(dissenting). I am unable to agree with my brethren in the conclusions reached by them. The original returns, as certified by the inspectors of election, gave May 26,799 votes and Reynolds 26,821, leaving a majority for Reynolds of 22 votes. The recount, made under Act No. 208, Laws of 1887, by -a Republican board of canvassers, gave May 26,847 votes and Reynolds 26,729, or a majority for respondent of 118. In his replications to respondent’s plea, Reynolds sets forth:
1. That 74 ballots cast for respondent bore distinguishing marks, and were therefore illegal and void.
2. That in the township of Ecorse, and in the First and Third wards of the city of Wyandotte, after the votes had been canvassed and returned, and before the recount was made, the votes cast were changed, erased, altered, and mutilated in the interest of respondent, so as to destroy 106 votes, which were cast in favor of relator, *560and insert in said ballot-boxes, instead thereof, 100 false and fraudulent votes.
3. That there was no valid and legal election held or had in the fourth precinct of the Fifth ward, for the reason that 215 ballots were cast by persons who were not registered as electors.
4. That there was no valid election in said last-named precinct, for the reason that five outsiders wrongfully, illegally, and with the approval of the chairaran of the board of election inspectors went into the polling booths, and worked, and influenced 750 voters, and marked their ballots, and said ballots were illegally received.
5. That in such last-named precinct 750 voters exposed their ballots to persons who were not lawfully assisting them. •
6. That 215 unregistered voters were not sworn as required by law to justify their registration on election day-
7. That in the following named precincts the number of votes enumerated were cast by persons whose names were not entered on the poll lists; that the number of ballots found in the boxes at the close of the poll were in excess of the names on the poll lists; that all of said ballots so cast were canvassed, and that the poll lists were not placed in the ballot-boxes, but were concealed or destroyed, to wit: In the second precinct of the Sixth ward, 528 votes; in the third precinct of the Sixth ward, 495 votes; and in the second precinct of the Seventh ward, 601 votes.
No further or other charges were contained in the pleadings. Questions were framed, submitted, and sent to the jury, and have been answered. The first nine questions, and the answers thereto, are as follows:
“1. Did any of The ballots containing votes cast in favor of said respondent, William May, when the same were voted, bear distinguishing marks; that is to say, letters, initials, words, or marks so made thereon as to distinguish each of the same, respectively, from the other ballots cast at that election?
“A. No.
“2. If so, how many, as near as can be estimated? •
“ A. Not any.
“ 3. How many votes were cast in favor of said relator, Henry M. Reynolds, in the township of Ecorse?
“A. 243.
*561“é. How many votes were cast in favor of said respondent, 'William May, in said township of Ecorse?.
“A. 450.
“5. How many votes were cast in favor of said relator, Henry M. Reynolds, in the First ward of the city of Wyandotte?
“A. 188.
“ 6. How many votes were cast in favor of said respondent, William May, in the First ward of the city of Wyandotte?
“A. 132.
“ 7. How many votes were cast in favor of said relator, Henry M. Reynolds, in the Third ward of the city of Wyandotte?
“A. 206.
“ 8. How many votes were cast in favor of said respondent in the Third ward of the city of Wyandotte?
“ A. 132.
“ 9. After the votes cast for said parties in said township of Ecorse, and in said First and Third wards of said city of Wyandotte, had been canvassed and returned -by the board of inspectors of elections thereof, were any of the votes cast therein changed, erased, altered, or mutilated at any time before the meeting of the board of county canvassers ?
“A.. No.”
(The figure^given in answer to the third, fourth, fifth, sixth, seventh, and eighth questions are the exact figures returned by the canvassing board upon the recount.)
By these answers it will be observed that the charges made in relator’s first and second specifications are expressly denied. The charges made in the sixth and seventh specifications were abandoned on the trial. Out of the 215 persons referred to in the third specification, relator’s own witness, Lemkie, found the names of all but 14 on the registration list, and, of those found by- him, 14 were discovered on the witness stand upon cross-examination. The jury found, not that the inspectors did not find these 14 names, but that they actually found all the other names. This would not affect the result, and dis*562poses of the third specification. There is no pretense that any person went into any booth and worked or influenced a single voter, as charged in the fourth specification. The only other charges made are:
1. That a large number of voters exposed their ballots, and the ballots so exposed were received.
2. That voters were assisted without first having been sworn as to their inability to read English, as required by law.
Although the law provides that no election district shall contain more than 500 electors, 1,156 electors actually voted in the fourth precinct of the Fifth ward. There were 300 more votes cast in this district than in any other district in the city. About 42,250 votes were cast in the entire city, which is divided into 102 voting precincts. Thirty-five precincts cast 22,400 votes, or an average of 640 each, while 67 districts oast 19,850 votes, or an average of 296 each. The First ward, where, out of a total vote of 3,299, relator received a majority of 541, is divided into eight districts. The Second ward, where, out of a total vote of 2,914, relator receiv^l a majority of 476, is divided into nine precincts. The Fourth ward, where, out of a total vote of 3,060, relator received a majority of 498, is divided into eight precincts. The Fifth ward, where respondent, out of a total vote of 3,165, received a majority of 635, is divided into five districts. Relator attacked five other - precincts, in each of which there are large numbers of German and Polish voters, and the number of votes cast in each average 700. In these districts the charge was made, and the only charge made in any district except the fourth precinct of the Fifth ward was, that large numbers of voters were assisted without first having taken the oath. Relator’s proofs tended to show that there were 700 assisted voters in the fourth *563precinct of the Fifth ward, 550 in another precinct, 526 in another, 425 in another, and 345 in another. The law provides that the voter shall be assisted by “ an inspector,” in the presence of another inspector, and that the polls shall continue open 10 hours, or 600 minutes.
At the trial, relator introduced the following testimony in support of the allegations relative to the fourth precinct of the Fifth ward:
“ That in the fourth district of the Fifth ward the registration list, made prior to and used at the election, appeared as is set forth in the original registration book, which was introduced in evidence, and .which, it is agreed by counsel, may be produced by either party at the hearing on this report in the Supreme Court, instead of having a copy annexed hereto; that the poll lists made at the election were two in number, and as set forth in the originals, which were introduced in evidence, and which, it is agreed by counsel, may be produced by either party at the hearing on this report, instead of having copies annexed hereto; that the poll lists were written respectively by Casper Hoffman, a German, and Henry Vincent, an American of French descent; that the board of inspectors of election and board of registration in this district consisted of the following named persons: Alois Deimel, Edward Fierz, John Manquen, Bernard Zentarski, Peter Brinker, and John Vandergyp; that this board consisted of four Democrats and two Bepublicans; that no one was designated by the board to assist voters in the preparation of their ballots; that John Erhard, a Democrat, and William F. Schneider, a Bepublican, were the United States supervisors of election; that J oseph Deimel, a Democrat, and Peter Knauss, a Bepublican, were deputy United States marshals; that there was one Democrat challenger and one Bepublican challenger; that tw’o metropolitan policemen were stationed at the door through which voters were admitted from the street, and were in position to observe all that was going on in the room containing the booths; that the greater part of the voters consisted of Poles, Germans, and Italians; that from 600 to 700 of the last-mentioned voters were assisted in the marking of their ballots, because they could not read English; that none of the voters thus assisted was sworn as to his inability to *564read English; that the only persons who actually marked the ballots for such voters were Alois Deimel, John Vandergyp, Joseph Deimel, and Peter Knauss; that during the election the marking of ballots for voters in this district, as above described, was seen or observed by the United States officers of election and deputy United States marshals above named; that the names set forth in question number 16 were selected by a witness for the relator, one Felix A Lemkie, a German of Polish extraction; that in selecting these names he had before ' him poll lists, Exhibit 99, and a printed copy of the registration list; that he had examined for the first time original poll list, Exhibit 98, on the Saturday and Sunday before giving his testimony in the case, together with the original registration book; that he had made a careful examination; that he was unable to find, and there was not, in the registration book, the following names: No. 58, Q. Gabriels; No. 170, A. Katino; No. 188, Wm. Greataw;*No. 224, Louis Tremonte; No. 227, Gus Debold; No. 254, Leo. Brichato; No. 290, A. Labasch; No. 310, Geo. Peterson; No. 352, Fred. Ziesse; No. 395, Chas. 'Stuerwald; No. 433, Frank. Schcener; No. 709, Wenzil Ziska; No. 721, John Klaus; No. 726, Fred. Scheflller; No. 774, Jacob C. Land; No. 786, Jacob Weiley; No. 874, John Garbarino; No. 962, John Gremps; No. 1044, Phillip Green; No. 1068, Louis Gencorde; No. 1099, John A. Peters; No. 1Í03, C. J. Dean; No. 1115, Stephen Sauer; No. 1153, John Oss; No. 1155, Samuel Einick; No. 1161, John Ciescke; No. 1165, Aton Gora; No. 1186, Joseph Slanz (at this point relator’s counsel announced that they would confine themselves to the 28 names above given); that, on cross-examination Lemkie was able to find 14 of the 28 names above given; that during the entire day a Republican challenger was in attendance with a book containing a list of registered persons whose votes might be questioned, which book was furnished him by a Mr. Burt, chairman of the Republican city and county committees; that the Republican United States supervisor, from the opening of the polls until about 2 o’clock p. m., was present, and also looked after the manner of voting; that all persons objected to by them and others were not allowed to vote until the matter was investigated, and their right to vote established. There was no testimony introduced tending to show that unregistered voters had *565voted in the fourth district of the Fifth ward, except the registration book and the poll lists above mentioned.-”
The testimony for the respondent as to the fourth precinct of- the Fifth ward was as follows:
“Testimony tending to show that in the fourth district ■of the Fifth ward the board of registration and board of inspectors of election for this election were as above set forth; that, by resolution of the board of Inspectors, Alois Deimel, Democrat, and John Vandergyp, Eepublican, were appointed or designated to assist voters who might need such assistance in marking their ballots; that Dr. Kwiecinski, a Pole, acted as interpreter; that Inspector Zent.arski examined the registration book, Inspectors Fierz and Drinker received ballots, Tally Clerks Hofiman and Vincent kept poll lists, Inspector Manquen initialed and handed •out the ballots; that, when the polls were first opened, a crowd of several hundred voters were in attendance; that the pressure of voting was great until about 2 o’clock in the afternoon, when it became easier; that the number of voters who were assisted because they could not read English was about the same as shown by relator’s testimony; that a large number of Poles, Germans, and Italians were assisted in marking their ballots, because they could not read English; that the’ number thus assisted was the same as shown by the people’s testimony; that none of the voters thus assisted was sworn as to his inability to read English; that in the early part of the day Inspectors Deimel and Vandergyp assisted voters in marking their ballots, always accompanying each other, until the rush or pressure of voting became so great it was thought necessary to assist voters in the following manner: Inspector Deimel, accompanied by a Eepublican United States officer, .attended to one voter, while Inspector Vandergyp, accompanied by a Democrat United States officer, attended to another, and thus assistance in marking ballots was rendered by Inspectors Deimel and Vandergyp until, in the latter part of the day, the rush subsided; that no persons other than Inspectors Deimel and Vandergyp assisted any voter .in marking his ballot; that no person other than the inspectors designated by the board to assist voters in marking their ballots, and the United States supervisors and deputy marshals on duty at this poll, saw how any ballot was marked; that the method pursued in assisting voters *566in marking their ballots was adopted because it was believed that, on account of the large registration and the great number of voters needing assistance, the proper vote of the district could not be east if the work of assisting voters in marking their ballots was to be done only by Deimel and Vandergyp in company with each other.”
The law (Act No. 190, Laws of 1891) provides for a hoard of election inspectors, and places them in charge of the polling place, and gives them authority and control of the conduct of the election. Section 23 of the law provides that a challenger for each party may be present inside the room where the ballot-box is kept, and entitles him to the protection of the inspectors and the police. Section 25 makes it the duty of each inspector to challenge every person whom he shall know or suspect to be disqualified as an elector. Section 26 provides that if any elector shall show his ballot, or any part thereof, to any person (other than one lawfully assisting him in the preparation thereof), after the same shall have been marked, so as to disclose any of the candidates voted for, such ballot shall not be received or deposited in the ballot-box.
Section 32 provides:
“ When any elector shall make oath that he cannot read English, or that because of physical disability he cannot mark his ballot, or when such disability shall be made manifest to said inspectors, his ballot shall be marked for him, in the presence of at least two of the inspectors, by an inspector designated by the board for that purpose, who is not a candidate on said ticket.”
Section 36 provides that, in the canvass of the votes, any ballot which is not indorsed with the initials of the inspector, as provided in the act, and any ballot which shall bear any distinguishing mark or mutilation, shall be void, and shall not be counted, and any ballot or part of a ballot from which it is impossible to determine the elector’s choice of candidates shall be void as to the candidate or candidates thereby affected.
*567The United States marshals present on election day were there under instructions from the Attorney General of the United States that they had the right, and that it was their duty, to be and remain in all places where they could best discharge their duties, whether such places were inside or outside the guard rail, notwithstanding local statutes regulating the number of persons who were to be admitted within the guard rail on election day. The United States supervisors were present, with instructions that it was their duty to put themselves in such a place that they could see that the tickets were marked as directed by the voters. This precinct was manned by six election inspectors, four of whom were Democrats, and ,two Republicans; two United States supervisors of election, one of whom was a Democrat and the other Republican; two challengers, one a Democrat and one a Republican; an interpreter; two deputy United States marshals; and two policemen stationed at the inner door. If any of these persons were not entitled to be present, they were there under, color of right and authority, and with the knowledge, consent, and permission of the inspectors of election. Two of the inspectors of election were designated by the board to assist voters. A rush, incident to a crowded district, occurred, and in order to facilitate the voting and enable all to exercise the constitutional right of qualified electors, by and with the consent and approval of all present, the United States supervisors and the United States deputy marshals were called upon by the inspectors to assist, and did so. Seven Democrats were present, and did not object. Five Republicans were there, and concurred. Inspectors, supervisors,, and marshals, all charged by law with the duty of its. observance and the prevention of wrongdoing, and with the solemn duty of permitting electors to cast their ballots, all acting in good faith, and solely with the desire of *568■enabling voters to exercise a constitutional right, consent, approve, and concur.
The right to vote for, and be represented by, county and state officers is a constitutional right, which cannot be taken away or destroyed. Cooley, Const. Lim. 616; McCrary, Elect. § 13.
John Erhard, a supervisor and a Democrat, saw the ballots of 20 of the said voters while they were being marked by a Eepublican inspector; William F. Schneider, a supervisor and a Eepublican, saw the ballots of 100 voters while assisted by a Democrat inspector; Joseph Deimel, a marshal and a Democrat, saw the ballots of 100 voters while being assisted by'a Eepublican inspector; Peter Knauss, a marshal .and a Eepublican, saw the ballots of 100 voters as they were being assisted by the Democrat inspector; and Joseph Deimel and Peter Knauss each, in the presence of an inspector of the opposite party, marked the ballots of 10 of the assisted voters. This occurred in the presence of the board of election inspectors; indeed, it was done with the consent, approval, and procurement of the board. 'The board, officers of the law, charged with control of the place, and with the instruction and direction of the voter, participated in the work. Supervisors and marshals, there ■by federal authority, charged with the duty of supervision, participated in the work. Each and every one of these ■officers was there commissioned to protect, instruct, and direct the voter. No challenge was made by any person. Eelator’s specification alleges that this was done with the .approval of the chairman of the board of election inspect-' ■ors. To these officers, and to these officers only, did voters •expose (?) their ballots. Is it not monstrous to say that, under these circumstances, the voter and this entire precinct, composed of 1,156 qualified electors, shall be disfranchised? The law should not be so construed as to *569make the machinery of election a snare to entrap the unsuspecting voter.
It may be urged that the voter is charged with knowledge of the law; but is he charged with knowledge of the personnel of the inspectors, or of those designated to assist him? Inspectors of election are not either uniformed or badged. Is each voter bound to suspect men there by authority, acting in the presence of the power that creates the actors, and to inquire by what authority? Of whom should the voter inquire, if not of the very men who were engaged in and directing this work? These men, whether inspectors, supervisors, or marshals, were there acting in the capacity of instructors or assistants, in-the presence of the board of inspectors, the very power under the law that should designate and create assistants or instructors, and were recognized by all as having authority. Were they not, under all the authorities, de facto assistants and instructors? Is an elector to be disfranchised because one of these de facto officers looked upon his ballot? If respondent be ousted from his office, who shall say that no witnesses sworn by him while acting as clerk of the circuit court for the county of Wayne can'be prosecuted for perjury, or that every subpoena or summons signed by him is a nullity, because he was not legally elected to the office of county clerk? Suppose that no assistant be actually designated by the board, but that one should act for the day in the presence of the board; would the absence of an express designation disfranchise the voter? McCrary, Elect. §§ 105, 214, 216.
In Boileau’s Case, 2 Pars. 503, Brightly, Elect. Cas. 268, upon the afternoon of the day of election, one of the clerks of election became intoxicated and unfit for his duties, and, at the request of the inspectors, one Coxe acted as clerk for the remainder of the day, and until about 3 oJclock of the morning of the succeeding day, when the clerk, having *570recovered from liis debauch, appeared and signed the returns. Coxe was not sworn, and was a candidate for assessor at this election. Held, that these facts were not such as should induce the court to set the election aside, and the ground of the decision was that the evidence did not disclose any bad faith on the part of the officers, nor any fraud. In the same case, one Haines, a candidate for judge, was occasionally in the room where the election was held, during its progress and after the polls closed. He opened a few of the tickets, but, being admonished, desisted. Several witnesses testified to his handling tickets, and to his intermeddling. But the court say: “It has not been pretended that this election is in any particular tainted with actual fraud; no evidence has been adduced either showing legal votes to have been rejected or illegal votes received; the election seems to have been honestly conducted,” — and for these reasons the court declined to set it aside. Anderson v. Winfree, 85 Ky. 597.
But it is insisted that in this precinct, and in a large number of others, assisted voters were not first sworn. Whatever may be the construction of section 32 of the act, it is evident from this record that in all but a very few of the districts in the county of Wayne boards of inspectors have construed it to mean that, where the fact that an elector is unable to read English is made manifest, it is not necessary to require the oath provided for by statute. I do not, however, regard this requirement as mandatory. The oath is not required to determine the qualifications of the elector. It will be noticed that our statute does not prohibit the receipt of a ballot unless the voter has been first sworn, or declare that the ballot so received shall be void, but it does provide, by section 36, that ballots not initialed, or which bear a distinguishing mark or mutilation, shall not be counted, and that any ballot from which it is impossible to determine the elector’s .choice shall be *571void. The rule as laid down in 6 Amer. & Eng. Enc. Law, p. 325, is as follows:
“When the election is fair and honest, courts will not disfranchise the voters, unless compelled to do so by the peremptory requirements of the law. Directory provisions are such as are not of the essence of the election, but are enacted as a guide to the officers of the elections. As to what requirements are mandatory, and what merely directory, the cases are not all in agreement, and it may be difficult in some eases to determine from the authorities into which class a provision falls; but it may be said that the tendency of the courts, and also of legislative bodies, is not to hold a provision mandatory, unless it is clearly of such a character that its violation will tend to prevent a correct determination of the result of the election, unless it is declared in the law that its violation shall render the election void. This is true even if the language is prohibitory as to the officers, or even if its violation may subject the offending officer to penal liability.”
Judge McCrary, in his work on Elections (sections 190, 191), states the rule thus:
“If the statute expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statute must so hold, whether the particular act in question goes to the merits or affects the result of the election or no.t. Such a statute is imperative, and all considerations touching its policy or impolicy must be addressed to the legislature. But if, as in most cases, the statute simply provides that certain acts or things shall be done within a particular time or in a particular manner, and does not declare that their performance is essential to the validity of the election, then they will be regarded as mandatory if they do, and directory if they do not, affect the actual merits of the election. * * * Statutes which simply direct the judges of election to number the ballots, without declaring what consequences shall follow if this be not done, may well be held directory only; but, where the statute both gives the directions and declares what the consequences of neglecting their observance shall be, there is no room for construction.” Citing Ledbetter v. Hall, 62 Mo. 422; West v. *572Ross, 53 Id. 350; Jones v. State, 1 Kan. 273; Gilleland v. Schuyler, 9 Id. 569.
See, also, Peard v. State, 34 Neb. 372.
It is true that a number of cases may be found holding certain provisions of certain statutes to be mandatory. The section in question here was not under discussion in Attorney General v. McQuade, 94 Mich. 439. That case came here upon the pleadings, involving grave and flagrant charges. Willful and. fraudulent conduct was set forth. The present case, when here upon the pleadings, did not disclose the real'facts or issues involved. People v. Canvassers, 129 N. Y. 395, was an application for a mandamus to compel the rejection of certain ballots. The court held that the ballots contained distinguishing marks, and were within the prohibition of the statute. The court say, however, that, in the absence of some clear and positive prohibition of the statute against counting such ballots,'the tendency of the courts would undoubtedly be in the direc-' tion of effectuating as far as possible the - intent of the voter. People v. Board of Supervisors, 135 N. Y. 522, and Bechtel v. Albin, 134 Ind. 193, were both cases of marked ballots. In Be Ballot Marks (R. I.), 27 Atl. Rep. 608, the governor requested an opinion as to whether a cross placed at the right of a blank space below the names of the candidates on an official ballot, and opposite no name thereon, should be counted for any candidate on said ballot. The court held that a compliance with the requirement was necessary to determine the elector’s intention, and that the ballot should not be counted. In Baxter v. Ellis, 111 N. C. 124, the court held that the letters O. K., written on the outside of a ballot, are a device within the code, providing thht ballots shall be “ without device,” and that any ballot having a “ device ” on it shall be void. In Phelan v. Walsh, 62 Conn. 260, the principal contro*573versy arose over a large number of double ballots, and upon the construction of the statute respecting their disposition. Other questions related to distinguishing marks upon ballots. In Spurgin v. Thompson, 37 Neb. 39, it was held that the indorsement of the name of “ Eagleham ” upon a ballot was within the inhibition of the statute forbidding the marking of the ballot; and in the sarqe case it was held that, while the statute requires that the cross which signifies the preference of the elector shall in ink be placed in a space designated for that purpose, a ballot upon which such preference is indicated by a cross made with a lead pencil, outside the space designated, but opposite the name of .the choice of the' elector, should be counted according to such manifest intention. None of these cases are opposed to the rule above laid down. The statutes iñ each case contain provisions similar to those contained in section 36 of our own statute, thus bringing the cases within the rule as stated.
In Bowers v. Smith, 111 Mo. 45, there is a very able and exhaustive discussion of the Australian ballot laws of England, Missouri and other states, and of the principle embraced in the rule referred to. The court say:
“Undoubtedly, some irregularities are of so grave a nature as to invalidate the whole return of the precinct at which they occur; as, for example, the omission of registration. Zeiler v. Chapman (1874), 54 Mo. 502. In determining which are of that kind, the courts aim merely to give effect to the intent of the law-makers in that regard, aided by established rules of interpretation. If the law itself declares a specified irregularity to be fatal, the courts will follow that command, irrespective of their views of the importance of the requirement. Ledbetter v. Hall (1876), 62 Mo. 422. In the absence of such declaration, the judiciary endeavor, as best they may, to discern whether the deviation from the prescribed forms of law had or had not so vital an influence on the proceedings as probably prevented a free and full expression of the popular will. If it had, the irregularity is held to vitiate *574the entire return; otherwise, it is considered immaterial. It has been sometimes said, in this connection, that certain provisions of election laws are mandatory, and others directory. These terms may, perhaps, be convenient to distinguish one class of irregularities from the other. But, strictly speaking, all provisions of such laws are mandatory in the sense that they impose the duty of obedience on those who come within their purview. But it does not therefore follow that every slight departure therefrom should taint the whole proceedings with a fatal blemish. Courts justly consider the chief purpose of such laws, namely, the obtaining of a fair election and an honest return, as paramount in importance to the minor requirements which prescribe the formal steps to reach that end; and, in order not to defeat the main design, are frequently led to* ignore such innocent irregularities of election officers as are free of fraud, and have not interfered with a full and fair expression of the voters’ choice.”
In Woodward v. Sarsons, 44 Law J. C. P. 293, it was held that where there was no ground for thinking that the electors had been prevented from voting as they wished, and the election was substantially one by ballot, it would ' not be invalidated because there may have been mistake or misconduct in the use of the machinery of the ballot act; but that, in order to have this effect, the non-observance of the forms of the act must be so great as to amount to conducting the election contrary to the principle of an election by ballot, and be such that it did affect, or might have affected, the result.
The statutes of Illinois provide that no vote shall be received if the name of the person tendering the same be not registered, unless such person shall furnish to the judges of election his affidavit that he is an inhabitant of the district and entitled to vote therein, and also prove by the oath of a householder and registered voter of the district that he knows such person to be an inhabitant of the district; but nevertheless it has been held in that state that when a person votes without having been registered, and without proof of right, and it does not appear that he *575was challenged, or any objection made to his voting, the presumption must be that he was a legal voter, and so known to the judges of the election. Dale v. Irwin, 78 Ill. 170; Clark v. Robinson, 88 Id. 498; Kuykendall v. Harker, 89 Id. 126. In State v. O’Day, 69 Iowa, 368, it was held that no objection could be based upon the fact that an informal oath was administered to a legal voter; that an informal oath is no oath; and that, if the voter was a qualified elector, his ballot was lawfully received, even though he had not been sworn at all.
There is a conflict in the authorities upon this subject. In the case of Reg. v. McNeil, 5 U. C. C. P. 137, where the votes of persons who had refused to take the oath had been received, the court excluded the votes, not because the voters were shown to be disqualified, but because they had refused to take the required oath of qualification; but, as has been said by one writer, where the voter has not been challenged, it may well be doubted whether, in the absence of any showing of fraud, the omission of the officers to require the statutory proof rebuts the presumption that the vote received is legal. In Wisconsin, where it is provided that no person whose name is not on the register shall be allowed to vote without furnishing certain proofs, it is held that this prohibition is mandatory, and that all votes received in violation of the provision should be rejected. State v. Hilmantel, 21 Wis. 566. In a number of cases it has been held, and Judge McCrary, in his work on Elections, upholds this view, that the vote is illegal, but that it may be counted upon proof that the person was a qualified voter. It is not necessary here to determine which rule, in our view, is the correct one, for no such case is here.’ There is an essential difference between requirements which go to the qualification of the elector and those police regulations relative to the means employed to get the ballots of qualified voters into the *576ballot-box, the enforcement of which regulations is committed to officers designated by law for that purpose.
Intelligent men, familiar with the English language, have not readily grasped the intricacies of this new system or of the prescribed ballot. It is notorious that the class of electors who were assisted are wholly unfamiliar with our language. ’ They comprehend an oath from the signs which attend its administration rather than from the language of such oath. These men were duly-qualified electors, under the law. No fraud is charged. The only complaint made is that legal voters, entitled to vote, have voted without the observation of the machinery of the ballot act, —without the observance of a regulation, the enforcement of which was committed to the election officers. Yet those officers directed the conduct of these electors, and, with a full knowledge of the facts, received these votes unchallenged. Under these circumstances, I think the presumption should prevail that these voters bould not read English, and that the inspectors of election were satisfied of that fact.
It is, however, urged that, inasmuch as these voters were not sworn, that part of section 26 which provides that if any elector shall show his ballot, or any part thereof, to any person (other than one lawfully assisting him in the preparation thereof), after the same shall have been marked, such ballot shall not be received or deposited in the ballot-box, applies, so that an exposure to an assistant vitiates the ballot. I do not think that the statute is subject to this strained construction. The oath is to be administered, not by the assistant, but before the board. The language of the section refers to the qualifications of the assistant, and not to the observance by the voter of the provisions of another section. If the provision that the elector should be first sworn is directory only, any process that such ballot passed through in the ordinary *577course did not invalidate it. The question here is not the right of the assistant to refuse to assist, the right of the board to refuse to receive a ballot, or the right of a voter who refused compliance with a requirement, but the rights of those who have complied with all that was required of them.
The purpose of this act is to secure to the elector an opportunity to exercise a sacred constitutional right, and the expression of the will of the majority, as well as to secure the purity and integrity of the ballot. The right of an elector to vote is the paramount right. The act was not framed to prevent the exercise of this right, nor should it receive a construction which will encourage the packing of voting precincts. The electors, and the other actors involved in the charges here made, were innocent of wrong. No voter has been denied the right to vote. All who voted, except, possibly, the 14, had'all the qualifications of electors, and were entitled to vote. The effect of the rulings of the court below is to change a majority of 118 in favor of the respondent to one of 1,926 in favor of relator, and to -disfranchise nearly 3,900 voters.
The construction given to this act by the court below leads to gross injustice, and I cannot but feel that there is fault in such construction, and that such a result was never intended or suspected by the Legislature in framing the act. As is said by Barclay, J., in Bowers v. Smith, supra:
“ While it is well enough to insist on a proper and strict performance of duty by officers conducting elections, we are not of the number of those who imagine that such performance will be promoted by disfranchising the whole body of electors in any locality where errors, such as here charged, occur. The legislature has not- plainly declared such a purpose, and we think it should never be imported into a statute by construction.”