tention of the legislature in enacting the ballot except a lawful one. A lawful ballot statute in question. It is there said: "It is an official ballot officially stamped and marked with the initials or name of a judge of the election and offered by a qualified elector during the time of election." They left in force § 130, providing that "in the canvass of the votes any ballot which is not indorsed by the official stamp, or has not the name or initials of the judge of election, as provided in this act, shall be void, and shall not be counted."

is safe to say that the framers of the Austra-
lian ballot law,
many of them men
of prominence in the history of the state,
never contemplated the wholesale disfran-
chisement of electors through the negligence
of election officers. I think they will stand
aghast at such an interpretation of their
statute." As to this it is only necessary to
say that our legislators have expressed their
intention, in language too plain for interpre-
tation or construction, that some ballots
shall be void, and shall not be counted. It
is not material on this point whether the bal-
lots in question in this case are such ballots
or not. When, in any case, ballots from any
precinct, or from any number of precincts,
come within the description of ballots which
these prominent legislators have declared
shall be void and shall not be counted, and
when they stand aghast at the result, they
can only reflect that the work is their own,
and not that of the courts. After thus ap-
pealing to the intention of the legislators,
the dissenting opinion insists that such in-
tention, whatever it may be, shall be utterly
disregarded, and set at naught as unconstitu-
tional. Into such inconsistencies are able
and ingenious jurists driven in attempting
to defend indefensible positions.

It is safe to say that these successive legislatures in preserving these sections did not think that they were violating the Constitution, or impairing the constitutional rights of electors. It is safe to say that they intended these provisions to have effect and to be enforced, and that the prohibited ballots should not be counted. And while they were doing this, so far as we have been able to ascertain, assisted by the diligent research of counsel and of the dissenting justice, there could not be found a decision of any court, or an opinion of any judge denying the constitutional authority of the legislature of a state to pass a law defining a lawful ballot, and prohibiting the counting of ballots which are not lawful. These provisions, and the entire system of voting known as the Australian ballot law, are intended to prevent fraud. It is poor consolation to the honest The statutory provisions under considera- voter to cast his vote and have it counted tion are part of an act of the last territorial when he knows it may be offset by a purlegislature, consisting of one hundred and chased vote. It is poor consolation to the eighty-four sections entitled "Elections," ap- majority of honest voters of a populous disproved March 14, 1890. At that time the trict to cast their votes and have them countConstitution had been ratified by popular ed when they know that their majority will vote by an overwhelming majority. The be met and overwhelmed by the votes of legislature, fresh from the people who had hordes of hired ruffians and repeaters. It is so recently ratified the Constitution, enacted poor consolation to them to go into court this law. It is safe to say that the members for a remedy, and vainly attempt to get eviof this legislature did not regard as uncon-dence of frauds which are notorious, while stitutional the provision that certain ballots the successful criminals are laughing at their should be void, and should not be counted. futile efforts. It is notorious in the recent The first state legislature re-enacted, gener- history of the country that such frauds, comally, all the statutory law of the territory mitted with impunity, were attaining such not repugnant to the Constitution. Sess. enormous proportions, and were becoming so Laws 1891, p. 157. This legislature also habitual, that thoughtful patriots believed amended the election law in some particu- that the foundation of popular government lars, but in no point affecting the decision of was being undermined and its perpetuity the questions reserved in this case. The sec- threatened, and all the while there were laws ond state legislature did not amend this law upon the statute books for the punishment of in any particular. The third state legisla- such crimes; and all the while laws were in ture amended the election law in some of its force and the courts were open for the corprovisions, but not in any point affecting the rection of the results of these crimes by questions under consideration. These suc- which the popular will was defeated. And cessive legislatures left in force § 119, that all the while the successful conspirators were "before delivering any ballot to an elector carrying out their nefarious schemes with the said judges shall print on the back and effect, educating hordes of retainers in venalnear the top of the ballot, with a rubber or ity and corruption, defying the popular will, other stamp provided for the purpose, the and challenging the better elements of socidesignation 'official ballot,' and the other ety with the self-convicting question, exwords on the official stamp as hereinafter pressed generally in action, but sometimes in provided, and one of the said judges shall words: "What are you going to do about write his name or initials upon the back of it?" This is no imaginary picture. Words each ballot, and directly under the said of- fail in adequately depicting the reality in its ficial stamp." They left in force § 118, pro- true colors. The controlling principle in the viding that "no judge of election shall de- operation of these enemies of popular gov posit in any ballot box any ballot upon which ernment, so long expressed in their actions, the official indorsement does not appear." and so long and so successfully carried into They left in force § 164, providing that "no effect, has recently been confessed and proofficer shall deposit in the ballot box any claimed in clarion tones in the constitutional

convention of South Carolina by the honorable member from Berkeley in these words: "We do not want fair elections!"

and repeated opportunities to repeal or mod-
ify it through its legislators. But this is
straying from the question: Is the law con-
stitutional? From considerations already
advanced, and authorities already cited, I
am of the opinion that it is. The former
order of this court will stand.
Rehearing denied.

Potter, J., concurs.

Evils of this nature, so monstrous in older communities, were threatening Wyoming. Wyoming does want fair elections. Legislators, truly prominent in the history of the state, men of integrity and ability, have devoted their best thought to devising and perfecting a plan to meet and crush such frauds in their inception. Prevention is better than attempted cure. The result of their sustained and persistent labor is the present election law. By this law, Wyoming, in this case I have seen nothing to change through four successive legislatures, has said that she does want fair elections. This law is her answer to the question, "What are you going to do about it?"

Groesbeck, Chief Justice:

I dissent. Since a rehearing was ordered

my views as announced upon the original hearing. Indeed, since my opinion was filed, decisions in parallel cases, including some very recent ones, have intrenched my position.

There can be no question that all of the disputed ballots, which were all of the ballots voted at three precincts in Converse county, were honestly cast and honestly counted. There is no imputation or sugges tion of fraud in the case, and it is apparent that if the ballots are illegal they become so through the failure of the judges of election, or some of them, to make or cause to be made all the indorsements thereon mentioned in the act.

The provision of law quoted in the majority opinion was doubtless enacted for the purpose of preventing ballot-box stuffing, and the voting of other then the official ballots, not to work a wholesale disfranchisement of honest and unsuspecting voters. of the great maxims of interpretation, to keep always in view the general scope, object, and purpose of the law, rather than its mere letter." Rutledge v. Crawford, 91 Cal.

"It is one

One provision of this law was considered so essential to the prevention of fraud, bribery, intimidation, and corruption, that it is put in language expressly mandatory. It specifies certain ballots which shall be void, and shall not be counted. This provision is attacked as repugnant to the Constitution. We are asked to declare it so by what we must regard as an innovation in the law of statutory construction, opposed to the great weight of authority, and without foundation in sound reason. The distinguishing feature of this statute, as compared with former election laws, is the prevention of fraud. The construction contended for would destroy this feature. It would relegate the wronged and defrauded public entirely to the old remedies by criminal actions and election contests, prosecuted after the harm was done. These were the remedies which so often, and for so long a time, proved inefficient, and which the legislature has endeavored to supplement, by efficient prevent-533, 13 L. R. A. 761, 27 Pac. 779. Laws ive measures. The fear of punishment has never been found to be an efficient safeguard against political crimes. Let it once be known that the most mandatory provisions of our election law may be disregarded, and then there is at once destroyed all the security for the purity of elections which the law furnishes above former laws. Nothing more is required for the destruction of the barriers which Wyoming has erected for the protection of the honest verdict of her legal electors as expressed at the polls against the machinations of political tricksters and criminals. Nothing more is necessary to reopen the floodgates of fraud. Nothing more is necessary to restore the old order of things under which, in older communities, crime has reared aloft its brazen front in the sight of all the world; has defiantly stalked abroad in the light of the noonday sun; has placed its minions in positions of power, of trust, of honor, and of profit; has educated its votaries to regard crime as honorable, and to think and expect that successful crime should be abundantly rewarded.

The legislators of Wyoming have done their work carefully, and, it would seem, wisely and well. That it is satisfactory to the people is evidenced by their preserving every distinguishing feature of the work after repeated tests in its political operation,

are to be construed according to their spirit and meaning, and not according to their letter. Assuming the constitutionality of a law, before it should be construed to work the disfranchisement of an elector, it must be clear. that under the circumstances then existing, the legislature intended such to be the case. "All statutes tending to limit the exercise of the elective franchise by the citizen should be liberally construed in his favor, and unless a ballot comes within the letter of the prohibition against a particular kind of a ballot, it should be counted. A great constitutional privilege the highest under the government-is not to be taken away on a mere technicality, but the most liberal intendment should be made in support of the elector's action, whenever the application of the common sense rules which are applied in other cases will enable the courts to understand and render it effectual." Talcott v. Philbrick, 59 Conn. 485, 10 L. R. A. 150, 20 Atl. 436. These extracts are taken from the recent decision in Nevada in the case of Buckner v. Lynip, 22 Nev. 426, 30 L. R. A. 354, 41 Pac. 762, where the statute provides that any vote not bearing the water-mark "and" any ballot on which appear names or marks written or printed, shall not be counted, and where it was held that ballots should be counted from which the in

its enactment in respect to its provision denouncing certain ballots as void and declar. ing that they should not be counted. This statement is easily answered. This provision has never before been brought to the attention of the courts of this state for consideration. I mistake the temper of the people of this state if it shall remain unmodified, for I think the construction adopted is abhorrent to reason, and is destructive of popu lar government. No other law would be construed as harshly as this one has been, and no law should be more liberally construed than this one, in order that it may not be a reproach to our jurisprudence, and accomplish fraud by neeking to prevent it. Election contests have been rare in this jurisdiction before the passage of this law, but the present act has been, like many new enactments, a fruitful source of contention. It is to be regretted that our young commonwealth is not to take its place in the van with those states where the Australian bal lot law has received a liberal and broad construction so as to jealously guard the most sacred of our rights, the right of every qual ified elector to cast one vote, and to have that vote honestly counted.

spector or judge of election failed through the law has stood without amendment since ignorance to remove strips bearing the number, though his failure to detach the strips made the ballot capable of identification, and this decision was in the face of positive provisions of the statute. The court was loath to give such a liberal interpretation to the law as to reject these ballots, and it looked to the evident purpose and spirit of the act, very properly holding that the law did not contemplate a sweeping disfranchisement of qualified electors through the carelessness or inefficiency of election judges. This court quotes with approval from other authorities, which are applicable in the case at bar: "These cases cannot all be harmonized, but the general trend thereof has been to recognize a clear distinction between those things required of the individual voter, and those imposed upon election officers. There is a disposition to hold the former valid and mandatory, but where there has been a substantial compliance with the law on the part of the individual voter, and it is made to appear that there has been, in fact, an honest expression of the popular will, there is a well-defined tendency to sustain the same, although there may have been a failure to comply with some of the specific provisions of the law upon the part of the election offi- It was held in Canada, in an early case, in cers, or some of them." Moyer v. Van Wigmore, Australian Ballot System, p. 194, de Vanter, 12 Wash. 377, 29 L. R. that although at a certain polling place none A. 670, 41 Pac. 60. The language of of the ballots deposited had the initials of the opinion in the case of Parvin v. Wim- the election officers on the back as required berg, 130 Ind. 561, 15 L. R. A. 775, 30 N. E. by law, that as the irregularity occurred on 790, is also quoted with approval by the Ne- all the ballots, without reference to a parvada court: "A study of the statute upon ticular candidacy, and was evidently the rethe subject of elections leaves no doubt that sult merely of the ignorance of the election its purpose is to secure a fair expression of officers, the ballots were valid. Ex parte the will of the electors of the state, by secret Tremblay (1887) 13 Quebec L. Rep. 64. It ballot, uninfluenced by bribery, corruption, may be that the provincial statute did not or fraud. The disfranchisement of whole contain the mandatory language of our statprecincts by reason of an honest mis- ute, denouncing such ballots as void, and take on the part of election officers is incon- providing that they should not be counted; sistent with this purpose." These are golden but I think this makes but little difference words, and ought to govern the disposition in principle. The legislature certainly could of this case, for by giving a literal meaning never have intended to mean that all of the to the law, its very purpose is defeated, and ballots cast at a polling precinct should be its enforcement is made most grievous to excluded because they do not contain all of bear. The object of the provision was to the indorsements mentioned in the act, identify the votes, and to preclude the re- where it does not appear that there was a ception and counting of illegal ballots, but design to evade the statute or to effect a it certainly could never have been intended fraud on the part of the electors, or in the by the legislature to have the law read so as action or failure to comply with the provito practically disfranchise all of the electors sions of the act on the part of the judges of of one or more precincts, through the inad-election, and where it must be inferred that vertence or negligence of election officials. such failure to comply with the strict terms Under the decision of this court, it would of the law was owing to the carelessness or seem that there is no remedy for the electors inadvertence of the judges of election. The who have been deprived of their suffrages, provision, even though mandatory in its nor for the candidate who has been deprived terms, is not quite clear in denouncing the of his office, for he cannot show by evidence ballots as illegal for a lack of all of the inaliunde that these votes were in fact honestly cast and honestly counted. dorsements, but a survey of the whole act, interpreta- keeping in view the great object in its enacttion of the law, even if its construc- ment, makes it plain that it was never intion should be what my brethren have made tended to defeat the popular will by casting it, as I think it is making the law an engine out bodily the entire votes of districts by any of oppression, while its aim and object was provision of the statute. It was intended to suppress fraudulent voting and to secure to prevent the voting of any ballot but an of pure and free elections. Some stress is laid ficial one received from the proper officials in the majority opinion upon the fact that and deposited by the electors who so received

cannot consent to such an

I

it. It is clear that none but official ballots Constitution, seems to us a clear proposiwere cast and counted, and this is sufficient, tion. Were we authorized to hold otherwise, as the statute, however it may be construed, such a holding would be subversive of the is but a means to an end, and if the end in view has been attained that is sufficient. I adopt the views of Judge Peckham, recently promoted to the Supreme Court of the United States, from his dissenting opinion in the case of People ex rel. Nichols v. Onondaga County Canvassers, 129 N. Y. 448, 449, 14 L. R. A. 624, 29 N. E. 327: "But a mere inadvertent mistake of an officer ought not to work such an extreme penalty as disfranchisement on innocent electors." "It seems plain to me that those purposes (of the election act) are endangered, if not frustrated, by a construction which in my judgment is unreasonable and unnecessary, and by which thousands of perfectly innocent electors may annually be disfranchised without fault on their part, and the will of the majority be thus set at naught."

best interests of society, and might result in great peril to our governmental structure. Such a holding is not necessary to preserve the purity of elections, for provision can be made for the investigation of charges of actual fraud upon the part of electors and election officers. It would be an interminable task to refer to each of the cases cited in detail, and we content ourselves with giving our conclusions drawn from all of them. No decision cited has gone to the extent that we are asked to go by the appellant in this case; and to accord with the general holdings of the courts, as we understand them, in the light of what has actually been decided in the cases, we are compelled to hold that the provision aforesaid against counting ballots where no initials are placed thereon

cannot be sustained."

The court puts the distinction very clearly as to statutes held to be mandatory and constitutional, and those that are not; the former is where the voter is required to do certain things, and is charged with obedience to the regulation, and the latter where certain duties devolve upon election officials, a distinction. I think, the majority of this court have overlooked. The majority opinion states that this decision by the Washing. ton supreme court is against the weight of authority. I think not. Neither is it based upon constitutional and statutory provisions differing in any material respect from our own.

The case of Spurgin v. Thompson, 37 Neb. 39, 55 N. W. 297, relied upon in the majority opinion, does not go to the extent claimed therein. As I understand the facts in the case, a name appeared written on the ballot which was inferred to be that of an elector, and so it was rejected, and not because the name of the election officer was not thereon. A review of all the cases bearing upon the construction of statutes similar to ours convinces me that no provision of the act before us should be allowed to operate against the evident object and purpose of the act, and to bring it into contempt and reproach, by making it a means of disfranchisement of whole districts, and its technical violation The provision of our Constitution invoked result in the conversion of a minority of by the majority of this court reads as folelectors of a county into a majority. The lows: "The legislature shall provide by ballots are delivered to the electors by the law that the names of all candidates for the judges of election, received again by them, same office, to be voted for at any election, and deposited in the ballot box and counted, shall be printed on the same ballot, at pubalthough, perhaps, not indorsed with all the lic expense, and on election day to be delivmatters required by the statute, are suffi- ered to the voters within the polling place by ciently identified as official ballots, and sworn public officials, and only such ballots should not be rejected. so delivered shall be received and counted." 2. But the great question at stake in this This provision does not qualify in any mancase is, assuming that the statute is as it is ner the other constitutional provisions which construed by the majority of this court, grant the right to vote to persons having the whether it would be permitted to disfran- qualifications provided in the Constitution. chise all of the electors of one or more pre-It certainly affords no warrant nor authorcincts because a judge of election has failed to make certain indorsements upon the ballot, which it is contended are required by the statute, whether it would be constitutional. The case of Moyer v. Van de Vanter, 12 Wash. 377, 29 L. R. A. 670, 41 Pac. 60, is directly in point. The provisions of the Washington statute are as follows: "In the canvass of the votes, any ballot which is not indorsed, as provided in this chapter, by the official stamp and initials, shall be void, and shall not be counted," etc. The court said: "The failure to comply with the law appears to have been due to ignorance of its provisions on the part of the election officers. That the prohibition aforesaid against the counting of these votes, under the above circumstances, is an unreasonable one, and in conflict with the right guaranteed by the

ty for the enactment of any law which could be so construed as to exclude the ballot of any qualified elector which has been delivered to him by a sworn public official in the polling place, and which was received from him and deposited in the ballot box by one of the judges and counted by all of them. It is asserted that this provision and the corvide adequate means for identifying the balresponding constitutional authority "to prolots received and counted as those delivered to the voters within the polling place by sworn public officials, and to provide by statute the means to secure the constitutional result that only such ballots so delivered shall be received and counted. If the legis lature may not provide the means, it cannot secure the result." The legislature undoubt edly may provide the means for identi 'fication, but not to such an extent as to de