dissents:
My difference with the majority relates only to the manner in which they have passed upon the merits of the case.
The pertinent election statutes involved are as follows:
“1853. Section 44. Ballots and Envelopes; Opening *582Packages; Deposit of Ballots in Booths; Delivery of Twenty-Five Envelopes to Clerk; Signing of Envelopes; Delivery to Elector: — At the opening of the election after the qualifications of the several officers and in the presence of the others, the Inspector or the Chairman of the Board of Inspectors shall open the packages of ballots and envelopes in such a manner as to preserve the seals intact. He shall place in each box provided in each booth at least ten ballots, and at all times during the election it shall be his duty to see that at least ten ballots are kept in each box in each booth. He shall then deliver to the Clerk of the Election of the opposite political party from his own twenty-five of the envelopes. The Clerks of the Election shall at once proceed to write their full names in ink in the places designated on the envelopes, in their ordinary handwriting, and without any "distinguishing mark of any kind. As each successive elector calls for a ballot and envelope, the Clerks of the Election having the custody of the ballots and envelopes shall deliver to him the first signed of the twenty-five envelopes and one ballot, and the Inspector shall immediately deliver to the said Clerk of the Election another envelope, which the Clerks of Election shall at once sign, as before, and add to the envelopes already signed, so that it shall be delivered for voting after all of those theretofore signed.”
“1854. Sec. 45. What Envelopes Not Deposited:— No Inspector of Election, or other officer authorized by law to hold the election, or Judge acting for the Inspector, shall deposit any envelope upon which the names of the Clerks of the Election, as hereinbefore provided for, do not appear, or any envelope on which appears any distinguishing mark, defacement or mutilation; provided, however, that no mark shall be considered distinguishing, and no envelope shall be considered defaced or mutilated, unless it plainly *583appears that it was the intention of the voter to so mark, deface or mutilate his envelope.”
“1859. Sec. 50. Distinguishing Marks; When Ballots Not Counted; Disputed Envelopes and Ballots How Preserved; Unused Envelopes Destroyed; Counted Ballots and Envelopes How Disposed of; Ballots; How Counted and Disposed of: — In the counting of the votes any ballot contained in an envelope which is not endorsed with the names of the Clerks of the Election, as provided in this Chapter, or any ballot which shall bear such a mark, impression or device that it is apparent that such was placed thereon with the intent of distinguishing such ballot, or any ballot which is contained in any envelope which shall bear any such distinguishing mark, impression or device, shall be void and shall not be counted; and any ballot, or part of a ballot, from which it is impossible to determine the electors choice of candidates shall not be counted as to the candidate or candidates affected thereby; provided, however, that all such ballots and envelopes and all disputed ballots and envelopes shall be preserved by the Inspector, and, at the close of the count, placed with the seals of the envelope packages in the box into which the ballots shall have been put when read.” 44 Del. Laws, c. 122, § 2.
In the Third Election District of the Second Representative District of New Castle County two hundred ninety-six ballots were voted at the last General Election for various candidates for the Office of Representative in the General Assembly. Of the two hundred ninety-six ballots voted, nine were rejected as being illegal. One hundred one of the remaining two hundred eighty-seven ballots voted and counted were not contained in envelopes signed by the two Election Clerks, which was in direct violation of the provisions of Sections 44, 45 and 50, as indicated.
The Election Officials, prior to counting the ballots, com*584mingled the one hundred one ballots taken from the unsigned envelopes with the one hundred eighty-six ballots taken from the signed envelopes in such a manner that now it is impossible to separate the ballots taken from the unsigned envelopes from the ballots taken from the signed envelopes. It is conceded that the one hundred one ballots contained in the unsigned envelopes were illegal ballots and should not have been counted by the Election Officials. It is further conceded that if the one hundred one illegal ballots were voted and counted for Armstrong, the Republican candidate, the result of the election for Representative in the Second Representative District would have been different ; that is, the relator, Wahl, the Democratic candidate, would have received the majority vote in the entire Representative District and would have been elected to said office.
Since the one hundred one illegal ballots cannot be separated or distinguished from the one hundred éightysix presumably legal ballots, and inasmuch as the one hundred one illegal ballots are sufficient in number to change the result of the election, should all of the ballots be rejected in the Third District or should all of the two hundred eighty-seven ballots be counted?
The Election Laws of this State, and especially the Sections cited, reflect great study on the part of our lawmaking bodies to safeguard against the evils accompanying uncontrolled elections. The Sections as indicated were enacted to prevent fraud. They form an integral part of a well-designed plan to safeguard the integrity and purity of the ballot from the time the elector receives his ballot down through the voting stages until it has been finally counted by the Election Officials; thus, preventing the counting of fraudulent ballots by requiring the Clerks of Election to endorse their names upon the envelopes containing the ballots to the end that they may be identified when taken from the ballot box for counting purposes.
*585In enacting the foregoing Sections the Legislature took a most drastic step towards placing a restriction upon the freedom of the electorate of this State when it provided that no ballot, however honestly cast by the voter, shall be counted unless contained in an envelope bearing the signatures of the two Election Clerks. Now, how are the pertinent provisions of these Sections to be construed? Are they directory or mandatory?
It seems to me that it is far more important to the people of this State, and to the stability of our form of government as well, that these provisions should be held to be mandatory than that occasionally in a voting district the votes of innocent electors be not counted; otherwise, the legislative intent in enacting a law to preserve the integrity and purity of the ballot is defeated, and the very means are afforded to protect and cover up corruption and venality.
In the case of Turner v. Teller, (Tex. Civ. App.) 275 S. W. 115, 116, the Court in dealing with similar provisions stated, “The requirement that the presiding judges shall write their signatures upon the ballots to be voted is mandatory, but it is made so only because it is expressly provided * ** * that ballots not so indorsed shall not be counted.” Likewise, in the case of Ledbetter v. Hall, 62 Mo. 422, the Court held that a statute making it the duty of Judges of Election to cause to be placed on each ballot the number corresponding with the number of the voter offering the same, and providing that no ballot not so numbered shall be counted, is mandatory and must be enforced.- Mr. McCrary in his work on Elections, Paragraph 226, in commenting on the Missouri ruling, states, “Although this doctrine may sometimes result in very great hardship and injustice by depriving the voters of their rights by reason of the negligence or misconduct of the Officers of Election, it is nevertheless difficult to see how any different construction could have been *586placed on such a statute. Statutes which simply direct the Judges of Election to number the ballots without declaring what consequences shall follow if this be not done may well be held to be directory only; but where the statute both gives the directions and declares what the consequences of neglecting their observance shall be, there is no room for construction. Such statutes are intended to prevent fraudulent voting, and, if the Legislature is of the opinion that the general good to be derived from their strict enforcement will more than counterbalance the evils resulting from the occasional throwing out of votes honestly cast, the Courts cannot reconsider the mere question of policy. The legislative will upon such a subject, when clearly expressed, must prevail.” Sego v. Stoddard, 136 Ind. 297, 36 N. E. 204, 22 L.R.A. 468; Kreitz v. Behrensmeyer, 125 Ill. 141, 17 N.E. 232, 8 Am. St. Rep. 349; Major v. Barker, 99 Ky. 305, 35 S. W. 543; Slaymaker v. Phillips, 5 Wyo. 453, 42 P. 1049, 47 L.R.A. 842; Russell v. McDowell, 83 Cal. 70, 23 P. 183; Parvin v. Wimberg, 130 Ind. 561, 30 N.E. 790, 15 L.R.A. 775, 30 Am. St. Rep. 254; Hammond v. Love, (1946) 187 Md. 138, 49 A. 2d 75; Kirkpatrick v. Deegans, 53 W. Va. 275, 44 S.E. 465; Orr v. Bailey, 59 Neb. 128, 80 N.W. 495; People v. Rinehardt, 161 Mich. 585, 126 N.W. 704.
The pertinent provisions of Sections 44, 45 and 50 must be held to be mandatory and as such essential to the legality of votes cast at the election in the Third Election District of the Second Representative District at the last General Election.
The intervening defendant, Armstrong, contends that even though the pertinent provisions as written in the foregoing Sections be found to be mandatory, nevertheless, their force and effect as such has been rendered inoperative in this instance by reason of the fact that the Election Officials in counting the ballots in the Third Representative *587District did not “segregate” the ballots and the envelopes not signed by the Clerks of Election, as he asserts they should have done under the provisions of Section 50, in order that they might later be identified by the Canvassing Board. Consequently, he says under the present circumstances the pertinent provisions of the Sections should be construed to be directory only, and that all of the one hundred one illegal votes should be counted. I find the contention of the defendant in this respect to be without merit. This, however, necessitates a recital and construction of the Section in question.
“1859. Sec. 50. Distinguishing Marks; When Ballots Not Counted; Disputed Envelopes and Ballots How Preserved; Unused Envelopes Destroyed; Counted Ballots and Envelopes How Disposed of; Ballots; How Counted and Disposed of: — In the counting of the votes any ballot contained in an envelope which is not endorsed with the names of the Clerks of the Election, as provided in this Chapter, or any ballot which shall bear such a mark, impression or device that it is apparent that such was placed thereon with the intent of distinguishing such ballot, or any ballot which is contained in any envelope which shall bear any such distinguishing mark, impression or device, shall be void and shall not be counted; and any ballot, or part of a ballot, from which it is impossible to determine the electors choice of candidates shall not be counted as to the candidate or candidates affected thereby; provided, however, that all such ballots and envelopes and all disputed ballots and envelopes shall be preserved by the’ Inspector, and, at the close of the count, placed with the seals of the envelope packages in the box into which the ballots shall have been put when read.”
The question is, What meaning should be ascribed to the italicized portion of the Section? The defendant argues *588that it is a “proviso,” which restricts the operation of the mandatory provisions of the Sections to cases only where the -ballots and the envelopes not signed by the Election-Clerks have been preserved “by means of segregation” in order that they might later be identified by the Canvassing Board.
It is quite clear that the words “provided, however”, as employed, are simply used in the conjunctive sense and have no greater significance than the words “but” or “and”. It is well established that the word “provided” does not convert the words following into a “proviso,” as it may be used in a conjunctive sense and precede an independent clause. Bowers v. Missouri Mutual Asso., (1933) 333 Mo. 492, 62 S.W. 2d 1058; State v. Mooneyham, (1923) 212 Mo. App. 573, 253 S.W. 1098; Carter-Webster & Co. v. U. S., (4 Cir., 1906) 143 F. 256; Radil v. Morris & Co., (1919) 103 Neb. 84, 170 N.W. 363, 7 A.L.R. 539. Whether it is a “proviso” in effect or merely a conjunctive equivalent to the word “and” or the word “but” must in part be determined from the context and from all the pertinent provisions of Sections 44, 45 and 50, respectively, relating to the same subject matter. Davis Finance & Securities Co. v. O’Neal, ( La. App.) 160 So. 463; State v. Mooneyham, 212 Mo. App. 573, 253 S.W. 1098.
When the foregoing Sections are considered as a whole, the words “provided, however” simply mean that the ballots and envelopes should be “preserved”. Any other construction would render nugatory the pertinent mandatory provisions of the Sections and defeat the very purpose for which they were enacted. It is inconceivable to me that the Legislature in enacting these mandatory provisions to insure the integrity and purity of the ballot, specifically stating what ballots are void and not to be counted, at the same instant wiped out the effect and purpose of the pro*589visions by stating that if they were “not preserved by means of being segregated” they were to be counted. Under such reasoning any fraudulent scheme need only be broadened by commingling illegal ballots with legal ballots, as here, in order to defeat the only purpose for which the mandatory provisions were enacted by the General Assembly.
I recognize the rule of statutory construction that, in order to ascertain legislative intent, words omitted may be read into a statute, but in doing so we cannot demolish the very purpose for which the statute was enacted, nor restrict its application in a manner inconsistent with true legislative intent. To say that each ballot with each envelope not signed by the Election Clerks must be “segregated”, in order that the Board of Canvass may identify the illegal ballots contained in the unsigned envelopes, is but amending in judicial fashion the underlined clause with a further directory provision providing the precise manner in which the envelopes and ballots are to be preserved, and directing that only those that are “segregated” fall within the mandate of the Sections. We must not forget that the power of statutory amendment reposes entirely within the legislative, realm and cannot be usurped by any tribunal under the guise of judicial interpretation.
Even if it were assumed arguendo that the clause in question is a “proviso”, it would not in this case have the effect of nullifying the preceding mandatory language. This is so for the reason that the clause merely directs that the ballots and envelopes should be “preserved” as distinguished from “destroyed.” The manner in which the ballots and envelopes shall be preserved is not designated and can-not be judicially read into the clause.
I conclude Section 50 to mean that, if the votes are void by reason of the ballots being in unsigned envelopes, they should not be counted, but that the envelopes and *590ballots should be preserved. That is all the language says. It does not require “segregation” of the ballots and envelopes, although, if the Election Officials had voluntarily adopted such a course, it would have been most helpful in the present case. The clause is in no sense a modifying “proviso” but simply an independent directory clause requiring the ballots to be “preserved”, which was done by the Election Officials; thus, the mandatory provisions directing that certain ballots should not be counted has not been nullified and must be enforced.
Now should all the ballots be rejected?
Of course, the power to reject an entire poll is certainly a dangerous power, and, though it belongs to whatever tribunal has jurisdiction to pass upon an election, it should be exercised only in extreme cases; that is to say, in part, cases where incompetency, inefficiency and a reckless disregard of essential mandatory requirements of the Election Law, as shown here, prevailed to such an extent that the true state of the vote in the Election District could not possibly be ascertained. Of course, the rule of exclusion as to the entire poll is never applied in cases of neglect on the part of Election Officials unless the violations relate to essential requirements of the law, and not so then if the poll can be purged of the illegality, or, if it cannot be so purged, the illegal votes are not sufficient in number to change the result of the election. This is so for the reason that the legal votes cast in a District should not be rejected because of the misconduct of the Election Officials whenever possible to avoid such rejection. Nevertheless, we cannot lose sight of the fact that, if any persons are to lose their votes by reason of the misconduct or negligence of Election Officials, it should be those who reside in the Election District where the wrongdoing occurs, rather than to have the legal votes in other Districts *591overcome by the misconduct or negligence taking place in other Districts over which they have no control.
If the law provided merely that the envelopes should be signed by the Election Clerks and did not provide that ballots contained in unsigned envelopes should not be counted, I would agree with the majority, under the circumstances of the present case, and say that it would be proper to count all of the ballots. I say this for the reason that I would construe the pertinent provisions of Sectians 44 and 45 as being directory only and their observance by the Election Clerks not essential in the sense that the violation thereof would necessarily invalidate the one hundred one votes in question. Here we are dealing with the violations of essential mandatory provisions of the foregoing Sections, the result of which has rendered unreliable the true state of the vote in the Third Election District. The number of illegal votes cast in this Election District is sufficient to change the result of the election, and no one can purge the poll of the illegality.
The majority in their endeavor to save one hundred eighty-six legal ballots have found it necessary to count one hundred one illegal ballots, which the Legislature has said are void and cannot be counted, irrespective of the intention of the voters. They say that the provisions of Paragraph 1858 of the Code of 1935 justifies, in part, their position.
“1858: All ballots cast at any election shall be counted for the persons for whom they were intended, so far as such intention can be ascertained therefrom, and in determining the intention the following rules shall be observed.”
Paragraph 1858 continues by setting forth the manner in which the intention of the voter is to be ascertained in considering each ballot. For instance, “If the elector *592shall place on his ballot a cross mark or “X” within the space containing a party emblem, he shall be deemed to have voted for all the candidates whose names appear in the column under such mark, unless some name or names shall be erased, or unless in some other column he shall have placed a mark in the square at the left of the name of some other candidate for the same office.”
The fallacy in the majority’s approach in this respect becomes apparent when it is realized that only legal ballots can be counted under the provisions of Paragraph 1858, and only then when they can be identified as such. Here the one hundred eighty-six legal ballots cannot be so identified; thus, the provisions of Paragraph 1858 cannot be enforced.
The Boards of Canvass in this State during the last twenty-five years have consistently rejected ballots because of statutory illegalities, regardless of the fact as to whether or not the intention of the voter could be ascertained from the ballot.
In reaching their conclusion the majority of the Court have adopted a policy embodying their concept of fairness in the light of the circumstances presented. But here the Legislature under the foregoing Sections, in order to prevent fraud at elections, has announced a policy which must be admitted to be in conflict with the view of the majority of the Court. The Legislature has said that the general good to be derived from the enforcement of the provisions of the foregoing Sections will more than counterbalance the evils resulting from the occasional throwing out of votes honestly cast. Whenever a conflict in policy be found to exist, such as here, the legislative will upon the subject, when clearly expressed, must prevail.
Mr. Armstrong has intervened for the purpose of *593having the entire poll counted, in order that he may have the benefit of the full count. I think before any benefit can accrue to him he must first purge the poll of the illegality; otherwise, the poll must be rejected in its entirety.
It is unfortunate indeed that electors should lose their votes because of the negligence of Election Officials. But, as has often been said, it would be a greater evil for the Courts to ignore the law itself by permitting Election Officials to ignore essential mandatory requirements designed to safeguard the purity and integrity of the election. If the long established safeguard, as provided for under the foregoing Sections, to preserve the integrity and purity of the ballot has become unnecessary or should be changed, modified or restricted, it is not for this Court to do so.
It is my opinion that the entire vote of the Third Election District should be rejected, and that the writ as prayed for should issue.