delivered the following dissenting opinion January 19, 1897:
It seems to me that the majority opinion of the court in this case is erroneous, and if adhered to will enable election officers to disfranchise many voters, and incidentally deprive persons of office to which they would in law and equity be entitled.
Section 1182 of the Kentucky Statutes, after providing for the counting, certifying, etc., of the result of the election, provides that ballots voted, spoiled, mutilated, and those not voted shall be destroyed; provides that if there are any ballots cast and counted or left uncounted, concerning the legality or regularity of which there is any doubt or difference of opinion in the minds of the judges of election, such ballots shall not be destroyed but be sealed up and returned to the clerk of the county court, with the returns of the election, for such judicial or other investigation as may be necessary, with a true statement as to whether they have or have not been counted, and if counted what part and for whom.
In this case it is clear that a large number of ballots were returned in the ballot boxes, some from one precinct, and some from another, but without the statement required by law as to whether they had been counted or not; in fact without any statement at all. The majority opinion holds that such ballots can not be examined nor proof heard to show that they were not counted.
Manifestly it was the intent of ourlawmakersto bet*330ter secure honest and fair elections, by the adoption of the present ballot law, but if the opinion In this case is to be settled law then the voters as well as the candidates are at the mercy of- election officers, who, either through ignorance, carelessness or perversity, may neglect to make out the required statement as to ballots that one or more judges doubt.
If, as is claimed in this case, none of these returned ballots had been counted, it is not remarkable that the statement was omitted, because to those not versed in law the statement would seem to be unnecessary, and we are, as I think, bound to take notice of the fact that very many election officers are not at all versed in the law and not able to see and comprehend the meaning and importance of all the "statutes regarding elections. I doubt if there is a full and strict compliance with the election laws in half the precincts of the State at any election.
It seems to me that there can be no law nor tenable construction of law that can or ought to disfranchise a voter who "has in a legal manner cast his ballot. When the voter in the manner prescribed by law has cast his ballot he has nothing else to do. In fact can do nothing else towards seeing that it is counted or certified, and to allow his vote to be rejected or lost by reason of the omission of election officers to comply with the statutes seems to me to strike at-the very foundation of our form of government.
Indeed section 1471 of Kentucky Statutes provides that no ballot shall be rejected for any technical error *331which does not make it impossible to determine the voter’s choice. The section supra may be said to directly apply to the officers of election who are to count- ' the ballots at the close of the polls, bnt it seems to me there can be no good reason why it should not apply in all cases.
As before remarked it is believed that the object of the law-making power in the adoption of our present system of voting was to more effectually protect the voter and prevent fraud of all kinds, and that there was no intention to adopt any new rule as to the right of all voters to have their votes counted if legally cast, and that whenever that fact could be ascertained the vote should be counted, although the officers of election might have omitted to comply with the requirements of the law enacted for the purpose of evidencing how a voter had voted.
I think that the decision in this case is in conflict with the principles announced by this court in many decisions in election cases. In Clark v. McKenzie, 7 Bush, 530, it appeared that a leaf or page of paper not fastened to the poll-book had thirty-four votes recorded on it but the clerk had not signed his name at the bottom of the page as was then required by statute, and the county canvassing board refused to count the votes. Clark brought suit in the circuit court to compel the board to count the thirty-four votes, which suit was dismissed by the court below, and on appeal this court held that the mandamus should issue, and in discussing the question quotes with approval the follow*332ing from the opinion of Judge Breese of the Supreme Court of Illinois, delivered in an election case: “The question in all such cases should be, whom did the majority of the qualified voters elect? Form should be made subservient to this inquiry, and should not rule in opposition to substance.
“A literal compliance with prescribed forms is not required in any case if the spirit of the law has not been violated, and in all cases the intention of the voters clearly ascertained should govern.”
The foregoing principles have, so far as I am advised, never been departed from by this court prior to the rendition of the opinion in this case, and the provisions of section 1171, supra, is a statutory endorsement of the doctrine announced in the case of Clark v. McKenzie, supra. There is nothing in section 1182 that prohibits a judicial decision respecting the validity of returned ballots unless the required statement is also filed with them. The statutory requirement is but one of the means by which certain facts are proven, established or shown, just as the court said with reference to the clerk’s signature to the bottom of each page of the poll-book. The required statement adds nothing to the validity of the ballots, but is only evidence as to whether any of them have been counted, and if so which and for whom, but if that evidence be not furnished by the officers it does seem to me that if such evidence to establish these facts can be produced that law and justice requires that it shall be heard and considered.
*333Suppose that the officers should neglect to make out any certificate showing the number of ballots cast and counted, and returned the books and all the ballots, would it be contended that all the voters at such precincts should be disfranchised and some one given an office, when the ballots showed another person had been in fact elected? Surely not.
I think in such a case that if it clearly appeared that the ballots so returned were the true legal ballots cast at the election any court would be bound to count them.
In Broaddus v. Mason, 95 Ky., 421,it was held by this court that the certificate of the precinct officers of election as to the number of votes cast for a candidate might be shown to be the result of a mistake, and then so corrected as to give the office to one who, according to the certificate as returned, was defeated, and that decision is evidently right, and it being lawful to show what the real facts were, although to do so contradicted the returns of the officers, it seems to me that where the officers had failed to certify as to a fact required, that proof as to such facts should be heard in order that the truth should be known and the man really elected get the office. If the official certificate can be contradicted by parol proof to the end that the will of the voter should prevail, surely in the absence of any certificate evidence it should be heard so that the voter should not be disfranchised, and persons inducted into office to which they had not been elected.
The court in the opinion in the last-named case said: *334“It may be difficult, on account of ballots being destroyed, in-many cases to determine whether officers of the election have miscounted them, and thereby made a false return, yet it is well settled that in order to ascertain the fact, not who was returned elected., but who was in fact elected, parol evidence is admissible.” (McCreary on Elections, section 468.)
In McLaughlin v. Wheeler, 18 Ky. L. R., 860, lately decided by this court, the principle announced in the above-named case was adhered to. It appeared in the last-named case that the officers in a certain precinct certified to only nineteen votes for Wheeler, which resulted in McLaughlin obtaining,the certificate of election. Upon a contest instituted by Wheeler he was allowed to prove that in fact he received one hundred and nineteen votes, thus contradicting the certificate, and thereby obtaining the office in the court below, and this court affirmed that judgment.
Suppose that the returned ballots in question had been sealed up and a statement signed by all the officers of election that none of them had been counted, would not the court hear proof to show that in fact all of them had been counted ? It seems unreasonable to me to hold that the required statement of the officers is the only proof that can be heard as to returned ballots.
The same section which requires the statement aforesaid to accompany the questioned ballots returned requires the officers to immediately count and certify the result, and announce the same without ad*335journment, yet I presume that a failure to do any or all of these without adjournment would not result in the. exclusion of the votes so cast. I do not assume that the evidence in this case would have given the office to the appellant, as I do not know what evidence was embraced in the record, because it was held that such evidence could not be read or considered.
I regret to differ from my associates, but the doctrine announced in the majority opinion seems to me to be fraught with so much danger to the voters and candidates that I have felt it my imperative duty to file this, my dissenting opinion, in the case. (Anderson v. Winfree, 85 Ky., 597; Houston v. Steele, 98 Ky., 596.)