UPON PETITION FOR A REHEARING.
Per Curiam;.The petition for a rehearing in this case is supported by an able and exhaustive argument which we have carefully considered.
As a result of our examination we are convinced of the correctness of the views announced in the original opinion, and of the result then reached.
Counsel insist that “ 150 ballots ” should not be counted for Glynn because of the errors of the public officers charged with the duty of providing the ballots. These errors, without doubt, arose from the fact that “ The Peoples’ Party ” in the 13th judicial district selected a different emblem from the one chosen by the state convention of the “Peoples’ Party for Colorado,” and the county clerks, through inadvertence, caused the official tickets to be printed without reference to such different emblems.
Is it possible that by any refinement of rea'soning this position of counsel can be shown to be right, — that the ballots of 150 legal voters can be rejected for what, at most, are but irregularities on the part of public officials, and the expressed will of the voters of the district be thereby thwarted ?
In speaking of this action of the clerks as an irregularity, merely, rve do so advisedly. For aside from the distinction attempted to be drawn between the name “ The Peoples ’ Party ” and “ The Peoples’ Party for Colorado ” the only reason assigned for the rejection of these ballots is that the name of Glynn was printed and voted under a device to the use of which he was not entitled. As to the first objection, it is apparent that both conventions were conventions of the “Peoples’ Party” and the addition,of the words “for Colorado ” in the one instance is quite immaterial. And as to *361the difference in the emblems or devices chosen, it is not clear that Glynn was not as much entitled to have his name printed under the one chosen by the state convention and adopted by the majority of the county clerks, as under the one selected by the convention held in the 13th judicial district. Counsel say that since the year 1888 ballots with a designated heading containing names not belonging thereon have been denounced as fraudulent, and the counting of such names prohibited by statute; and our attention is called to the following provision:
“ When a ballot with a certain designated heading, contains printed thereon in place of another name not found on the regular ballot having such heading, such name shall be regarded by the judges as having been placed thereon for the purpose of fraud, and such ballot shall not be counted for the name so found.” Sess. Laws, 1883, p. 187.
It is conceded that this statute was repealed at the last session of the legislature and prior to the time of holding the election under consideration. The repeal furnishes a strong argument against the deduction of counsel, unless it can be shown that some provision similar in effect has been enacted in lieu thereof.
The provision of the new statute relied upon as accomplishing the same result as the former statute is found in section 18 and reads as follows: “ when there is no nominee in any particular set of nominations a blank shall be left under said office.” This, in our judgment, falls far short of the declaration contained in the repealed statute. It would have been a very simple matter for the legislature to have provided that ballots, like those used in this instance, should not be counted, or that names found in lists where they do not belong should be rejected. This has not been done. Moreover, it has been held that when the wording of a statute has been radically changed, the change of language indicates a change of intent on the part of the legislature. Heinssen v. State, 14 Col. 228.
Again, the reason for the repeal of the provision of the *362former statute is obvious. At the time of its enactment the printing of tickets was not under the direction of the public officers. Any person might procure tickets to be printed, containing such names and such names only as he chose to have placed thereon. Frequently “ mixed tickets ” were procured and secretly kept until the day of the election and then substituted for the regular tickets, and the voters, no doubt, often deceived thereby. Under the new law as we have seen, the printing of all tickets is under the direction of public officers.
Moreover, by section 17 of the present act, sample ballots are required to be printed and in the possession of the officers charged with the duty of preparing such ballots seven days before the election, subject to public inspection. Ample provision is also made for the posting of such ballots in each precinct. Under these circumstances the chances for deceiving the voter are reduced to the minimum.
In order to show that in our former opinion we made no unwarrantable deduction from the opinion of the supreme court of Missouri in the case of Bowers v. Smith, it is only necessary for us to quote the following passage from the Missouri court :
“ It must have been already noted that the questioned act of the county clerk consisted of admitting names to the official ballot, not of excluding any. There is a substantial difference in principle between admitting and excluding such names. Under the latest English act before us,'the ruling of such officers, admitting nominees to the official ballot, are declared to be final; but rulings denying such right, when claimed, are subject to review by competent outside authority. The error of the officer, if any there be, is vastly different, in its practical consequences, when he thereby admits another name on the ticket, from his error in rejecting a nominee. In our statute it is provided that ‘ Whenever it shall appear by affidavit that an error or omission has occurred in the publication of the names or description of candidates nominated for office, or in the printing of the ballots *363the circuit court of any county, or the judge thereof in vacation, or if the circuit judge is then absent from the county a judge of the county court, may, upon application by any elector, by order, require the clerk of the county’court to correct such error, or to show cause why such error should not be corrected.’ Rev. Stats. 1889, § 4778. In accordance with the spirit of the law prevailing in this country respecting popular elections, we think it should be held that where a candidate for public office causes no timely objection to be made, as required by the section quoted, he must be regarded as having waived any objection that may exist to the presence on the official ballots of names not properly entitled to be there.”
As to the argument that these views would entail upon each candidate the necessity of visiting each precinct in his territory for the purpose of making an examination of the official ballots, we answer that until there is a decided change the zeal of those holding antagonistic political opinions may be safely relied upon to expose any error in the printing of tickets whereby voters would be liable to be misled. It must be presumed that public officers charged with the conduct of elections will act honestly, and while it may not be possible to provide absolutely against fraud we believe that experience will show that the views heretofore announced will advance the cause of ballot reform in this state.
The petition for a rehearing will be denied.
Rehearing denied.
Me. Justice Helm dissenting. •