BRANNON, Judge :
At the election in Berkley county in November, 1902, Frank W. Doll was the Democratic nominee for the clerkship of the county court and I. L. Bender the Republican nominee. The ■canvassing board found that Bender had been elected by a majority of four. Doll demanded a recount, and upon it the board found that Doll received 2,135 votes and Bender 2,146, ■giving Bender a majority of eleven. The contestation was as to 146 ballots, and they were withdrawn from the mass and made a part of the record. Doll carried the case to the circuit court by a writ of certiorari, and upon it that court found that Bender had received 2,146 votes and Doll 2,141. From the [406] judgment of the circuit court declaring Bender elected Doll has sued out a writ of error in this Court.
The ballot sheets ha.ve four columns, Democratic, People’s Anti-Ring ticket, Prohibition and Republican. We. adhere to the law stated in Morris v. Board, 49. W. Va. 260 and Daniel v. Simms Id. 554, that the voter must select and use one, and only one, ballot from those on the ballot sheet. We reject those violating this rule. In this connection take a specimen sheet. The people’s and prohibition columns or ballots are cancelled by lines. No line in the republican column. Three broken, not continuous, lines cancel all names and offices on the democratic ballot, except for county commissioner and the candidate, Parks, and school superintendent and the candidate, Shirley, the lines skipping these and leaving them untouched. In the republican column, in the space between the place assigned for prosecuting attorney and commissioner, the name of Parks is written and in the space between the place assigned for county clerk and county superintendent the name of Shirley is written. The printed candidates for commissioner and superintendent are erased. This sheet raises several questions. Does it violate the rule that a voter must use only one ballot? If the names of Parks and Shirley had not been written in the republican ballot, and for the same offices for which they stood on the Democratic ballot, it would be a case of two ballots. Though their names yet remained on the democratic ballot, yet they are written for the same, offices on the republican. A voter cannot vote twice for the same person at the same election for the same place. By leaving the republican column untouched, we say that one was selected, and seeing the names of Parks and Shirley written in it we see that the voter intended to vote for them, and this is the plainer because he has left them on the democratic ticket; but their presence there is surplusage, performing no office. We see all the balance of that ballot erased. A voter uses two columns where one person is voted for on one ballot, another on another, or where the same person is voted for on one ballot for one office, and on another for an o.ther office. Code 1899 chapter 3, section 34, says that a ballot can be defaced by erasing its party heading, or drawing lines clear through it, “or in any other way indicating that the same has not been voted,” Considering that the democratic ballot is erased except as to Parks [407] and Shirley, that their names are written in the republican ballot for the same offices, and the republican candidates erased, and that the latter ballot is without defacement, we conclude that the intent was to select it and discard the democratic column. The democratic ballot was cancelled.
A graver question arises on this ballot. Can it be counted for Bender? Bender’s name is printed for clerk, and in the space below it required by statute to be there for the purpose of allowing the voter to vote for some one other than Bender by erasing his name and writing in the space another name, the voter has written “J. W. Shirley,” making it read, “For clerk of the county court, I. L. Bender, J. W. Shirley.” As the statute says that when this blank space has a name written iu it, and the printed name is not erased, the .ballot shall be counted for the written name, it may be said this is a vote, not for Bender for clerk but for Shirley. Inspection of the two ballots tells us that such was not the intent of the voter. He' did not intend to vote for Shirley for clerk, because Shirley appears on the democratic ballot as democratic nominee for school superintendent, and the voter lot his name stand for that office in the democratic ballot, thus voting for him for that office, and wrote his name in the republican ballot just above the words “For county superintendent of schools,” and erased the name of the republican nominee for that office. If he had not left Shirley’s name for superintendent in the democratic column, it would not be so plain, but that indicates for what office for Shirley he desired to vote in the republican column. Placing the name of Shirley above the words “For county superintendent” does not change the sense; for the words, “J. W. Shirley for county superintendent” mean the same as “For county superintendent J.'W. Shirley.” And the fact that he dealt with Parks in the same way confirms this view. He intended to vote for him for county commissioner, and did not intend to vote for prosecuting attorney, though he put the name of Parks in the space below the-name of the candidate of that office, instead of that below that of the candidate on the republican ballot for commissioner. He-did not intend to vote for Parks or Shirley for offices for which-they were not running. He erased the republican names for those offices,, and left the republican candidates for prosecutor and county clerk, showing what offices he desired Parks and [408] ■Shirley to fill. But it will be said that this view ignores the Code, chapter 3, section 34, saying that a voter desiring not to vote for any candidate on the ballot “may strike out the name so printed on said ballot and write in the blank space next following the name of the candidate or person for whom he so desires to vote. But if he fails to strike from said ballot the name printed thereon, the name written in said blank shall alone be counted.” It is urged that in Morris v. Board, 49 W. Va. 251, tile opinion holds the statute, in general sense, man■datory, and particularly that the law requiring a voter who does mot wish to vote for the printed candidate to write another name in the space below the printed name, is mandatory, so that the substituted name must be put in that space, and if it is -not, it is no vote. It will be seen that the reference in that ease to the space below the printed name was as an argument under the statute to show that one column must be selected and made the sole expression of the voter’s will. The .question whether, after one column has been selected and the others erased, the voter must write the substituted name in that space and nowhhere else was not up in that case. This case does present, in the ballot now in hand, that question. In that case it is definitely stated that there are provisions in this statute that are merely directory. IVe did rot intend to hold that the provision as to putting the name in this space is mandatory. It was not in the mind. We now say that when the voter has used one ballot, we can investigate his intention as to his vote. It was the law, before the enactment of the Australian ballot, that the voter’s intent must be sought and observed from his ballot. His ballot might be awkward and irregular, but where his intent is plain, that intent must stand. We cannot think the new system has wholly abrogated this rule. The paper is a ballot still to express intent. We cannot think that we cannot look at intention. Some cases do hold that under this new sj'stem, looking at its object to suppress fraud, bribery and other election evils, the voter must strictly follow the statute; that the legislature has told him just how he shall vote, and departure from it loses him his vote; but the better opinion seems to be that generally, where the statute does not expressly, or by plain implication, reject the ballot, it is not to be east out. Though we cannot let the voter use two ballots, can we not say what he meant by [409] ■tlie one selected ? For this position I would first call upon the ¡statute itself in that clause of section 66 reading, “And any ballot, or part of a ballot, from which it is impossible to determine the elector's choice of candidates, shall not be counted as to the •candidate or candidates affected thereby." This tells us that we must take this one ballot, scrutinize and find out the voter’s Intention, and say, if it is at all possible to do so, for whom he •intended to vote. This language of the statute is alone a warrant for the position just stated. So is general law. See Norman v. Parker, 158 Ill. 609; opinion of Judge Ellis, 91 Am. St. R. 229, 64 Kan. 216. See Dunlevy v. County Court, as to intention of voter, 47 W. Va. 613. “Though a candidate's name is written above the name of the office on the ballot, it will be construed for him where the printed name below name of office is erased.'' Kreitz v. Behrensmeyer, 8 Am. St. R. 351. Therefore, the vote was for Shirley for superintendent, the name of -the nominee for that office being erased, and it was not a vote for Shirley for clerk, but for Bender.
Another question. Some of the ballots have the names of persons on their backs. One has the words “Good bye” at the foot of a column. Another the figure 4 where a printed name is erased. Another has part of the offices on a. ballot cut out with •a knife. Section 79 provides: “No voter shall place any mark upon his ballot, nor suffibr or permit any other person to do so, by which it may be afterward identified as the ballot voted by him. Whoever shall violate any provision of this section shall be deemed guilty of a felony” and be confined in the peniten-tiary. Section 76 condemns others for inducing voters to place names or other distinguishing marks on ballots. These names, and perhaps some other marks on these ballots would be distinguishing marks under the statue; but we do not discuss what are distinguishing marks, since we have concluded that they do ■ not make ballots void. These provisions against such marks or ear-marks are among the most important enactments in this stat- - ute it is true, being intended to defeat briber, intimidation and -all sorts of corruption in elections by covering the ballot with ■ the veil of entire secrecy. Contracts made against a statute prohibiting an act and imposing a penalty for doing it, are void; things done in contravention of such a statute are void; but a ■ vote is not a contract. Elaborate discussion has been had as to [410] these marks. It may not be without value to refer to some of the-cases. “A ballot so prepared by a voter as to contain distinguishing marks, which, if permitted to be passed, would enable it to-be identified, cannot be counted.” Keeley v. Adams, 183 Ill. 193 And in Parker v. Orr, 158 Ill. 609, it is held that this is so-, even if the statute contains no prohibition, so vital is the object of the provison. See Perkins v. Bertrand, 192 Ill. 58, 61 N. E. 405, 85 Am St. R. 315 ; Parker v. Hughes, 64 Kan. 216, 67 Pac. 637. 91 Am. St. R. 216; Vallier v. Brakke, 7 S. Dak. 343; Tebbe v. Smith 49 Am. St. R. 68; Note in Taylor v. Bleakley, 49 Am. St R 243; Coughlin v. McElroy, 77 Am. St. R. 301; Ruttledge v. Crawford, 13 L. R. A. 761.
Some courts hold that to be a distinguishing mark it must have been made with intent that it be such; but I venture for myself to say that the statute declares any mark to be such, if it’ identify the ballot, let the intent be what it majr, unless by accident or clumsiness. We hold that such mark does not destroy the-ballot, on the principle that a citizen can be disfranchised only by clear expression of legislative intent to do so. The Legislature has not said that this mark shall reject the ballot. It had' the particular matter under consideration. It selected its penalty. It made the act a crime, but did not add that the ballot' should not be counted. In section 66 we find specified several causes for which ballots shall not be counted, and this affords-reason to say that it was not intended to make this mark a ground of rejection. The Legislature has not commanded the-courts to reject a. ballot for this cause. The statute is the sole-chart, guide and authority as to elections. It is fairly to be presumed that if the Legislature intended a distinguishing mark to destroy a ballot, it would have said so- while enumerating-grounds for rejecting ballots. I think it will appear from cases cited above that the weight of authority is, that if the-statute does not expressly reject a ballot for this cause it counts, especially opinions in Parker v. Hughes, 91 Am. St. R. 216, and' 90 Id. 73. I will add that the Illinois act rejects all ballots not' made out a.s it directs.
Here is a ballot sheet having the republican column clear, and' the three other columns have the party headings untouched, but just below them are large crosses like the letter X, erasing-some candidates and leaving many others untouched. These-[411] crosses run down the columns about one-third, leading two-thirds unerased. It is claimed the republican ballot cannot count, because the voter has voted three ballots.
The Code, section 34, directs the voter to select one ballot on the sheet and then adds that “every other ballot on the same sheet shall bo defaced 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 other way indicating that the same has not been voted.” It is true these crosses only cover parts of the ballots, but they are found in three columns or ballots alike, and the fourth is not defaced, “indicating” that the voter intended to destroy three ballots and vote the remaining one.
Whilst he did not run a line from top to bottom or across the party headings, the two modes of defacement specified by the statute, yet we think these crosses come in under the words, “or in any other way indicating that the same has not been voted.’7 They show that the intention was to erase the three columns.
Here is another ballot sheet, the two middle ballots are erased by lines clean through, except they leave the party headings and the place for congressman. The Anti Bing column has no-printed name for congressman, the prohibition has. The Republican ballot leaves the heading and congressman, Alston G-. Dayton, untouched, and all other places for officers and printed candidates .are erased by short straight lines erasing the offices to be filled and printed names of-candidates, except that it leaves untouched “For Prosecuting Attorney, Ward B. Lindsay,” and “For clerk of the circuit court, L. Dew Gerhardt.” The Democratic ballot is not in any way erased. The names of Lindsay and Gerhardt are written in it in spaces below the names of J. M. Woods and Samuel L. Dodd, the Democratic candidates for prosecuting attorney and clerk of the circuit court. We -hold that tire voter has selected the Democratic ballot and destroyed the others. He has transferred to the democratic ballot the names of Lindsay and Gerhardt, and so they are on both ballots, but the transfer taires them from the republican ballot. Hnder principles stated above their names on the republican ballot do not make the voter vote two ballots. The voter’s intent to vote for them is- plainly shown by leaving them on the Republican and transferring them to the Democratic ballot. [412] But lie voted for three congressmen., it will be said. We cannot think he intended to do this. We think he intended to vote for John T. McGraw, Democratic nominee, for that place. The Democratic ballot has no erasures except in such transfer of Lindsay’s and Gerhardt’s names. This fact 'induces the Court to say that as the statute allows the voter to destroy a ballot “in any other way indicating that the same has not been voted,” the voter designed to efface every ballot but the Democratic.
Here is a sheet on which the voter has not touched the Democratic column, but on the other three has drawn lines half way down, leaving the party headings, erasing the Prohibition congressman, Eev. E. M. Strickler, leaving the Eepublican candidate Alston G. Dayton, and places and candidates for several offices on the Prohibition and Eepublican columns! He leaves the name John B. Wilson, the only printed name on the People’s ballot for clerk of the circuit court. We think that the voter has indicated sufficiently that he rejected all other ballots but the Democratic, although his erasure lines do not erase some candidates on those rejected ballots.
We reject ballots wanting names of one or both poll clerks, because the names of two poll clerks are a most material earmark to attest the genuineness of a ballot; but why give the reason when section 66 expressly saj^s that such a ballot is void, and shall not be counted? Kirkpatrick v. Deegans, 53 W. Va. 275.
Here is a ballot sheet which has the Democratic ballot unde-faced. Tn the next there are crosses about the middle. In the Eepublican ballot a line clear through except that it has the congressman untouched. The parly headings are untouched. There are the places and names of numerous candidates untouched in the two middle columns. We conclude that it is a good ballot, because we think the crosses in two columns and the long line nearly through the Eepublican column indicate with fair certainty that the voter intended to vote the Democratic ballot, bé-banse it is untouched by any mark and the others are marred. Whilst we require the voter to use one ballot, we must not be too rigid and captious as to the manner of the defacement of other ballots because the statute says that any marks of defacement, which “indicate” that the voter intended not to vote a ballot will do.
Here is a ballot .sheet having a line drawn just under the [413] letters of the party headings of all the ballots except the Democratic, and a pencil mark over' the words “Republican ticket/’ erasing them. In the People’s Anti-Bing column a line from its top down two inches, then crossing the line dividing that column and the prohibition column and entering it and going down to the bottom of the prohibition column. Another line begins at the bottom of the People’s Anti-Bing column and runs up it to nearly the line just described. There is but one name on that ticket and it is erased by the line. There are the names of the offices and three printed names left in the prohibition colummn untouched. A line runs from top to bottom of the Republican ballot. The Democratic ballot untouched'. It is plain that the Democratic ballot was voted, the others not voted, but cancelled.
Here is a ballot sheet having three lines from the top half way down the ballots. The names of some candidates and their offices left in two of them. The Republican ballot is untouched, except that the name of Dayton for' congressman is erased and McG-raw’s written in the space below, and for commissioner Crozinger’s name ei ased and that of Parks written in the space below. How can we doubt that the voter selected the Republican ticket, amended it, and cancelled all others?
Here is one having crosses and lines erasing two ballots, headings and candidates and offices, from two of the ballots, and eight crosses over the candidates and offices on the Republican ballot, but leaving four offices and candidates on it not defaced. The Democratic ballot has no sign of mark on it. We hold the three other ballots cancelled.
Here is one with lines in three columns from Congressman to bottom, leaving headings and names of three congressman, the other column having no printed name for Congress. In the Democratic column one candidate has been erased and a name put in; but in other respects it is just as printed. We hold that all the ballots but the Democratic were erased.
Here is one having three columns erased. The Democratic column is untouched save that the name of Doll is erased, and just to the right of his name Bernier’s name is written, his name crossing the line between the columns. Though the name is not in the space below, and one-half of it inside and the other [414] •outside the column, it is a good vote for Bender. The intent to vote for him is plain.
Here is a ballot sheet without the sign of any mark in any of the four columns or their headings. Just above the Rejoublican ticket are the words “I vote this ticket.” It is plain the vote was intended for the Republican ticket. But no marks are on the ballots. The statute contemplates marks of erasure, and they inside the columns, or through the headings, whatever the mark may be. These columns are just as printed. Such an indication as this will not do. The words do not necessarily refer to any one ballot, though likely meant to select the Republican. They are a mere memorandum on the same paper, but not a part of the ballot.
Here is a sheet with three columns clearly erased by lines ■from top to bottom. No lines or marks in the Democratic column. In it Doll’s name is erased and Bender’s written in the •space above, instead of in the space below. So with several ■other names. The writing of the name above the designation of •the office does not destroy the vote for Bender. As he is on the Republican ticket for a certain office, writing it in above that •same office in the Democratic and erasing it from the Republican column shows that the intent was to vote for him for that same office. We cannot say that writing Bender in the space •above clerk of county court shows that he intended to vote for lrim for the office above, clerk of circuit court, because Dodd’s name is erased for the latter office and Gerhardt, the Republican candidate for that office, written in. Failure to write a substituted name in the proper space is not fatal where intent is plain. We must not use the Australian Ballot to defeat plain intent and the sacred right of suffrage.
A ballot has the name of a Democratic candidate for clerk of ■circuit court erased, and Bender’s written in the space below •and Doll's left for clerk of county court. It is a vote for Doll, not only because Bender’s name is written in below the clerk of ■circuit court, but the candidate for that office is erased, and Doll’s untouched.
A sheet leaves all headings, has a cross over all of the printed names of candidates for congress, thus erasing them, but A. G. Dayton’s name is written under the place for that office in the prohibition ballot. The name of David Deck, Prohibition nom[415] inee for county clerk, is erased and Bender’s name inserted in the space below. Other names are so inserted in that ballot. We hold that the Prohibition ballot was voted, the others rejected by the cross marks specified above.
Here is a sheet from which the voter, to make sure that he did not vote for four Democratic names, cut them out with a knife. The remainder of the ticket is good. He has used a knife to erase the candidates instead of a pen or pencil. Objection may be made to this as a strong distinguishing mark, but cannot as one of mutilation. The balance of the Democratic ballot is clear. He has cut out only part, not cancelled the whole ballot.
A sheet has the Democratic, People’s and Prohibition ballots properly erased. Three lines run from prosecuting attorney inclusive down to the bottom of the Eepubliean ticket, others covering the names of several offices and candidates including the office of clerk and name of Bender, thus erasing them; but the voter having thus erased Bender and Zeiler, the Eepubliean candidate for Superintendent, has written in the space below, over the erasing lines, the names of Doll and Dunn the Democratic and Prohibition candidates for clerk of county court and School Superintendent. Though these pencil erasing lines erase the names of three candidates for other offices, the voter has again erased them with ink. We think this shows intent to vote for Doll and Dunn.
A sheet has all party headings intact. The congressman also. The balance of People’s, Prohibition and Eepubliean ballots erased by lines. On the Democratic ballot a line runs from the congressman down, erasing all names, to county-clerk, skiping it, and then resuming and going on to bottom. We think all three ballots, except Democratic, were erased and that the Democratic was voted as to congressman and clerk.
Other specimens of ballots could be given, but these will suffice to illustrate the legal principles ruling the case.
Upon a canvass of the contested ballots we find that Bender received 2,131 and Doll 2,128 votes, and we therefore affirm the judgment of the circuit court which declared Bender elected and affirmed the judgment of the canvassing board.
Affirmed-. .