(dissenting) : The foregoing opinion indicates the judgment of the court, not that of the writer thereof. It will be noticed that by different ratiocination the majority arrive at the same conclusion. They proceed along different and divergent pathways, but find themselves together at the end of the journey. This indicates that some of them are wrong. I think that some of them are mostly wrong in their reasoning, some of them are altogether wrong in their reasoning, and all of them entirely wrong in their judgment. I dissent therefrom, and am authorized to say that Mr. Justice Johnston and Mr. Justice Greene join with me in this dissent. We, however, concur with Mr. Justice Smith and Mr. Justice Ellin in holding that a ballot obnoxious to the provision? ■of section 27, which makes it criminal to mark a ballot “so that it can be distinguished,” cannot be counted. While that section does not expressly say that ballots so marked shall not be counted, yet tha is the necessary implication. As Mr. Justice Smit! well and tersely says: “No right to have the vot< counted in a candidate’s favor ought to spring iron a criminal act on the part of the voter.” The au thorities, so far as we have been able to find then, all concur in this view. Any other view would seen *226strange when we remember how inadequate the remedy of a criminal prosecution would be. Both purchaser and seller of votes get away with their ill-gotten goods, the one with the office and- the other with the price, and no harm can come to them except through a criminal proceeding, and then only upon evidence of their guilt excluding a reasonable doubt. (Whittam v. Zahorik, 91 Iowa, 23, 59 N. W. 57, 51 Am. St. Rep. 316 ; Van Winkle v. Crabtree, 34 Ore. 462, 55 Pac. 831, 56 id. 74; Black, Interp. of L. 64.) This theory has the merit of being easy to understand and apply.
As a basis of this argument, it will be assumed that ballots obnoxious to the provisions of section 27 ought not to be counted. At this point, however, Justices Smith and Ellis leave us. They prefer to adopt the uncertain rule of determining from the face of the ballot, aided by what the judges may happen to know outside, or by evidence aliunde, what are distinguishing marks; rather than by the safe and certain rule prescribed by the law. It is entirely competent for the legislature to throw around the exercise of the elective franchise such safeguards as, in its discretion and sound judgment, it shall deem best to insure a pure and secret ballot. It is the ’ acknowledged primary object of the Australian-ballot law to accomplish this end. Its accomplishment is more important than that all persons of the requisite age should be counted in the poll, the object being, as regards votes, quality first and quantity afterward. So the law may well say to the voter that if he wishes his vote to be counted he must record his choice of candidates in this prescribed manner; that his intention to vote must be ascertained in a given way. There is no hardship in this. If the citizen would vote, let him *227prepare himself to do so in the manner that the law’ prescribes.- In this there is safety for his vote and our institutions as well. If the board of election-judges, or the larger board of supreme court judges,¡ who have counted the ballots in this case, assume to ascertain the intention of the voter from the face of the ballot, when that intention has not been expressed in the way pointed out by the statute, they may, per--' chance, deduce the wrong intention — may disfranchise the voter ; but, however this may be, this court, following many others, has already decided that the provisions of the Australian-ballot law are mandatory, and that ballots not marked in accordance with those provisions are not entitled to be counted. (Taylor v. Bleakley, 55 Kan. 1, 39 Pac. 1045, 28 L. R. A. 683, 49 Am. St. Rep. 233.) Plence, there only remains for us to inquire what those provisions are.
As to the marks mentioned in section 25, we are all at one. The law says expressly that the ballot shall not be counted if marked as therein forbidden. As to the so-called distinguishing marks mentioned in section 27, the majority hold them to be as fatal, if they are distinguishing marks. But, to be distinguishing marks that shall be obnoxious to the law, Justices Smith and Ellis say that they must not only be marks that distinguish, but that the judges by looking at them must in some unexplained and occult manner be able to deduce therefrom the intent of the voter thus to distinguish the ballots. This interpretation is faulty for two reasons. First, it is not consonant with the language of the statute. The inhibition by the statute is against the counting of the ballot when “ any person shall . . . mark or fold his ballot so that it can he distinguished.” If the marking or folding is of such character that from it the *228ballot could be distinguished, then it may not be counted. The ban of the law is upon the ballot if it be marked or folded so that it can be distinguished. Second, with this interpretation the law is entirely without force, and cannot be administered with certainty. One judge may look at a ballot on which are distinguishing marks and say that he does not think that the voter intended by this mark to distinguish the ballot, and another judge, looking at the same ballot, may come to a contrary conclusion. This case furnishes many examples of such variance.
The voter’s intention in this matter must be gathered from what he does. If the ballot be marked “so that it can be distinguished,” then the mark is a distinguishing mark. If the voter does not know how to mark his ballot, sworn assistants are provided. If he spoil his- ballot, another can be obtained. How small a percentage of voters there are who do not know how to vote under this system is shown by the fact that in the election now being considered only about two per cent, of the votes cast are involved in this controversy. This two per cent, of the voters would better be disfranchised than that the ballot law be despoiled of its safeguards. Our brethren have brought the principle for which they stand— that of arriving at the intention of the voter — from the old methods. Before the enactment of the reformed methods of voting, commonly called the Australian-ballot laws, the intention of the voter thus determined was the solvent which was applied to all difficult questions, and unutterable confusion was the result. Under the new law the intention may be found only in the voter’s act.
In our opinion, these double-marked ballots are so marked that they can be distinguished. That *229there are 176 of them rather than one does not change their character. They should not be counted, because the law forbids the counting of ballots with distinguishing marks. That in this case there are so many does not matter.. In some other election there might not be so many. It is a rule which is being established and not a particular application. We think the authorities, so far as they go, hold with this contention. The case of Attorney General v. Glaser, 102 Mich. 406, 61 N. W. 648, cited above, was one in which the identical question at issue here was presented. The court in the original opinion (102 Mich. 396, 402) held in the following language :
“A large number of defective ballots had a cross under the party name of the republican and also of the citizens’ ticket. The tickets were, it is true, identical ; but a single mark constituted a vote, and the second mark was wholly unnecessary and inappropriate to register the voter’s intent — as much so as would have been any mark placed under the democratic ticket. Such mark might have been an agreed means for identification of the ballot, and must be held to have been a distinguishing mark. There were also a number of tickets in which the names of the candidates as they appeared on both tickets, both being identical, were marked. These are subject to the same considerations.”
But afterward, on a rehearing of the case, it having been called to the attention of - the court that the attorney-general had on three different elections expressed a widely disseminated opinion construing the law otherwise, which opinion had quite generally been acted upon, the court, without in the least changing its former judgment, expressed itself, at page 409, as follows: “We think, in view of this practical construction, it should be held that the blass of ballots above referred to are not illegal.” So that on princi*230pie the Michigan supreme court stands committed to the proposition that such ballots should not be counted.
The New York case (People, ex rel. Fenny, v. Bd. of Canvassers, supra) was decided by a divided court. Even the opinion of the majority is based upon an analogy existing between the question in hand and the express provision contained in another part of the statute. So that, at its best, this case is of light weight as an authority here. The minority, however, two to three, express themselves in the following language, speaking of double-marked ballots :
' ‘ It was an attempt to vote twice for the same candidate, and whatever may have been the intention of the voter, the second voting mark is prohibited by the statute, since it would be a convenient means of identification, and hence these ballots cannot be counted.”
As bearing upon the particular question, and as indicating the strictness with which the various courts are applying the provisions of the Australian-ballot law, and as suggestive of the wide departure this court is making by the judgment of the majority in this case from such general trend, the following quotation is made from a recent California case, Farnham v. Boland, 134 Cal. 151, 66 Pac. 200, at page 201:
“Under objection No. 1, we find a class of ballots counted by the trial court, where a cross is placed in a square, there being no candidate’s name opposite the square. Such a cross is not in a legal place. The voter had no right, under the law, to place it there, and it is a distinguishing mark, which demands the rejection of that class of ballots. Under objection No. 2, a cross is found upon a class of ballots directly upon the line dividing the two squares. There is also a cross in each of the squares after the respective candidate’s name. Thus there is found a cross not authorized by the law, which may well serve as a *231means of identifying the ballot, and ballots so marked should be rejected. Under objection No. 3, the court finds a class of ballots where two crosses are made after the candidate’s name, one within the square and one without the square. There is no simpler way of evading the provision of the law than for a voter to mark his ballot in this manner. These crosses so placed are clearly identifying marks, and all ballots so appearing should be rejected. Under objection No. 4, the court finds a class of ballots with two crosses in the square. Upon some of these ballots the crosses are entirely separate, and upon others they are interlaced and joined in many different ways. The law says the voter shall stamp a cross after the name of the candidate; not two crosses, or three crosses, but a ‘cross.’ Two crosses in the square is no less a mark of identification than two crosses one without and one within the square. An allowance of this practice would furnish a- simple expedient by which the law could be violated. Two crosses in the square is not a legal mark upon the ballot. The law only contemplates one cross, and therefore ballots so marked should be rejected.”
There can be no question but that the courts generally are strictly applying the provisions of the reformed election laws, and holding such provisions mandatory. What reason else for these laws ? If the old rules of groping and agonizing for the intention of the voter, with little regard for the actual character of his ballot, were sufficient, why should the legislature seek to introduce others ?
As pointed out in Taylor v. Bleakley, supra, the legislature of this state has authoritatively construed its own law by adopting without dissent the report of a committee containing the following :
“The great innovation upon the prior law made by the Australian law is that the intention of the voter shall be ascertained by an application to the ballot of the directions contained in the statute, and the pro*232visions of our statute directing the manner in which the voter shall express his choice are mandatory. Another object of the law is to prevent the putting upon the ballot, by the voter or any other person, any mark save and except the cross in the proper space which will designate that ballot from any other ballot cast. Should the door be open to permit the counting of ballots containing any other than the marks permitted by the statute, it would enable persons who had bargained for votes to agree upon a distinguishing mark, whereby it*could be determined, by a mere inspection of the ballot, whether or not the voter had carried out his part of the contract, thereby thwarting one of the main objects of the law.”
The declaration on the part of the legislature of a rule of construction of its own enactment ought to be felt as of some binding force upon this court, even if its own approval of that rule, as found in Taylor v. Bleakley, is not.
The difficulties with which the majority have struggled in the application of their “intention of the voter” theory amply illustrate the untenable character of that theory. By way of illustration, we cite a few noticed as the count proceeded in this case. A cross-mark after the name of either Hughes or Parker, and also one in the square on the independent ticket without a name, were thought to indicate a purpose to distinguish, while a cross after the name of Parker wherever it appeared on the ballot did not. A cross partially obliterated by scratching with a black lead pencil is held not to be a distinguishing mark, while one still further scratched, so that the cross is entirely obliterated, is found to indicate to the discerning mind a bad purpose. If the scratching still further proceeds, aided apparently by the sharp edge of a knife, so that a hole is left in the paper where the black spot had been, we are able to declare — by *233seeing through it — that the ballot was not thereby intended to be distinguished. A cross-mark to-the left of a name partially erased distinguishes a ballot, but a like mark in one of the squares to the right of Parker’s name does not. A single stroke in the square after Hughes’s name makes a bad ballot, but a like stroke in one of the squares after Parker’s name does not, providing a good cross is found in the other square. The “intention of the voter” is found to be bad if he makes a cross outside of the printed square, the statute not specifically requiring it to be made in the square. A name or initials written on the ballot causes it to be rejected, unless by a comparison with other initials on the ballot, supposed to be those of an election judge, and by looking at the words “sworn ballot” also written thereon, it shall be decided that probably the name was written there by the election judge. It is decided that the intention of the voter who deposited this ballot albert paeker,^ 03 was ”...... r 1 all right; while the voter who deposited this one v/f hughes 0 intended it to be distinguished. .......-:— - The size of the mark evidently had somewhat to do with the application of the theory, because this ballot j wEf. hughes 0 was found to be without fault.
A correct intention on the part of the voter was occasionally so clearly discerned from the face of the ballot that a cross-mark specifically required by the statute was not found to be necessary to express it, as is evidenced by this ballot ALBeet p'Ikker. 0 and this For Mayor, J. W. F. HUGHES Qj which were counted. *234However, it is not permitted that this departure shall go too far, for this ballot For Mayor, J. W. F. HUGHES. was rejected. Again, perhaps the size of the mark had somewhat to do with the ability to determine the intention.
Had the court in this case, after having admitted to the count all of the ballots doubled-marked for Mr. Parker with two good crosses, then applied what seems to us to be the rational rule in the counting of the balance, the result would have been different. We think, however, that these double-marked ballots were not only distinguished by such marking, so as to require their rejection, but that they also should have been rejected because they are expressly excluded from the count by the language of the statute. “If the voter marks more names than there are persons to be elected to an office” his ballot may not be counted. This language does not mean the same as if it read: “If the voter marks the names of more persons than are to be elected to an office.” It reads “more names.” Print the name of the same candidate as many times as you may choose on the ticket — that is advantage enough — but do not mark it but once. In not a few instances in this count did Mr. Parker gain a vote because a good cross-mark in one square helped out a poor one in the other.
On the question of the thirty-six ballots returned from the second precinct of the first ward under cover marked, “This package contains defective or objected-to ballots not voted,” we are of the opinion that none of the ballots should have been counted, it not appearing which of them had been voted. We do not now know but that, at least, some portion of the ascertained majority for Mr. Parker is made up *235of ballots never put into the ballot-box. It may be true that if the entire thirty-six ballots be thrown out, twenty-nine legal votes will be ignored, but it is also true that if all are considered a candidate may be elected to office by votes never put into the ballot-box and which represent no voter. In the case of The State, ex rel., v. Stevens, 23 Kan. 456, where substantially the same question was presented, this court, at page 458, used this language: “While legal and honest votes were cast, yet no court is under obligation to attempt to sift the grain of truth from the mass of falsehood.”
Finally, we deem it our duty to call attention to the fact that but one single legal proposition is settled in this case. All of the justices, except the chief justice and Mr. Justice Pollock, hold that ballots which are obnoxious to the penalties denounced upon those who mark their ballots as indicated in section 27 should not be counted; and, further, that the apparent abandoning of the rule for determining the validity of a ballot as laid down by this court in Taylor v. Bleakley, supra, is more apparent than real. The two justices last named repudiate the proposition that a ballot can be rejected at all on account of a distinguishing mark, while Justices Smith and Ellis only stand for the rule that only such marks are distinguishing ones, requiring the rejection of the ballot, which the judge who is counting it shall conclude from all of the circumstances were intended to distinguish the ballot.
Again, we say that in our opinion the statute requires the rejection of all ballots on which the voter has purposely made marks “so that it can be distinguished,” and, as the application of this rule would *236result in a judgment for the defendant in this case, we dissent from the judgment rendered in favor of the plaintiff.