(dissenting) — I dissent from the majority opinion. I cannot agree that the votes lawfully cast at a lawful election for one man may be counted for another, after the election, by the courts.
If that rule is approved, then election to office in this country does not depend upon the action of the voters in casting their ballots at the time of .the holding of a lawful election, but depends upon investigation after the election, whether certain voters would have voted for the contestant, if they had known that he had been nominated by a particular political party whose general ticket was used by them in preparing their ballots. To support this theory evidence would have to be taken .after the election was over, as to what the respective voters would have done under circumstances not present at the.election. This .was done in this case, and upon the results of that inquiry the contestant now asks that votes which were actually cast against him should be counted for him. In effect, that another election should now be held through the medium of testimony given in a contest suit, whereat, after a recanvass of the votes based upon an assumption of what the voters might have done, this court should adjudge a man to be elected to an office for which he was defeated by the plurality of the ballots actually cast at a regular election for the filling of that office.
To my mind such a contention is the height of unreason. Confessedly it is one to which no court has as yet lent its countenance. If it should now receive judicial *460sanction, the result would necessarily follow that any lawful election, held in strict conformity to law and free from any imputation of fraud or unfairness, would constitute only a conditional choice, subject, to be changed as to the persons chosen by the ballots cast at the election, by the subsequent testimony of the voters that, through their own negligence or lack of knowledge, they actually voted for a man for whom they would not have voted, if they had been fully informed as to the,- candidacy of another at the time when ballots were cast. Such a contention is not only irrational, but, if sustained, would open the flood-gates for fraud in the matter of elections to office. I cannot assent to the right of this court to install a man into an office for which he was defeated at the polls. Courts are not “electoral commissions” and have no power to substitute their appointee for the person elected by the votes of the people.
II. The construction sought to be forced by the majority opinion upon the statutes referring -to party ballots, would obviously defeat the voters’ freedom of choice, and in other vital respects would violate the fundamental principles of all free elections. .
III. As to the question of the acceptance of the office by the contestee under the circumstances, that is a matter left to his personal judgment, with which this court has nothing to do, in the absence of any showing of invalidity of the ballots cast in his favor or fraud in the -election. The sole question for this court to determine is the fact of the election or non-election of the person now seeking the office through this contest. There being no doubt that he did not receive a plurality of the lawful ballots cast ,at a lawful and closed election, his petition should be dismissed.
For these reasons I record my protest to the ruling in the majority opinion.
Walker, J., concurs in these views.