concurring specially.
While much impressed with the argument of counsel for contestor that the ruling of the trial court virtually ignores sections of the statute, in form mandatory, and is based upon a construction which may permit votes .to be cast in disregard of the express directions of the statute, and to be counted for a candidate for whom the voters did not intend to cast their ballots, still, the decision of this court in Allen v. Glynn, 17 Colo. 338, if followed, sanctions the action of the county court.
From the majority opinion in that case it would seem that the failure of the opposing candidate seasonably, and prior to the election, to object to the certifying and printing of an im proper ticket on the official ballot, whose presence there re suits in the alleged thwarting of the voters’ will, estops the unsuccessful candidate, after the election, to take advantage of *307such mistake. Were the question res nova in this jurisdiction, I should, to say the least, long hesitate to adopt the views of the majority on this particular point, for the reasons so cogently expressed by Mr. Justice Helm in his dissenting opinion.
I may, in addition, say that while it should always be the aim of the courts to give full expression to the voters’ will, it is equally desirable to prevent fraud and secure a fair count. Moreover, it is apparent, to my mind, that the unseemly controversies under the Australian ballot act that have already sprung up, and will probably continue to incumber our court dockets, are the legitimate outgrowth of a looseness of construction of its provisions in which the legislature never intended the courts to indulge, even in their laudable zeal to ascertain and give effect to the electors’ will. Indeed, this desirable object can better be effectuated by an insistence upon a compliance with prescribed statutory conditions than by indulging in what is more or less an unrestrained speculation in each case that comes before the courts. But if the rule of stare decisis should ever be rigidly adhered to, it is in election controversies ; for in no class of cases, and for reasons apparent to any candid mind, are there stronger reasons for the strict application of the rule.
Believing, as I do, that a previous decision of this court, followed by courts in many of our sister states, is against the contentions of contestor, and further conceding that in the record, as certified up, effect seems to have been given to the will of the electors in casting the ballots in controversy, I vote for an affirmance of the judgment.