dissenting.
■ B.y the-decision of the majority of this Gourt, the voters of three- election precincts of Converse County have been deprived of. the right to have the-.ballots counted as. cast by them, through no fault .of.'their .own, but simply and Solely through the- carelessness or inefficiency of the judges of- election. ■ These officers were charged by the law, under heavy penalties;'with the duty of placing on the back and near the to'p "’of the ballots, With a rubber or other stamp provided for '-that purpose, the designation “Official Ballot” and the name and number of the polling .precinct, the name'of the'county, the date of the election and the name and official designation of the clerk furnishing the tickets; and one of the judges .of election was required to: write-his .name, or initials upon the back of each ballot, and directly under the impression of the official stamp. Sections 110, .110,. Ch;. 80, Sess., Laws-,189,0. .
• In all three of the precincts the name or-initials of a judge of election1 does not appear on any-of the ballots voted, and at two of the precincts the'endorsement of'the official ballot was not stamped on the back of any of the:ballots, although it was'printed or stamped on the face .of the ballots* The author*469ity for rejecting these ballots and.excluding them'-from the count rests mainly,- if not solely, on the provisions of section 130 of the election law,,'which says that “in the canvass of the votes any ballot which is not endorséd-by the official stamp or has not the name or initials of the judge-of-election, as provided in this act, shall be void and shall not be counted.” • -
Counsel for the defendant insists that this act maybe so construed as to permit a ballot to be counted which has -either one of these endorsements, the official stamp, or-the name-or initials' of the judge of election. Courts have -been- extremely cautious in'construing -the Australian ballot law in'such -a manner as not to-disfranchise the voter, where the omission is not through his own fault, and any construction which-will uphold the ballot and secure its- count is seemingly upheld, though the reasons therefor are not always very satisfactory. The statute of Minnesota provided that- the initials of two of the .judges” of election of opposite political parties should be endorsed on the ballot. •
- It was held that where -there- was no wilful disregard of- the statute, and no wrong-or fraud intended or perpetrated, that the requirement was not mandatory, but- was complied -with if the initials were those of two judges of the same ■ political faith. But this was mainly-upon the ground that the statute though requiring-the .endorsement on the ballot by two judges of opposite political affiliations did not say expressly that a ballot not containing such endorsement should not be counted, although it did say that ■ “no ballot which had not the initials -of two judges of election in said judges’ own handwriting on the back thereof,” shall be placed in the box. The reasoning of the court is not quite clear, as it' seems that the statute, strictly construed, would mean that, no ballot should be deposited in the box unless it be the identical- ballot handed to the voter by the election officer, upon which should appear the initials of- two judges of election of opposite political faith. State v. Gay, 59 Minn., 6. In the case of Boyd v. Mills, 53 Kan., 594, 25 L. R. A., 486, the Supreme Court of Kansas decides a case more nearly in-point. The statute of that State provided thát the “ballots shall be on-plain white *470paper through which the printing or writing cannot be read.” Sample ballots printed on paper of any color but white are directed by the statute of Kansas to be printed and distributed through certain officers for the inspection of candidates and their agents, and these are exact copies of the official ballots printed on white paper. The statute of that State further provided that “no ballot without the official endorsement shall be allowed to be deposited in the ballot box, and none but ballots provided in accordance with the provisions of this act shall be counted.” In one precinct all the ballots cast were yellow sample ballots, and yet the Supreme Court held that such ballots should be counted, on the ground that the statute nowhere “explicitly” provided that a ballot printed on paper of a color other than white shall not be counted. With all due deference to the learned court, I think that the only ballot provided for as the official ballot, following the letter of the law, was one printed on white paper.
These provisions from Kansas and Minnesota are recent ones and illustrate the extreme reluctance on the part of the courts to so construe the Australian Ballot Law as to deprive any elector of his vote, or of the right to have his vote counted as cast, when the fault is not his own, but that of the election officers. I cite these cases as showing how liberally the statutes are construed in favor of the voter and against a strict construction that would result in disfranchisement.
If thése two eases were taken as guides in construing section 130 of our election law, supra, it seems to me that if the ballot contains the “endorsement” of the official stamp alone, even if it were not placed upon the proper part of the ballot, that the law would be technically complied with, and the ballots should be counted. The court said in Boyd v. Mills, supra, “We reach the conclusion that the law has not been substantially infringed because we are unable to see how the purpose of the act can have been impaired in any degree by the mistake made in using the colored ballots.” True, the opinion contains some deductions which might be considered as supporting the views of the majority of the court in this case, on abstract questions of the law, but this closing extract *471of the opinion shows the true reason for the decision. I am inclined to the view' that the construction of the section should be such as to uphold the legality of the ballots, inasmuch as the disjunctive conjunction “or” is used in two places in section 130, and the ballot must have one of three endorsements, either that of the official stamp, “or” the name, “or” the initials of the judge of election. I should not be content to rest my view of the case on this matter alone, as the use of the words “or” and “and” are so loose and so frequently inaccurate, that their strict meaning is more readily departed from than that of any other words, and one is read in place of the other in deference to the meaning of the context. Sutherland Stat. Const., sec. 252.
But the next section, 131, of the law must be read with its predecessor quoted herein. It relates to the canvass of the ballots east at the election precinct, and provides that as soon as the polls of election shall be closed, the judges of election shall immediately proceed to canvass the vote, and shall continue without adjournment until the canvass is completed, and then follows this provision: “The canvass must commence By a comparison of the poll lists, and they must be made to agree; the ballot box shall then be opened and the ballots counted by the judges and clerks, unopened, and if there are more ballots than names upon the poll list the ballots must be returned to the box, shaken up, and one of the judges shall draw from such box ballots enough to make the remainder agree with the poll list, which ballots so drawn shall be destroyed, and two or more, ballots being found so folded as to bear the appearance of having been voted by one person, shall not be counted, but preserved with the poll books; the poll list and ballots being made to agree, the judges and clerks shall then proceed to count and ascertain the number of votes for each person named upon such ballots.” It appears to me that this section is either inconsistent with the one preceding it, or if construed with it, as it must be, effectually neutralizes the provisions of the other. Nothing is said in this section 131 about not counting the ballots denounced in section 130, but only those ballots may *472be destroyed when there.is-an excess of ballots over the legal number of votes cast as-shown'by the poll lists, and the only ballot that “shall not be counted”, is. a ballot containing two or-more votes folded so as. to bear the appearance of having been voted by one person. . This section 131 .utterly negatives the idea of examining the endorsement on the ballot, because if that only could be looked to, the ballot containing, the doubtful vote would be counted, if properly endorsed, as required by section 130, while the others enclosed within would not be. Under section 131 all the ballots, those enclosed with the ballot, and the enclosing ballot itself, shall not be counted. By this section, no ballots are denounced,- but all .must be counted, except those drawn from the ballot box to make the number of ballots correspond with the number .of voters on the poll list,.and ballots, enclosing others. If these sections-are inconsistent, .under well known canons of construction, the last section in number or position under some authorities must prevail. Sutherland Stat. Const., sec. .220. At any rate, there would be such a conflict that the sections would be ■held to neutralize each other,-as-the legislature, has uno fiatu enacted a contradiction. Perhaps a construction of "both of these sections ought to be given, so as to exclude all ballots not properly endorsed, only where there is an.excess of ballots, but it is doubtful if this could be done without rendering nugatory, section 131. The safest way,- in my judgment, is where, as in this casé, there, is no pretense of fraud in the action of voters- or election officials, the presumption must be that all of the ballots cast were received from the election judges by the voters and returned after having been prepared were received by the judges and should be counted. This is the main purpose of these sections, that the elector shall vote only the ticket he has received from.the judge of election, and only such tickets shall be counted. The law prescribes minutely the duties of the electors and of- the election judges. Cards of instruction printed in English, in clear type, and posted in the election booths, are provided for the voters, and these contain the directions to the voters,- how to get the ballot —that is, from a judge of election — how to prepare it for *473voting, to vote no other than that received, and to fold the ballot so that, the endorsement- made by an election judge-may be seen, before .the ticket is 'voted. . In the majority opinion some stress is.laid upon, this last'direction to the voter, but I do not think it applies here, as there was some sort of an endorsement on the ballot, or one of the endorsements, the official stamp stating that it was the official- ballot, etc., and I think that an elector might presume that this was all of the endorsement required,-as his attention in the cards of - instruction and the sections of. the law therein copied, is not called to the full endorsement. Nowhere in the law is he required to see that the proper endorsement .is- madg, but only to fold his ticket so as to' show the endorsement. In the ease of the ballots in the two precincts where the stamp was placed on the face of the-ballot, I think it should be presumed, in the absence of any showing to the contrary, that it was on the margin or at the side, and that the voter-obeyed the injunction to fold- it so as to disclose the endorsement without revealing the ballot as prepared by him: It seems to me that there must have been some purpose in the part of-this legislation providing for such minute directions to-the voter and in bringing home to his notice what he should do in obtaining, preparing .and delivering his ballot to the election officials, in which -all of his dutiés are specifically defined.When he has complied with these,-this is-all.that may be required'of-him. - Surely, in all of these-directions given to him, nothing is said about the extreme care he is to exercise, -ac- . cording to the majority opinion, in seeing whether the name or initials of a judge of election is on the ballot, but the decision of this court adds another duty not imposed by the law and not brought home to his notice by the instructions given to him pursuant- to law, the duty of- scrutinizing the ballot-to see if the proper endorsement is made-thereon.- It is said, in the majority Opinion-: “It is little trouble -to ask them (the judges‘of election) to endorse the ballot properly.' We have-no patience to consider the idea that the voters generally have not the intelligence to do this.” ■■ Yet it seems that the judges of election, who must be electors, did not have such “intelli-*474genee;” for they did not endorse or see to the endorsement of their own ballots, if they voted at all, or those of the electors generally, in strict compliance with the law. They had the law which must be furnished them for their guidance, but the elector had nothing but the card of instructions required by law to be posted in his booth to guide him, and this does not call his attention to the fact that the name or initials of a judge must be on the ballot. Shall the law mock a voter? Shall he be told minutely what to do by a card of instructions for his guidance, and then have his vote rejected because he has not complied with another part of the law which relates solely to the duties of the sworn officials of the law? Is he to take notice of the duties of an election officer and see that they are performed? As to the endorsement of the ballot, that duty is incumbent upon the county clerk and a judge of an election. If the former neglects something in the stamp, such as the name or number of the precinct or some other part of the endorsement to be stamped on the ballot, is the voter to be held responsible? If the election officers fail in their duties as to their part of the endorsement, is the elector to be blamed?
It was held where one received a majority of the votes cast for the office of township treasurer, — it being contended that he was not the nominee of any party, as the ticket was not properly certified, and he was not therefore entitled to a place thereon, and that such tickets should not be counted,— that the voter finding the ticket upon the ballot could not be required to determine its regularity at his peril. The court said: “This might involve a necessary knowledge of facts difficult to ascertain. He (the elector) may safely rely upon the action of the officers of the law, whom he has the right to suppose have done their duty.” Bragdon v. Navarre, 102 Mich., 259. This was the rule contended for by me in my dissenting opinion in the case of State v. Barber, 4 Wyo. It is with much pleasure that I notice that the case of Price v. Lush, 10 Mont., 61, holding to the contrary, which I refused to follow, has been, it is said, “modified,” but as the concurring Justice, Judge Hunt, says, “overruled,” in a recent case in the same court in which a masterly opinion was delivered *475by Mr. Justice De Witt. Stackpole v. Hallahan (Mont.), 40 Pac., 80.
I see evidences of returning reason in the more recent construction of the Australian ballot laws, and I am confident that the rule I follow in this case will finally be plainly announced by the courts of the country. The law attempts to prevent former evils in protecting the individual voter from corruption and intimidation, but it should not be so construed as to invite a wholesale disfranchisement of unsuspecting voters, who have relied upon, and who have the right to rely upon, the faithful performance by election officials of the duties imposed upon them. I can not insist upon the literal interpretation of the ballot law that may deprive any voter duly qualified through the misfeasance, non-feasance or malfeasance of any officials, where the elector has obeyed instructions minutely mapped out for him by the law. The sole object of the sections of the law quoted from is that the elector shall vote only an official ballot delivered to him by a judge of election, after having prepared it, and in this case it seems to me irresistible that the law was complied with on the part of the elector. It is difficult to construe, and the most liberal construction should be given to it in order to secure freedom and purity of elections, but not to deprive any elector of his vote through the fault of the election officials. To hold to any other rule would be to sacrifice substance to form, and to have our last estate worse than the first. It is safe to say that the framers of the Australian ballot law, as it appears in our statutes, many of them men of prominence in the history of the State, never contemplated the wholesale disfranchisement of electors through the negligence of election officers.
I think that they will stand aghast at such an interpretation of their statute. It may be intimated that without a close adherence to the letter of the law, if it can be ascertained, which is to me extremely doubtful, the door to fraud by election officers would be opened, but I think not. In one case in the books the judges of an election precinct stamped and endorsed according to law official ballots after the polls *476closed and cast the ballots themselves, and-the names of the electors on the poll books showed that after the judges and ■clerks ■ voted, the .electors, strange to say, were- recorded in alphabetical order. Lloyd v. Sullivan, 9 Mont., 577. So it seems that it is very difficult to prevent corrupt-officials from voting official ballots and. endorsing them .with all of the official endorsements required by law, if they desire to do -so. In the case at bar, .there is a total absence of fraud, and --this is in effect conceded, as the only matter submitted to us is -a technical non-compliance with certain provisions of .-the law. The dangers afforded by the- power conferred upon certain judges under a strict construction -and .an unreasonable one of the law, by giving undue prominence to certain clauses of it, is greater than would be the liberal construction:contended for by me. In one case there is no remedy but the punishment of the judges for failure to endorse properly the official ballot, and no way to count the vote of the defrauded voters; in the other, a judicial investigation can be had to determine the facts and ascertain if fraud actually .existed. It is poor compensation to the people who have been defrauded of -their rights to have the guilty punished when they themselves, although innocent, must be punished -by having their votes thrown out in the count. I may be pardoned .in closing this branch of the case, to quote, as my brethren have-done, from McCrary on Elections: “Ignorance, inadvertence, mistake or even intentional wrong on the part of local officials- should not be permitted to disfranchise a district.”- Sec. 192, citing Gilleland v. Schuyler, 9 Kans., 569.
However, the case might well be disposed of on other grounds: The law -was enacted before the constitution went into effect, and, if repugnant to that instrument, must fail, as only those territorial laws are • continued in force- that are not repugnant to the constitution, and if the construction of the statute adopted by this court -is the true one, the law is invalid. The constitution provides certain qualifications-required of electors, such as age, residence, Federal citizenship, ability to read and write the English language, and excludes from the electorate idiots, insane persons, those convicted of *477infamous crimes, unless restored to citizenship, and certain electors who are not Federal citizens. The right of suffrage is called “the right to vote,” and certain citizens not falling within any of the classes excluded from the suffrage “shall be entitled to vote” at any election. Art. VI, sections 1, 3. This “right,” as it is termed by the constitution, “privilege’-’ . as-it is sometimes called,-is sacredly, preserved. It can not be sacrificed through-the fault or neglect of election officials. The right1 to vote includes and carries with'it the right to have the vote-east, counted; or the right to vote .is lost. Where the constitution fixes the qualification’of voters,, it. is not in the •power of the legislature- either to enlarge or abridge them; but legislation-may-be., enacted, which, merely, regulates the exercise of■ the elective franchise^ -and does not amount to a denial-.of the franchise itself-. 'Cusick’s Election, 136 Pa. St., 459. -The legislature has .full power to regulate the right to -vote, but no constitutional .power to'restrain or abridge the right, or unnecessarily .to impede its free exercise. Under the pretense of regulation, the right .to suffrage must be left -untrammeled-by any provisions, or even.rules of evidence that may injuriously or necessarily impair it, and so-the citizen cannot forfeit the right-except by his own neglect or by such peculiar accidents as are not attributable to the' law itself: Daggett v. Hudson, 43 O. S., 548. In the note to this case, as found-.in 54-American Eeports, at page 843, the laiiguage of Coulter, J., in Brown v. Hummel, 6 Pa. St., 80, is cited, and' I repeat it:. .“The most’important of all our franchises — 1 the right of - an elector, and. citizen — cannot’in a- confined sense, be called property. It is not assets to pay debts, nor does it descend to the .heir or administrator. But who does not feel its value,, and who but would not turn pale if-he thought hé could be. deprived of it, without hearing or trial,'by act of assembly?” In New York, a case arose, where the-officials charged' with the duty of preparing- the ballots omitted- the name-.of an office which-, under the law. was., to be filled, at the election for-which the. ballot was prepared, ánd it-was held that-the voter, might'write’or-.paste.thereon the’name of such office and of the person for whom he desired to vote as the *478incumbent thereof. The court well says: “The constitution confers upon every citizen meeting the requirements specified therein the right to vote at elections for all offices that are elective by the people, and there is no power in the legislature to take away the right so conferred. The legislature may prescribe regulations for ascertaining the citizens who shall be entitled to exercise the right of suffrage, for that power is given to it by the constitution. In prescribing regulations for that purpose, or in respect to voting by ballot, it does so subject to, and, presumably, in furtherance of the constitutional right, and its enactments are to be construed in the broadest spirit of securing to all citizens, possessing the necessary qualifications, the right freely to cast their ballots for offices to be filled by election, and the right to have those ballots, when cast in compliance with the law, received and fairly counted. Legislation which fails in such respects and prevents the full exercise of the right as secured by the constitution is invalid.” People v. Pres’t and Board of Trustees of Wappinger Falls, 144 N. Y., 616. Many of the cases are collected to the note to the case of Daggett v. Hudson, in 54 Am. Rep., at page 843, and to them may be added White v. Commissioners of Multnomah County, 13 Ore., 317; Kellogg v. Hickman, 12 Colorado, 256, 260; Kirk v. Rhoades, 46 Cal., 405; Eaton v. Brown, 96 Cal., 371; 17 L. R. A., 697.
In the case at bar, if the law operates to disfranchise any elector and prevents ballots cast by the elector, received by him from the election judges, from being counted, whether properly endorsed or not, in the absence of fraud, is repugnant .to the constitution.
I believe that an “honest ballot and a fair count” is secured by the constitution, and that no law, whether adopted prior or subsequent to'the time of the taking effect of the constitution, can step between the voter and the constitution, and that any requirement of any statute that adds to the qualifications of suffrage as enumerated in the constitution itself is void, particularly when it is attempted to impose upon a qualified voter such additional qualifications or restrictions as to make the *479right of suffrage dependent upon the whim, dishonesty, inefficiency, ignorance or inadvertence of any election officer.
All the disputed ballots should be counted, and judgment rendered for the defendant, and the district court for Converse County should be so advised.