In re McDade

McLennan, J.:

On the 19th day of September, 1899, the Democratic party of the city' of Rochester, 1ST. Y., held a primary election under and pursuant to the Primary Election Law, being chapter 179 of the Laws of 1898, as amended by. chapter 473 of the Laws of 1899 of the State of Few York. Under the provisions of such statute the duly qualified voters belonging to the Democratic party, .residing in the second district of the ninth ward of said ‘city, were entitled to vote for five delegates to each .of the following Democratic conventions, viz., the county, third, assembly district and city conventions. Such voters were also, in conjunction with the Democratic voters of the other district of said ward, entitled to nominate candidates for the offices of supervisor, alderman and constable of .such ward, and to elect ¡a ward committee consisting of nine persons. The regular ballots used by the voters of said primary election were such as were prescribed by the custodian of primary records (the county clerk in this case), and as prescribed conform to the requirements of the Primary Election Law in all respects. 'Each of such regular ballots :had printed upon its' face: under the words “Delegates to the County Convention,” “Delegates to the. Third Assembly District Convention,” “Delegates to the-City Convention,” five names respectively. There was also one name under the words “ For .Supervisor,” “For Alderman” and .“For Constable,” respectively; and under the words “ For Ward Committee” there were nine names, twenty-seven names in all arranged in a column and in the order above indicated.

At said primary election -there were 'two principal candidates for the nomination .for mayor of the city of Rochester, viz.;. Mr. George E. Warner and Mr. Charles B. Ernst. The ballot’s which contained the names of delegates to the City convention favorable to the nomination of Mr. Warner for mayor were called Warner ballots, and those containing the names of delegates favorable to the nomination of Mr. Ernst were called Ernst ballots, and are so designated in this proceeding. Not only were the names of the delegates to the city convention different upon such ballots respectively, but that was substantially true of all the other names upon such ballots.

At the primary election in the district in question one hundred and twenty-two ballots were cast, and of such ballots one hundred and seventeen were concededly regular and legal in all respects. Sixty-two of that number were the regular Ernst ballots, so called, and contained the names of delegates to the city convention favorable to the nomination of Mr. Ernst for mayor; fifty-five' were the regular Warner ballots, so called, and contained the names of delegates to the city convention favorable to Mr. Warner’s" nomination. Of the five remaining ballots which were cast- four were regular Ernst ballots, but one had upon its face a paster of light, thin paper, just large enough to contain the names of the Warner delegates to the city -convention, printed in the same type as those names were printed in the regular ballots. This paper was smoothly pasted over the names of the Ernst delegates to the county convention. Two of- such ballots had upon them the same kind of paster placed over the names of the Ernst delegates to the city convention. The fourth ballot had a paster of the same kind containing the names of the ward committee, which appeared upon the regular Warner ballot, pasted over the names of the ward committee appearing on the Ernst ballot. The other, or fifth ballot, was a regular Warner ballot, so called, but three of the names of the ward committee printed thereon were erased with a lead pencil, and other names were written opposite such erasures upon the margin of the ballot.

At the close of the polls, upon opening the ballot box for the purpose of canvassing the votes cast, the inspectors found the ballots in the condition described. All of the ballots were similarly folded,, and all were substantially the same in external appearance. From an inspection of the outside the contents of the ballots could, in no manner, be ascertained; and the fact that upon such ballots were pasters could only be determined, if at all, by the most careful examination and inspection. It is possible that by the sense of, feeling, as the ballots were folded,’ it could be discovered that there was a paster upon one of them. Such discovery could not be so made as to- either of the other ballots. When the ballots were canvassed by the inspectors,, the four ballots having pasters upon, them were protested by one of the duly appointed watchers,, and such .fact is noted upon the back of each of these by writing thereon the words “ Ticket protested on account of paster,” which statement was signed by the three inspectors. The ballot with the erasures and writing, with pencil was protested on account of being marked with pencil, and such protest was noted in those words upon the ballot, and was also signed by the inspectors. No objection or protest was, made upon the ground that such ballots were “ marked' for identification.”

The inspectors counted the three ballots upon which there were .pasters containing the names of the Warner delegates to the city convention, and the one Warner ballot in which certain of the names of the city committee were erased and other names written in their place with a pencil for the Warner city -delegates. They counted a ballot'which had a paster upon it containing the names of the Warner city committeee, so called, pasted over the names of the-Ernst city committee, so called, for the Ernst city delegates. This made the total number of ballots cast for the Ernst, delegates to the city convention, sixty-three, and the total number cast for the Warner delegates fifty-nine. That result -was duly returned by the inspectors, and a statement to that effect was made in the form- prescribed by the statute, and was duly signéd' by the inspectors. The five so-called split or marked ballots were-placed in an envelope which was sealed and then indorsed by the inspectors in the following words, viz.: “Ninth Ward, Primary District, Rochester, Monroe County. This envelope contains, ballots marked for identification of primary election held September 19, 1899, of above-district. Section 8,. subdivision 1, Primary Election Law.”' Such indorsement was signed by the three primary inspectors.. The envelope containing the five ballots- and the statement of the result of the election was delivered by the inspectors to. the custodian of the primary records, and the ballot box containing the -regular ballots voted at- such- primary election was deposited with the clerk of the city of Rochester, all as required by law.

It was conceded by counsel upon the argument that the results declared by the inspectors, taken in conjunction with the result of the vote at the primary election in the other district of the ninth ward, was the election of delegates to the Democratic city convention from the ward favorable to the nomination of Mr. Warner for' mayor, and that if the five so-called marked or split ballots are void, or for any reason cannot be counted, the delegates to the city convention from the ninth ward favorable to the nomination of Mr. Ernst are chosen.

On the 22d day of September, 1899, at a Special Term of the Supreme Court held in the city of Rochester, N. Y., upon the affidavit of J. A. McDade, an elector and resident of said district, and one Isaac M. Brickner, such affidavits being verified on the 21st day of September, 1899, and containing the facts substantially as above set forth; and upon the application of the attorney for the petitioner, an order was duly made requiring the clerk of the city of Rochester forthwith to deposit with the clerk of the court the ballot box and ballots delivered to him as aforesaid. This order restrained the custodian of primary records from canvassing the statement filed with him by the inspectors, from preparing a certified statement of the result of such primary election, and from making up the roll of delegates to the Democratic city convention until the further order of the court in the premises. Such order further directed the members of the board of primary inspectors above named to show cause on the 23d day of September, 1899, at ten o’clock a. m. of that day, at a Special Term of the Supreme Court, why they should not reconvene and recount the ballots cast at said primary election. Upon the return of the said order to show cause the petitioner appeared in person and by Mr. Frank J. Hone, his counsel, who also appeared for Mr. Ernst. The members of the board of primary inspectors also appeared in person and by their counsel, Messrs. Frederick W. Smith and Milton E. Gibbs, who also appeared for and represented Mr. Warner. The counsel for the inspectors presented and read affidavits setting forth the facts substantially as above recited, and the fact, which is not disputed, that none of fhe five ballots referred to- were- protested by any person when they were being canvassed, or at any other time, on account of having been marked “for identification,” and that the only protest made was “ on account of paster” or “ on account o.f being marked by pencil,” as indorsed upon said ballots respectively. It also appeared by the affidavits read on behalf of the inspectors,, that the ballots were canvassed in the presence of the watchers of both candidates and a large number. of other persons, and when the result of the canvass was announced it was acquiesced in by all present. It further appeared, and is not disputed, that prior to holding the' primary election in question the custodian of primary records (the county clerk) advised the electors of the city of Rochester and of the primary election district in question, through the public press and some of' them personally,, that pasters could he used upon the ballots to be voted at the primary elections to be held" in said city, and also that the voters had the right to erase any name on a ballot and write another name in its place; that he informed such electors and the public that such had been the interpretation of the law by eminent jurists, and that it was safe to rely upon such interpretation. It also appeared that such interpretation was commented upon and approved by the public press of the city. The affidavits contained no.suggestion to the effect that the pasters or the pencil marks in question were used or put upon the ballots in question “for identification,” of that there was any intent on the part of the electors who voted such ballots, or on the part of any other person connected with such election, to violate the provisions of the Primary Election Law, or that in voting the ballots in question the voters did not act in entire good faith and in reliance upon the advice given by the county clerk through the public press as to the proper interpretation of the law.

' These facts appearing, the court directed a recount by. the primary election inspectors of all the ballots cast at the primary election held in the second district of tlie ninth ward. The ballot box and package containing the five so-called split or marked- ballots were thereupon opened and a'recount was had in the presence of the court and the parties interested and their respective counsel. The ballots upon .such recount and inspection were found to be of the number and in the condition above described. . Thereupon, and after having heard counsel for the respective parties, the court found and determined: “ That said five ballots did not conform to the size, weight, thickness and texture of the paper prescribed by thecustodian of primary records, and that the same should be rejected and not counted by said board c f primary inspectors. * * * That said five ballots did not conform to the requirements of the Primary Election Law, and that'the same are void and should not have been counted.”

The order of the court further provided and directed said board of primary inspectors to reconvene and recount said ballots within twenty-four hours, to reject and not count the five so-called split or marked ballots, and to amend the statement of the canvass filed by them with the custodian of primary records in accordance with the result of such recount. From that order this appeal is taken.

¡No disputed question of fact is presented by this appeal. Concededly the primary election in question was properly called and conducted. The size, color, weight and texture of the paper prescribed by the custodian of primary records to be used for the ballots to be voted at said primary elections were in all respects in accordance with the requirements of the statute. Such paper was accessible to the electors and sample ballots were duly furnished. All ballots offered to be voted conformed substantially in external appearance to the provisions of the Primary Election Law. They were received by the inspectors and deposited in the ballot box. At the close of the polls the ballots were accurately counted, and their exact conditions noted and stated by the inspectors. There is no proof outside of the ballots themselves tending to show that any of the ballots voted were “ marked for identification,” or that any voter intended to violate any provision of the law by the use of such ballots. The.questions presented are solely questions of law and must be determined by reference to the statute itself.

The counsel for the petitioner urges that .the five so-called split or marked ballots are void, and, therefore, should not be counted, four of them because they had pasters upon the face or inside, and one because of the pencil marks on the inside thereof. ' It is said such ballots are void, ftrst^ because by putting a paster or "pencil mark on the face of the ballot it .is “ marked for identification ” within the meaning of the statute, and that it should be so held as a matter of law because of that fact and independent of any question of intent or purpose or the circumstances connected therewith; second, because by putting a paster upon a ballot the “ weight and texture” of the ballot prescribed by the custodian, of primary records to be used for ballots are necessarily materially changed, and, therefore, cannot conform-in those respects to the paper prescribed by such custodian,' If either of the above propositions is resolved favorably to the petitioner, the order appealed from must be affirmed.

From an examination of the Primary Election Law itself, and considering the public demand which led to its passage, and the evils which have heretofore attended the holding of caucuses of all political parties, of which the court may take judicial notice, it may be said that the purpose of the enactment was to provide, a method by which only the- members of a political party should vote at its primaries, to provide means by which such electors might cast their ballots conveniently and secretly without any interference or annoyance, to prevent bribery, intimidation and corruption, and the exercise of - any improper influence upon an elector which would .tend to prevent him from voting for the delegates or candidates of his choice. .

Sections 1 to 5 of the Primary Law relate to- the application of the act, the definition and construction of certain words and phrases used therein, the enrollment, of the -electors, the time and place of holding primary elections and the notice to be given.thereof,. the selection and designation of persons and officers who should conduct the same and their duties in the premises. The 6th section of the act, which is the first section necessary to consider in this case, provides: “ The custodian of primary records shall, not later than twenty days prior to the holding of any official, primary-election provided for in this act, prescribe the size, color ^weight and texture of the paper to be used for the ballots at such primary -election, and prepare samples thereof. The colors of the ballots shall be such'that those of each party shall be easily distinguishable from those of all the other parties, and shall be such that the printing thereon shall be easily legible. The paper shall be of such weight and texture as to make it impossible to read or decipher the printed matter on the inside of the ballot when it shall be folded. Each ballot shall have printed or written upon its face the party name, the assembly district or ward number, if any, the election district number when the election district' is a unit of representation, the names of the positions to be filled, and the names of the persons voted for to fill such positions. The size of the ballot shall be large enough for the printing thereon of a complete set of names for all the positions to be filled at such primary election. All printing thereon shall be in black ink.. Such sample ballots shall have the words ‘ sample ballot of the (specifying' it) party ’ printed thereon, and shall be exhibited for inspection during the hours within which the office of such custodian is open for business, and it shall be the duty of such custodian to furnish to each member of the board of primary election inspectors and to any elector applying for the same, a sample of the ballot for each party. The custodian shall also furnish to party committees or to electors applying therefor, at cost, the paper so designated to be used for ballots. Ballots to be voted on either of the two official primary days may be provided by any person. Ballots not conf orming to the provisions of this section shall not be counted at any official primary election.”

The section provides in substanceThe custodian must provide paper to be used for ballots of such size, color, weight and texture as he may see fit; provided only that it shall be of sufficient size to permit the printing thereon legibly of. a complete set of names for all the positions to be filled at such primary election, and the names of such positions, and it must be of such weight and texture as to rénder it impossible to read or decipher the printed, matter on the * .inside of the ballot when folded. The custodian must also prepare a sample ballot of such paper, so designate it, and print thereon the name of the political party, and have the same on exhibition in his office for inspection for a certain length of time prior to any primary election. He is also required to furnish at cost to any party committees or electors applying therefor the paper prescribed by him. Committees or electors may procure the paper for use at the polls from the custodian, or may procure such paper as is prescribed from any other source, and place thereon the names of the positions to be filled, ¿he names of the persons to be voted for, either by causing them to be printed or written; and ballots of such character, no matter where or from whom obtained, or by whom prepared, by the express provisions of the section are made legal ballots; provided only that they conform in external appearance to the ballots prescribed by the custodian, and do not have any printing or writing or other mark on the outside, and are so folded when offered to be voted that no part of the printed or written matter on the inside .thereof shall be visible, and shall not be- in any way “ marked for identification ” as provided in section 7 of said. act.

- Section 7 provides in substance that when an elector shall present himself to the board of inspectors and declare! his desiré to vote, if -he be duly enrolled the inspectors shall deliver to him, unfolded, one of each of the ballots of his party; that thereupon the elector shall retire into one.of the booths; that upon leaving such booth he shall be permitted to vote by delivering to one of the inspectors "¿ray ballot which conforms in-external appearance to. the provisions of this act, folded in such a way that none of the printed or written matter on the inside shall be visible. iSection 7 further provides :x “ Ho ballot which shall' have any printing, writing or mark oh/the outside thereof shall be received. Ho ballot shall be in any way marked for identification.” • ...

So far as we have been able to discover those aró the only restrictions placed upon the elector in the exercise of his right to vote at any primary election of the party to which he belongs. It will be observed that the statute does not in express language prohibit the • elector from voting a ballot which may be identified by an examination of the contents or inside of the ballot, or even from voting a ballot where from such examination it may be absolutely determined that such ballot was cast.by a particular elector. In fact,»the statute in terms points out how this may legally be done.' The elector may procure paper of the size, color, weight and texture prescribed by the custodian, and with his own hand write any one or more of the names of the persons to be voted for, avoid making any mark upon the outside, fold it properly* and he has a ballot which in all things conforms to the provisions of the statute, and-yet one which can be identified .at sight by a watcher or other person when the ballots, are canvassed, becaiise on such.-ballot is the' handwriting" of the person voting the same.; So, too, a ballot may be furnished to" the elector by a candidate, with some or - all ofi the names thereon- , written by him, or one name upon the ballot written, by the candidate and another written; by the elector. The ballot would . conform to' the requirements. of thé law. The- elector -would be entitled to vote- the same,' blit .again the identification'would be com-» píete; Again, even if all the matter printed upon the ballot is legiMe and in black ink, the .names could easily be so arranged as to make identification easy. In fact, innumerable ways- might be suggested by which a ballot conforming in all respects to the requirements of the statute may be identified. It is urged by the learned counsel for the petitioner that if identification is made possible by the use of pasters the ballot is void. We think we should be unwarranted in ascribing to the Legislature an intent to prohibit-identification of ballots by the use of pasters, and to permit such identification in almost every other way by reason of what may appear on the inside or by the contents. An examination of the pasters and ballots which are the subject of controversy here discloses the fact that if identification were possible, it is made much more difficult by the use of the pasters than if either of the other methods suggested had been employed. The paper used for the pasters was of the same color, weight and texture as was prescribed by the custodian for the regular ballots. The names upon them were printed with the same sized type and the same colored ink as were' the names upon such regular ballot. Each paster was of the same size as the space occupied by the same names upon the regular ballot. There were no marks upon such pasters or upon the ballots upon which they Avere used to indicate by whom they were voted, or which would attract attention.

The use of paster ballots at elections held under the General Election Law, ever since the enactment of such .law, has been the subject of much controversy in the courts, and has frequently received consideration by the Legislature of the State.

In determining what was the intent of the Legislature it is significant to note that by that law the use of pasters upon ballots is prohibited except in particular instances, while the law under consideration contains no such "prohibition. Under the general law the form of the ballot prescribed is such as to make the use of pasters unnecessary, and, except in very rare cases, not even desirable on the part of any elector. The form of the ballot prescribed by the Primary Election LaAv is such that if the use of pasters is prohibited an illiterate elector may easily be in effect denied the right to participate in a primary election. In the case at bar the regular ballot contained the names of twenty-seven persons, and the names of seven different places of official positions. A voter might receive' a ballot from any person before going to the polling place, and be content to vote for all the persons named thereon, except, perchance, the ward committee. Under those circumstances is.he required to procure, paper of the character prescribed by the custodian, have the entire ballot reprinted, only changing the names of the ward .committee, or must he procure all the names to be- written % If not, may such elector not place a paster containing the names of the ward committeemen whom he desires to vote for over the names of such committeemen appearing upon the regular ballot ? If he may pursue the latter course he would be able to vote ; either of the others would substantially disfranchise such elector, and to no purpose, because, as before said, the identification of such ballot is as complete, and even more complete, when the names are written as when the paster is used.

The law is well settled that a statute which " restricts or impairs the right of an elector in the exercise of the elective, franchise should be strictly construed in favor of the elector, and in such manner as to secure to him, if possible, the right' of suffrage. It is concluded that by the provisions' of the Primary Election Law the use of pasters is not prohibited, unless by their .use .the ballot is “ marked for identification.” It is unquestionably true that under the provisions of section 7 of the act, which- provides “No ballot shall be in any way marked for identification,” the usé of pasters may render the ballots on' which they are placed' illegal. If -it should appear that a, paster of any kind or a mark of any kind Was put upon a ballot for the purpose of identifying -the same, clearly such ballot would fall within the prohibition. It would be of no significance, however, that such identification was by paster rather than by the use of any other device. If an' elector should write the name of the candidates upon the ballot, and should spell the name of a .particular person wrong for the purpose of having such ballot identified, it would render it void. So, if the names written upon a ballot should be arranged in a particular order for the purpose of identifying it, that would be a violation of the statute. In short, it may be said that any. device adopted for the purpose of identifying ballots cast at a 'primary election, whether such device consists of writing, printing, spelling or in using pasters, will render such ballots illegal. It is believed, however, that such purpose must be proven as any other question of fact; the use of a paster ballot is not of itself sufficient proof of the fact. (People ex rel. Hasbrouck v. Supervisors, 135 N. Y. 522.) In the case at bar, as before stated," there is nothing to indicate that such was the purpose of the electors who voted the five ballots in question, and there is no evidence showing or tending to show that such electors were induced to use such ballots by any other persons in order that they might be identified. We think the caséis wholly devoid of facts or circumstances which show or tend to show that either of the five ballots in question was “ marked for identification.”

It is significant in this connection -to note that when the ballots were being canvassed in the presence.of the representatives of all the interested parties, the objection was not made that the ballots in question were “marked for identification.” Hothing of the kind was suggested. They were simply “ protested on account of pasters.” It is doubtful if such protest is sufficient to present the question as to whether such ballots were marked for identification, or not. (People ex rel. Bradley v. Shaw, 133 N. Y. 493; People ex rel. Bush v. McKenzie, 66 Hun, 265.)

Section 8 of the act provides that although ballots be marked for identification, they shall, nevertheless, be counted, but in case any duly authorized watcher shall declare his belief that they were thus marked, the inspectors shall write upon the back thereof “ Objected to because marked for identification,” and then inclose .them in an envelope properly indorsed, and file the same with the custodian of primary records, and then the court may upon review inspect the same and determine from such inspection, or from any other competent evidence, whether such ballots were in fact “ marked for identification ” or not, and if found to have been so marked to declare them void. . Having reached the conclusion that the evidence is wholly insufficient to establish the fact that the ballots in question were “ marked for identification,” it is unnecessary to determine the effect of the failure to object to such ballots on the specific ground that they were so marked, and that they were not indorsed as required by the statute in such case.

Did the ballots in question conform to the requirements of section 6 of the act in respect to size, color, weight and texture ? If not, they cannot be counted. The provision of the statute is as follows: “Ballots not conforming to the provisions of this section .shall not be counted at any official primary election.” As before ‘seen, the color of the paper prescribed by the custodian is entirely within his discretion. As to size, his discretion is only limited by the requiremént that such ballots shall be of sufficient size to contain the matter to be placed thereon if printed legibly. So, too, the custodiad may. prescribe, in his discretion, paper of any weight or texture for use as ballots, provided only it shall be impossible to read or decipher the printed matter on the inside of the ballot when it shall be folded. Ooncededly, the paper prescribed by the custodian conformed in all respects to the requirements of the statute. ¡Nothing that was done to the ballots in question changed their character or characteristics in the respect last alluded to. The color was not changed. They remained, of sufficient size to permit the printing thereon of the names of all persons to be voted for, and the designation of the official positions to be filled; and after the pasters were placed upon the ballots in question it was still “ impossiblé (as before) to read or decipher the printed, matter on the inside of the ballot when it shall be folded.” It was not claimed by the counsel for the petitioner that the ballots used did not conform in all respects to the requirements of the law, save in one particular, to wit, that by the addition of the paster the ballots when voted were, by reason of such addition, of different weight and texture than were prescribed by the- custodian of primary records. The weight and texture prescribed were only to prevent the printed matter on the inside from being read or deciphered when the ballot was properly folded. This purpose by the addition of the paster was not in any manner interfered with. '

Did the Legislature intend to provide that a particular person should be authorized to prescribe the kind of .paper for ballots to be voted at a primary election, and by express terms authorize the electors, after an "inspection of the same, to procure like paper from any source, and then- in effect provide that in case such elector should procure paper that was a little lighter or a little heavier or of somewhat different texture, and use the same for the purpose of voting at a primary election,'the ballot so voted should be void, notwithstanding the fact that the -paper used in all respects met the purpose of the requirement, which is, that it shall be of such character as to prevent the contents of the ballot from being read or deciphered when properly folded. The words of the section, if taken alone, are not susceptible of such construction, and if the entire scope and purpose of the statute be considered .such an intention cannot be discovered. On the contrary, by reference to section 7 of the act we find it is expressly provided that all ballots which conform in external appearance to its provisions, and are folded in such way that none of the printed or written matter on the inside thereof is visible, are to be received by the primary inspectors and are to be counted unless such' ballots are “ marked for identification.” If an inspector should take a ballot from a voter which was' hot of the color or size prescribed, or made of such paper that the contents could be seen when the ballot was folded, when canvassing the ballots, it would be the duty of the inspectors to reject such ballot and not to count the same.' .If an elector should offer to vote such a ballot it would clearly be the duty of the inspectors to refuse to receive the same.

As we have seen, the ballots in question did conform, in external appearance, to the requirements of the act. The color was right. The size was sufficient to contain all the matter which was to be printed thereon. The weight and texture were such as to make it impossible for a person to read or decipher the contents when the ballot was folded, and, in addition, when such ballot was handed to the inspector its external appearance substantially conformed in all respects, to the provisions of the act.

It is unquestionably true that if there should be placed upon a ballot a paster of such a character as to materially change the external appearance, it would be void and could not be counted, but in that case it would be the duty of the inspectors, if its condition was observed, to refuse to receive such ballot from the voter.

As before said, the purpose of the Primary Election Law is not to prevent the voting of ballots which can be identified, but its chief purpose is to secure secrecy to the voter in the discharge of his duty as a citizen, and to provide a means by which such duty may be performed without interference or molestation from any source and also to prevent the use of ballots which are “ marked for identification.”

The.conclusion is reached that the ballots in question complied substantially with the requirements of .the statute and are in all respects valid; that they were properly canvassed and counted by the primary election inspectors, and that the statement of such canvass .made and signed by such inspectors conformed in all respects to the facts and correctly stated .the result of the primary election held in the second district of the ninth ward of the city of Rochester on the 19tii day of September, 1899.

It follows that the order appealed from should be reversed and' the, injunction vacated, but as the questions are new, without costs to either party.

Adams, Spring and Smith, JJ,, concurred; Hardin, P. T., dissented.