Dissenting Opinion by
Me. Justice Jones:Convinced that the decision of the majority of this Court, which results in the disfranchisement of thousands of voters, is contrary both to law and common sense, I register my dissent.
The stated bases of the majority’s ruling are: (1) the election law clearly proscribes the manner in which these disputed votes were cast; (2) the “set-up of [the] voting machines” was “clear to everyone”; (3) the “sample ballots” [herein called by the statutory term “specimen ballots”] were clearly worded and illustrated and they instructed the voters which lever to operate; (4) the words “Special Election, REPUBLICAN” to the left of Row C and the line drawn horizontally across Row C on the machines constituted clear instructions which were ignored by the voters; (5) the case law in this Commonwealth “directly rule[s] the instant case”. In this opinion, I shall endeavor to demonstrate — not in the same order — the infirmity of each and all the bases upon which the majority opinion rests.
On this appeal we are called upon to determine the validity of certain votes allegedly cast for certain candidates in thirteen wards of the City of Philadelphia at the primary election held on April 28, 1964.
*348The disputed votes were cast upon voting machines,1 not paper ballots. In tbe thirteen wards involved in this appeal a special election was conducted for representative in the U. S. Congress; by reason of that fact, two additional horizontal voting rows were added to each machine. The top row of each machine contained the designation of the various offices for which the electors were to select candidates, including that of representative in the U. S. Congress.2 The second row — Row A — at the extreme left whereof was the name “Republican” — , contained the names of the Republican candidates for the various offices and within each ballot label thereon were a numeral or numerals and the name or names of the Republican candidate or candidates for the particular office. The third row — Row B — , at the extreme left whereof was the name “Democratic” — -, contained the names of the Democratic candidates for the various offices and each ballot label thereon was arranged in the same manner as in Row A. The fourth row — Row C — , at the extreme left whereof appeared the words “Special Election, REPUBLICAN”, contained no names whatsoever,3 except that at the extreme right end thereof appeared the name of the Republican congressional candidate at the special election, and, across Row C, was *349an arrow which extended to the ballot label wherein appeared the name of the Republican congressional candidate. The fifth row — Row D — , at the extreme left whereof appeared the words “Special Election, DEMOCRATIC”, was similar in all respects to Row C, except that at the extreme right thereof appeared the name of the Democratic congressional candidate. Upon this appeal,- we are concerned only with the validity of the votes cast in Row C by the depression of the levers directly above Row C and below the names of the Democratic candidates in Row B, excluding, of course, votes cast in Row C for the Republican congressional candidate at the special election.
Between the top row and Row A and extending horizontally across the machine was a panel of levers marked “A”; between the second row- — Row A — and the third row — Row B — was another panel of levers marked “B”; between the third row — Row B — and the fourth row — Row C — was another panel of levers marked “C”. When a Republican voter entered the polling booth, the levers in panel “A”- — above the names of the Republican candidates — were unlocked and the levers in panel “C” — below the names of the Democratic candidates — were unlocked but the levers in panel “B” — below the names of the Republican candidates — were locked. When a Democratic voter entered the polling booth, both the levers in panel “B” — above the names of the Democratic candidates — and the levers in panel “C” — below the names of the Democratic candidates — were unlocked so that a Democratic voter could depress and operate either4 the levers above or *350below the Democratic candidates’ names. However, no Democratic voter could vote more than once or for more than one candidate (where only one was to be nominated).
That which has given rise to this controversy is the undisputed fact that all the levers in the panel marked “C” were permitted to remain unlocked and susceptible of operation by the voters whereas only the lever in the panel marked “C” above the name of the Republican congressional candidate should have been permitted to remain unlocked.5 Complete responsibility for this improper condition of these voting machines must rest upon the City Board of Hlections [the Board], It is undisputed that the Democratic County Committee (the present appellant), prior to the date of the primary election, advised the Board of the improper condition of these machines and requested the Board to lock the levers in panel “C”, except as *351to the Republican congressional candidate. The Board refused tbe committee’s request and, as the court below sagely observed, “[t]hat was not a wise decision”.6
After the election was held and the votes canvassed, it was then discovered that, in the thirteen wards involved in this appeal, 5624 voters had cast votes in Row C by the depression of the unlocked levers in panel “C” directly below the names of the Democratic candidates for the U. S. Senate listed in Row B.7 The Board, inter alia, refused to count and credit such votes. An appeal was taken by the committee to the Court of Common Pleas of Philadelphia County and that court upheld the action of the Board. Prom that order, the present appeal was taken.
The rationale of the court below, adopted in large part by the majority opinion, was: (a) that the failure of the voters to indicate their choice in accordance With the election statute rendered void their votes; (b) in reliance on Contested Election of Flynn, 181 Pa. 457, 37 A. 523, that “neither our courts nor our election officers are permitted to surmise the intention of the voters, and '[that] an elector’s non-compliance with proper voting procedure is inéxcusable”; (c) that the depression of a lever above a blank space on Row C constituted an inexcusable noncompliance with statutorily-required voting procedure on the part *352of tlie voters;8 (d) that the attempted vote in a blank space on Row C constituted a nullity.
At the outset, reference must be made to the respective positions taken by the Committee and appellee. The Committee contends: (1) that the intent of the voters, if it can be ascertained, should control, that it is to be presumed that a vote is validly cast and that the disfranchisement of voters should not be permitted because of minor irregularities or technical violations of the election procedures; (2) that the intent of the voters who depressed the levers in panel “C” is clear, i.e., to vote for the particular candidates whose names appeared directly above the levers; (3) that, in ascertaining the intent of the voters, consideration must be given to the fact that the voting took place on complicated voting machines upon which, through the election officials’ inaction, a condition had been permitted to exist whereby the voters could depress either the levers in panel “B” or panel “C”, and, under such circumstances, courts and canvassing boards should exercise great liberality in determining the validity of votes cast in Row C; (4) in the absence of evidence to the contrary and in view of the presumption that voters vote legally, the votes cast by the depression of the levers in panel “C” must be regarded as having been cast by Democratic voters rather than by “crossover” Republican and Non-Partisan voters. Appellee takes the position: (1) that the votes recorded in Row C are void because they were not recorded in the proper voting space; (2) that the case law, cited by the Committee, is inapposite because such case law dealt with votes cast in the proper voting space whereas in the case at bar the votes were cast in an improper space; (3) that the depression of the levers on the *353blank spaces in Row C constituted an “inexcusable noncompliance” with proper voting procedures; (4) that the record indicates “cross-over” voting by Republican and Non-Partisan voters whose votes cannot be segregated from votes cast by Democratic voters and, therefore, all the votes cast in Row C must be declared void.
Certain matters are beyond question. First, there is neither allegation nor proof of any fraud on the part of the voters, the election officials, or anyone else. Second, this controversy would not be before us were it not for the impact of the validity of these votes on the contest for the Democratic nomination for the U. S. Senate.9 Third, a proper setup of the voting machines would have insured that the levers in panel “C” were locked and placed in a condition wherein they could not have been depressed10 and the sole responsibility for this improper setup of the machine rests with the Board. Fourth, the votes recorded in Row C were made by voters who depressed the levers in panel “C”. Fifth, the total number of votes in Rows B and C in the Democratic senatorial contest was considerably less than the total number of Democratic voters who entered the voting booths, i.e., those voters who signed the requisite affidavits and voted. Lastly, an examination of the face of the voting machines, with particular reference to the ballot label wherein the names of the Democratic senatorial candidates appeared, in*354dicates that the upper levers — those in panel “B”— and the lower levers — -those in panel “C” — were equidistant vertically from the names of the respective candidates and in exact juxtaposition horizontally to such names.
Initially, we must inquire whether the operation by the voters of the levers in panel “C”, directly below the candidates’ names, violated the election statute and to that end we must examine the election statute to ascertain how a voter must vote on a voting machine.
Section .1216 of the Election Code11 purports to answer that question, its heading being “Instructions of voters and manner of voting, in districts in which voting machines are used.” Section 1216(a) provides for the instruction of electors by the election officials “with the aid of the diagrams authorized by [the] act and the mechanically operated model.”12 Section 1216(d) provides the manner of voting on a voting machine at a primary election: “At primaries, he [the voter] shall vote for each candidate individually by operating the key, handle, pointer or knob, upon or adjacent to which the name of such candidate is placed.” (Emphasis supplied). In construing §1216(d), we must recall that which this Court said in Independence Paidy Nomination, 208 Pa. 108, 112, 57 A. 344: “The constitution confers the right of suffrage on every citizen possessing the qualifications named in that instrument. It is an individual right and each elector is entitled to express his own individual will in his own way. His right cannot be denied, qualified or restricted, and is only subject to such regulation as *355to the manner of exercise, as is necessary for the peaceable and orderly exercise of the same right in other electors. The constitution itself regulates the times and in a general way the method, to wit: by ballot, with certain specified directions as to receiving and recording it. Beyond this the legislature has the power to regulate the details of place, time, manner, etc., in the general interest for the due and orderly exercise of the franchise by all electors alike. Legislative regulation has been sustained on this ground alone: [citing a case]. Anything beyond this is not regulation but unconstitutional restriction. It is never to be overlooked therefore that the requirement of the use of an official ballot is a questionable exercise of legislative power and even in the most favorable view treads closely on the border of a void interference with the individual elector. Every doubt, therefore, in the construction of the statute must be resolved in favor of the elector”. (Emphasis supplied).
The approach to a construction of §1216 (d) of the Election Code must begin with an examination of our statutory law, past and present, prescribing the manner in which an elector must cast his vote for a candidate whose name appears on the ballot. It must be noted, of course, that until the passage of the Voting Machine Law of 1929 (Act of April 18, 1929, P. L. 549), all voting was by paper ballot and, therefore, the pre-1929 statutory law referred only to voting by such method.
Section 14 of the Act of 1893 (Act of June 10, 1893, P. L. 419) provided, inter alia, that the ballot should “be so printed as to give to each voter a clear opportunity to designate his choice of candidates by a cross-mark (x) in a square of sufficient sise at the right of the name of each candidate and inside the Une enclosing the column” (emphasis supplied), and §22 of that act provided, inter alia, that the voter should prepare *356Ms ballot by placing “a cross (x) ... opposite the name of the candidate of bis choice for each other office to be filled, according to the number of persons to be voted for by him for each office, . . . .” (Emphasis supplied). This act clearly indicated how and where on the ballot the voter must cast his vote, i.e., the voter was required to place a cross (x) in a square to the right of and opposite the name of the candidate of his choice.13
Sections 1J and 22 of the 1893 statute were amended by the Act of 1903 (Act of April 29, 1903, P. L. 338).14 However, that statute, insofar as presently pertinent, did not change the manner of casting a vote as required by the 1893 statute.15
In 1919, the legislature again amended §22 of the 1893 statute: Act of July 9, 1919, P. L. 829.16 As this *357Court said: “This amendment of 1919 was enacted to give effect more adequately to the intent of the voter; it is remedial in purpose and should be liberally construed to the end intended.”: Gegg’s Election, 281 Pa. 155, 160, 126 A. 260. So far as presently pertinent, the 1919 statute provided that a voter “may . . . make a cross-mark in the square to the right of any individual candidate whom he favors” and, where more than one candidate is to be elected to any office, “the voter shall, if he desires to divide his vote among candidates of different parties, make a cross (x) mark in the appropriate square, to the right of each candidate for whom he desires to vote . . .” The pertinent sections of the 1893 statute were finally repealed by the Election Code of 193717 and §1215 (b) thereof now provides the manner of voting on paper ballots, i.e., that a voter, at a primary election, “shall vote for the candidates of his choice for nomination or election, ... by making a cross (X) or check (V) mark in the square opposite the name of the candidate. ...”
Such examination of our statutory law, past and present, on the manner of voting by the use of paper ballots indicates beyond question that the legislature clearly directed both how a voter should vote, i.e., originally by a cross, but now by a cross or check, and where such vote should be marked, i.e., in the square opposite the candidate’s name, etc. Therefore, in considering our case law dealing with irregularities in the manner of voting on paper ballots, it must be kept in mind that the legislature has always clearly declared both how and where votes on paper ballots must be cast.
However, an examination of the legislative direction as to the manner of voting on voting machines reveals *358an entirely different situation. In making this examination it must be noted that voting machines, whether the rows thereon be arranged vertically or horizontally, contain “ballot labels”, i.e., “the cards, papers or other material, containing the names of offices and candidates . . .” (Election Code of 1937, §1101, 25 P.S. §3001), and these “ballot labels” are comparable to the squares on the paper ballots.
The Voting Machine Act of 1929, now repealed by the Election Code of 1937, was silent on the manner of voting a ballot on a voting machine. At the present time the manner of voting on voting machines is governed, insofar as primary elections are concerned, by §1216(d) of the Election Code (25 P.S. §3056) which, I repeat, provides, in pertinent part: “At primaries, he [the voter] shall vote for each candidate individually by operating the key, handle, pointer or knob,18 upon or adjacent to which the name of such candidate is placed.” That provision clearly states how the voter shall vote, i.e., by operating the lever, but does it provide with any degree of clarity where or by which lever the voter shall vote? The phrase “upon or adjacent to which the name of such candidate is placed” is clearly adjectival in nature, descriptive of the lever which the voter shall operate and limits and restricts the voter to that lever which is “upon or adjacent to” the candidate’s name. The Avord “or” is used as a disjunctive particle that marks an alternative and differentiates between that lever which is “upon” and that lever which is “adjacent to”.19 The use of the word “or” together with the fact that “upon” and “adjacent” are not only not synonymous but differ *359in meaning20 point to a possible legislative intent that either one of two levers may be operated by the voter, i.e., that lever “upon . . . which the name of [the] candidate is placed” or that lever “adjacent to which the name of [the] candidate is placed.”21 In my opinion, the legislative description of the lever to be operated by the voter is vague, uncertain and ambiguous. From the language employed it is arguable that “upon” refers to the lever directly above the name of the candidate and that “adjacent” refers either to the lever below or the lever above the name of the candidate because both levers are “adjacent” to the candidate’s name. This loosely and carelessly drawn piece of legislation is not only uncertain and ambiguous but confus*360ing. At best, the legislative direction in §1216 (d) is doubtful and, in such event, the statute must be construed in the manner most favorable to the voter: Independence Party Nomination, supra. In view of the uncertain and dubious language of the statute, how can we now hold that the operation of the lower levers in panel “C”, even though such operation recorded the votes in the blank spaces on Row C, constituted a clear violation of, or a clear noncompliance with, the language of §1216(d) of the Election Code so as to justify the disfranchisement of upwards of 5000 voters?
Moreover, even the most cursory comparison of the several statutes, past and present, prescribing the manner of voting on paper ballots with the statutory provision prescribing the manner of voting on voting machines reveals that the case law on paper ballots and irregularities in voting thereon cannot be considered as precedents in determining the manner of voting on voting machines and irregularities in such voting.22
However, assuming, arguendo, that the operation of the levers in panel “C” was a technical noncompliance with §1216(d) and assuming that the intent of those who so operated the levers can be ascertained, does the fact of such technical noncompliance with the statute per se invalidate these votes? The court below and the majority of this Court equate noncompliance with the election statute with invalidity of the votes, regardless of the intent of the voters; in so doing, in my opinion, they err.
*361From 1893 until the passage of the 1919 statute our courts did maintain a rigid and unbending rule which, in effect, rendered invalid any votes cast which were not in strict and literal compliance with the statute, regardless of whether the intent of the voter could be ascertained from the ballot: McCowin’s Appeal, supra; Redman’s Election, supra; Contested Election of Flynn, supra; Newberry Township Election, supra; Dailey’s Appeal, supra; Rodgers’ Contested Election,23 supra. The rigidity of such a rule is particularly difficult to understand since §27 of the 1903 statute, at least impliedly, granted recognition and consideration to the ascertainment of the voter’s intent.24
However, since the passage of the 1919 statute this Court properly has been more liberal and has given recognition and weight to the intent of the voter, once ascertained. In Knight v. Coudersport Borough, 246 Pa. 284, 289, 92 A. 299, we approved that which was said in Black on Interpretation of Laws: “If the law itself declares a specified irregularity to be fatal, the courts will follow that command, irrespective of their views of the importance of the requirement. In the absence of such declaration, the judiciary endeavor, as best they may, to discern whether the deviation from the prescribed forms of law had or had not so vital an influence on the proceedings as probably prevented a free and full expression of the popular will. If it had, the irregularity is held to vitiate the entire return; otherwise, it is considered immaterial.” See also: Fish’s Election, 273 Pa. 410, 117 A. 85; Gegg’s Election, su*362pra. The attitude of our Court in this area of the law, in recent times, has been well epitomized in Norwood Election Contest Case, 382 Pa. 547, 552, 116 A. 2d 552: “Every rationalization within the realm of common sense should aim at saving the ballot rather than voiding it.” In McCracken Appeal, 370 Pa. 562, 566, 88 A. 2d 787, we said: “In any disputed election, nothing can be more vital towards the accomplishment of an honest and just selection than the ascertainment of the intention of the voter.” See also: James Appeal, 377 Pa. 405, 408, 105 A. 2d 64; Reading Election Recount Case, 410 Pa. 62, 66, 188 A. 2d 254. If, from the ballot cast, the intent of the voter in his choice of a candidate for office can be ascertained, then such ascertained intent must be granted full recognition and the ballot counted, even though there be a technical noncompliance with the election statute. See: Arnold Borough Contested Election, 307 Pa. 536, 161 A. 536.25
What was the intent of the voters who operated the levers in panel “C”? In my opinion, such intent was to vote for the Democratic senatorial candidates whose names appeared directly above the levers operated. When a voter depressed the lever in panel “C” directly below the name of Genevieve Blatt, he intended to vote for Miss Blatt; likewise, as to those voters who depressed the levers directly under or below the names of David Roberts and Michael Musmanno. In Peck v. Lackawanna County Board of Elections, 44 Lack. Jurist, 97, Judge (now Mr. Justice) Eagen fully recognized that such was the intent on the part of voters pulling a lever under the name of a candidate. As a *363matter of fact, the court in Application of Lester, 127 N.Y.S. 2d 272, so heavily relied on by appellee, conceded that “practical experience has demonstrated that there may be much force in [the] argument” that those who cast their votes in Eow C of a voting machine do so in error by pulling the lever below rather than that above the candidate’s name, at the time intending to vote for such candidate.
The majority opinion, labeling the finding of the voters’ intent as a “guess”, concludes that such a “guess” as to intent, if permitted to stand, would occasion dire results perhaps even “chaos” in government. With that I thoroughly disagree. In many areas of the law courts must and do ascertain, from language and/or conduct, the intent of an individual. As an example, time and again we have said that, in the construction of wills, the “polestar” is the intent of the testator and we then have proceeded, by placing ourselves in the “armchair” of the testator and by examining the language and scheme of his will and the surrounding circumstances, to ascertain what the testator intended: Woodward Estate, 407 Pa. 638, 640, 182 A. 2d 732. Was such intent arrived at by “guess”, speculation or conjecture? I think not. In the case at bar, believing as I do that in election cases we must give recognition to the intent of a voter if ascertained, why cannot we place ourselves in the position of a voter in the polling booth, examine what confronted him and what he did and, considering all the surrounding circumstances, ascertain his intent? Granted that in construing a will we have principally the language of the testator before us and we determine what he meant by what he said, it seems to me that we can just as well determine what a voter meant by what he did; conduct can be just as eloquently communicative of intent as the written word. The ascertainment of the voters’ intent is not a “guess”; it is an opinion arrived at after a careful *364marshalling of all the data necessary to the formulation of such opinion.
If the voters by depressing the levers did not intend thereby to vote for the candidates whose names appeared directly above such levers, what did they intend? The majority opinion offers several alternatives, i.e., such votes were “protest” votes, “cross-over” votes or “mistake votes”. If there were “protest” votes, against whom or what was the protest? On this subject the record is silent and the majority opinion furnishes no support for its suggestion. Were these “cross-over” votes? Appellee contends that Republican and Non-Partisan voters “crossed over” and registered their votes for Democratic candidates. In support of this contention, appellee points out that the levers in panel “0” were unlocked to Republican and Non-Partisan voters as well as Democratic voters, that on 17 voting machines used only by non-Democratic voters a total of 60 votes appeared in the senatorial columns of Row C and that, by a projection of the ratio shown on those machines to all the machines in the thirteen wards, the conclusion must be reached that approximately 1378 of the 5624 votes in Row 0 were cast by Republican or Non-Partisan voters.26 In this connection, it must be noted that the total number of votes cast in Rows B and C were less than the total number of Democratic voters who actually voted. If appellee’s contention is sound, then over 1300 Republican or Non-Partisan voters directly violated the election laws by participating in a Democratic party pri*365mary. Such a contention, unsupported as it is by any proof, falls in the face of the presumption long adhered to by this Court that, when a person acts, it is to be presumed that he acts in compliance with, not in violation of, the law: Simon Election Case, 353 Pa. 514, 521, 46 A. 2d 243. To paraphrase the language of Chief Justice Maxey in Simon, supra, illegality cannot be proved by merely showing illegality-facilitating circumstances. What appellee — and now the majority of this Court — urges is that it is possible that there were “cross-over” votes cast in Row C; I would remind appellee and the majority of this Court that we said in Winograd v. Coombs, 342 Pa. 268, 271, 20 A. 2d 315: “Judicial decrees cannot be founded on possibilities”. Were these “mistake” votes? On this there is absolutely no evidence whatsoever, and I will not classify, simply by rote, the 5000 odd votes cast in this manner as “mistakes” and reject them out of hand. If any conclusion is a pure “guess”, it is the majority’s conclusion that the votes in Row C were in “protest” or “cross-over” or by way of “mistake”. The fallacy of the majority’s position in this respect is self-evident: its complete rejection of the factual data on this record. What is even more astounding is the clear implication in the majority opinion that, even if the voters’ intent were ascertained, such intent would not be recognized because voters, in the manner of their voting, failed to comply with the letter of the election statute!!
Moreover, we cannot, and must not, overlook the fact that it was the carelessness on the part of the Board in permitting the levers in panel “C” to remain unlocked and susceptible of operation which created the condition on the basis of which we are now asked to invalidate these 5624 votes. Over eighty years ago, this Court in Contested Election of Wheelock, 82 Pa. 297, 299, said: “If we, by our decision, should permit *366the carelessness ... of [election] officers ... to defeat the election . . ., we would thus make the people suffer for an act in which they did not participate, and which they did not sanction.” More recently, we arrived at the same result in Simon, supra.
Appellee asks this Court to invalidate the 5624 votes cast in Row C in the Democratic senatorial contest as well as all the other votes cast in Row C for other candidates. In so doing, reliance is placed principally on Flynn, supra, Weber Appeal, 399 Pa. 37, 159 A. 2d 901, and Application of Lester, 127 N.Y.S. 2d 272. Factually, both Flynn and Weber completely differ from the case at bar and are, therefore, inapposite. Moreover, Flynn dealt with statutory provisions applicable to paper ballots, not voting machines, and Flynn represents a rule of extreme rigidity no longer followed by this Court. Even if Lester had been determined under statutory provisions similar to the statutory provisions as to voting-machine voting in Pennsylvania — which it was not — , even so I am neither bound by Lester nor impressed by its rationale.
Great emphasis is placed by the majority on the specimen ballots which, in the majority view, contained “clearly worded instructions” and a “crystally clear illustration” on the manner of voting, instructions allegedly ignored by the voters. The printing and delivery of specimen ballots is covered by the Election Code (§1007) but it is significant that when the legislature provided the instructions to be given by election officers to voters on voting machines, specimen ballots were not mentioned (Election Code, §1216(a), (b)). To say, as does the majority, that the voters ignored the specimen ballots clearly implies that the voters saw these ballots but there is no evidence such ballots either were seen by, or available to, the voters. As a matter of fact, even the legislature did not contemplate that each voter receive a specimen ballot because it re*367quired delivery of specimen ballots to tbe election officers, only in tbe ratio of one specimen ballot for each five official ballots. Moreover, specimen ballots “are supposed to be like tbe [official ballots] in every essential particular” (Knight v. Coudersport Borough, 246 Pa. 284, 288, 92 A. 299) and the specimen ballots in tbe wards involved in tbis appeal were not “like tbe official ballots”. On tbe specimen ballot, tbe levers are shown in tbe ballot labels wherein appeared tbe candidates’ names; on the machine the levers were outside tbe ballot labels. On the specimen ballot, in tbe Democratic column and below tbe word “Democratic”, was tbe letter “B” followed by a pointing band which did not point to any row of levers; on tbe voting machines, the letter “B” is above tbe word “Democratic” and the pointing band points to tbe levers in panel “B”. A comparison of tbe specimen ballot and the face of tbe voting machine readily indicates tbe nonconformity of tbe former with tbe latter.
Tbe majority takes refuge in tbe statement that tbe machines were “clear to every one”. The weakness of tbis statement is well illustrated by an incident which took place in tbe hearing in tbe court below when tbe very intelligent counsel for the Board, requested by tbe court to point out tbe levers in panel “C”, depressed the levers in panel “D”. This incident emphasizes, if any emphasis be needed, tbe complexity and intricacy of tbe voting machines which confused these voters.
Tbe power to throw out ballots should be exercised very sparingly and only for “compelling reasons” (Bauman Election Contest Case, 351 Pa. 451, 454, 41 A. 2d 630) and “ ‘ “ the rights of voters are not to be prejudiced by tbe errors or wrongful acts of election officers” ’ ” (Wilkes-Barre Election Contest, 400 Pa. 507, 513, 162 A. 2d 363).
In summary, I am of tbe opinion that: (1) §1216-(d) — which establishes tbe guideline for voting on vot*368ing machines at primary elections — does not, although it should, proscribe the depression of a lever below the name of a candidate; (2) under the language of the carelessly drafted §1216 (d), at best, it is doubtful that the depression of a lever below the name of a candidate violates §1216(d) and any doubt in the construction of the statute must be resolved in favor of the voter; (3) even if the manner of voting in the case at bar be considered a violation of §1216(d), the violation was of such nature, that, if the voters’ intent can be ascertained, such intent should govern; (4) it is clear beyond question that the voters, depressing the levers in panel “C”, intended thereby to vote for the candidate whose names were above such levers; (5) the suggestion in the majority opinion that the votes recorded in Row C were “protest”, “cross-over” or “mistake” votes is based on conjecture and not upon proof of the quality upon which a judicial decree can be predicated; (6) even though the operation of the levers in panel “C” violated §1216 (d), the intent of the voters being evident, there is no “compelling reason” to justify the invalidation of the votes and disfranchise thousands of well-intentioned voters.27
Lastly, I am reminded that in Simon Election Case, 353 Pa. 514, 519, 46 A. 2d 243, we said: “The courts have never been able to lay down a precise standard by which it can be determined in a given case whether the irregularities [on the part of the officials conducting an election and making the electoral count] are of sufficient magnitude to justify the rejection of an *369entire poll in any district in which the question arises. The facts in each case must be considered and a determination reached as to whether justice is more likely to be done by counting the votes, despite the irregularities, or by refusing to count them because of the irregularities.” Under the facts as presented on this record, I am convinced that “justice is more likely to be done by counting the votes” than “by refusing to count them”.
The right to vote for United States Senator is protected and guaranteed by the Constitution of the United States (Art. I, §§2 and 3; 17th Amendment). The right to vote obviously carries with it the right to have one’s vote counted. In U. S. v. Classic, 313 U. S. 299, 314-16, 61 S. Ct. 1031, 85 L. Ed. 1368, the U. S. Supreme Court has recognized as a right “secured by the Constitution” the right of voters “to cast their ballots and have them counted”. As a result of the majority view thousands of voters have been denied this constitutional right. The Supreme Court of the United States in Gray v. Sanders, 372 U.S. 368, 380, 9 L. Ed. 2d 821, 830, declared “ ‘ the right to have one’s vote counted’ has the same dignity as ‘the right to put a ballot in a box.’” See also: Wesberry v. Sanders, 376 U. S. 1, 11 L. Ed. 2d 481, 486. A study of the majority opinion does not reveal any sound, let alone compelling, reason for the denial of this right.
The record in this case and our applicable law, statutory and decisional, compel me to recognize the intent of the voters. I cannot in good conscience on the facts of this case be a party to the disfranchisement and denial of the constitutional right of these thousands of voters. In my opinion, these voters should be validated; right and justice command that result. I would reverse the order of the court below.
Mr. Justice O’Brien joins in this dissenting opinion.In all tbe wards involved in this appeal, the Jamestown type of voting machine — wherein the voting rows are arranged horizontally — was used. In the 43rd and 49th wards, which are not involved in this appeal but to which reference is made in the briefs, the Shoup type of voting machine — wherein the voting rows are arranged vertically — was used.
From the “ballot label” containing the name of the office “Representative in Congress” on the top row, an arrow, pointing downward, crossed Rows A and B and ended at Row C.
The majority opinion repetitively condemns the Committee’s reference to Row C as a “blank row”. The fact is that Row C was “blank” in that it did not contain the names of any candidates, except that of the Republican congressional candidate.
Both the levers in panel “B” and in panel “C” above and below a particular candidate’s name could not be depressed and operated so that the voter could vote twice for such candidate. The majority opinion states: “The interpretation which [the Committee] places upon the word ‘adjacent’ [in the statute] would allow a voter to vote on one machine both ‘upon’ and ‘adjacent’ *350to a candidate . . . Wo one contends a voter could vote both above and adjacent to the candidate’s name; it is undisputed that the set-up of the machines did not permit such dual voting.
Cf. Section 1107 of the Election Code (25 P.S. §3007) which specifically provides: “No voting machine shall, upon any examination or reexamination, be approved by the Secretary of the Commonwealth, or by any examiner appointed by him, unless it shall, at the time, satisfy the following requirement: ... (e) It shall preclude each voter from voting for any candidate, or upon any question, for lohom or upon which he is not entitled to vote, and from voting for more persons for any office than he is entitled to vote for, and from voting for any candidate for the same office or upon any question more than once, except in districts and for offices where cumulative voting is authorized by law. (f) It shall be capable of adjustment by election officers, so as to permit each voter at a primary election to vote only for the candidates for nonpartisan nomination, if any, and for the candidates seeking nomination by the political party in which he is registered and enrolled, if he is enrolled as a member of a political party, and so as to preclude him from voting for the candidates seeking nomination by any political party in which he is not enrolled.” (Emphasis supplied).
Counsel for Miss Blatt (the appellee) contends the Committee should have applied for relief to the courts and that, not having done so, the Committee cannot now be heard to complain. Appellee fails to take into account that she had equal opportunity to act and did not do so. If any fault is to be imputed to the Committee in this respect, appellee must share in it.
The majority opinion seeks to minimize the result of its ruling by stating that the “number of questioned votes” was “less than 12 to a division and less than 7 to each voting machine used in the 13 wards”. What the majority opinion fails to state is that there were 908 voting machines and 512 election districts in the 13 wards involved in this appeal.
The court below, significantly, failed to note that the lever which the voters depressed was directly deloiv the name of a Democratic candidate.
5624 votes were cast in Row O by the depression of levers in panel “C” below the names of the three candidates for the Democratic nomination for the U. S. Senate. Of such votes cast, a tabulation shows: 2094 for Genevieve Blatt, 181 for David Roberts and 3349 for Michael Musmanno. It is highly significant that, throughout all the voting districts involved in this appeal, there was a definite pattern of voters utilizing the levers in panel “C” to cast their votes.
Except, of course, the lever above the name of the Republican congressional candidate.
Act of June 3, 1937, P. R. 1333, §1216, 25 P.S. §3056.
In the case at bar, small demonstration machines were furnished to the voting places, but such machines did not contain Rows O and D. The voting machines themselves contained no instructions and.the sample ballots only added to the confusion, see, infra.
Construing this statute, this Court held that a strict compliance was required to validate a vote: Contested Election of Flynn, 181 Pa. 457, 37 A. 523 (where on one ballot a “1” rather than an “x” was placed, on another ballot an “x” was placed to the right of the candidate’s name but not in the square opposite the candidate’s name and on a third ballot where a “1” rather than an “x” was placed in the square opposite the name of the candidate and an “x” placed to the right of the name but not in the square opposite the name and all three ballots were held void). See also: McCowin’s Appeal, 165 Pa. 233, 30 A. 955; Redman’s Election, 173 Pa. 59, 33 A. 703; Newberry Township Election, 187 Pa. 297, 40 A. 822. Cf. Gulick Appeal, 192 Pa. 446, 43 A. 972.
The 1903 statute used the words “voter may”, instead of “vbter shall”, but this Court held that such change of language was immaterial: Dailey’s Appeal, 232 Pa. 540, 81 A. 655.
Subsequent to the 1903 statute, this Court continued to require a literal and strict compliance with the manner of voting prescribed in the statute: Dailey’s Appeal, supra; Rodgers’ Contested Election, 234 Pa. 512, 83 A. 476; Pfaff v. Bacon, 249 Pa. 297, 95 A. 71. In Pfaff, it is interesting to note the language of Mr. Justice Mestbezat, in dissent, that a “ballot cannot be rejected unless it is so marked as to make it impossible to determine the voter’s choice. This is the only ground or reason for which a vote may not be counted.” (p. 312).
The Act of June 22, 1931, P. L. 628, further amended §§14 and 22 of the 1893 Statute but in a manner not presently pertinent.
The Act of June 3, 1937, P. D. 1333, §1215, as amended by the Act of January 8, 1960, P. L. (1959) 2142, §3, 25 P.S. §3055.
In this opinion I have adopted the language of the parties and refer to the “key, handle, pointer or knob” as the lever.
Dilks v. Flohr Chevrolet, 411 Pa. 425, 431, 192 A. 2d 682; Marnell v. Mount Carmel Jt. School System, 380 Pa. 83, 88, 110 A. 2d 357.
Words of a statute must be construed “according to their common . . . usage:” Statutory Construction Act of May 28, 1937, P. L. 1019, §33, 46 P.S. §533; Breslow v. Baldwin Township School District, 408 Pa. 121, 182 A. 2d 501. In Commonwealth v. Lanzetti, 97 Pa. Superior Ct. 126, 128, it was said: “. . . we are not justified in going so far as to hold that the word ‘upon’ is to be construed as ‘adjacent’.” “Upon” has been defined as “upward so as to be on”, “on or upon one”, “on the surface”: Webster’s New International Dictionary (2d Ed.), p. 2800. “Adjacent” has been defined as “Lying near or close to; sometimes, contiguous; neighboring. ... it implies that the two objects are not widely separated, though they may not actually touch”: Black’s Law Dictionary. “Adjacent” has been construed in the courts: Allentown v. Wagner, 27 Pa. Superior Ct. 485, 493 (“implies nearness to but not necessarily actual contact”) ; Camp Hill Borough, 142 Pa. 511, 517, 21 A. 978 (“adjoining or contiguous”) ; Hanifen v. Armitage, 117 F. 845 (“lying near, close, or contiguous, but not actually touching”).
The majority opinion says the statute is “both clear and realistic” and that the “word ‘upon’ clearly covers, and, . . ., applies to the present Jamestown machine; the word ‘adjacent’ would cover and apply to a different machine known as the Shoup machine . . . .” Such construction is completely unsupported by any evidence whatsoever. When the election statute was enacted were there Jamestown and Shoup machines? If there were, did the legislature have knowledge of such fact? This is a startling example of statutory construction by judicial wishful thinking.
Pfaff v. Bacon, 249 Pa. 297, 95 A. 71; Rodgers’ Contested Election, 234 Pa. 512, 83 A. 476; Dailey’s Appeal, 232 Pa. 540, 81 A. 655; Gulick Appeal, 192 Pa. 446, 43 A. 972; Newberry Township Election, 187 Pa. 297, 40 A. 822; Contested Election of Flynn, 181 Pa. 457, 37 A. 523; McCowin’s Appeal, 165 Pa. 233, 30 A. 955; Lawlor’s Contested Election, 180 Pa. 566, 37 A. 92; Redman’s Election, 173 Pa. 59, 33 A. 703, relied on by the majority, all dealt with voting by paper ballots, and, in no sense, control the case at bar.
In Bodgers, this Court, even though it conceded that the court below had ascertained the voter’s intent, refused to accord any weight to such intent. ,
Inter alia, §27 provided: “If a voter has marked his ballot otherwise than as directed by this act, so that for any reason it is impossible to determine the voter’s choice for any office to be filled, his ballot shall not be counted for such office; . . . .”.
Such is the rule in other jurisdictions: Green v. Independent Consolidated School District, 252 Minn. 36, 89 N.W. 2d 12; Redfearn v. Board of State Canvassers, 234 S.C. 113, 107 S.E. 2d 10; Hall v. Barton, 290 Mass. 476, 195 N.E. 753; Turner v. Board of Education, Ky., 266 S.W. 2d 321; Matter of Creedon, 264 N.Y. 40; Thompson v. Boling, 240 Ky. 340, 42 S.W. 2d 321.
This is sheer speculation. There was no evidence that 17 voting machines were used only by Non-Democratic voters. This was a presumption indulged in by the appellee and unfortunately accepted by the majority. Courts “cannot act on conjecture.” (Matter of Creedon, 264 N.Y. 40). It could well be that the 60 votes (about 3 to a machine) were cast by voters, who, like the rest of the 5624 voters, voted beneath the name of the candidate instead of above the name.
It is interesting to note the perspective of the appellee, the court below and the majority of this Court which is directed to and concentrated on the fact that the questioned votes were cast in “blank spaces”. Such perspective overlooks completely the fact that the thrust of §1216 (d) is directed to the operation of the levers, not to the place of recordation of the votes. The criterion by which the validity of the votes cast must be determined is ewcluswely that furnished by the statute.