(concurring) :
All the controverted ballots in this case were disposed oí under the principles laid down in Daniel v. Simms, 49 W. Va. 554. No difficulty whatever was experienced in reaching an unanimous conclusion as to every one of them. Many ballots, counted by the board of canvassers and the circuit court, were rejected here, and some not counted by said board and probably not counted by the court, were counted here, and in every instance of counting and rejecting the court acted with joerfect unanimity. My. purpose in writing this opinion is, therefore, not to criti-cise or dissent from any conclusion involved in the decision. It is merely to elaborate upon, and express in my own language, some of the principles which governed the action of the Court in passing upon the ballots.
There were 146 of them, presenting divers methods of marking and raising numerous questions. Most of them, however, called for the application of the statute requiring defacement of all the ballots on the sheet except the one voted, and' the principal questions raised in this connection were what amounts to a defacement and how is the intention of the voter to deface to be ascertained and determined from the marks found on the ballot sheet.
The statute provides that the voter shall deface the ballots not voted “by drawing one or more lines with pen and ink or indelible pencil from the top to the bottom thereof, or across the-heading thereof, or in any oilier way indicating that the same has not teen voted hy the voter." Under the last clause of the statute as quoted above, it was considered and held that a small cross, a straight line up and down the ballot of any length, a number of small crosses at various places on the ballot, or any other sort of line or lines on the ballot or in the heading thereof, is primas, facie a defacement of that ballot. In the first instance, then, the ballots alone are examined, and if it is found that there are marks of some kind on all but one of them, the voter. is deemed to have sufficiently manifested his intention to deface all the ballots except the one left unmarked. In order to deface a ballot, therefore, it is not necessary in all cases that the line or lines shall be across the heading thereof or so drawn as to cover all the names on the ballot.
*417• But this prima facie intention of defacement may be rebutted and overthrown by something else appearing on the sheet. On-some of the ballot sheets, the two middle ballots were wholly defaced by lines drawn from the top- to the bottom, while the-Democratic had a broken line drawn through it leaving one or more names on it undefaced, while on others the Republican ballot was in the same condition. In the absence of anything appearing on the sheet to the contrary, this Democratic ballot would be deemed to have been defaced. But, on turning to the Republican ballot, it is found that the names thereon immediately opposite the undefaced names on the Democratic ballot have been stricken out and all the balance of the Republican ballot left unmarked. This circumstance overthrows the prima facie defacement of the Democratic ballot by showing the intent of the voter to vote for part of the candidates on the Republican ticket and part of the candidates on the Democratic ticket, contrary to the mandate of the statute, and there is no defacement of either the Republican of the Democratic ballot. This is illustrated by the ballots found on page 290 of the record, top page, 292, 302, 304, 310, 314, 336, 342, 360,'364, 468, 390, 396, 398, 402, 414, 416, 420 and others.
This principle is further illustrated by another class of ballots, a representative of which is found on page 284 of the record. The Democratic ballot is prima facie destroyed by a broken line which omits to mark out two names. The two middle ballots on the sheet are defaced by cross marks through the headings thereof. The two names on the Republican ballot immediately opposite the two undefaced names on the Democratic ballot are crossed out. If nothing further appeared, this ballot would be rejected for the reasons above given, as the prima facie defacement of the Democratic ballot is overthrown and rebutted by what appears so far on the Republican ballot. But all this is changed by something further apparent on the Republican ballot. The two undefaced names on the Democratic ballot are written under the two names defaced on the Republican ballot, which shows conclusively the intent of the voter to do all his voting on the Republican ballot. That in the Republican ballot which, without anything further appearing therein, would have negatived the intent to deface the Democratic ballot, manifested by the broken” line drawn through it, *418is overthrown by the transfer of the names, and the prima facie defacement of the Democratic ballot remains unaltered. Further illustrations of this will be found on pages, 159, 195, 213, 251, 255, 306, 312, 320, 344, 358, 388 and 418. A ballot held to be good under this rule is found on page 261. The broken line in the Democratic column left two names untouched, Dodd for circuit clerk and Doll for county clerk. The Bepublican ballot had the name of Dodd’s opponent stricken out and Dodd’s transferred. Prima facie, the Democratic ballot was defaced, and there -was nothing anywhere on the sheet to the contrary except the marking out of G-erhardt’s name, and this circumstance which would have destroyed the ballot was itself overthrown by the transfer of Dodd’s name. Bender’s name not having been stricken out, nothing appeared on the sheet to¡ indicate that the remaining unmarked name on the Democratic ballot was voted.
As between Bender and Doll, the ballot last above described falls under the rule under which the ballot found on page 209 of the record was counted. By a broken line, all the names on the Bepublican ticket were defaced except that of Bender. The two middle ballots were entirely defaced. The Democratic ballot was free from any mark, except one indicating the vote on the road law. It was held that nothing appeared on the sheet to negative the intent to deface the Bepublican ballot, manifested by the broken line, and that the entire Democratic ticket had been voted and the Bepublican ticket defaced. Dpon the same principle, the ballots found on pages 141 and 354 were counted.
A peculiar ballot is found on page 322. The Bepublican, Prohibition and the Anti-Bing ballots are thoroughly defaced by a line drawn from the top to the bottom of each. The Democratic ballot has all the names marked out by a broken line drawn from top to bottom except those of Dodd for circuit clerk and Doll for county clerk. This was rejected by the board of canvassers. . It was counted here for Doll, it being held that there is a presumption that the voter intended to vote for somebody and he had not violated the mandate of the statute by attempting to vote for persons on more than one ballot without transferring the names into a single column. He had thoroughly defaced all the ballots except the Democratic ballot. Upon that ballot he had placed marks which, in the absence of *419•anything to the contrary, would have manifested a sufficient intent to deface it. But this prima facie defacement is over-thrown and rebutted by leaving two names on it unmarked. The •court held the two names to be an undefaced part of the ballot, to be counted under section 66 which impliedly says a part of a ballot shall be counted if it is possible to ascertain from it the elec-tor’s choice of candidates. Every other ballot was thoroughly defaced and part of this one left undefaced. It is a part of a ballot and no mandatory provision of the statute is violated by •counting it. A similar ballot is found on page 308 where the Republican, Prohibition and Anti-Ring ballots are defaced by a line drawn through each of them from top to bottom, and the Democratic ballot has’a line drawn from top to bottom, and the •and through, the name of the candidate for Prosecuting Attorney, leaving all other names on that ballot unmarked. This 'ballot also was rejected by the board of canvassers but counted 'here.
A ballot sheet not counted by the board of canvassers or by this Court is one found on page 382. On each of the ballots a line begins with the senatorial ticket and runs to the bottom, except that the line on the Democratic ticket is broken so as to leave one name at the break unmarked. Prima facie, all of the ballots on this sheet are defaced. The congressional candidate on each of them is left unmarked and one additional candidate •on the Democratic. There is no more reason to say that the voter intended to vote for a man on any one of these ballots •than there is to say he intended to voté for a man on either of ■the others.
These illustrations are sufficient to indicate the application of the principles upon which questions concerning cancellation of ballots were determined.
The other class of questions in the case relate to the intent of the voter as to candidates whose names appeared upon, or are written by him in, the column or ballot he voted. Whatever may be said of the expression in the opinion in Morris v. Wertz, 49 W. Va. 251, which is said to have intimated that the statu-fory provision which says a voter desiring to vote for a person whose name does not appear on the printed ballot selected by him shall erase the namfe of the person whom he wishes to displace by that of another candidate and write the name of such *420other candidate in the blank space below the name erased, is mandatory, it is certainly true, as an examination of the opinion in that case will show, that the point did not arise in the case and nothing called for a decision upon it. It appears in the-opinion in the form of a question. It is also true that it was expressly stated in Daniel v. Simms, 49 W. Va. 554, 574, that. “If the voter has placed the names of all persons for whom he-offers to vote in one column, and has thus prepared his ballot his-vote should be counted, if his intention can be ascertained from that ballot, although he may not' have written the names in the exact places in the column designated by the statute.” This-declares that provision of the statute to be directory and not. mandatory. The question did not arise in that case, but it had arisen in Dunlevy v. County Court, 47 W. Va. 513, and had been there decided in the same way. The statute does not prohibit the counting of the ballot for the person whose name is-transferred because of failure to write it in the space prescribed therefor. . No provision of the statute has been declared to be mandatory except in those instances in which it was declared by the legislature that the ballot should not be counted in case of failure to comply with the statutory requirement. Section 66 does not say every ballot from which the voter’s intention as to-candiates can be ascertained shall be counted, but it contains a provision from which it is naturally and reasonably to be inferred that such was the legislative intention. It prohibits the counting of “fmy ballot, or part of a ballot, from which it -is impossible to determine the elector’s choice of candidates.” The-converse of this, namely, that any'- ballot or part of a ballot from which it is impossible to determine such choice, shall be counted, must be true. If so,-the rules of law governing inquiries -as to-the intent of the voter, except so far as controlled by the statute, must govern in determining from the ballots selected and voted, the persons for whom the elector voted, and, in passing upon the ballots to which 'names have been transferred, these rules, in so-far as they are unchanged by the statute, have been applied. .