dissenting:
Much as I dislike to dissent from an opinion approved by a majority of the members of this court, I am, nevertheless, compelled to do so in this case. I am wholly unable to accept as sound, the reasoning and conclusions set forth in the majority opinion, and will briefly present the matter as it appears to me.
At the election in question, there were but two sets of offices to be filled. The first, that of mayor by the election of. one individual thereto; the second, that of trustees by the election of three individuals thereto.
The official ballots were printed by the proper authorities in the form- provided by law. Baldwin, who was the candidate of the ‘ ‘ Citizens ’ Party, ” was the' only person who had been nominated by any party or organization for mayor, and his name was the only one for that office which was.,' or could be, printed on the official ballots. "When the elector received a ballot for the purpose of casting his vote, that portion thereof necessary to illustrate my view (except as to the numbers,'which will be hereinafter explained) was as follows:
*116
The party name “Citizens” not having been written at the top of either of the ballots in question, a straight party ticket was not voted. Under such circumstances, the law requires, in order to vote for any candidate, whether the name be printed or written, that the elector place a cross (X), in ink, in the space opposite such printed or written name, respectively. To illustrate, by the use of the numbers with which I have designated the spaces on the above ballot : the elector, desiring to vote for Baldwin, having *117received a ballot, conld do- so only by placing a cross (X), in ink, in space No. 2, or, at least, near Baldwin’s. name; or, if he desired to vote for Wade; he conld do; so only by writing Wade’s name in space No. 3, and placing a cross (X), in ink, .in space No. 4, or, at least, near Wade’s name so written. — Secs. 2235, 2236, 2259, Rev. Stats.
Ballot No. 72, or that portion thereof necessary to this case, after being cast by the elector, appears as follows:
*118Considering this ballot, it will be observed, that Baldwin’s name appears in space No. 1, printed.as the law required. A cross (X), in ink, appears opposite liis name in space No. 2, the very place designated by law in which it should be placed, to vote for Baldwin. In other words, the elector did exactly what the statute declares he should do to vote for Baldwin, and in that respect fulfilled every requirement of the law to malee the ballot a vote for Baldwin. If he had gone no further, it could not be questioned that he had intended to, and had voted for Baldwin. He, however, went further. He wrote in space No. 1/ in which Baldwin’s name was printed, the name of Wade; but to have voted for Wade the statute required that the elector write that name, not where he did, but in space No. 3 and make a cross (X), in ink, not in space No. 2, opposite Baldwin’s name, but in space No. 4, or, at least, near Wade’s name. — Secs. 2235, 2236, 2259, Rev. Stats., swpra. It is equally certain that if the elector had placed a cross (X), in ink, in space No. 2 opposite Baldwin’s name, and written the name Wade in space No. 3, and did no more, it would have been a vote for Baldwin. It is likewise true, that if the elector had placed a cross (X), in space No. 2 opposite Baldwin’s name and had written Wade’s name in space No. 3, and placed a cross (X) in space No. 4, the vote could not have been counted for either, for the reason that the intent of the elector as shown by his acts, under the law, was to vote for both, and this the law would not allow.
The statute having declared that, in order to vote for a particular individual, the elector shall mark a cross (X), in ink, in a particular space opposite the printed or written name of the individual for whom he desires to- vote, and having further provided, that certain imperfect or defective ballots or imperfect *119marks shall not invalidate a ballot, if the intention of the voter can be ascertained therefrom, it certainly follows by necessary inference that a ballot not written in the manner required by the statute should be rejected, as it does not come within one of the classes excepted by the statute. There is no exception as to the place where ‘ ‘ the elector may write the name of any person not printed on the ballot for whom he desires to vote as a candidate for such office. ’ ’ The place is fixed and certain. It is only by an adherence to such provisions that an elector can express his intent upon the ballot, and courts should not indulge in speculation as to such intent.
The holding of the court is, in effect, that a ballot which is in exact conformity with the law, to make it a vote for Baldwin is transformed into a vote for Wade, by the mere insertion of Wade’s- name in the space with, and fixed by law for, Baldwin’s name. I confess myself unable to appreciate the logic of such holding. To count the ballot in controversy, for Wade, does violence to many express provisions of the statute. The name of Wade is'written in the wrong space without authority or sanction of law; there is no cross (X), in ink or otherwise, in any space other than a space indicating a vote for Baldwin; a ballot, perfect in every way as a vote for Baldwin, is transformed into a ballot for Wade by a mere assertion of this court. In the opinion it is said: “If he didn’t.intend to vote for Wade, why did he write his name in?” A sufficient answer is, that the law expressly declares how the name of a candidate may be brought upon- the official ballot and voted for, and points out the particular space in which such name shall be written. It is wholly immaterial what the intent of the elector was, unless his intent can be gathered from the ballot from things thereon appearing as done in substantial conformity to- law.
*120This court has said: ‘‘ That the legislature has wisely simplified the official ballot, and also> the manner of voting; that it is the duty of every voter to familiarize himself with the law governing the preparation of ballots, and to follow its provisions on the subject; and that a disregard of the law in this respect is at the peril of the voter so doing.” — Nicholls v. Barrick, 27 Coto. 443. ■ And further in the same case, “It may be that if a ballot was so marked that it violated some provision of law, either expressly or by necessary implication, the intent of the voter would be immaterial as against an express violation of the statute.” The statute provides that there shall' be left at the end of the printed list of candidates for each different office as many blank spaces as there are persons to be elected to^ such office, in which the elector may write the name of any person not printed on the ballot for whom he desires to vote as a candidate for such office. This, and this alone, measures the power of the elector in that respect.
As to ballot No. 100, the opinion says: “In this ballot the voter almost obliterated with ink the name of Baldwin printed on the ballot, and above it wrote the name of Wade and placed a cross mark in ink in the appropriate space.” It is true the name of Baldwin is practically obliterated with ink. It is likewise true that the name “C. B. Wade” is written above that of Baldwin’s, but it is so> far above that the lower part of the “O” barely intersects the top line of space No-. 1 wherein Baldwin’s name was printed. The “B” crosses the line slightly, as does “W,” and the “a” touches it in the same manner as does “C,” while “d” and “e” are entirely above the line. Space No. 4, as hereinbefore stated, was the only space or place upon the ballot in which an elector was authorized, under the law, to “write the name of any person not printed on the ballot, for whom he *121desires to vote.” The power to “write in” some other name is in reality the power to supplement the printing of the ballot, and must necessarily be measured by the statute. The cross (X) on the ballot in question was in space No. 2, where it should have been as a vote for Baldwin. The election board considered it impossible to ascertain the intent of the elector from the ballot. I think their conclusion was more nearly right than the conclusion of this court, that it was a vote for Wade.
I am of the opinion that the holding as to ballot No*. 45 is most far-reaching in its evil effect. I very much fear that this court has, thereby inadvertently thwarted and annulled, to a great extent, the most wholesome purpose of the Australian ballot; that is, its secrecy. The reiterated requirement of the law, that the cross (X) shall be in ink, and that each booth shall be supplied with sufficient ink and pens at public expense, was not solely, as stated in the opinion, “to prevent erasure,” but was for another and far more important purpose; that is, for uniformity in marking in order to maintain secrecy. With the annulment of this wise provision of the statute by judicial decree, the way to intimidation or fraud is made plain, and its perpetration easy of accomplishment. • It is not difficult to imagine the “boss,” the “ward healer,” or the unscrupulous politician supplying- his men with various colored indelible pencils, and exacting the use thereof in the preparation of ballots, to the end that it may presently be known for what party the elector cast his vote. It is true that different colored inks might be used for like purpose, but a certain provision of the law removes all probable danger from such source. It requires each voting booth to be supplied, at public expense, with pens and ink. A nonuse of the inks provided at public expense, and so* convenient to the elector, and the
*122use instead of different colored inks would not only be inconvenient, but likewise the purpose thereof would be so readily discoverable as to make it highly improbable that resort will ever be had thereto'. Not SO' with indelible pencils. They are in common use and of various colors. Moreover, the purpose of the law is “to protect the voter, prevent fraud and secure a fair count. ’ ’ This can be best subserved by upholding and sustaining the safeguards designed for that purpose by the law-making power. ■