{dissenting). I feel reluctantly constrained to dissent from the views expressed and the conclusion reached by a majority of the court. In so doing I adopt the following opinion, which is almost verbatim the one prepared by Commissioner De France, concurred in by Commissioner Kising, and reported in this case to the court. I believe it to be the sounder exposition of the statute under consideration.
The manner of voting at elections in this state is by ballot, and the law-making power has at least attempted *272to prescribe what kind of a ballot'should be used, so far as its material and color, and also its width, if printed, are concerned. Section 1181 requires it to be a “paper ticket,” but the color of the paper and the width of the ballot are matters that were left to the choice of the electors or of the respective political parties that usually have the ballots prepared and printed for distribution and use upon election day. With no further provision as to the ballot in this respect than that it should be a “paper ticket,” the door was left open for such practice, not to say abuse, as had a tendency to' defeat the primary object of the ballot system, namely, its secrecy.
The law thus stood until 1888, ■when section 1281, in connection with other provisions, was enacted. The purpose of such enactment is not to be doubted. It was to afford the voter a better security for the secrecy of his ballot than then existed. The forty-eight ballots in question in this case were printed ballots,- printed on yellow paper. The provisions of this section prohibit the use of any other than plain .white news printing paper for printed ballots. The wddth of the ballot is provided for, allowing some latitude therein. The law prescribes what a lawful ballot shall be, and its essential purpose is to prohibit the use of a, ballot which, from its color, width or any device or mark thereon, may be readily distinguished, by its back or in outward appearance, .from a lawful ballot. Such a ballot is by this law made an illegal ballot. It' is declared unlawful to even print ballots of that kind for distribution at the polls or to distribute the same to the electors. It has been suggested that because the law does not in express terms say that it shall be unlawful to vote the same, nor declare any consequence for so doing, it may be inferred that such act was not intended as one of the things prohibited, and that at all events it was not intended that the voter committing such act should lose his vote. But this cannot be, for if the voting of such ballot is not to be deemed prohibited, *273the law is without force or meaning. The latter clause of the section clearly does away with any such inference by naming certain things as not prohibited, and thus including all others as prohibited which are within the purview of its provisions. A ballot proscribed as illegal before it is voted is not, when voted, converted into a legal ballot under the provisions of said enactment or of the election laws. Its character as an illegal thing remains unchanged. That the voting of such a ballot is prohibited cannot, I think, admit of any doubt. The consequence of voting an unlawful ballot is fixed by the very nature and tendency of the act. Morril v. Haines, 2 N. H. 246.
The necessary .consequence under this statute is that the voter shall lose his vote. If the law provided a penalty for casting such a ballot, the consequence might perhaps be different, and the vote, in that event, be considered valid, for the reason that no other consequence than that prescribed should be visited upon the voter. Morril v. Haines, 2 N. H. 246; Lester v. Bank, 33 Md. 558; Harris v. Runnels, 12 How. 79.
But where no express penalty is prescribed, and the nature of the forbidden act is such as carries with it or determines the consequence, then such consequence must attach, and especially when, without attaching it, the legislative enactment would be left without force. In the case before us, if the consequence — that is, the loss of the vote — be not attached, then the principal object of the law is defeated. A statute must be so construed and applied as to fully carry out the true intent and meaning thereof. Sec. 3143, Gen. St. 1883; Sedg. St. & Const. Law, 325. To place any other construction upon the essential provisions of sec. 1281 — as, for instance, to hold such provisions to be merely directory — would do violence to the enactment, and leave it without force. ‘ ‘ Stat - utory requisitions are deemed directory only when they relate to some immaterial matter, where a compliance is *274a matter of convenience rather than of substance.” People v. Schermerhorn, 19 Barb. 558.
In the case of Rex v. Loxdale. 1 Burrows, 447, Lord Mansfield says: “ There is a known distinction between circumstances which are of the essence of a thing required to be done by an act of parliament and clauses merely directory.”
Where a statute requires the manner of voting to be by ballot, it is imperative, and votes cast viva voce cannot be counted. McCrary, Elect. (2d ed.) § 446. The chief reason for the ballot system is its secrecy, and the chief object of sec. 1281 is to secure such secrecy; and its requirements, being reasonable, should have the like force and effect given to them as are accorded to a statute adopting the ballot system.
As the underlying principle of our government is that the will of the majority shall rule, so the chief object of our election laws is to ascertain what that will is. It is important, therefore, that no legal voter should be deprived of his vote, or lose the same after it is cast; and hence the principle of strict construction is applied, as a general rule, to all election laws, where it can be applied consistently with their provisions, in favor of the innocent voter, that he may not, by the wrong-doing or omissions of others, be deprived of a voice in the conduct of goverñmental affairs. But we know of no well-considered authority which extends such principle to a case where the voter himself has broken the law. This distinction is well recognized by Brewer, J., in the case of Gilleland v. Schuyler, 9 Kan. 569, where he says, at page 591: “ The complaint is that the officers have designated an improper place, and not that the electors have assumed to disregard the selection of either the legislature or any officer. Where the electors have not themselves broken the law, ought they to be disfranchised?” And see McCrary, Elect. (2d ed.) § 312, and authorities there cited.
*275The right to vote is a constitutional right; but no one doubts at this day the power of the legislature to make reasonable rules and regulations to which the exercise of such right shall be subject. Section 1281 is not unreasonable in its provisions, and its requirements may be observed by the voter with little or no inconvenience, and impose no hardship when obeyed. “All devices by which the secrecy of the ballot is destroyed, by means of colored paper used for ballots, or by other similar means, are exceedingly reprehensible, and, whether expressly prohibited by statute or not, should be discountenanced by all good citizens.” McCrary, Elect. (2d ed.) § 195.
It is claimed that because the section contains no negative words, as that the proscribed ballot shall not be received, or that it shall not be counted, or the like, it was not intended to invalidate the vote, and that its provisions must be considered directory. But as I have before stated, they amount to nothing if so treated. The judges of election may not, when they come to count the votes, be authorized to refuse the counting of such as are proscribed by this section, if any such be cast, in the absence of a statutory provision to that effect, for they then act in a merely ministerial capacity; but their power, when acting as judges, to reject the same, if offered, is not, I think, to be doubted. If they are not possessed of such power because not expressly given, then, if an elector should offer a wooden ballot, or one of any other material, too large to go into the ballot-box, the judges of election may not reject it, for the same reason. When the matter of such ballots come before a court to be passed upon, the court is not limited to the powers of a mere canvassing board.
But it is by no means a uniform rule, nor even a safe guide, that a statute containing no negative words is to be treated as directory. The nature of its provisions, its language, and the end to be attained, must be looked after. “Affirmative words may, and often do, imply a *276negative of what is not affirmed as strongly as if expressed. So also if, by the language used, a thing is limited to be done in a particular form or manner, it includes a negative that it shall not be done otherwise. Affirmative expressions that introduce a new rule imply a negative of all that is not within the purview.” District Tp. v. City of Dubuque, 7 Iowa, 276. Also 1 Kent, Comm. 467, note b.
. It is sometimes very convenient to call the requirements of a statute directory. In Briggs v. Georgia, 15 Vt. 61, Hebard, J., criticising such practice, says: “I am not very well satisfied with the summary mode of getting rid of a statutory provision, by calling it directory. If one positive requirement and provision of a statute may be avoided in that way, we see no reason why another may not.”
The law does not provide the ballot for the voter. It leaves that matter to him, and he therefore has control over it. The preparation and tender of a lawful ballot, except where such tender may be excused, is a condition precedent to the voter’s right to have his ballot received. The voter himself may not complain, nor any one for him, if he loses his vote under such circumstances, for it is his own act which brings about the result. In the case of Kirk v. Rhoades, 46 Cal. 399, under a statute regulating the size and form of ballots and the kind of paper to be used, it was held that as to those things over which the voter has control the law is mandatory, and as to such things as are not within his control it should be held directory. This case is cited with approval in McCrary, Elect. (2d ed.) section 403. I approve the rule, but would include more things as being under the control of the voter than is done in that case. The voter should equip himself with a proper ballot. The' law permits him to use a written or printed ballot. If he neglects to provide himself with a ballot, and relies wholly upon its being furnished him by others on election day *277when he desires to vote, he should not be permitted, nor should either party in an election contest be permitted, to excuse a plain violation and disregard of the law by showing that no printed ballots of a lawful character were accessible. The excuse made, that proper ballots had been sent by mail, express or otherwise, directed to some one or more of the voters of the election precinct where the yellow ballots were used, but had failed to reach their destination in time for use on election day, is not a sufficient excuse, if indeed there can be any excuse at all for such conduct. Nor can the fact that there was no such paper available in that precinct at that time as the law prescribes for printing ballots be allowed as an excuse. If the act of voting such a ballot was made a criminal offense, punishable by fine or imprisonment, the penalty of the law could not be evaded by any such excuse. Neither can the consequence attached to the law as it exists be avoided in that way. The matter may not be excused by a showing'that no fraud was intended any more than that one who has knowingly and wilfully committed a fraud may defend himself against such act bj7- proof that he did not intend a fraud. The voters in this case openly violated the law, and they did it knowingly, also; for, as before said, they are presumed to know the law. The vote might have been different in that precinct but for the use and circulation of the yellow ballots. We should give such sanction to the law as will uphold it, and as it was evidently intended should be given, and hold that the court below committed no error in its ruling upon this question. The forty-eight yellow ballots were properly rejected as illegal.
I think the matters complained of, as to the return made of the election from Wilde precinct, and as to the return from Las Animas precinct, are hut irregularities which could not, under the evidence, be held to invalidate such returns.
In reference to the charges and counter-charges of *278votes cast by persons not entitled to vote, I think the court committed some errors in its findings. As there were such illegal votes cast and counted in favor of each of the parties, however, and as the difference therein would not change the result reached by the court below, I do not deem it of sufficient importance to state my views upon the subject by summing up the evidence as to each vote challenged upon that ground.
(April 2, 1889.)In my opinion the judgment should be affirmed.
Reversed,