McNENNY, Circuit Judge.
This is an appeal from a judgment of the circuit court of Clark county rendered in an election contest growing out of the general election of November 4, 1924.
At said election the plaintiff and respondent, C. N. Naramore, was a candidate for county commissioner on the Republican ticket. C. E. Sprague, defendant and appellant, was a candidate for county commissioner in the Independent column, and there were no other candidates for that office. The judges of election counted 283 votes for defendant and appellant Sprague, and 282 for plaintiff and respondent Naramore. Naramore then instituted a contest. ‘Upon agreement of parties O. IT. Ames, Esq., of Clark, was appointed referee. There must have been a miscount by the judg.es of election as the referee only reports receiving 563 ballots. Of these 57 were challenged before the referee. The referee struck out 23 of the challenged ballots as being invalid and improper to be counted for either party.
The findings and conclusions by the referee were that, of the votes cast, each party was entitled to 270 votes, and 23 were held invalid for any purpose. Upon the matter coming on to be heard before the court for confirmation, the court struck out an additional 9 votes, 6 of which had been cast for Sprague and 3 for Naramore, and thereupon entered judgment in favor of Naramore, and against Sprague. Sprague then excepted to the findings and conclusions of the court, both as to the additional 6 votes which the court disallowed, but which the .referee had allowed, and in addition 4 votes that .had been disallowed by the referee and the disallowance confirmed by the court. He then perfected his appeal to this court and assigned as error the failure of the court and the referee to count said 10 votes in his favor. The respondent, Naramore, in his brief contends that if any of the disallowed ballots should be counted for Sprague, that certain disallowed ballots should then be counted for Naramore. With one exception, neither party complains that there are any ballots counted that should have been held invalid, but it is the contention of [149]*149Sprague that valid ballots were held 'invalid, and Naramore responds that, if that is true in Sprague’s case, then it is true in his own case, and he specifies several ballots voted for him, but rejected, that should be allowed him in case the judgment of the circuit court is disturbed in any wise. As is usual ’ in these cases any rule will ordinarily work both ways, so that there is very little disagreement by counsel for the respective parties as to the principles of law that govern these contests, but only as to their application to the particular ballots.
The first ballot we will consider, Exhibit G-io, is one that was voted for Sprague, but rejected by both the referee and the trial court. This ballot was marked with a rubber stamp in black ink in the square to the left of the name of every Republican candidate except Naramore, and with a similar mark in the square at the left of Sprague’s name. No other mark appeared upon the ballot, except a brown diagonal mark running across the square at left of the name of A. Amundson, condidate for railroad commissioner on the Independent ticket. This mark is not uniform in width and both ends run off to feather edges. The mark is not made with ink nor with ordinary lead pencil. The ends extend through the square at the top and bottom, so that the black lines of the square and this brown line intersect at two places. The line shows through on the back almost as clearly as in front. It is very difficult to tell, with the naked eye or a common reading glass, Whether the brown line is above or underneath the black line by observing the face of the ballot. On the back of the ballot, however, the brown line shows up very plainly but the black line shows only faintly. By observing it with a medium powered microscope it would seem, when looked at from both sides, that the black line was put on after the brown line. The brown line has many appearances- of being a defect in the paper itself. We are therefore of the opinion that this ballot was erroneously rejected, and should be counted for Sprague.
The next group of ballots consist of G-7 and C-8, containing votes for Sprague. These ballots were rejected by the referee and trial court under what may be termed the erasure rule. G-7 had a mark applied with a rubber stamp in the square at the left of the name of Conrad I. Jackson, candidate for justice of the peace on the Republican ticket, and no mark for his [150]*150opponent, but there is a dirty blotch covering the mark and extending over the name Conrad. This may have been caused by a dirty thumb in undertaking to separate the ballots. F-6, voted and counted for Naramore, has a smear on the name of M. G. Eggen, very similar to the alleged erasure on the name of Jackson.
C-8 was marked with a rubber stamp in the square at the left of the name of E. J. Ellis, justice of the peace on the FarmerEabor ticket, and had no mark for his opponent. The ballot looks as though a finger or thumb- had been 'drawn through the cross while the ink was wet, and carried a light smear of ink out of the cro-ss and completely - over the name of Ellis. From the appearance of the smear it might readily have been done in drawing the hand across the ballot for the purpose of folding it. There is nothing on either of-the rejected ballots to show that the smears are not pure accidents, and we are of the opinion that both of the ballots should have been counted for appellant Sprague.
In the rehearing in Church v. Walker, 10 S. D. 450, 74 N. W. 198, the court reversed their prior decision in the same case found in the same volume at page 90 (72 N. W. 101), and upon the authority of McMahon v. Polk, 10 S. D. 296, 73 N. W. 77, 47 L. R. A. 830, held:
“ * * * 'The Legislature never intended to disfranchise a legal voter, who, in substantially complying with the mandatory .•requirements of the law, has, without an evil purpose, but by accident or inadvertence, made a blot or mark upon his ballot, which in no manner tends to distinguish the same, or divulge the secret within his breast.’ * * * ‘Unless, therefore, the ballot has been marked intentionally * * * the judges of election shoud presume that the marking was inadvertently done, and count the ballot.”
The next group of ballots, admitted by the referee, but rejected by the trial court, consists of Exhibits C-7, C-10, E-4, G-8, and G-12, all of which were voted by marks in front of the name of Sprague and not in front of the name of Naramore. These ballots were all apparently marked with a rubber stamp. The crosses oii all were more or less imperfect. Upon some of them there were no perfect crosses, but it was plain to be seen that they were all marked with the rubber stamp. The imperfec[151]*151tions may have been caused by a defect in the stamp itself, or by stamping when the paper rested upon an uneven surface, or by holding the stamp in such a manner that the face of it would not come squarely down upon the paper. We are inclined to think that, while the crosses are very imperfect, the voter having used the implement that was apparently provided by the election board, in an honest endeavor to express his intention, the votes should all have been counted.
In Treat v. Morris, 25 S. D. 615, 622, 127 N. W. 554, 557, this language is used:
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McNENNY, Circuit Judge.
This is an appeal from a judgment of the circuit court of Clark county rendered in an election contest growing out of the general election of November 4, 1924.
At said election the plaintiff and respondent, C. N. Naramore, was a candidate for county commissioner on the Republican ticket. C. E. Sprague, defendant and appellant, was a candidate for county commissioner in the Independent column, and there were no other candidates for that office. The judges of election counted 283 votes for defendant and appellant Sprague, and 282 for plaintiff and respondent Naramore. Naramore then instituted a contest. ‘Upon agreement of parties O. IT. Ames, Esq., of Clark, was appointed referee. There must have been a miscount by the judg.es of election as the referee only reports receiving 563 ballots. Of these 57 were challenged before the referee. The referee struck out 23 of the challenged ballots as being invalid and improper to be counted for either party.
The findings and conclusions by the referee were that, of the votes cast, each party was entitled to 270 votes, and 23 were held invalid for any purpose. Upon the matter coming on to be heard before the court for confirmation, the court struck out an additional 9 votes, 6 of which had been cast for Sprague and 3 for Naramore, and thereupon entered judgment in favor of Naramore, and against Sprague. Sprague then excepted to the findings and conclusions of the court, both as to the additional 6 votes which the court disallowed, but which the .referee had allowed, and in addition 4 votes that .had been disallowed by the referee and the disallowance confirmed by the court. He then perfected his appeal to this court and assigned as error the failure of the court and the referee to count said 10 votes in his favor. The respondent, Naramore, in his brief contends that if any of the disallowed ballots should be counted for Sprague, that certain disallowed ballots should then be counted for Naramore. With one exception, neither party complains that there are any ballots counted that should have been held invalid, but it is the contention of [149]*149Sprague that valid ballots were held 'invalid, and Naramore responds that, if that is true in Sprague’s case, then it is true in his own case, and he specifies several ballots voted for him, but rejected, that should be allowed him in case the judgment of the circuit court is disturbed in any wise. As is usual ’ in these cases any rule will ordinarily work both ways, so that there is very little disagreement by counsel for the respective parties as to the principles of law that govern these contests, but only as to their application to the particular ballots.
The first ballot we will consider, Exhibit G-io, is one that was voted for Sprague, but rejected by both the referee and the trial court. This ballot was marked with a rubber stamp in black ink in the square to the left of the name of every Republican candidate except Naramore, and with a similar mark in the square at the left of Sprague’s name. No other mark appeared upon the ballot, except a brown diagonal mark running across the square at left of the name of A. Amundson, condidate for railroad commissioner on the Independent ticket. This mark is not uniform in width and both ends run off to feather edges. The mark is not made with ink nor with ordinary lead pencil. The ends extend through the square at the top and bottom, so that the black lines of the square and this brown line intersect at two places. The line shows through on the back almost as clearly as in front. It is very difficult to tell, with the naked eye or a common reading glass, Whether the brown line is above or underneath the black line by observing the face of the ballot. On the back of the ballot, however, the brown line shows up very plainly but the black line shows only faintly. By observing it with a medium powered microscope it would seem, when looked at from both sides, that the black line was put on after the brown line. The brown line has many appearances- of being a defect in the paper itself. We are therefore of the opinion that this ballot was erroneously rejected, and should be counted for Sprague.
The next group of ballots consist of G-7 and C-8, containing votes for Sprague. These ballots were rejected by the referee and trial court under what may be termed the erasure rule. G-7 had a mark applied with a rubber stamp in the square at the left of the name of Conrad I. Jackson, candidate for justice of the peace on the Republican ticket, and no mark for his [150]*150opponent, but there is a dirty blotch covering the mark and extending over the name Conrad. This may have been caused by a dirty thumb in undertaking to separate the ballots. F-6, voted and counted for Naramore, has a smear on the name of M. G. Eggen, very similar to the alleged erasure on the name of Jackson.
C-8 was marked with a rubber stamp in the square at the left of the name of E. J. Ellis, justice of the peace on the FarmerEabor ticket, and had no mark for his opponent. The ballot looks as though a finger or thumb- had been 'drawn through the cross while the ink was wet, and carried a light smear of ink out of the cro-ss and completely - over the name of Ellis. From the appearance of the smear it might readily have been done in drawing the hand across the ballot for the purpose of folding it. There is nothing on either of-the rejected ballots to show that the smears are not pure accidents, and we are of the opinion that both of the ballots should have been counted for appellant Sprague.
In the rehearing in Church v. Walker, 10 S. D. 450, 74 N. W. 198, the court reversed their prior decision in the same case found in the same volume at page 90 (72 N. W. 101), and upon the authority of McMahon v. Polk, 10 S. D. 296, 73 N. W. 77, 47 L. R. A. 830, held:
“ * * * 'The Legislature never intended to disfranchise a legal voter, who, in substantially complying with the mandatory .•requirements of the law, has, without an evil purpose, but by accident or inadvertence, made a blot or mark upon his ballot, which in no manner tends to distinguish the same, or divulge the secret within his breast.’ * * * ‘Unless, therefore, the ballot has been marked intentionally * * * the judges of election shoud presume that the marking was inadvertently done, and count the ballot.”
The next group of ballots, admitted by the referee, but rejected by the trial court, consists of Exhibits C-7, C-10, E-4, G-8, and G-12, all of which were voted by marks in front of the name of Sprague and not in front of the name of Naramore. These ballots were all apparently marked with a rubber stamp. The crosses oii all were more or less imperfect. Upon some of them there were no perfect crosses, but it was plain to be seen that they were all marked with the rubber stamp. The imperfec[151]*151tions may have been caused by a defect in the stamp itself, or by stamping when the paper rested upon an uneven surface, or by holding the stamp in such a manner that the face of it would not come squarely down upon the paper. We are inclined to think that, while the crosses are very imperfect, the voter having used the implement that was apparently provided by the election board, in an honest endeavor to express his intention, the votes should all have been counted.
In Treat v. Morris, 25 S. D. 615, 622, 127 N. W. 554, 557, this language is used:
“Where an- elector has attempted to make * * * a cross in the circle, and by reason of a defect in the stamp or pencil, not properly making a clear cross * * *, then there is an intention to mark the ballot in accordance with the method prescribed by statute, and under such circumstances should be counted,
To the same effect is the negative language used in Ward v. Fletcher, 36 S. D. 98, 106, 153 N. W. 962, 965, where it is said:
“The trial court improperly counted * * * two ballots * * * each having, in the square * * * a mark in no manner resembling an X. These marks were made with pencil, and clearly show that neither elector was attempting to make an X.”
In Vallier v. Brakke, 7 S. D. 343, on page 357, 64 N. W. 180, 185, the court in its opinion says:
“In No. 8 the court finds that the mark inr the circle at the head of the Republican ticket was a cross made with the official stamp. This we think was correct. If the intention was to make a cross in the circle, any informality in carrying that intention into effect, so- long as the act was done in the manner prescribed by the statute, was properly disregarded.”
In Ward v. Fletcher the court says (opinion, page 107 [153 N. W. 965]) :
“The trial court improperly refused to count * * * a ballot * * * marked in the square in front of the word ‘No.’ The mark was made with the official -stamp. At first glance it appears to be but a straight line, but a careful examination reveals a trace of the lines of the cross, and it is clear that the elector made the mark with the stamp, but by pressing down upon one [152]*152edge of such stamp. The elector has endeavored to express his intention in the manner provided by law.”
The next ballot contended for by the appellant is B-5, admitted by the referee and rejected by the court. This ballot has crosses at the left of practically every Republican nominee with the exception of Naramore, and has a cross at the left of Sprague’s name, but the larger part of the cross is outside of the square. The law. requires the cross to be in the square. The cross used, on practically all of these ballots was -larger than the square, so it would have been physically inpossible to- make the cross entirely within the square when using the stamp. Inasmuch as some part of this cross was within the square, we are of the opinion that the ballot was not invalid.
In Treat v. Morris, 25 S. D. 615 (opinion, page 619), 127 N. W. 554, one of the ballots had a -cross to the left of the circle and to the left of the word “Yes.” The court held that the ballot should not have been counted because.the cross neither marked the word “Yes,” nor was in the circle at the left of the word “Yes.” The court says (page 620 [127 N. W. 556]):
“When the statute provides that the elector shall mark the word ‘Yes’ or ‘No’ with a cross, we take that to mean that the word ‘Yes! or ‘No’ to be marked with a cross, must 'be touched by the cross in order to- so mark the word, otherwise when the cross is not touching the word the word would not be marked by ihe cross. Were is permissible to count the word as marked by the cross when the cross does not come in contact with the word, we would then be required to go> into the realm of comparative distances. * * *' ”
The reasoning of the court is clearly applicable to this case, the law governing this ballot providing that the cross must be inside of the circle, and in the Treat-Morris Case providing that the cross must mark the “Yes” or “No.” If one prong of the cross touching the word “Yes” is sufficient to mark the word, then one prong of the cross being inside of the square is sufficient to make it in the square, and in either case the question of comparative distance is eliminated.
In Ward v. Fletcher, 36 S. D. on page 106, 153 N. W. 965, the court in the opinion says:
[153]*153“The trial court improperly counted * * * a ballot * * * having the X so placed that the junction of the X was exactly on the line between the two squares before the words ‘Yes’ and ‘No.’ ’’
In that instance, of course, there was as much of the X in the “Yes” square as in the “No” square.
It is now contended by the respondent that if any of the ballots contended for by the appellant should be held valid, then that certain ballots voted in his favor and rejected should likewise be counted. The first group which he presents is that consisting of the ballots marked E-6, C-4, and E-8. Exhibits E-6, C-4, and E-8 were ballots that were voted for Naramore, counted by the referee and excluded by the trial court. Ballot E-6 was marked with the rubber stamp but was apparently inked and pressed too heavily, in many cases, especially at the left of the name Naramore, amounting to little more than a blotch. C-4 is just the opposite of E-6 in that too little ink was used, and the stamp apparently not correctly held. E-8 has an ink mark in the circle at the head of the Republican ticket and no other mark on the ticket. In this case also, too much ink was used and too much pressure applied. The outlines of part of the cross are discernible. Por the reasons heretofore stated, we are of the opinion that these ballots should have been counted for respondent.
The next ballot contended for by the respondent is C-12, which was a ballot rejected by the referee and the trial court. This ballot'has an ink mark in the circle at the head of the Republican. ticket and no other mark upon the ballot. The ink is the same color as the ink used upon the other ballots from this precinct. It may have been that the stamp was not sufficiently inked, and was pressed down a number of times. There are traces of what appears to be a part of the cross showing. While the cross in this case was probably the most imperfect and indistinct of any on the several ballots, w-e believe that the mark was made with the rubber stamp, and that the ballot should be counted for respondent. The mark in the circle on this ticket is not very much different from the mark in the square at the left of Sprague’s name on Exhibit C-7, both evidently made by the same stamp and with the’same ink.
[154]*154The next group presented by the respondent consists of Exhibits B-2, -3, F-i, C-6, and E-3. These ballots all have erasures upon them, and, while some of the erasures are more neatly executed than others, there is no doubt that all of them were intentionally made. The paper is in some cases very much abraded, and in other cases are pencil marks almost obliterating the cross and name. In addition h> the five contended for there are two others that differ only in degree, D-2 and A-i. As offsetting these we find Exhibits C-i, B-4, C-9, E-5, D-3, G-4, and G-6, ballots that had been voted for Sprague and likewise erased, or marked out intentionally. It is true that on some of the Sprague ballots the voter, in attempting to erase the mark, has made a hole in the paper, but they are all erasures, nevertheless, and one can be seen about as plainly as the other. While the decisions of the courts, and even of this court, are not in harmony on the question of erasures and many courts hold that an erasure should not vitiate the ballot, if the voter’s intention can be clearly gathered, still in view of the fact that airy ruling in this matter — which would necessarily have to include all of the ballots referred to in this paragraph — would have no effect upon the ultimate rights of the parties, we deem it unnecessary to further consider these exhibits.
It is next suggested by respondent that the Exhibits F-2, F-3, F-4, and F-5 were improperly counted by the referee and court in favor of defendant Sprague. The only irregularity on these ballots consisted of what is called by the printers an “offset,” that is the ink upon the next ballots was not sufficiently dry when the ballots were laid on top of them and part of the impression was carried onto the back of the ballots that were objected to. This irregularity is so similar to the objection disposed of in the case of Dunn v. Gamble, 47 S. D. 303, 198 N. W. 821, that w'e consider it controlled by that case. In the D'unn-Gamble case the irregularity consisted of the impression of the official ballot stamp upon the face of the ballot, apparently made by one of the election judges by mistake. This was held not to vitiate that ballot. To the same effect is Olson v. City of Lemmon, 33 S. D. 380, 146 N. W. 592.
There is one other vote for which Sprague contends, but in the view we have taken of the case that would not change the [155]*155result. Inasmuch as the exact proposition may never arise again; and in order that the counting of ballots may be kept as free from rules that do not tend to simplify the process of counting as possible, we refrain from making any decision upon this ballot. It appearing, therefore, that 9 votes cast for Sprague and 4 votes cast for Naramore were improperly rejected, the result is a net gain for Sprague of 5 votes. As the trial court held that he was defeated by 3 votes, this holding" necessarily gives him a majority of 2 votes.
The findings of the trial court to this extent and the judgment are therefore reversed with directions to enter judgment in favor of Sprague and against Naramore, and directing that the certificate of election issue to Sprague.
M'cNENNY, Circuit Judge, sitting in lieu of ANDERSON, J., disqualified.