(concurring in part and dissenting in part). This case is one of unusual importance. -It is one which, if space permitted, should be thoroughly discussed; however, as I alone of the judges of this court arrived at a partially different result than that of the majority opinion, I am inclined to forego any lengthy discussion. ’■
I agree with the conclusion, arrived at-in the majority opinion, that the evidence is sufficient to show that the contest was served within 20 days after the completion of the canvassing of the votes. I am of the opinion, however, that the precincts of Gamess and Forthune could not be recounted, as the ballots from thosé precincts were not kept in the iron boxes as required by chap. 121 of the Session Laws of 1919, which amended § 1008, C. L. 1913. We feel quite certain the majority have gone astray in the matter of identification of ballots so as to render them admissible as evidence. There are two distinct identifications of ballots provided for in the above law: (1) The identification by the township election officers; and, (2) identification of the ballots after they have been returned to the county judge, who under the law is made the custodian of them. As to identification by precinct election officers, the law specifies that—
“The. judges shall fold in two folds and lay in tiers all ballots counted by them except those which are void, and fold same securely in manila wrappers, not exceeding 200 to each wrapper, on which shall be indorsed in writing or print, the number of the precinct, date on which election was held, and securely seal such wrappers by sealing them with sealing wax and stamping on said wax, the name of the county with a metal stamp provided for that purpose, so that said wrappers cannot be opened v ithout breaking the seal, and return by mail said ballots, together with those found void to the county judge.”
This is one method of identification of ballots, and refers exclusively to the identification of them by the precinct election officers. The law further provides: ..
*880“Immediately upon receiving such ballots, the county judge shall give receipt therefor to said judges of election and shall place them properly arranged in the order of the precinct numbers in boxes which shall be securely locked. Said boxes shall be placed in a fireproof vault and shall be securely kept for six months, not opening or inspecting them nor allowing any one else to do so, except upon order of court, in case of contested election, or when it shall be necessary to produce them at a trial for .any offense committed at elections. * * * It is the purpose of this act (section) to provide a safe place for the keeping of the ballots and to make them readily accessible for use in legal proceedings, and such ballots shall be received in evidence without further identification or foundation being laid.”
This is the second method of identification, and refers exclusively to the ballots after they have reached custody of the county judge, and he has complied with the law and has securely locked them in iron boxes. The following also appears at the close of the chapter, and is that which, in our view has led the majority into error:
“And any failure on the part- of the election officers to comply with any of the formalities required hereby as to the return of said ballots shall not invalidate any election or cause any ballot otherwise regular to be disregarded and any omission or irregularities in the manner of identifying or returning the ballots of any precinct may be obviated by proof under the ordinary rules of evidence.”
The majority opinion applies the identification last referred to, to the ballots after they have reached the custody of the county judge, and it is my view that, that part of the law refers exclusively to the identification of the ballots by the precinct election officer, and that the only identification possible or permissible of ballots after they have reached the custody of the county judge is that provided by the law, namely, that where the ballots have been kept in the manner by the county judge as prescribed by law, that is, in the iron box, and produced in court or any other place where they lawfully may be required to be produced that, that of itself constitutes an identification of the ballots, and the only identification of them that is permissible after the time they have reached the custody of the county judge. If the ballots were so properly identified and produced in court at the trial and it were found that some were not properly initialed as required by law, or were not properly stamped or numbered, then they might properly be identified in the manner specified by that part of the law1 to which reference last above *881has been made.
The majority opinion contains the following:
“Full compliance with the statute is declared to be a sufficient foundation for identification; but where the statute has not been strictly complied with, the ordinary legal foundation for identifying the ballot is required. If the contention of appellant’s counsel be correct, it would follow that any meritorious contest could be wholly defeated through the mere failure of the county judge to fully comply with the strict letter of the statute. ■ Such is not the evident purpose, for the Legislature has specifically said that any omission in the manner of identifying the ballots may be obviated by proof-. The failure to keep the ballots as required is an omission in the manner of identifying them, and hence opens the way for ordinary proof under the express language of the statute.”
It will be seen from what the majority have thus said that the latter part of the statute above mentioned is erroneously, applied to a subject-matter to which it does not pertain, that is, to the identification of ballots in custody of the county judge. In my view, the ballots outside qf the iron box have no evidentiary value whatever.
As the precincts of Garness and Forthune and the ballots therefrom in my view of the law should not have been recounted, and should not have been received in evidence by reason of the total failure of identification, it must follow* that the contestant must fail in his contest. Whatever other irregularities there were by which it is claimed a certain number of other ballots should be excluded, including certain ballots of alien voters, and voters who had removed from the precinct prior to the date of election, they ajfe insufficient to change the result of election as that result is shown by the official canvass of the votes by precinct election officers, where no recount is permitted of the votes in Garness and Forthune.
In the recount the trial court deducted 8 men’s votes in Garness and 12 women’s votes in Forthune from the votes therein cast for Nelson. This the court was without authority to do, as the votes in those precincts were not properly in evidence. The court also deducted 4 votes in Garness on the theory that the voters had been improperly and unlawfully assisted in casting their ballots. It is evident that if this precinct should not have been recounted, these votes could not be deducted.
It may also be mentioned here that, in the companion contest case for the office of county commissioner of John O. Grubb v. Jake Dewing, 187 *882N. W. 157, if the votes of Forthune precinct cannot be recounted for the reasons above stated, that contest must fail, and this for the reason, that on recount 12 votes were taken from Dewing and given to Grubb or, in other .words, Grubb gained 12 votes. In other words, if that precinct cannot be recounted, that fact alone is decisive pf that contest, for if all other deductions claimed by Grubb are conceded, they would not be sufficient to overcome Dewing's majority as shown by the officials canvass.
-From what has above.been stated, it is evident that the exclusion of Garness and Forthune precincts, from the recount would terminate both above contests, and result in giving the offices of sheriff and county commissioner to Nelson and Dewing. That result would follow, if my view of the law prevailed, .which I feel certain is in accordance with chap. 121 of the Session Laws of 1919. .In view of the.exclusion above stated, it is unnecessary to discuss the propriety of the exclusion of certain votes on the ground of failure to observe the secrecy of the ballot. We may observe, however, that § 988, C. L. 1913, is a wholesome law, intended to protect the right of franchise; it shoúld be strictly enforced, and where its provisions have been violated by a voter of judge or judges of election, or where others than those specified in the section assist the voters, or where the assistance, if official,' is not according to the provisions of that section, it is proper to exclude such ballots, where the evidence shows these facts, or any of them; with reference to a' given vote or a number of given votes; that is, where the evidence clearly shows that certain specific individuals, naming them; were assisted in marking their ballots, which assistance was rendered in a manner contrary to the provisions óf the section, those votes should be thrown out arid declared void.
The majority opinion, however, lays down a rule of evidence that is very broad and far-reaching, as it in effect holds that it was proper for those who were present at the election to state in their opinion the number of voters who were unlawfully assisted in marking their ballots; for instance, it in effect holds that, if a witness should testify that he was present at the polls all' day, and- that in his" opinion or judgment there were a number of voters, estimating the number, or about a given percentage of" the vote, again estimating, or guessing at it, who were assisted, contrary to the provisions of law, in marking their ballots, such 'testimony is competent. The effect of this holding is to place'with very few voters in each precinct the power to partially or fully disfranchise *883the voters thereof, and to accomplish this result by the most speculative and shadowy testimony, whose basis is guess, doubt, or approximation. 1 am not yet convinced that I should approve such a rule of evidence. There may be cases, proceedings, or conditions which would warrant the admission of that character of testimony, but it not applicable nor admissible in the circumstances of this case.
The judgments appealed from should be reversed. The cases should be remanded, with instructions to the trial court to dismiss the contest proceedings.