(dissenting).
It is only after the most careful examination that I venture to differ from my associates upon the leading question considered in the foregoing opinion. And I would content myself with a mere declaration of dissent were it not for the fundamental importance and far-reaching effect of the views promulgated. The vital necessity to good government for legislation in the direction of ballot reform, is a matter of such universal recognition that a discussion of the subject would be a waste of words. The people of this state, through their last legislature, undertook to purge our elections of the demoralizing and disgraceful features that have too often characterized them. The purpose of the election *350statute thus adopted is to secure a free and honest expression through the ballot of the electors’ wishes. This statute is designed to prevent the perpetration of frauds upon the voter in easting his vote, as well as to do away with antecedent bribery and other improper influences, together with subsequent frauds in the count and return. Legislation which has for its object the accomplishment of either of these ends is firmly grounded upon the bed-rock of public policy and necessity. This kind of legislation is therefore peculiarly entitled to such judicial construction as will effectuate its purpose unless sound legal principles imperatively forbid.
Among the various devices resorted to for the purpose of defeating the real will of the voter, perhaps none have in the past been more successful than that of printing and circulating at the polls tickets corresponding in form and appearance to those adopted by a particular political party, but containing one or more names of opposing candidates instead of the regular party nominees. In cities especially, where many electors are congregated, comparatively few even know the names of all the candidates nominated by their respective parties. They go -to the polls intending to vote “ straight tickets; ” that is, to vote for all the regular nominees of the political organizations to which they render allegiance. But by the device mentioned hundreds of voters were deceived, and without their knowledge or consent made to cast ballots for candidates representing opposing political principles. The evil in this respect became so great that years ago the legislature was forced to recognize it, and did so by adopting legislation looking to its suppression. In enacting the ballot law of 1891 the general assembly, by the provisions involved in this discussion, sought to preserve what had been gained in the direction of this particular' reform.
Those provisions require that all lists of nominations regularly made and certified, whether by convention or by petition, shall be printed in separate columns upon a single ballot; also, that when no candidate is selected for a given office a blank shall be left upon the ballot under the name of the office. *351It authorizes the adoption by the convention or by the petitioners, as the case may be, of a device or emblem to represent each list of nominations. And when an emblem is thus selected, it commands the printing thereof upon the ballot at the head of the list of nominations it is chosen to represent.
The act then prescribes two'methods of expressing the voter’s preference upon his ballot. He may place a mark or cross opposite the emblem at the head of a particular list of candidates, or in lieu thereof he may place checks opposite the names of all candidates for whom he desires to vote, no matter upon what lists these names appear. If he chooses the former method and places a cross opposite the emblem, he thereby signifies his intention of voting for the entire list lawfully printed beneath the emblem, and his vote is so counted. The statute guarantees to him that every name on that list represents a candidate regularly chosen by his party, or by the petitioners with whom he desires to affiliate in that particular election. If democratic in principle, he has a right to rely upon the fact that the names of candidates found on the ticket under the title “democratic party” and under the emblem adopted by that party, are the regular nominees of the party. Every line of the statute bearing upon the subject sanctions this view. But if, despite such a disregard of the law, as is alleged in this case, the vote can be effective, the statute upon which the voter relies is grossly misleading and becomes potent in accomplishing a dangerous and wicked deception. If he may not depend upon the truthfulness of the ballot in this respect, this feature of the law cannot be too soon abrogated.
The placing of different sets of nominations in separate columns on the ticket and the emblem device were not features of the original Australian ballot system; nor are these provisions found in all the states which have enacted that system in substance. Strong considerations commend the wisdom of this addition to the original law. But whether it be wise or unwise is a legislative and pot a judicial question. The courts must enforce the provisions, if valid, as *352they find them. And such a view should be taken, if possible, as tends to promote and not to defeat their evident purpose.
The averments of the petition stricken out bj the opinion of the court plead substantially the following, among other facts, viz.: That in four of the five counties of the Thirteenth judicial district the name of contestee, a candidate for the office of district judge, was printed upon a list of nominations and under an emblem where it did not belong; and that electors placing a cross opposite the emblem were by this means deceived, and upward of one hundred votes in one of these counties alone were fraudulently obtained and counted for him; his apparent majority in the entire district upon the official count being only two. It is not alleged that contestee affirmatively perpetrated or connived at the illegal proceeding, and so far as the averments are concerned, there may perhaps have been no premeditated and intentional wrong. There was nevertheless a fraud in law whieh tended to and probably did deceive voters.
That contestee was the candidate of certain petitioners who chose the name “Peoples’ Party” and a device called “ The Emblem of Justice,” while the list in which his name was illegally printed was headed “ Peoples’ Party,” under the emblem “ Cottage Home,” coupled with the further fact that the petitioners, styling themselves the “Peoples’ Party of Colorado, ’’who adopted the emblem “ Cottage Home ” and in whose list his name was printed, made no nomination for the office of district judge of the Thirteenth district, are matters of no significance whatever so far as this discussion is concerned. Two different sets of petitioners, meeting at different times and places, selected different party names and emblems, and named different candidates for different offices. Political associations casting ten per cent of the votes at the last preceding election are treated by the statute, as organized parties; but the statute recognizes no political or party affiliation whatever between the signers of different petitions. The case should be considered precisely as if the *353illegality had resulted from placing the name of a republican nominee in the list of democratic candidates and under the democratic emblem; or by inserting the name of a “ prohibition ” nominee by petition, in a list of “ Peoples’ Party ” candidates also named by petition and under the “Peoples’ Party” emblem. And the principle involved would be in nowise different if the name thus illegally placed in the wrong list were substituted for that of a regular nominee, instead of filling a space which the statute imperatively commands to be left vacant.
Such illegal acts, whether intentional or unintentional, as are here detailed will, if tolerated, open wide the very; door to fraud the legislature sought to close. Not only is the candidate who might otherwise be chosen cheated out of his election, but above and beyond this circumstance and of vastly greater public importance, is the consideration that by this means this honest voter himself is also grossly defrauded. I do not forget that the opinion of the court assumes that the conclusion there reached tends to promote the interests of the voter. The reason given for the assumption is that under a different view “ to defeat the will of the people, it would be only necessary to have the county clerk furnish the electors or some of them with tickets slightly variant from those prescribed by law.” With all due respect to the learning of my worthy and able associates, I ask what is “ the will of the people,” and how is that will disclosed? I contend that when the -voter either by fraud or negligence is led to vote for a candidate he does not intend to favor, his will is not declared; on the contrary, that his vote is made to express a choice directly in conflict with his will. Neither does it follow that if my position in this regard be maintained, all tickets “ slightly variant from those prescribed by law ” would be thrown out. There are doubtless minor directions in the statute which are not so mandatory as that a non-compliance therewith will in contests after the vote has, without objections, been.cast and counted, require that such vote be disregarded. - But it is clear that the subject with which we are *354now. dealing does not constitute .one of these minor features. I consider it entirely superfluous to' argue or to cite- authority upon the proposition that the statutory provisions under consideration are mandatory; if these provisions be not vital as well as mandatory, it would be difficult to name any portion of the act that is. The voters of Yuma county who were, according to the allegation, deceived and defrauded might justly, if the remedy were appropriate, now appear with conte-stor before this court demanding a vindication of their rights also under the law.
In this connection, I desire to emphasize the fact that the entire ballot would not be rejected. When the voter has declared his intent by placing a mark near the emblem, his vote counts for all the names properly on the list beneath that emblem. Each and every candidate for whom he intended to .yote receives the full benefit of his ballot. His action is only disregarded as to the name illegally printed in the list; the name of a candidate for whom the legal presumption obtains, in view of the statute, that he did not intend to vote. No vote intentionally given is thrown out. The court simply refuses .to count a vote the elector did not intend to cast.
The argument that a legal fraud was perpetrated upon the 150 voters who placed crosses opposite the “ Cottage Home ” emblem does not assume, as the opinion suggests it does, that these, voters did not intend to vote for a candidate for district judge. This argument, as I understand and have endeavored to state it, simply assumes in accordance with the intent of the law, that the voter placing a cross opposite the emblem wishes to cast a straight ballot for all the regular party or petition nominees, and that he does hot wish to support a candidate whose name is surreptitiously and illegally placed in the wrong list. Besides, it is certainly less unreasonable to suppose, if suppositions of fact are to be indulgéd, that some of these 150 voters were actually deceived by the placing of contestee’s name in the wrong list, than to suppose that all of them fully understood the actual facts and intended to favor him. But if three of the total 150 were *355thus deceived and if legal notice be now taken of the fraud, contestee’s election is defeated. Somewhat corroborating the latter supposition of fact is the averment of the petition that each and every of the remaining 660 votes counted for contestee in the four counties where the official ballots were illegally printed were given by placing a mark or cross opposite Ms name. While there is nothing conclusive in these figures, they tend to show that the voters who thought of Mm and intended to vote for him did not risk a cross opposite the emblem. There is no necessity for commenting at the present time upon the result where the name of a candidate is printed in the wrong list, but where the voter nevertheless indicates 'his purpose to favor such candidate by placing a check beside his name.
The opinion filed does not deny the fact that contestee’s name was illegally printed in a list of names and under an emblem where it did not belong. But it is claimed that because contestor did not have the official ballot in the four counties where the illegality existed corrected before the,election, he should not now be heard to complain. That is to say, the opinion in effect holds that the duty is imposed upon each and every candidate for office not only to see that his own name is correctly printed in the proper list, but also to see that his opponent’s name is not fraudulently, ignorantly or negligently placed in the wrong column. A candidate for office on the state ticket must at his peril see that in every one of the fifty-five counties of the state no illegality of this kind in favor of his opponent exists.
Waiving for a moment the ■ important consideration of fraud upon voters, I observe that such a burden should not be imposed upon the candidates, unless it be sanctioned by plain statutory authority. For this authority reference is made to sections 17 and .20 of the election statute. Section 17, among other things, provides' for the preparation of sample official ballots bj the county clerk in each county, which are kept subject to inspection during seven days preceding the election. By section 20 provision is made that a candi*356date, or his agent, may have any “ error or omission ” in the official ballot corrected; it is also made the duty of the county clerk on his own motion to rectify any imperfections he may himself discover or that may otherwise be brought to his attention. Upon these provisions alone is reliance placed for the declaration in effect that because contestor did not discover and complain of the illegality before the election he has waived the right to be now heard.
. Undoubtedly, a candidate who discovers by means of the sample ballot thus exhibited, that his opponent’s name is through mistake or fraud printed in a list where it should not be, may object and have a proper correction made. But I find no intimation that if he fails to discover the “ error or omission” whereby such a wrong upon himself and the voter is perpetrated, he shall be held to have waived the objection. If the legislature had intended the latter result to follow, such intent would have been plainly expressed. This observation is founded upon a well known rule of construction, and its present applicability is vindicated by the language employed in a preceding provision of the same act. Section 13 declares that “ all certificates of nomination which are in apparent conformity with the provisions of this act, shall be deemed to be valid unless objection thereto shall be duly made in writing within three days after the filing of the same.” It then provides the procedure for investigating such objections, and also for curing defects. It thus appears that the precaution was taken by the framers of the laws to state that a waiver should follow the omission to interpose timely written objections to certificates of nominations; and this precaution relates to a matter obviously of far less importance than the careful, accurate and honest preparation of official ballots.
The opinion filed strongly relies upon the case of Bowers v. Smith, 17 S. W. Rep. 761. That case is radically different from the case at bar. Three lists of candidates named respectively, “ democratic,” “ republican ” and “ union labor ” were printed upon the official ballot in the city of Sedalia, *357Missouri. No question relating to emblems arose. There was no pretense that the name of contestee was illegally printed in a list where it did not belong. There was no contention that voters were induced to support men not their choice. The position taken by contestor was that since the “ union labor ” party did not cast the requisite three per cent of the votes polled at the preceding election, it was not authorized as a party to name any list of candidates whatever. And that because it did name a list of candidates and that list was printed upon the official ballot, the entire vote was rendered void. The effort was not to have the votes for a “union labor ” candidate rejected; the contention was that all the votes polled in the city, democratic and republican as well as union labor, should be thrown out. Unless this were done, contestor gained nothing, because contestee was his republican,' not his union labor opponent. The fact and circumstances thus presented and the contention thus made, are so radically different from the facts and contention with which we have to deal that it is obvious the reasoning of the court in that ease should not be here applied. Moreover, that opinion limits the rule of waiver announced, to objections “to the presence on the official ballot of names not properly entitled to be there,” disclaiming any intimation as to the result had the name of a candidate been omitted from that ballot; and it might, in my judgment, with equal propriety have extended the disclaimer to cases where names that belong on the official ballot are illegally placed in a'' list of candidates nominated by another party. I believe' that the supreme court of Missouri if confronted with the identical question now before us would not employ the reasoning or reach the conclusion stated in its opinion. It may also be a matter of some significance that the constitution of Missouri does not as does ours command the legislature to “pass laws to secure the purity of elections, and guard against abuses of the elective franchise.” See. 11, art. 7.
Neither has the case of Kellogg v. Hickman, 12 Colo. 256, *358•which is also mentioned in the opinion filed, any resemblance in .principle to the case at bar. The question there presented was simply whether, under the former law, certain ballots cast and counted for respondent should be disregarded in the election contest solely because thej were printed on “.pale yellow paper, three and three fourths inches wide,” when the statute prescribed “ plain white paper not more than two and one half inches wide.” It appears that the pale yellow paper happened to be the only kind conveniently obtainable.. No intentional fraud was charged in connection with the preparation of the ballots, nor was it claimed that any voter could have thus been deceived and led to cast a ballot in favor of a candidate for whom Tie did not intend to vote. A majority of the court in that case held that though the law regarding ballots was not strictly complied with, yet the returns in question ■should not be rejected in the election contest. Persuasive as are some of the legal objections to a recognition of ballots not prepared in accordance with law, it cannot be denied.that the ruling of the court in that instance tended to the enforcement of the will of the voters casting the yellow, ballots; but the view of the court in this instance tends, as I have tried to show, to defeat the will of the voters casting the particular ballots challenged. There, a ballot prepared not in accordance with law but which could not in any way have deceived the voter was voted; here, the very essence of the contention, as I understand it, is that the ballot as prepared was calculated to and did deceive the voter.
The preparation of official ballots by public officers is an important feature of the new act. It is strictly in line with . the. legislative endeavor otherwise shown by the act to prevent fraud and deception upon the voter. . The trouble and. expense thus incurred will be vastly more than compensated by the result, provided the law in this regard be intelligently ■and honestly executed. But when the statutory directions are disobeyed; when either dishonestly or negligently illegal ballots are prepared; and when such disobedience and illegality result in deceiving the voter, the beneficent legislative *359design is nullified. ■ I cannot’ believe that the will of the legislature can be thus defied and the interests of the voter be thus sacrificed with impunity. To say that because the government has undertaken to prepare a ballot for the voter’s use, though through disobedience of law this ballot becomes an instrument of fraud he shall have no redress, and the candidate fraudulently benefited shall reap the fruits of the fraud would, in my judgment, be a most impotent and indefensible conclusion. , .
The opinion of the court mentions provisions relating to the punishment of officers charged with misconduct in the preparation of ballots and the conducting of elections. Such provisions there are, and the statute would indeed be weak without them. But they are not sufficient. They were not intended or expected to redress wrong like the one now charged; their office is to prevent a perpetration of the wrong and to prevent its repetition if perpetrated. The punishment of an officer who ignorantly or dishonestly connives at the prejDaration of a fraudulent ballot while the party in whose interest the fraud is perpetrated reaps the benefit thereof, falls short of satisfying the requirements either of justice or law. Such punishment is inadequate satisfaction to the man who would have been lawfully elected but for the fraud; and it is even poorer satisfaction to the voter who has been fraudulently induced to cast a ballot contrary to his intention. I do not think these provisions, always difficult as they are to enforce, will have the effect of averting the injustice and wrong above referred to, and of preventing the opinion filed from practically destroying the usefulness of one of the most important and beneficent features of the statute.
I am not prepared to admit the assertion made in argument, that there is no authority in the statute for a refusal by the judges of election to count votes illegally obtained in the matter here alleged. But if it were true that the judges of election are powerless in this respect and that the law is thus de? fective, all the greater reason exists for taking notice of the *360fraud and neutralizing its result through quo warranto or election contest proceedings.
Firmly believing in the correctness of the foregoing views, I can do no less than dissent from the conclusion announced by a majority of the court.