*456Dissenting opinion by
JUDGE DuRELLE.This is a proceeding to contest the validity of a local option election.
The opinion in the case undertakes to decide and settle a question of law entirely unnecessary to the decision of the case, for the facts upon which that question might have arisen are found not to exist. ■ The question was argued only on behalf of the side in whose favor it has been decided. The decision of that question is stated in language so broad, not to say vague, that for that reason, if for no other, I should be unwilling to assent to it. But the principle set forth is so far-reaching, and so fraught with danger to the rights of the citizen, that I am compelled to express my dissent from it, though I concur in the decision of the questions which are necessary to decide the case before us.
The unnecessary part of the decision is briefly stated, that all the provisions of the statute necessary to the absolute secrecy of the ballot are mandatory for all purposes; that all ballots which do not conform, substantially, to the requirements of the statute, or are not in every respect secret, are invalid, without reference to the question whether the voter was at fault, or whether he had power to prevent the irregularity. - This doctrine, carried to its logical conclusion, renders the constitutional guaranty of free elections a delusion, and the right of suffrage a mockery, for the right to vote is nothing if -the vote when cast may be disregarded.
Election means choice. The holding of an election in this country, has always been considered to be the ascertainment of the will of the majority upon a given question. The supreme controlling idea in elections, in civilized countries, has always been the ascertainment of the choice of *457the people. From time to time in the various States, by constitutional or legislative provisions, various modes have been devised for the ascertainment • of that choice. At all times there have been provisions more or less stringent to prevent interference with the individual voter in the exercise of his right, and fraud in the ascertainment of the result.
Strict provisions have been enacted in regard to the mode in which poll-books should be kept, the distance from the place of voting which persons .other than the voters were required to keep, and so on ad infinitum. Penalties, from time to time, have been imposed for violations of these provisions. To prevent fraud in the certification of the result, provisions of various kinds have been made, from time to time, for the signing of the poll-books. From time to time, all of these provisions have been disregarded by the officers of election, but the uniform rule of the courts all over this country has been that, where the failure in any of these respects did not prevent the choice of the people being made, or its result ascertained, the violated provision was to be regarded as directory to the voter, howsoever mandatory it might be as to the officer. So long as the election — that is, the choice of the people— was fair and free, and its result could be accurately ascertained, the freeman’s right of suffrage was not inter-, fered with, nor his choice frustrated.
Finally, in this State, as in other States, a constitutional provision was adopted that “all elections by the people shall be by secret official ballot, furnished by public authority to the voters at the polls-, and marked by each voter in private at the polls, and then and there deposited.” There was also a provision for assistance in the marking of the ballots of persons illiterate, blind, or in any way disabled.
*458This provision, and the election law adopted thereunder, were only a new mode adopted to secure the same object which had been aimed at in former laws. It was intended to enable the voter to freely express his choice, and to have his choice fairly recorded. The election was the purpose aimed at; the secrecy of the ballot was but a means to that end. As to the wisdom of such a provision there are different opinions. ' Some are entirely satisfied with the new mode; some prefer the ancient one. Unquestionably, with honest election officers, the new mode does in large measure prevent interference with the free exercise of the right of suffrage by intimidation, bribery or influence. With its wisdom we have nothing tO' do. It has been adopted by another branch of the Government. The important fact is, that in the very first of the Constitution it was provided that “All elections shall be free and equal,” and that the provisions for secrecy in the ballot were merely the way specified by which that freedom and equality were to be obtained.
And so we find that the courts, almost without exception' have adopted the general doctrine that, where irregularities have occurred in the means devised to secure free and fair elections, but nevertheless the elections' were free and fair, such irregularities should be disregarded, so far 'as the voter was 'concerned, if he were not in fault, unless it were expressly provided that the election should be thereby invalidated.
Any number of authorities might be- cited upon this point. The most recent case upon the subject is Lewis Jones v. State ex rel David Wilson (Ind. Sup.), [55 N. E., 229].
In that case, in an opinion by Hadley, J., delivered November 15, 1899, the statute required *459the clerk to have printed on the ballot general directions how to vote. It also required the face of the ballot to' show correct designations of the offices to be filled at the election. It also required the clerk of the poll to initial the ballot upon a certain designated part of it. There were no directions how to vote on the ballot. The office of trustee was designated “councilman,” and the poll clerk put his initials on the wrong part of the ballot. There were several other inaccuracies.
Said the court:
“The ballots cast were those furnished the voters by the officers whose duty it was to prepare them in due and legal form, and the absence of objection to the form of the ballot before it has been delivered to the voter, and until after the election has been held, carries the question beyond meritorious complaint. To hold that all prescribed duties of election officers' are mandatory, in the sense that their nonperformance shall vitiate the election, is to engraft upon the law the very powers for mischief it was intended to prevent. If mistake or inadvertence of the officer shall be fatal to the election, his intentional lorong may so impress the ballot as to accomplish the defeat of a particular candidate or the disfranchisement of a party. And it is no answer to say that the offending officer may be punished by the criminal laws, for his punishment will not repair the injury done to those .affected by his acts.
It is the duty of the courts to uphold the law by sustaining elections thereunder that have resulted in a full and fair expression of the public will, and from the current of authority the i following may be stated as the approved rule: All provisions of the election law are mandatory if enforcement *460is sought before election, in a direct proceeding for the purpose; but after election all should be held directory only, in support of the result, unless of a character to- effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that a particular act is essential to -the' validity of an election, or that its omission shall render it void.
Parvin v. Wimburg, 130 Ind., 561, [30 Am. St. R., 254, 30 N. E., 790]; Boyd v. Mills, 53 Kan., 608, [37 Pac., 16; 25 L. R. A., 486]; Miller v. Pennoyer, 23 Or., 364, [31 Pac., 830]; Stackpole v. Hallahan, 16 Mont., 40, [40 Pac., 80, 28 L. R. A., 502]; Blankinship v Israel, 132 Ill., 514, [24 N. E., 615]; Adsit v. Osman, 84 Mich., 426, [48 N. W., 31, 11 L. R. A., 534]; McCrary on Elections, sections 2228, 2229; Endlich Interp. St., section 433.”
There is an apparent conflict with the rule here laid down in siome cases from States which do not provide an official ballot, but the ballots to be voted are furnished by the governing bodies of the political parties interested in the result. In some of those cases it has been held that the printing- of the ballot furnished by one political party with words which might mislead the voter into believing that he wasi voting- the ticket of another party would invalidate the ballots. These cases clearly go upon the theory that the offending' political party was practicing a fraud, and should be punished for it by depriving it of any potential benefit which might be derived from it.
But to apply the doctrine stated to throw out precincts, and change the result of elections, on account of irregularities in the form of the ballot, for which neither the *461candidate nor the voter was responsible, seems to me monstrous. For example: There is an ebb and flow in political sentiment in nearly all the districts of this State. Suppose a Republican county clerk to be elected, in a district usually overwhelmingly Democratic, and an election to occur at which the election of the Democratic nominee for Judge of this court • is a foregone conclusion. The clerk — accidentally, of course — has the ballots for the heavy Democratic precincts printed on paper which is somewhat too thin. The result of the doctrine contended for is that those precincts are thrown out, and the others counted. Wherein are the Democratic candidate and the voters at fault? What could they do? They might mob the clerk, but what good would that do?
The point is urged that secrecy in the ballot is, by Constitution, made an essential element of the election. That is true. But is it not of greater, importance, is it not more essential,- that the election should be a real election, than that it should be secret? Is it not more important that the will of the majority should have effect, than that the election officers should be prevented from making a more or less accurate guess at the contents of folded ballots?
When a court of last resort undertakes to lay down a doctrine, the logical application of which will enable the fraud or negligence of an official to work the disfranchisement of the majority of the voters, there is an end of free government. The sanctity of the freeman’s will is violated, out of oversensitive regard for the sanctity •of the mode of its expression. The right of election is destroyed, out of respect to the manner of holding it. The thing itself is sacrificed on the altar of a mere attribute. For “election” means the ascertainment of the will of the *462majority. That is the essential thing-, and should never be forgotten.
When the people voted that the will of the majority should be expressed by secret ballot, they never contemplated the suggestion that the secrecy which was provided as a means to attain that end — the expression of the will of the majority — would or could be made the means .of defeating it. Secrecy was undoubtedly intended to be an essential attribute of elections, but it was an attribute, and was mot intended to work the defeat of the right of free elections. The provisions for that secrec'y are mandatory. But how? Mandatory to the officer. Mandatory whenever they are sought to be made mandatory by any direct proceeding before the election. But not mandatory, after the election has- been held and the ballots destroyed, to defeat the will of the voter, who is helpless to prevent the forbidden irregularity. It is not pretended in this case that the freedom or equality of this election was interfered with, as a result of the alleged thinness of the ballots, or that any objection was made to the form or structure of the official ballot until after the result of the election was known.
On election day the voter goes to the polling place. He is furnished with the official ballot. He votes it. By the defective construction of the bjallot itself, it is not as secret as it should be. But that is not his fault. He must vote on that ballot, or not at all. He is absolutely helpless. Now, if he can be disfranchised, and the guilty person profit by his disfranchisement, the holding of an election is a fraud.
That the ascertainment of the voter’s will was regarded as a matter of supreme importance by the legislative branch, as well as by the framers of the Constitution, is *463shown by the specific requirement in 'section 1471, Kentucky Statutes, that “no ballot shall be rejected for any technical error which does not make it impossible to determine the voter’s choice.”
A technical error, therefore, committed by the voter himself, does not invalidate the ballot; but a technical error committed by the dishonest officer can now, under the opinion in this case, disfranchise him. Of what avail is it to secure to the voter or “to the Republic, what, at such a juncture, is the thing vitally necessary to its health, the free and honest expression of the convictions of every citizen,” if the ballot by which those convictions are expressed may be thrown out at the will of a dishonest officer? And is the election fair if the will of the majority is reversed? Is this statute, which is designed to enable the voter to follow “the dictates of his individual judgment,” to be made operative merely to afford him a harmless amusement?
Two Kentucky cases—Major v. Barker, [35 S. W., 543], and Banks v. Sergent, in 20th Reporter, [48 S. W., 149]—are relied on in the majority opinion. Those cases do not, nor does any case in the books, sustain the doctrine laid down in the majority opinion. In each of those cases there was a violation of the statute by the voter himself, and the provision was held mandatory to him. It was by his own fault that he lost his' right. In the latter of the cases the íacts proven in the record showed, also, that there was no election — no choice by the people.
I am not saying that this attribute of secrecy is not so essential that open and flagrant violations of it should not be held ■ to require the whole election to be held over. But, in my judgment, it should never be so held so as to reverse the will of the *464majority in a district, a county, or a state, by rejecting the ballots of one or more subdivisions thereof — the election being otherwise fair and free — for an irregularity for which the voters were not responsible, and which they were powerless to prevent.
I dissent from the opinion of the majority.
JUDGE BUiRNAM concurs.