concurring:
I concur in the result in this case, but I do not agree with the conclusions shown by point four of the syllabus and the corollary of that conclusion' as expressed in point five. The phrase “law of the case” has received *254frequent and extended treatment. Note' Black’s Law Dictionary, Fourth Edition, page 1030.
It seems that the Court rests its conclusion as to the “law of the case” in the following expressions relative to ballots 8, 9, 10 and 11, precinct number 3, in the City of Williamson, found in the opinion of this Court, written by Judge Riley, in the case of State v. Hatfield, 71 S. E. 2d, page 818, reading as follows: “Ballots 8, 9, 10 and 11, Precinct No. 3, evidently absentee ballots, were not counted by the Board for either party, and were not counted by this Court, since Judges Haymond and Lovins would count them for Hammond, and Judges Given and Riley would not count them for either party. In this regard, therefore, the action of the Board in not counting the ballots is affirmed by an evenly divided Court. These ballots were not placed in the ballot box between the opening and closing of the polls, and, in the opinion of Judges Given and Riley, they are void because Code, 3-6-1Ó, as amended and reenacted by Section 10, Article 6, Chapter 44, Acts of the Legislature, 1941, has not been substantially complied with. Ballot 8 bears distinct Xs in the Republican circle and in the squares before the names of Hammond and the Republican candidate for Council in the Second Ward. Ballot 9 bears a distinct X in the Republican circle and no other mark on the face thereof. Ballot 10 bears distinct X marks in the squares before the names of Hammond and the Republican candidate for Council in the Second Ward, and no other mark on the face thereof; and ballot 11 bears distinct Xs in the squares before the names of Hammond and the Republican candidate for Council in the Second Ward and no other mark. Were it not for the irregularity in depositing these ballots in the ballot box before the closing of the polls, they should have been counted for Hammond.”
A determination of a matter of law or fact must be clear and certain, as will appear from the following points of the syllabus in Windon v. Stewart, 48 W. Va. 488, 37 S. E. 603. “1. When a question of law or fact is *255definitely determined by the Supreme Court, and the case remanded to the circuit court for further proceedings, a party cannot, by new pleadings or evidence, reopen that question. 2. In order that a former decision shall operate as res judicata, it must be certain and clear that the precise question was definitely and finally determined; it cannot be made out by inference or argument.” Applying the foregoing, I fail to see anything definitely or clearly decided in the language used by Judge Riley in the opinion of State v. Hatfield, supra, quoted above. Certainly, the law of the case is binding when there has been an actual, definite decision, but I fail to see any decision in the case of State v. Hatfield, supra, with respect to the ballots above mentioned. The Court’s- opinion in that case disavows any decision whatsoever, because of a divided Court.
By some process of reasoning, unknown to me, the Court’s opinion in the instant case states that it is the law of the case. I am not conscious that the Court decided anything as to the validity of the four ballots in precinct 3. See Campbell et al. v. Lynch et al., 88 W. Va. 209, 212, 106 S. E. 869; Kaufman v. Catzen, 108 W. Va. 1, 150 S. E. 371.
As I understand, in the case of State v. Hatfield, supra, this Court did not decide any issue of fact or law, with respect to the four ballots. Hager v. Coal Co., 112 W. Va. 479, 164 S. E. 666; Smith v. Gas Co., 115 W. Va. 127, 174 S. E. 782; Reynolds v. Railway Co., 117 W. Va. 359, 185 S. E. 568; Moran v. Coal Co., 124 W. Va. 54, 62, 18 S. E. 2d 808; Ice & Fuel Co. v. Dankmer, 125 W. Va. 299, 24 S. E. 2d 89; Mining Co. v. Klefeld, 125 W. Va. 301, 24 S. E. 2d 98. All that was done by this Court in the case of State v. Hatfield, supra, was to set out the facts with respect to the four ballots in precinct 3 and state that the Court, as then constituted was evenly divided and that we did not decide questions relative to the four ballots. I think it is doing violence to logic to say that this Court made any decision whatsoever, either of law or fact, with re*256spect to those four ballots. The quoted language here-inabove set forth clearly shows that.
Another question arises upon considering the validity of the four ballots rejected by the Board and not counted or ruled on by this Court in the case of State v. Hatfield, supra.
The four absentee ballots seem to have been rejected for the reason that the four ballots in precinct 3 were absentee ballots, though clearly marked for Hammond. As shown by this Court’s opinion in State v. Hatfield, supra, the ballots seem to have been overlooked by the election officers and not counted until after the precinct certificate of the results had been posted. The pertinent statute reads as follows: “At any time between the opening and closing of the polls on such election day, the commissioners of election of such precinct, in the presence of each other, shall open the outer or carrier envelope only, announce the absent voter’s name and compare the signature upon the application with the signature upon the affidavit on the ballot envelope and upon the voter’s registration record. In case the election commissioners find the affidavit properly executed -and attested, that the signatures correspond, that the applicant is a duly qualified elector of the precinct, that he is duly registered, and that the applicant has not voted in person at such election, or, in case of a primary election, if he has not previously exercised the right of suffrage, if he shall have executed the proper declaration relative to his age and qualifications and the party with which he intends to affiliate, the election commissioner shall open the envelope containing the absent voter’s ballot in such manner as not to deface or destroy the affidavit therein and take out the ballot or ballots inclosed therein, without unfolding or permitting the same to be unfolded or examined. The commissioners shall then deliver such ballot or ballots to the poll clerks, who shall at once proceed to write their names on the back of each of such ballots in the same manner as other ballots are required to be endorsed. A commissioner shall thereupon deposit the *257same in the ballot box, and the poll clerks shall indicate in the appropriate place on the registration record in the same manner as if he had appeared personally, the fact that such absent voter had voted, and shall enter the absent voter’s name on the poll book. In the event that such affidavit is found to be insufficient, or that the signatures do not correspond, or that the applicant is not a_duly qualified elector in such precinct, or that he has voted in person at such election, or that he has not registered, or that the ballot is open, or has been opened and resealed, or that the ballot envelope contains more than one ballot of any one kind, or, in case of a primary election, if he shall have failed to execute the proper declarations relative to his age and qualifications and the party with which he intends to affiliate, the procedure to be followed shall be as prescribed in this chapter relating to challenges at the polls: Provided, .That a notice of such a challenge shall be sent by the clerk of the county court to the respective absentee voter by registered mail, with return receipt requested.” Chapter 44, Article 6, Acts of the Legislature, 1941, Eegular Session.
It will be noted that the entire statute consists of directions to election officers as to the method of handling absent voters’ ballots. Mistakes and irregularities caused by the voter, in some instance, destroy the ballots, but mistakes and irregularities in elections made or caused by officers of elections do not affect the election if a fair election has been held. In other words, a statute requiring election officers to perform certain acts was generally held to be directory. In Morris v. Board of Canvassers, 49 W. Va. 251, 38 S. E. 500, 505, in the body of the opinion will be found the following language: “We know of the large volume of law that statutes regulating elections are frequently treated as directory, and that mistakes and irregularities should not disfranchise a voter, or deprive a candidate of his vote, where the purpose and intent of the voter can be ascertained. Loomis v. Jackson, 6 W. Va. 613; Dial v. Hollandsworth, 39 W. Va. 1, 19 S. E. 557.” The foregoing principle has been uniformly followed in this jurisdiction in accord with the following statute: “No bal*258lot shall be rejected for any technical error which does not make it impossible to determine the voter’s choice.” Chapter 44, Article 5, Section 19, Sub-paragraph (b) (3), Acts of the Legislature, 1941, Regular Session. To the same effect is Chapter 3, Section 34, Sub-paragraph (c), Barnes’ West Virginia Code Annotated, 1923. To me, this amounts to a statutory command from the legislature to count the four ballots in precinct 3. The objection thereto is highly technical. Phillips v. Board of Canvassers, 64 W. Va. 715, 717, 63 S. E. 392. Section 724 of McCrary on Elections reads as follows: “ ‘The weight of authority is clearly in favor of holding the voter, on the one hand, to a strict performance of those things which the law requires of him, and, on the other, of relieving him from the consequence of a failure on the part of election officers to perform their duties according to the letter of the statute, where such failure has not prevented a fair election. The justice of this rule is apparent, and it may be said to be the underlying principle to be applied in determining this question’ ”. The above is quoted with approval in Hatfield v. Board of Canvassers, 98 W. Va. 41, 57, 126 S. E. 708, 714. See Rollyson v. Court, 113 W. Va. 167, 167 S. E. 83; Chapman v. Co. Court, 113 W. Va. 366, 168 S. E. 41; State v. Canvassers, 113 W. Va. 498, 168 S. E. 793; Brown v. Carr, 130 W. Va. 455, 460 43 S. E. 2d 401; State v. Mills, 132 W. Va. 580, 53 S. E. 2d 416.
It will be thus, seen by regular and uniform treatment, this Court has followed the statutory command and has refused to reject ballots for technical reasons, when the intention of the voters could be ascertained from the face of the ballots.
Undoubtedly, ballots numbered 8, 9, 10 and 11 show the intent of the voters to cast their ballots for Hammond, and they have been rejected because of an alleged ruling in the case of State v. Hatfield, supra, by a divided Court. That is not my concept of a ruling, a decision or a judgment on a question of law and fact constituting the “law of the case”. I would therefore count ballots numbered 8, 9, 10 and 11 cast at the election held June 10, 1952, in precinct number 3 of the City of Williamson for Hammond.