I dissent. Since a rehearing was ordered in this case I have seen nothing to change my views as announced upon the original hearing. Indeed, since my opinion was filed, decisions in parallel cases, including some very recent ones, have intrenched my position.
There can be no question that all of the disputed ballots, which were all of the ballots voted at three precincts in Converse County, were honestly cast and honestly counted. There is no imputation or suggestion of fraud in the ease, and it is apparent that if the ballots are illegal, they become so through the failure, of the judges of election, or some of them, to make or cause to be made all the endorsements thereon mentioned in the act.
The provision of law quoted in the majority opinion was doubtless enacted for the purpose of preventing ballot box stuffing, and the voting of other than the official ballots, not to work a wholesale disfranchisement of honest and unsuspecting voters. “It is one of the great maxims of interpretation, to keep always in view the general scope, object and purpose of the law, rather than its mere letter.” Rutledge v. Crawford, 91 Cal., 533. Laws are to be construed according to their spirit and meaning, and not according to their letter. Assuming the constitutionality of a law, before it should be construed to work the disfranchisement of an elector, it must be clear that under the circumstances then existing, the legislature intended such to be the case. “All statutes tending to limit the exercise of the elective.franchise by the citizen should be liberally construed in his favor, and unless the ballot comes within the letter of the prohibition against a particular kind of ballot, it should be counted. A great constitutional privilege — the highest- under the government — is not to be taken away on a mere technicality, but *491the most liberal intendment should be made in support of the elector’s action, whenever the application of common sense rules which are applied in other cases will enable the courts to understand and render it effectual.” Talcott v. Philbrick, 59 Conn., 485. These extracts are taken from the recent decision in Nevada in the case of Buckner v. Lynip, 41 Pac., 762, where the statute provides that any vote not bearing the water-mark “and” any ballot on which appears names or marks written or printed shall not be counted, and where it was held that ballots should be counted from which the inspector or judge of election failed through ignorance to remove strips bearing the number, though his failure to detach the strips made the ballot capable of identification, and this decision was in the face of positive provisions of the statute. The court was loath to give such a liberal interpretation to the law as to reject these ballots, and it looked to the evident purpose and spirit of the act, very properly holding that the law did not contemplate a sweeping disfranchisement of qualified electors through the carelessness or inefficiency of election judges. This court quotes with approval from other authorities, which are applicable in the case at bar: .“These cases can not all be harmonized, but the general trend thereof has been to recognize a clear distinction between those things required of the individual voter and those imposed upon election officers. There is a disposition to hold the former valid and mandatory; but where there has been a substantial compliance with the law on the part of the individual voter, and it is made to appear that there has been, in fact, an honest expression of the popular will, there is a well defined tendency to sustain the same, although there may have been a failure to comply with some of the specific provisions of the law upon the part of the election officers, or some of them.” Moyer v. Van Devanter, 12 Wash., 377. The language of the opinion in the case of Parvin v. Wimberg, 130 Ind., 561, is also quoted with approval by the Nevada court: “A study of the statute upon the subject of elections leaves no doubt that its purpose is to secure a fair expression of the will of the electors of the State, by secret ballot, uninfluenced by bribery, corruption or *492fraud. Tbe disfranchisement of whole precincts by reason of an honest mistake on the part of election officials is inconsistent with that purpose.” These are golden words, and ought to govern the disposition of this case, for by giving a literal meaning to the law, its very purpose is defeated, and its enforcement is made most grievous to bear. The object of the provision was to identify the votes and to preclude the reception and counting of illegal ballots, but it certainly could never have been intended by the legislature to have the law read so as to practically disfranchise all of the electors of one or more precincts, through the inadvertence or negligence of election officials. Under the decision of this court, it would seem that there is no remedy for the electors who have been deprived of their suffrages, nor for the candidate who has been deprived of his office, for he cannot show by evidence aliunde that, these votes were in fact honestly cast and honestly counted. I can not consent to such an interpretation of the law, even if its construction should be what my brethren have made it, as I think it is making the law an engine of oppression, while its aim and object was to suppress fraudulent voting and to secure pure and free elections. Some stress is laid in the majority opinion upon the fact that the law has stood- without amendment since its enactment in respect to its provision denouncing certain ballots as void and declaring that they should not be counted. This statement is easily answered. This provision has never before been brought to the attention of the courts of this State for consideration. I mistake the temper of the people of this State if it shall remain unmodified, for I think the construction adopted is abhorrent to reason and is destructive of popular government. No other law would be construed as harshly as this one has been, and no law should be more liberally construed than this one, in order that it may not be a reproach to our jurisprudence and accomplish fraud by seeking to prevent it. Election contests have been rare in this jurisdiction before the passage of this law, but the present act has been, like many new enactments, a fruitful source of contention. It is to be regretted that our young commonwealth is not to take its *493place in the van with those States where the Australian ballot law has received a liberal and broad construction so as to jealously guard the most sacred of our rights, the right of every qualified elector to cast one vote, and to have that vote honestly counted
It was held in Canada, in an early case, in Wigmore on the Australian Ballot System, at page 194, that although at a certain polling place none of the ballots deposited had the initials of the election officers on the back as required by law, that as the irregularity occurred on all of the ballots, without reference to a particular candidacy, and was evidently the result merely of the ignorance of the election officers, the ballots were valid. Ex parte Tremblay, 13 Queb., L. R. 64 (1887). It may be that the provincial statute did not contain the mandatory language of our statute, denouncing such ballots as void and providing that they should not be counted, but I think this makes but little difference in principle. The legislature certainly could never have intended to mean that all of the ballots cast at a polling precinct should be excluded because they do not contain all of the indorsements mentioned in the act, where it does not appear that there was a design to evade the statute or to effect a fraud on the part of the electors, or in the action or failure to comply with the provisions of the act on the part of the judges of election, and where it must be inferred that such failure to comply with the strict terms of the law was owing to the carelessness or-inadvertence of the judges of election. The provision, even though mandatory in its terms, is not quite clear in denouncing the ballots as illegal for a lack of all of the indorsements, but a survey of the whole act, keeping in view the great object in its enactment, makes it plain that it- was never intended to defeat the popular will by casting out bodily the entire votes of districts by any provision of the statute. It was intended to prevent the voting of any ballot but an official one received from the proper officials and deposited by the elector who so received it. It is clear that none but official ballots were cast and counted, and this is sufficient, as the statute, however it may be construed, is *494but a means to an end, and if the end in view has been attained, that is sufficient. I adopt the views of Judge Peckham, recently promoted to the Supreme Court of the United States, from his dissenting opinion .in the case of People v. Board of Canvassers, 129 N. Y., 448, 449: “But a mere inadvertent mistake of an officer ought not to work such an extreme penalty as disfranchisement on innocent electors.” “It seems plain to me that those purposes (of the election act) are endangered, if not frustrated, by a construction which in my judgment is unreasonable and unnecessary, ■ and by which thousands of perfectly innocent -electors may annually be disfranchised without fault on their part, and the will of the majority be thus- set at naught.” ■
The ease of Spurgin v. Thompson, 44 N. W., 297, relied upon in the majorityopinion, does-not go to the extent claimed therein. As I understand the facts in the case, a name appeared written on the. ballot which was inferred to be that of an elector, and so it was rejected, and not because the name of the election officer was not thereon. .
A review ofval-l the cases -hearing upon the construction of statutes similar to ours convinces me that no-provision of the act before us should be allowed to operate against the evident object and purpose of the; act; and to -bring it into contempt and reproach, by making- it a means .of disfranchisement of whole districts and its .technical violation result in.-the conversion of a minority of electors of a county into. a.majority. The ballots are delivered to -the electors by the judges of election, received again by .them and- deposited in the ballot box and counted, although, p.erhaps, not indorsed ■ with • all the matters required by the statute, are sufficiently identified as official ballots, and 'should-not be rejected..- =
2. But the great question at stake in this case -is, .assuming ■that .the statute is-as-it-is construed by'the majority of. this court, whether it- would be permitted to -disfranchise" all of the electors of one or more precincts because a judge-of elocution has failed to make certain indorsements, upon the ballot, which it is contended are required by. the statute,- whether it would be constitutional. The ease of Moyer v. Van Devanter, *495supra, is directly in point. Tbe provisions of tbe Washington statute are as follows: In the canvass of the votes, any ballot which is not endorsed, as provided in this chapter, by the official stamp and initials shall be void and shall not be counted,” etc. The court said: “The failure to comply with the law appears to have been due to the ignorance of its provisions on the part of the election officers. That the prohibition aforesaid against the counting of these votes, under the above circumstances, is an unreasonable one, and in conflict with the right guaranteed by the constitution, seems to us a clear proposition.
“Were we authorized to hold otherwise, such a holding would be subversive of the best interests of society, and might result in great peril to our governmental structure. Such a holding is not necessary to preserve the purity of elections; for provision can be made for the investigation of • charges of actual fraud upon the part of electors and election officers. It would be an interminable task to refer to each of the cases cited in detail, and we content ourselves with giving our conclusions drawn from all of them. No decision cited has gone to the extent we are asked to go by the appellant in this case; and to accord with the general holding of the courts, as we understand them, in the light of what has actually been decided in the cases, we are compelled to hold that the provi-. sion aforesaid against counting ballots where no initials are placed thereon cannot be sustained.”
The court puts- the distinction very clearly .as to statutes held to be mandatory and constitutional, and those that are not; the former is where the voter is required to do certain things, and is charged with obedience to the regulation, and the latter where certain duties .devolve upon election officials, a distinction, I think, the majority of this court have overlooked. ' The majority opinion states that this decision by the Washington Supreme Courtis against .the weight of-authority. I think not. - Neither is it based upon constitutional and statutory -provisions differing in any material respect from-our own.
The provision of our constitution invoked by the majority *496of this court reads as follows: “The legislature shall provide by law that the names of all candidates for the same office, to be voted for at any election, shall be printed on the same ballot, at public expense, and on election day to be delivered to the voters within the polling place by sworn public officials, and only such .ballots so delivered shall be received and counted.” This provision does not qualify in any manner the other constitutional provisions which grant the right to vote to persons having the qualifications provided in the constitution. It certainly affords no warrant nor authority for the enactment of any law which could be so construed as to exclude the ballot of any qualified elector which has been delivered to him by a sworn public official in the polling place, and which was received from him and deposited in the ballot box by one of the -judges and counted by all of them. It is asserted that this provision and the corresponding constitutional authority “to provide adequate means for identifying the ballots received and counted as those delivered to the voters within the polling place by sworn public officials, and to provide by statute the means to secure the constitutional result that only such ballots so delivered shall be received and counted. If the legislature may not provide the means, it cannot secure the result.” The legislature undoubtedly may provide the means for identification, but not to such an extent as to deprive the elector of his vote when it appears that he has voted only the ticket’received from a judge of election, and that only such votes so received have been counted. It can not deprive the Injured electors and the candidates deprived of their votes of any remedy anywhere to prove that the ballots east and counted were those furnished by the judges and deposited and counted by them. It can not make the right of suffrage dependent, and I use the word advisedly, upon the competency and integrity of the judges of election or any of them.
Our constitutional provision was never intended to cover such a “means of identification” of any ballot as to nullify the popular will, and to establish a triumvirate in each election precinct, which shall hold in its hands the fate of any *497election, and whose action or negligence is final and not subject to review. It was never intended by the constitution of this State, or of any State, to substitute for a government of and by the people, a government of and by the election judges. I can not believe that it was the object of any constitutional or statutory provision-to thus subvert the popular will, and in the name of “fair elections” to seat a minority candidate for office and to set aside the returns from three precincts to do so, where fraud in the conduct of the election is neither charged nor imputed.
The doctrine I contend for was established in Michigan by the decision in the case of Attorney General v. Detroit, 78 Mich., 545, where the court say: “The object of a registry law, or of any law, to preserve the purity of the ballot box, and to guard against abuses of the elective franchise, is not to prevent any qualified elector from voting, or unnecessarily to hinder or impair his privilege. It is for the purpose of preventing fraudulent voting. In order to prevent fraud at the ballot box, it is proper and legal that all needful rules and regulations be made to that end; but it is not necessary that such rules and regulations shall be so unreasonable and restrictive as to exclude a large number of legal voters from exercising their franchise. Nor can the legislature, in attempting, ostensibly, to prevent fraud, disfranchise legal voters without their own fault or negligence. The power of the legislature in such eases is limited to laws regulating the enjoyment of the right, by facilitating its lawful exercise, and by preventing its abuse. The right to vote must not be impaired by the regulation. It must be regulation, not destruction.” After citing a number of authorities, the opinion reads: “These authorities all tend in one direction. They hold that the legislature has the right to reasonably regulate the right of suffrage, as to the manner and time and place of voting, and to provide all necessary and reasonable rules to establish and ascertain by proper proof the right to vote of any person offering his ballot, but has not power to restrain or abridge the right, or unnecessarily to impede its free exercise.” And further on, the opinion says: “No elector can *498lose bis right to vote, the highest exercise of a freeman’s will, except by his own fault or negligence.” It will not do to say that this opinion has no application to the Australian system of voting." In a recent decision of the same court, Todd v. Board of Election Commissioners, 64 N. W., 496, while holding' that a law prohibiting the printing on the official ballot of the name of a candidate receiving the nomination of two or more parties in more than one column, is a valid exercise of the power of the legislature 'to' pass laws to preserve the purity of elections and' guard the elective franchise, as conferred -by the constitution of' the State, approved the doctrine in the case of Attorney General v. Detroit, supra, and says:- “If the 'effect of this act, as is strenuously argued by the learned' counsel for the relator, is .to ‘subvert or impede the right to vote,’ it is- clearly' unconstitutional.”
It is unnecessary to multiply-authorities' in-support -of my position. -Their name is legion and their reasoning is unanswerable. The-doctrine they-.establish is--imbedded in constitutional- provisions which are the pillars that support popular government. The right to vote, -the - highest exercise.- of a freemaffis Will,'can not be frittered away by technical;violation's by election ■ officials of' a statute, doubtful in.- its terms, or-even where it has-the plainest meaning and intent, and the popular will thus'set.aside and thwarted. - 'Expressions to the contrary, 'and there are-undoubtedly'some of tliem, have never found, and will never find, a permanent lodgment'.in the jurisprudence of any commonwealth in the Union; for the doctrine they announce is abhorrent to reason, shocks the moral sense, and undermines the foundation of free government. I regret that this -court has not fearlessly.-taken the stand with-great tribunals of" sister States,. in denouncing as unconstitutional any invasion of the great right of suffrage, that-infliets vicarious Suffering and punishment upon a body of electors fo'r the sins of omission ■ of their servants. I cannot -see .what bearing the remarks- of the honorable member of Berkeley County in the -constitutional convention- of South Carolina has. to do with the-question here. • If I understand correctly his remarks, as-stated in the majority , opinion, he desired to see *499the will of a majority of the people sacrificed by constitutional restrictions, which would hamper and impede the right to vote of a large class of people. Precisely what he may have desired, has been accomplished here by the disfranchisement of all the voters of three election precincts of a county, through the failure of election officers to comply with asserted strict requirements of the law. “Wyoming does want fair elections.” But the people of this State will never consent to have their will as expressed at the ballot box defeated by any construction of a statute nor by any statute which places the election of either local or State officials, or, it may be, a presidential election, in the power of careless or inefficient election officials, from whose action or omission to act there can be no appeal, and whose action is now made final and conclusive^ While expressing noble and-lofty sentiments upon the subject of fair elections, in which I heartily concur, it seems to me that the majority of this court, after uttering them, proceed to make -a fair election the sport of chance and wholly dependent upon the conduct of election officials who preside at each polling precinct, and' in. whose hands is now lodged an enormous, uncontrolled and uncontrollable power. History will bear me out in saying that these bodies.are not always free from partisan and corrupt influences, and that many of the most notorious frauds against the ballot box have been perpetrated by election officials. The temptations to fraud may be great under the law ás it is now to be administered, but.it wilhnot continue long. A people jealous of their rights will speedily sweep -from the.- statute books the least excuse for thwarting their will as honestly expressed by their ballots. They will free the ballot box from the absolute and arbitrary control of election boards and provide that innocent mistakes of election officials shall.not constitute a ground for wholesale disfranchisement.
I may aptly close this opinion by. .quoting a brief but comprehensive extract from Judge Cooley’s great work on Constitutional Limitations, at page 775: “That one entitled to vote shall not be deprived of his privilege by action of the *500authorities is a fundamental principle.” As to the other mat- ' ters discussed in my former opinion, I am content to permit them to remain unmodified.