(dissenting.) I fully concur in all of the conclusions reached by my Brother Herrick in this case, except that relating to the effect of voting on the town ballot for the commissioner of excise; but I cannot concur .with him as to the effect of placing that name on the ticket. It appears to me that that was such a marked ballot, and cast under such circumstances, as to vitiate the entire ticket on which it W'as voted. By section 38 of chapter 262 of the Laws of 1890, known as the “Ballot Reform Law,” as amended in chapter 296 of the Laws of 1891, it is provided that “the names of candidates forthe office of excise commissioner shall be printed on a different ballot from the one containing the names of candidates for other town offices. Such ballot shall be indorsed ‘Excise,’ and shall be deposited, when voted, in a separate box, which shall also be marked‘Excise.’ The ballots containing the names of candidates for other local offices shall be indorsed ‘Town.’” Each of the paster ballots of the Bradley ticket voted- contained the name of John McCardle for commissioner of excise pasted upon the official ballot marked “Town. ” It is agreed that this vote cannot be counted for excise com m'issioner because not upon a ticket legally indorsed. People v. Person, supra. It follows, therefore, that the name and designation of McCardle constituted no part of the ticket indorsed “Town,” and was, as has been said in the prevailing opinion, in a sense an unauthorized name and mark upon the town ballot. Did it per se vitiate that ballot? Or must there be evidence aliunde the marked ballot itself, that it was done for the illegal purpose of its subsequent identification ? It seems to me that a more direct and effectual method of evasion and nullification of the law could not well he suggested than that of placing an unauthorized name of office on an official ballot; and yet to hold that these were marked ballots, voted in violation of the ballot reform law, and therefore not capable of being counted, will, in effect, disfranchise more than one half of all the voters who voted at this town meeting. Consequences so grave and far reaching should not be visited upon the-voter, unless the courts, in administering this law, are, by its letter and spirit, required to inflict such disfranchisement. In interpreting this law, so vitally affecting the voter on the one hand, and the great public interest to be subserved on the other, the court should carefully avoid what is sometimes called “judicial legislation,” by importing into it matters not placed there by the legislature; or, on thó other hand, what would be equally unauthorized, repealing by judicial interpretation any of its provisions.
One of the leading purposes manifestly aimed at in the enactment of the law was that the ballot cast by each voter should be absolutely secret. As was said by O’Brien, J., in People v. Board, 129 N. Y. 402, 29 N. E. Rep. 327: “The general policy and scope of the act is well expressed in its title, ‘An act to promote the independence of voters at public elections, enforce the secrecy of the ballot, and provide for the printing and distribution of ballots at public expense.’” In the discussion of the requirements of this act, so far as it relates to the secrecy of the ballot, the judge uses this language: “The primary aim and object was to enable the voter to cast a ballot for the candidates of his choice, without the possibility of revealing, by the act of voting, the identity or political complexion of the candidates voted for.” The manifest object of the legislature in making the ballot absolutely secret was to minimize the great and growing evil of bribery of the voter, by removing all possible means of knowledge, on the part of the bribe giver, that the vote for which he gave or contracted to give the bribe would be deposited according to contract, and, further, to secure to the employe immunity against the oppress*307ive coercion of his employer, and thus to secure to the employe the right of .a free ballot. It is difficult to see how this central idea of secrecy, which .seems to be the soul of the ballot reform law, can be effectual for any of the beneficial purposes for which it was intended, if the method adopted in the Bradley ballot can be adjudged to be legal, and that ballot upheld and counted. It does not seem sound or logical to hold that numbers give immunity, and that, because there are over 100 violations of the ballot law, therefore the act •escapes its condemnation. Such reasoning would not commend itself to our judgments as sound in almost any other moral or legal question. If but 1, or 10, or even 20 such ballots had been found in the box, it will hardly be questioned that they would be denounced as marked ballots, and rejected from the count, unless this method of marking ballots can be held to be allowable under the law. If it can be held that ballots marked in this manner must be ■counted for all the candidates properly voted for on the ticket designated “Town,” then the door would be open at every town election for persons de.siring to promote the election of the candidates of their choice to place on a paster ballot the name of some person for art office not tobe voted on the town ticket, and with that sure mark of identification contract for the payment of .a bribe to each person who receives that ticket from him, and shows by the vote, when canvassed, that the contract was performed; and that the same scheme may be worked by an employe upon his employer, and the purity and freedom of the ballot be thus completely destroyed, and the law which was ■designed to protect the purity and sanctity of the ballot become an instrument of most gigantic fraud. But it is urged that, by section 35 of the Ballot Reform Act, as amended, it must be shown that the vote was marked and cast with the intent that it shall be afterwards identified before the ballot is viti.ated, and that the court must find that intent before the vote can be rejected. The language of that section, as amended, upon this subject is as follows: “2Io voter shall place any mark upon his ballot, or do any other act in connection with a ballot, with the intent that it may be identified as the one voted by him. RTo person shall place any mark or do any other act in connection with a paster ballot with the intent that it may afterwards be identified .as having been voted by any particular person. When a ballot has been deposited in a ballot box, upon which, or upon a paster affixed thereto, a writing or mark of any kind has been placed by the voter, or by any other person, to his knowledge, with intent that such ballot shall afterwards be identified as the one voted by him, the same shall be void, and of no effect.” It is manifest that the legislature, by this provision, required that the marked ballot must, to be adjudged void, be deposited by the voter with knowledge, and with the intent that it shall be afterwards identified; but the act furnishes no ■rule of evidence by which the court shall judicially declare and decide that question of knowledge and intent. Resort must therefore be had to the gen•eral rules of evidence for the determination of those facts. We start with the presumption that knowledge of the law is to be imputed to the voter, and that when he voted for a commissioner of excise on the town ticket he did so knowing that that office could not be legally voted for on such a ticket, and that his name on it made such a ticket a marked ballot. The town ticket must •contain only the names and designation of the officers to be voted for on it. In the case of People v. Board, supra, Gray, J., in discussing that question, uses this language: “The plan embodied in the law was to have a uniform ballot. That essential feature was secured by provisions requiring all ballots to be prepared by a public officer, and to be exactly alike in every possible respect externally in the official indorsement, and differing internally only in the candidates for office, upon the ballots prepared for different political parties. ” This language applies as well to a paster ballot voted upon an official indorsement as to the official tickets printed in full by the clerk, or under his direction. With the legal presumption to which we have referred, *308and which obtains in this case, it follows that the voter who deposited the; town ballot containing the name and designation of a candidate for excise-commissioner did so charged with the knowledge that he was voting a marked ballot. Did he intend that it should afterwards be identified as a ballot voted-by him ? Of this there is and from the very nature of the case there can be no proof, except from the legal inference to be deduced from such act. The law raises a presumption that every person intends the legal consequences of his-acts. One of the legal consequences of the act of voting a marked ballot is-that it may be identified, and if that was the consequence intended by him-then both conditions to render the ballot illegal, void, and of no effect are established. It is true that the methods of reasoning by which this conclusion is reached may be somewhat subtle, yet the difficulty to be encountered in the enforcement of this much needed and salutary law not only justifies-strict construction, but calls upon the courts to adopt all the legal and legitimate means in their power to give effect to its provisions. In the present, case, as has been suggested, the rejection of the ballots thus shown to be marked may look like the disfranchisement of the voters, but that was the result. of disobedience of the law. In the'case of People v. Board, cited supra, and. upon that subject, O’Brien, J., says: “But it is said that this result will disfranchise the electors who cast these ballots, in good faith, believing that they were proper official ballots. The answer is that when an elector attempts to-express his will at an election, by the use, through either design or accident, of the ballots which the law declares shall not be counted, the courts have no-power to help him. Had these ballots been misplaced by design, or some preconcerted arrangement between the county clerk and the candidates whose names appear upon .them, or some of them, the voter using them might be as-innocent as they appear to be in the case at bar; but to hold, under such circumstances, that the votes must nevertheless- be counted would be to suggest, an easy method of defeating the fundamental purpose of the statute.” These-reasons apply with equal and I think with greater force to the altered ballot,, by the use of a name and an office, not entitled to be voted for in the ticket, as to the numbering on the label, or indorsement on the outside of the ticket.. It is safe to say that, if this method can be resorted to, and ballots thus marked can be voted and counted, the facilities for bribery and coercion have been vastly increased by the provisions of what was intended tó be a ballot reform-, law. But it is insisted that the construction contended for is dangerous in this, that the inspectors of election would have it in their power to throw out ballots on the ground that they were marked, and thus completely change-the result of an election. I do not think that such a result could follow, for the reason that they are required to preserve all defective ballots, and this-kind of ballot is a marked and therefore defective ballot, and the inspectors-would have no right to destroy it, but must retain it, and thus the questions-as to the character of the vote, and the right of having the same counted, could be brought before the courts for their determination. It is only in case of an improper or unauthorized label or caption, appearing on the outside of a ., ballot, that the inspectors are authorized and required to reject the vote altorgether. If the alteration or defect appears on the inside of a ballot, which can be known to the inspectors only on the canvass of the votes, the inspectors are to treat it as a defective ballot, and preserve and return it, with their certificate, so that a party aggrieved, or having any interest in the result, may take the case to the courts, where the right of the parties may be judicially declared, as in the case at bar. The question, therefore, is not what the-inspectors may do, but what the court will do where the court is satisfied from the certificate of the canvassers that ballots sought to be counted are , concededly marked so that they may be identified if desired, and when the-voter knew, or is presumed to have known, that he was voting a marked ballot at the time of casting the same. Under such circumstances it seems to*309me that the intention of the voter must, as I have attempted to show, be presumed from his act, and that any attempt on the part of the court to find an innocent motive, and thus uphold the ballot, would be vesting in the court the exercise of a discretion not given by law; and while its exercise may not be fraught with the danger that might be apprehended from the exercise of such discretion by the inspectors of election, yet it is one which the courts should not voluntarily assume, where, by the application of legal rules, the ballot is by the law denounced as a marked ballot. I am therefore of the opinion that the order awarding a peremptory writ should be reversed, and the writ should be quashed.