(Concurring). — I concur in the opinion of the Chief Justice, except in two respects, and I think these are important enough to justify an expression of my views upon them:
*3011. I am of the opinion that Wilgus precinct should he counted. Appellant’s argument against counting the vote of this precinct is condensed in these few words:
“The facts speak for themselves, and neither invite nor require argument. This precinct was never canvassed, and there is no evidence whatever tending to establish that the votes that were counted by the court were the votes actually cast.”
If the fact that these ballots were not opened and canvassed by the board of supervisors is sufficient reason for their rejection, it was error for the court to count them. Otherwise, in my opinion, they were unobjectionable.
It is not disputed that an election was held in Wilgus precinct, and that after all the other precinct returns had been received and canvassed by the board of supervisors, and packages containing the ballots had been turned over to the county treasurer for safekeeping, he discovered under a counter in his office a sealed package on which was the names of the board of election of Wilgus precinct, with the seal intact and no evidence that it had been “tampered with.” The clerk of the board of supervisors’ explanation of why it was not canvassed by the board was that the returns from the different precincts were brought by transfer wagons from the post-office and the express office and thrown on the outside of the courthouse, and from there removed into the office of the supervisors by the janitor, the returns being placed in one pile and the voted ballots in another, and he says:
“I presume he throwed it [the Wilgus package], in there and it went into the treasurer’s office, and that is the only way I can account for it. . . . Evidently as he came in he throwed this Wilgus package in the wrong side and went on.”
When the ballots from Wilgus precinct were offered in evidence, appellant’s only objection to them was: that they “were not received by the clerk of the board of supervisors, and that they were not canvassed or received in the official returns. ’ ’
The same objection was interposed to the introduction of the tally sheets from the precinct, and the same objection doubtless was intended to extend to the poll lists. I think the evidence is amply sufficient to sustain a finding that the election officers of Wilgus precinct made their returns to the board of supervisors as required by law; that the returns were-*302received by the board, but not canvassed, for the reason that they were misplaced; that subsequently they were transferred from the office of the board of supervisors to the treasurer’s office, where they were discovered in an unbroken sealed package and forwarded to the superior court of Maricopa county with the other ballots of Cochise county.
There was no objection to the tally sheet or poll list, to the effect that they were not properly authenticated and certified by the proper election officers of "Wilgus precinct, or that they did not tally with the number of voted ballots from the precinct, or that the ballots were not genuine; the only objection being that they had not been received by the clerk of the board of supervisors and canvassed by the board.
I am of the opinion that the integrity of the returns — tally sheet, poll list and ballots — was fully established by the evidence, and that the court correctly counted the ballots. If the returns of a precinct may be rejected on the sole ground that they were not canvassed by the board of supervisors, it will open a most fruitful field for fraud, and make it possible for election boards or clerks of boards of supervisors to disfranchise the elector after he has voted, and thereby defeat the will of a majority. Whether these ballots are counted or not will not affect the result in this case, but the rule their rejection establishes is portentous as a guide in the future.
If the election officers or others had destroyed the election returns of Wilgus, or if they had never turned up as evidence of how the voters voted for Governor, still it seems to me the choice of that precinct might have been shown by other legal proof. As is said in People v. Thacher, 55 N. Y. 525, 536, 14 Am. Rep. 312-321:
• “In election eases, if the return is discredited, so that it is no longer evidence of the right of the party claiming under it, then the question who received the majority of the votes is to be ascertained by other legal proof. The vote of the district or precinct to which the return relates is not to be disregarded. The electors ought not to be disfranchised because no return is made or because it has been rendered valueless by the fraud or mistake of others. ’ ’
' 2. There are 28 ballots, the counting of which is assigned as error by appellee because, he claims, they had distinguishing marks on them. Eighteen of these were counted for appellant, and 9 for appellee. Without discussing the so-called *303distinguishing marks, or passing upon the question as to whether the marks on them were distinguishing or not, I do wish to say I cannot believe the rule announced as to these ballots by the Chief Justice a correct interpretation of the law. That rule, as I understand it, is that, if the board of election indorse on a ballot information indicating that the board, in canvassing the vote of the precinct, discovered distinguishing marks, or what might be called such, then the court will pass judgment upon the ballot and determine whether, as a question of law, the marks are distinguishing or not; or, if the marks on ballots have the appearance or suggest that they are the result of a scheme or concerted plan, then the court may assume as a fact that they are distinguishing marks. But if the board of election neglects to do its legal duty and indicate that any marks were on the ballot when canvassing the vote, and if the marks in and of themselves do not indicate by their persistence or regularity, or otherwise, an intention to identify them, then the court should presume they were not placed on the ballots by the voters, and should count them. This rule absolutely ignores the other rule that requires the integrity of the ballot to be established before it may be taken as evidence to overcome the official canvass. The integrity of the ballot, as I understand it, means that it has been kept from the time it is placed in the ballot-box, after the voter has marked it, unchanged in any way. It being shown that no opportunity to tamper with the ballot existed, or if one did, they, in fact, were not changed or mutilated, the presumption follows that they are the best evidence as to how the voter voted, and as to the marks he used to indicate his choice. If the marking on the ballot is regular and in strict conformity with the law, it is presumed that it is his mark. What of it, if the ballot, in addition to being regularly marked, has upon it marks not provided by law ? I think the presumption should prevail in the one ease as well as the other that the voter, and not someone else, did the marking, and if there be identifying marks upon it, that he put them there. If it can be presumed that someone else put the distinguishing marks on the ballot, that presumption should also go to the proper markings, and thus you have destroyed its integrity. The ballots, where they have been kept inviolate, are the best evidence, and, in a proper case, may be used to overcome the canvass and return of the elec*304tion board. Quigley v. Phelps, 74 Wash. 73, Ann. Cas. 1915A, 679, 132 Pac. 738. This seems to be the universal rule. Since boards of election act in a ministerial capacity only, the counting or rejecting of ballots by them is not binding upon the courts. Neither is it taken for granted that every ballot counted by them was at the time unexceptionable. If that presumption were indulged, it would be a waste of time for the courts to look to the ballots to determine whether they had been correctly counted or not; for the return would be the best evidence, instead of the ballots.
I might also add that I do not believe the Tebbe v. Smith Case, 108 Cal. 101, 49 Am. St. Rep. 68, 29 L. R. A. 673, 41 Pac. 454, is controlling as to the vote in Pinedale precinct. I think there is a clear distinction between our statute and the California statute. The vote of Pinedale precinct, in my opinion, was properly counted.
Application for rehearing denied.
On validity and construction of law as to marking ballots, see notes in 13 L. R. A. 761; 47 L. R. A. 806; 32 L. R. A. (N. S.) 730.
As to whether marking some but not all of the candidates on a party ticket defeats the effect of marking under the party emblem as a vote for the omitted candidates, where no votes were cast for ■ their opponents, see note in 28 L. R. A. (N. S.) 460.