delivered the opinion of the court:
This is a contest arising over the election of mayor in the town of Granada. Baldwin was regularly nominated and his name printed upon the official ballot. Wade was not regularly nominated, and for this reason his name was not printed on the ballot. The citizens voted for him by writing his name on the ballot and placing a cross after it. A canvass of the returns showed that Baldwin received 65- votes and Wade 63, and a certificate of election was issued, to Baldwin. Thereupon, Wade brought this contest in the county court. Trial was had. The court found that three ballots which had been rejected by the 'judges of election should have been counted for Wade and that Wade’received 66 votes and Baldwin 65. Judgment was entered in favor of Wade, and from this judgment Baldwin comes to this court on error.
The only question to be determined is, Was the county court right in counting all or any of these three ballots for Wade ? There is no> fraud whatever. The three ballots are as clean and honest as ever came from a ballot box. Our statute with reference to the marking of ballots is quite lengthy and goes much into detail in describing the manner in which voters shall mark their ballots.' After this matter of detail, occurs, the following sections in the Revised Statutes, 1908:- '
‘ ‘ Sec. 2265. If a voter marks in ink more names than there are persons to be elected to an office, or if,
“Sec. 2266. ■ If an imperfect-cross-or mark be found near the' name of a candidate in ink, which mark appears to have been made with intent to- designate the ■ candidate so marked as the one- voted for, such ballot shall not be rejected, if the intent of the voter to- designate the person for whom he intended to vote can be reasonably gathered therefrom”
Section 22 of the act (sec. 2244, Rev. Stats.) provides that substituted or unofficial ballots may be used in certain contingencies. So- far as sec. 2265 is concerned, it is plain that it was the intent of the legislature that ballots should not be counted in the following instances: First, when the voter marks more names than there are persons to- be elected to-an office ; second, when it is impossible to- determine the choice of any voter for an office to be filled (in. each of those two instances the ballot is not to- be counted for the office affected); third, when the ballot is one not provided in accordance with the provisions of the act, in which latter case, the whole ballo-t is rejected. By sec. 2266, it is plain that a ballot shall not be rejected when the cross or mark is imperfect,.
From these two sections, it is evident that it was the intent of the legislature, that all ballots provided in accordance with the act, cast under the proper circumstances and marked substantially as the law provides, should be counted, if, as SO' marked by the voter, it is possible to determine his choice, and if his intent to designate the person for whom he intended to vote can be reasonably gathered therefrom, unless, of course, there is a positive provision of the statute forbidding the counting thereof. Technicalities are to yield in the face of the truth apparent on the face of the ballot. There is a provision in sec. 2235 which provides that there shall be left at the end of the list of candidates for each office as many blank spaces as there are persons to be elected, in which the elector may write the name of any person in ink, on the ballot, for whom he desires to vote, as a candidate for such office.
In Heiskell v. Landrum, 23 Colo. 68, this court said:
“It is true, as stated by appellant, that this court has held in a number of cases that where the intention of the voter can be ascertained, the vote should be counted, but this intention can never be given effect against the positive provisions of the statute.”
’ In that case there was a positive provision of the statute, which expressly forbade the counting of a ballot marked as the one under consideration was.
And in Nicholls v. Barrick, 27 Colo. 443, the court says:
“Tested by these rules, our construction of the statute is, that if a ballot is substantially marked as the law requires, and from such marking the intention of the voter can be ascertained, the ballot is legal, and should be counted. ’ ’
Ballot No. 72. On this ballot, within the top space and on the lower line thereof, below the name of Baldwin, the voter wrote in ink the name of O. B. Wade, and at the right of the ballot, in the space designed for that purpose, he made a cross mark in ink. The intersection of this cross mark is not directly opposite either name, but is just below Baldwin’s name and just above Wade’s, and in the space intended for the mark. The voter wrote the names of the persons for whom he desired to vote as trustees and put cross marks after them, and in writing the name of the first one, he put it in the space occupied by the last printed one with his cross mark after it as he did in the case of the mayor. It is impossible to look at this ballot and say that the voter did not intend to vote for Wade. His intention to vote for him cannot only be reasonably gathered from the ballot, but such intention is evident beyond the possibility of a doubt. If he didn’t want to vote for Wade, why did he write his name in? If he wanted to vote for Baldwin, he could have done so without writing Wade’s name in. The writing shows that the voter was unskilled in the use of the pen. The fact that he wrote in Wade’s name and put a cross nearly opposite it, plainly shows his intention to vote for Wade.
Ballot No. 100. In this ballot, the voter almost
Ballot No-. 45. In this ballot, Wade’s name was written in the blank space left for it and the cross mark made in the appropriate plafee. It is a perfect ballot with the exception that the name and the cross were written with an indelible pencil. The marks of an indelible pencil are about as incapable of-erasure as fluid ink. An indelible pencil makes a mark that is practically indelible. — (Standard Dictionary.) The object of the statute in requiring the names to- be written and the marks made in ink, was to- prevent erasure. A mark that is practically indelible, considering the short time the ballots are to be preserved, is practically as enduring and incapable of erasure whether made in ink or with indelible pencil, and the object of the statute is reached in either case. Looking at that ballot, the intention of the voter- is absolutely plain beyond contradiction. In the face of a statute which says, that, if for any reason, it is impossible to determine the choice of any voter for an office to be filled, the ballot shall not be counted for such office, clearly implying that if the converse is true, the ballot shall be counted, in the presence of the fact that the object and spirit of the statute has-.been complied with, and in the absence of any positive declaration of the statute that such a vote shall not be counted, it would be a sacrifice of truth for technicality to- say that it ought not be counted.
It is thus seen that the county court arrived at the very right of the matter. That is the object of
I am authorized to say that Chief Justice Campbell, as at present advised, is not prepared to concur with all that is said in the opinion concerning the marking of ballots with an indelible pencil. In other matters he concurs.
Affirmed.
Decision en bane.
Mr. Justice "White and Mr. Justice Hill dissent.