State, ex rel. Waggoner, v. Russell. ORIGINAL application for mandamus. C. C. Flansburg, for relator. R. L. Keester, contra. POST, J. At the general election in 1891 the relator and one Cassell were opposing candidates for the office of supervisor of Mullally township, Harlan county, and upon a count thereof each was credited with thirty-two votes. There was cast, in addition thereto, one vote for the relator, otherwise regular, but the mark opposite his name was made with a lead pencil instead of ink. The respondents, who were the judges and clerks of election, rejected said ballot, and relator now seeks a peremptory order from this court requiring them to meet and count said vote in his favor and declare the result. The question presented involves a construction of section 20 of the act approved March 4, 1891, known as the Australian ballot law. The provisions of said section, so far as they are material in this connection, are as follows: "SEC. 20. When any duly qualified elector shall present himself at the polling place of his election district or precinct, for the purpose of voting at any election then in progress, he shall receive from a member of the election. board a ballot upon the back of which two members of the board shall first write their names in ink; the elector shall then forthwith proceed alone into a compartment, if one be then unoccupied, and shall prepare his ballot by marking in the appropriate margin or place a cross (X) with ink opposite the name of the candidate of his choice for each office to be filled, or by filling in with ink the name of the candidate of his choice in the blank space provided therefor, and marking a cross (X) with ink opposite thereto; and in case of a question submitted to the vote of the peo State, ex rel. Waggoner, v. Russell. ple, by marking in the appropriate margin or place a cross (X) with ink against the answer he desires to give." In the construction of statutes of this character it is important to keep in mind two recognized principles: First-That the legislative will is the supreme law and the legislature may prescribe the forms to be observed in the conducting of elections and provide that such method shall be exclusive of all others. Second-Since the first consideration of the state is to give effect to the expressed will of the majority, it is directly interested in having each voter cast a ballot in accordance with the dictates of his individual judgment. Recognizing the principle first stated the courts have uniformly held that when the statute expressly or by fair implication declares any act to be essential to a valid election, or that an act shall be performed in a given manner and no other, such provisions are mandatory and exclusive. By an application of the second principle, the courts, in order to give effect to the will of the majority and to prevent the disfranchising of legal voters, have quite as uniformly held those provisions to be formal and directory merely, which are not essential to a fair election, unless such provisions are declared to be essential by the statute itself. Judge McCrary, in the last edition of his excellent work on the Law of Elections, section 190, states the rule as follows: "If the statute expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statute, must so hold, whether the particular act in question goes to the merits, or affects the results of the election or not. Such a statute is imperative, and all considerations touching its policy or impolicy must be addressed to the legislature. But if, as in most cases, the statute simply provides that certain acts or things shall be done, within a particular time, or in a par State, ex rel. Waggoner, v. Russell, ticular manner, and does not declare that their performance is essential to the validity of the election, then they will be regarded as mandatory if they do, and directory if they do not, affect the actual merits of the election." Mr. Paine, in his work on Elections, section 498, expresses the same views in the following language: "In general those statutory provisions, which fix the day and the place of the election, and the qualifications of the voters, are substantial and mandatory, while those which relate to the mode of procedure in the election, and to the record and the return of the results, are formal and directory. Statutory provisions relating to elections are not rendered mandatory, as to the people, by the circumstance that the officers of the election are subjected to criminal liability for their violation. The rules prescribed by the law for conducting an election are designed chiefly to afford an opportunity for the free and fair exercise of the elective. franchise, to prevent illegal votes, and to ascertain, with certainty, the result. Generally such rules are directory, not mandatory, and a departure from the mode prescribed will not vitiate an election, if the irregularities do not deprive any legal voter of his vote, or admit an illegal one, or cast uncertainty on the result, and have not been occasioned by the agency of a party seeking to derive a benefit from them." The view expressed by these authors has the support of the great majority of cases in this country and England. In fact we are not aware that there is to be found in the reports any diversity of opinion on the subject. The following are a few of the many cases in point: Gass v. State, 34 Ind., 425; Piatt v. People, 29 Ill., 54; Barnes v. Supervisors, 51 Miss., 305; Fry v. Booth, 19 O. St., 25; Tarbox v. Sughrue, 36 Kan., 225; State v. Nicholson, 102 N. Car., 465. In the last case this rule was held to apply to a constitutional provision. There are other sections of the act which shed light State, ex rel. Waggoner, v. Russell. upon the subject and assist us in determining the intention of the legislature. For instance, it is provided by section 13 "that the ballots shall be supplied by the county or other municipality," and that "ballots other than the official white ballots printed by the respective county or municipal clerks according to the provisions of this act shall not be cast or counted at any election." By section 23 it is provided that "No judge of election shall deposit in the ballot box any ballot unless it is identified by the signature of two of the judges of election," and that every person violating the foregoing provisions shall be guilty of a misdemeanor. By section 25 it is provided as follows: "Sec. 25. In the canvass of the votes any ballot which is not indorsed, as provided in this act, by the signature of two (2) judges upon the back thereof, shall be void and shall not be counted, and any ballot or parts of a ballot from which it is impossible to determine the elector's choice shall be void and shall not be counted; Provided, That when a ballot is sufficiently plain to gather therefrom a part of the voter's intention, that it shall be the duty of the judges of election to count such part." It may be as contended by respondent's counsel, that the proviso in the last section was intended to apply only to ballots otherwise regular, but on which the voter has failed through negligence, illiteracy, or other cause to clearly express his intention as to every office named thereon. The inference is strong, however, from the language of the several sections to which reference has been made, that the legislature, by declaring a limited number of provisions to be mandatory, and a compliance therewith essential to a legal ballot, intended the other provisions as directory only. We are fortunately not altogether without authority on this question. There have been numerous decisions under the English and Canadian election laws, after which ours appears to have been modeled. For instance, in Grant v. McCallum, State, ex rel. Waggoner, v. Russell. 12 Canadian Law Journal, 113, it is held, that under a statute which directs the voting mark to be made with a pencil, a mark with ink does not render the ballot void. Mr. Wigmore, in an appendix to the second edition of his Treatise on the Australian Ballot System, page 193, after examining all of the reported cases upon that branch of the subject, concludes in the following language: "Wherever our statutes do not expressly declare that particular informalities avoid the ballot, it would seem best to consider their requirements as directory only. The whole purpose of the ballot as an institution is to obtain a correct expression of intention; and if in a given case the intention is clear, it is an entire misconception of the purpose of the requirements to treat them as essentials; that is, as objects in themselves and not merely as means." It is urged as an objection to this construction of the statute that it will interfere with the secrecy of the ballot. Section No. 29 provides: "No elector shall place any mark upon his ballot by which it may afterward be identified as the one he voted." It will be noticed that a ballot marked in violation of the foregoing provision is not declared to be void. The force of the objection is apparent, however, if the effect of our construction would be to defeat or interfere with the secrecy of the ballot, since that is one of the primary objects of the law. The construction which we have given the statute will not, however, be attended with any such effect. It is not every mark by means of which a ballot might subsequently be identified which is a violation of the statute. The mark prohibited by law is such a one, whether letters, figures, or characters, as shows an intention on the part of the voter to distinguish his particular ballot from others of its class, and not one that is common to and not distinguishable from others of a designated class. The fact that a number of ballots are, without any evidence of a fraudulent intention on the part of the voters, |