On Motions for Rehearing.
We are of the opinion that we were in error in stating, in our original opinion, that the trial court erred in not requiring further proof with reference to the ballots marked “Mutilated". The record shows that the presiding judge of the election, Raul Gonzalez, identified those ballots and testified that the ballots marked “Mutilated” were ballots regularly cast at the election, and each had a number on it. Presumably there was a corresponding stub number in the stub box for each of these ballots. No one seemed to question this matter. He further testified that the only reason he rejected these ballots and refused to count them was that he considered them “Mutilated Ballots”, and that they were marked in such a manner that he was unable to determine the intention of the voters, or they were torn and thereby mutilated, in his opinion. This evidence was sufficient to justify the trial court in counting such of these ballots as were marked in a manner to indicate the intention of the voter. This does not change our former judgment reversing and remanding this cause.
Appellees raise the further question that we should have upheld the trial court’s action in counting the absentee ballots where the stub and the ballot were both placed in the envelope intended only for the ballot. Appellees contend that while it would have been a violation of the law for the election judge to have opened the envelope which contained both the ballot and the stub, and to have placed the stub in the stub box and the opened envelope containing the ballot in the ballot box, yet the trial judge may open the envelope which the election judge refused to open, and if he finds therein both the stub and ballot, he may count such ballot. We do not agree. Art. 5.05, Subd. 6, Election Code, as amended in 1959, V.A.T.S. provides for the method of opening, casting and counting absentee ballots. When the stub is sealed with the ballot in the ballot envelope, it cannot be cast and counted by the election officials without violating the provisions of the Election Code providing the method of casting and counting absentee ballots. The election judge here followed the letter of the law in not casting and counting the forty-nine absentee ballots when he found no stub in the carrier envelope, and he could not open the ballot envelope in search of such stub without violating Art. 5.05, Subd. 6, supra. Where the election judge followed the law in not casting and counting such absentee ballots, they should not be later cast and counted by the trial judge in an election contest. We feel that the provisions of Art. 5.05, Subd. 6, as amended in 1959, are mandatory, and to hold otherwise would open the door to fraud and destroy the secrecy of the ballot.
In their motion for rehearing, appellees further contend that while Subd. 6 of Art. 5.05, gives, to the special election canvassing board provided for in countywide elections, authority to pass upon the qualifications of absentee voters and to reject absentee ballots, that no such authority is given to the presiding judge of an election, where the election is one less than county-wide. We feel that when Art. 5.05, supra, is considered as a whole, the powers given to a special election board of three or more, when the election is county-wide, are necessarily given to the judge or judges of an election that is less than county-wide. If this interpretation is not given to Subd. 9 of Art. 5.05, Election Code, then there is no method provided for the casting of absentee ballots in elections less than countywide. Subdivision 9, reads in part:
*278“On the day of such election the absentee votes cast in elections less than county-wide shall be opened by the election judges of the precinct holding said election in accordance with the provisions set out in Subdivision 6 above.”
This means that in elections less than county-wide the election judges exercise the same authority over the absentee ballots, as is exercised by special canvassing boards in county-wide elections, otherwise we would have a complete hiatus in our election laws with reference to absentee ballots in elections less than county-wide. So far as this record shows, Raul Gonzalez was the only election judge at this school trustee election; therefore, it was his duty to exercise the duties which he did exercise. No doubt, he had clerks serving with him, but clerks cannot pass upon such matters as a challenge to a voter.
What we have said above in no way changes our conclusion that this case should be reversed and remanded for a new trial.
Appellants’ and appellees’ motions for rehearing are overruled.