The charter of the city of Burlington contains no provision requiring the ballots used in a local election to be marked by the voter in any particular manner, nor for the'rejection of ballots cast because defective. The relator contends that under section 340, the general provisions of the statutes of the State pertaining to ballots to be used in general and in local elections apply. We assume, but do not decide, this to be so, and determine the matter before us on that basis.
Section 181, • of the Public Statutes, specifies that, unless otherwise provided, no ballot without the official indorsement shall be deposited in the ballot box, and none but ballots provided according to that title shall be counted; but it contains no provision to the effect that no ballot marked otherwise than with a cross (X) as specified in section 177, shall be deposited in the ballot box, nor if deposited, that it shall not be counted, except when it is impossible to determine the intent of the voter as to his choice for an office to be filled. It does, however, contain specific provisions respecting ballots having double or irregular markings thereon: “If the board of civil authority,”— in this case the inspectors of election, — “is satisfied and so decides by majority vote of those present, that any double or irregular markings of a ballot were made for the purpose of enabling it to be identified and the vote traced so as to defeat the secrecy and purity of the ballot law, such ballot may be rejected,” and the board shall make a record of such rejection with the reason for it or the evidence on which it is based, etc.
*140If possible to determine the intent of the voter as to his choice for an office to be filled, his ballot must be counted, even though it contains double or irregular markings, unless the board or official persons, whose duty it is’by law to decide the matter, are satisfied and decide that the double or irregular markings thereon were made for the unlawful purpose specified, —certainly a question requiring by statute the exercise of judicial functions in its determination.
One of the ballots in question was marked with a cross (X) in conformity to the provisions of section 177 of the statutes, and consequently was properly counted. The other, instead of being marked in the appropriate margin or place by a cross (X), it was there marked by what purport to be two Arabic numerals standing side by side, as if used together to express a number. Undoubtedly this ballot contains what the statute designates as “double or irregular markings.” Yet it is sufficient for the determination of the case to say that it cannot be said to be impossible to determine the intent of the voter as to his choice for the office to be filled, and the record does not show that the inspectors of election were satisfied and decided that such markings were made for the purpose of enabling the ballot to be identified and the vote traced so as to defeat the secrecy and purity of the ballot law, without which, as before seen, the ballot could not be rejected.
Petition dismissed with costs,