final result would not substantially be changed.
I thus concur in reversing the judgment and in the direction that the complaint be dismissed and that a judgment be entered in favor of the contestee.