Carpenter, J.
We propose to consider first those questions involving the construction of the act of 1889 relating to elections, known as the “ Secret Ballot Act.” Two considerations have had weight with us in adopting this course: —First, the construction of that act is of immediate practical importance in view of the approaching elections, and there is a general desire that those questions should be authoritatively determined at an early day; and if the court should hold that it has no jurisdiction of these cases there might be some impropriety in proceeding to discuss and determine minor questions involved. Secondly, if the views taken of those questions shall lead to the conclusion that it is not shown that any one has a majority of all the votes legally cast at the election in 1890, for either of the offices in dispute, both cases will be practically disposed of by the facts and must necessarily be dismissed, and we shall be relieved of the necessity of considering and determining some grave questions of constitutional law. ' In taking this course we assume for the purposes of these eases that the court has jurisdiction, at least to the extent of inquiring into and determining the facts of the cases, whatever may be said as to the power of the court, in a certain contingency, and in the present state of things, to apply a remedy. We therefore pass by, without discussion, the questions, first, whether the General Assembly lost its power to declare the result of the election on the second day of its session; second, if not, whether since that day, from any cause whatever, it has lost that power; and third, whether in any event the courts have, or can have, under the constitution any jurisdiction over that matter. We purposely refrain from expressing any opinion upon auy one of these questions, and wish to have it distinctly, understood that they remain open questions.
The first step in ascertaining whether the relator received
a majority is to ascertain the whole number of votes cast. The returns, as made to the board of canvassers, shows the whole number of votes counted. With those returns, which for the sake of convenience we will call the constitutional returns, the statute requires certain other returns to be made, which we will call the statutory returns.
The statute, Gen. Statutes, § 240, is as follows:—“ The presiding officer shall, with the certificate upon the result of the electors’ meeting which he is required to send by mail to the secretary of the state, send to the secretary his certificate of the whole number of names on the registry lists, the whole number checked as having voted at such elections, the whole number of names not checked, the number of ballots found in each box, namely, ‘general’ and ‘representative,’ and the number of ballots in each box not counted as in the wrong box, and the number not counted for being double, and the number rejected for other causes, which other causes shall be stated specifically in the certificate.”
It appears from the statutory returns that there were eleven ballots in the town of Branford, and one ballot in each of the towns of Hartford and Middletown, which were rejected, and the reason for such rejection does not appear in the returns of the presiding officers, and did not appear in the evidence before the court. Nor was any evidence offered to show that either candidate’s name for secretary was upon any of the ballots so rejected. The court therefore held that such ballots could not be considered for the purpose of affecting the count of the votes for secretary.
If by this is meant that those votes could not be counted for either candidate, the course taken was manifestly correct. But if we are to understand, as we think we must, that those votes were not regarded in making up the whole number of votes cast, it is not so clear that it was right.
Under a plurality rule it is material only to count the votes of the two highest candidates. All scattering votes are practically disregarded. Under the majority rule all scattering votes are important and must be counted.
Iii this proceeding they were rejected because it did not appear for whom they were cast, or that they were in fact cast for any candidate for the office under consideration. We are inclined to think that that was not a sufficient reason for disregarding them. It will be borne in mind that this is a judicial proceeding for the purpose of ascertaining whether the relator received a majority of all the votes lawfully cast for the office he now claims in November, 1890; and whether he should have been declared elected in January, 1891. At the time the votes were counted, and at the time when the result should have been declared, these ballots were in existence, they could have been examined, and it could have been easily ascertained for whom they were cast. It is very clear that at that time, and at any time when the ballots were in existence, they should have been included in the whole number of votes cast. Is it not equally clear that the same rule should prevail now ? Will lapse of time, the destruction of the ballots, the impossibility of proving for whom the ballots were cast, justify the court in applying a different rule, and proceeding upon a different principle, from the rule that must have been applied, and the principle that must have governed, when the same matter was under investigation by the constitutional authorities ?
We have assumed, and we think rightly, that these ballots contained votes for some of the several candidates for secretary and treasurer. The ballots rejected were for state officers, or general ballots. The state ticket alone is the subject of investigation. If the ballots conformed to the statute, and we must presume that they did until the contrary appears, they contained the names of all the offices and of candidates for each office. Experience teaches us that, with hardly an exception, every man who votes the state ticket votes for all the offices thereon. There can be no presumption that these ballots were exceptions. The contrary presumption is so strong that hardly any one would hesitate to act upon it in matters of importance concerning his own private affairs.
We have not overlooked the fact that considering these
votes now will result, in effect, in counting them against the relator. It may be said that this is a hardship that the courts ought to avoid. But the hardship is more apparent than real. There can be no legal hardship in showing that a man is not constitutionally elected to an office. If these votes cannot now be considered in determining the whole number of votes cast, it will inevitably operate to the prejudice of others. It will certainly disfranchise all these voters. And that is a political evil of no small magnitude, to say nothing of the possibility that another may be deprived of the office. But whatever hardship there is in fact is a hardship that the court does not cause, and it is in no wise responsible for it. The responsibility lies at the door of another tribunal.
The relator, like any other party who assumes the burden of proof, must prove his case. If for any reason he fails to do so his suit fails. The burden is on the relator, and we do not think there is any legal presumption that will operate to change it.
If it appeared upon the face of the returns that the ballots were legally rejected it would have presented a different case. There is a presumption in favor of the legality of a transaction when it appears to have been done in compliance with the law; but there is no such presumption when it appears that the law was not complied with, and the courts can make no intendment in favor of its legality. The law requires that the cause for the rejection of a ballot “ shall be stated specifically in the certificate.” That duty was wholly omitted. The act of rejection is illegal on its face. There can be no presumption to sustain an illegal act. We are of the opinion that these votes should have been included in the whole number of votes cast.
There were in the state 509 ballots rejected “ for being double.” The respondent claimed that under the act of 1889 that was not a legal cause for their rejection. Previous to that act the statute provided “ that no double ballot for the same office * * * shall be counted.” Sec. 288. By the act of 1889, sec. 9, it is provided that “ if more than one ballot
for the same office shall be found in any envelope, and such ballots shall be for the same person, only one shall be counted ; and if such ballots shall be for different persons for the same office, neither of such ballots shall be counted.” That act also contains a repealing clause as follows “ See. 16. All acts or parts of acts inconsistent herewith are hereby repealed.” Thus the law was, at the last election, that no ballot could be lawfully rejected for being double unless it appeared that the several ballots in the same envelope were for different candidates for the same office. That fact, if it exists, being essential to a legal cause for rejection, must be “stated specifically in the certificate.” On the'face of the certificates therefore these ballots seem to have been illegally rejected.
The claim made by the respondent in each case, the answer of the court thereto, and the facts bearing upon the question, appear from the following extract from the record :—“ The defendant claimed that the burden was on the relator to show by evidence outside of said returns that said rejected ballots were legally rejected by said moderators, and that otherwise the court should find that said ballots were not legally rejected, and count the same for the purpose of estimating the total number of votes cast. In no case, except in the single instance of the town of Enfield, did it appear for whom said rejected ballots had been cast, or that the name of either candidate for secretary was upon any of the ballots so rejected. The court overruled the defendant's claim, and declined to count said ballots so rejected as double, except the ballot in the town of Enfield, hereinafter referred to. No evidence was offered to show that all of said ballots were not for different persons for the same office, and that said ballots were not therefore double ballots within the meaning of the law, and no evidence was produced before the court to show that for any reason any of said ballots were improperly rejected, except one ballot in the town of Enfield. In Enfield two straight republican ballots, each bearing the name of George P. McLean for secretary, were found folded together in the same envelope.
The moderator decided that both ballots should be rejected. This was an error. By the provisions of sec. 9, chap. 247, of the public acts of 1889, one of the ballots should have been counted and one rejected. I therefore find that 508 ballots so rejected by the moderators in said towns were properly rejected and excluded from the count, and that one ballot was improperly rejected, and should be counted for said McLean for secretary.” The same finding, with change of names, is in the other case.
On this single point we are not entirely agreed, but a majority are of the opinion that the court below took a mistaken view of the law. It depends mainly upon the question on whom was the burden of proof ? The court manifestly held that it was on the defendant. 'The defense expressly claimed that the burden was on the relator to show that the ballots were legally rejected, and the finding is explicit that that claim was overruled. This same question arose on the preceding point. The difference is between giving no reason for rejecting the ballots, and giving a reason that is insufficient. The difference in principle is imperceptible. Much of the reasoning under that head applies equally well to this. We refer to it without repeating it.
The burden of proof generally was on the relator to prove that he received a majority of the legal votes. In respect to this particular matter, if the reason given was sufficient on its face,, the relator might properly rest; and then it would have been incumbent on the defendant to show its illegality. If insufficient, then it was for the relator to meet it by showing that the votes were in fact rejected for good reasons; or that the ballots contained no vote for secretary, etc.; or that for some other reason the ballots should not be taken into account. Thus it seems to us very clear that the burden of proof to show the legality of rejecting these ballots rested on the relator. If so, the court was clearly wrong in holding upon no other evidence than the face of the certificates that the ballots were illegal and were properly rejected.
It is suggested that by the term “ double ballot,” as used
by the moderators, must be understood a ballot double in the sense that it must, by the terms of the act of 1889, be rejected. We cannot assent to that proposition. As the law-stood prior to 1889 every ballot that was double must have been rejected. Not so with the act of 1889. Under that act no ballot can be rejected merely because it is double. If the two ballots are for the same candidates, one is to be counted 'as the
vote
of the person depositing the envelope. The other is not counted because it represents no voter and therefore is not a legal vote. Under the present statute there can be but one vote in one envelope. Surplus ballots are not votes, and do not vitiate, provided it can be known how the voter intended to vote. If the ballots differ the intention cannot be ascertained. Hence neither can be counted.
It may be said that these rejected ballots are the surplus ballots not counted when the envelope contained two or more ballots for the same candidates, and that therefore the votes of all these voters have been counted once. If that was so the course taken by the judge on the trial was clearly right. But we are unable to take that view of it. Manifestly the judge himself did not so regard it. If he had, that of itself would have been an all-sufficient reason for not counting the ballots now, and there would have been no occasion for him to resort to other reasons.
We do not think that section 240 of the General Statutes, as modified by the act of 1889, requires such ballots to be returned as “rejected.” Section 240 only requires ballots to be returned when the voter has been disfranchised A rejected ballot implies that. Hence when his vote is counted no return is necessary. That accords not only with the letter of the statute, but with its reason and spirit as well. The act of 1889 does not change the object and purpose of the law. It still requires that rejected ballots only shall be returned, and then only when the voter loses his vote; and that, as the law now stands, is only when the several ballots are for different candidates.
If we are right in our view of the law, (and of that we entertain no doubt,) and of our interpretation of the ballots
rejected “ for being double,” then clearly these ballots should have been counted. But if it be claimed that rejected ballots mean something different from what we have supposed, then we think it is reasonably certain that the most that can be said is, that it is doubtful whether they may not mean something else, and something that will show that they ought not to be counted. Concede for argument’s sake that there may be such a doubt: then, we would ask, in the presence of such a doubt, has the relator established a clear title to the office, especially if counting these ballots would change the result? Tn either event must not the disposition of these cases be the same?
It was strenuously urged in the argument that it must be presumed that the doings of the moderators were regular and legal till the contrary appears. We have said that there can be no such presumption when it appears that they did not conform to the law. All facts essential to their jurisdiction to reject ballots must appear affirmatively. The court will presume none and supply no omissions by intendment. But suppose there is such a presumption. Then it is met and neutralized by another, namely, the presumption that every voter has conformed to the law and done no act which should deprive him of his vote. These two presumptions are incompatible; both cannot stand. It is more charitable to suppose that the moderatoi’S have made a mistake than that the voters have done some act by which they have incurred the penalty of temporary disfranchisement. We think the presumption in favor of the voter must prevail.
Before considering the objections to the different classes of ballots we desire to sajr a word generally concerning the statute of 1889, chapter 247. The first section prescribes the requirements of a valid ballot. In regard to this there is little room for construction. When the legislature has expressed its intention in unmistakable language that intention must prevail. But we are not expected to extend the scope of the statute by construction. As it is somewhat penal in its consequences a reasonably strict construction should be the rule. We are not at liberty to avoid a ballot
that is not within the expressed intention of the legislature. On the contrary, like all penal statutes, it should be limited by construction, if necessary, so as to prevent its application to cases clearly not within its equities.
The 9th section is less specific. It is left to those who enforce the law to determine what is a distinguishing mark. Here is a wide latitude for construction. The language is:—“If any envelope or ballot shall contain any mark or device so that the same may be identified in such a manner as to indicate who might have cast the same, it shall not be counted,” etc. It does not require that it shall be proved that the mark was used to identify the voter. If it did it would practically nullify itself in many eases. A less degree of evidence may satisfy one that the mark was used to identify the ballot so as to indicate who might have cast the same.
It is not easy to define in general words a mark or device here intended. We may only make some suggestions that will aid us in applying the statute to particular cases.
The 12th section allows the voter to make some changes. Obviously such changes may be so made and used as to point out the voter. Accidents and mistakes may cause many ballots to be distinguished from others. In all such cases care should be used that the rights and convenience of the voter are not unnecessarily interfered with.
There are two classes of marks. One is where a plausible reason is or may be suggested for their existence consistent with honesty and good faith; the other, where no such reason can be suggested. The former will rarely be allowed to invalidate a ballot unless it appears that it was in fact used for corrupt purposes ; the latter, unexplained, will generally be presumed to be for corrupt purposes.
We will now consider the cases in detail, using the numbers corresponding with the numbers of the paragraphs in the record.
2. The errors in the towns of Preston, Norwich, Oxford, etc., were properly corrected in the court below.
3. The legality of those ballots printed with the word
“ for ” prefixed to the name of the office, in the absence of any finding that they were so printed for the purpose of identification, etc., has been affirmed by this court.
Fields
v. Osborne, 60 Conn., 544. We have no occasion now to add to what we then said. Such of these votes as were counted were properly counted. Those that were rejected should now be counted.
4. The folded or creased ballots in the town of East Lyme were all folded precisely alike, and in a strikingly unusual manner. The crease made by folding produced enduring and permanent marks of such a nature that when unfolded these ballots can readily be separated and distinguished from other ballots folded in the ordinary manner, and at a greater distance than if marked with a pencil or with ink. These ballots were folded by the 'same hand, or under the direction of the same brain, and before being deposited in the ballot-box. There were similar ballots in the town of Sharon. It is difficult to imagine any legitimate purpose for which these ballots could have been so folded. They should be rejected.
5. In New Haven there were nineteen republican ballots, with each of which were found in the envelope a printed circular from the republican town committee, advising the voter to vote early, and giving the location of the voting place, etc. There are so many of these votes as to preclude the idea that they were the result of ignorance, accident or mistake. That leaves the presumption pretty strong that the circulars were there by design. If by design, it is difficult to conceive of any honest motive in it. We think these votes should be rejected.
Paragraphs 6th to 17th inclusive may be considered together. They relate mostly to alterations in the ballots in respect to the office of judge of probate. In some instances ballots designed for one probate district were by mistake sent to another district. The tickets of the industrial reform, the prohibition, and in some instances of the democratic party, were printed without the name of any candidate for judge of probate. These tickets were generally voted. In
many ballots the name of the candidate for judge of probate was erased and the name of another written in its place, either with a pencil or with ink. Sometimes a printed paster was used and sometimes one written with a typewriter. When the name was left a blank the blank was filled in a similar manner. And generally the ballots were changed so as to adapt them to the town where used and to the views of the voter.
We do not think that the tickets issued with the name of no candidate for judge of probate were thereby invalidated. In every instance we can see that the party had a plausible reason for it consistent with good faith; so that there is no occasion to resort to an inference that they were designed for improper purposes. The party may have made no nomination ; the ballot may have been printed before the nomination; or some other reasonable cause may exist. It is expected, doubtless, that the whole ticket will ordinarily be printed. But if any part is omitted, apparently for good cause, the question is whether the legislature intended that the ballots should thereby become void. The statute does not say so in terms. It prescribes the general requisites of a ballot, and then provides that if it does not conform thereto it shall be void. To hold that such an omission as this makes it void, would be to extend the statute somewhat beyond the letter and clearly beyond its spirit, which is hardly allowable in a statute penal in its nature. The changes to make the ballots sent to the wrong towns conform to-the towns where used are allowable. They consist mainly, if not entirely, in erasing names and substituting others. It was done under that part of the twelfth section allowing a voter to erase, interline, and use a paster. That section was designed to alleviate the otherwise rigid features of the statute and is remedial. As such it should receive a liberal construction. Hence if a man may erase and insert he may procure others to do it for him, or he may adopt the act of others after it has been done. If he may erase and insert he may fill a blank. These are all acts of the same nature as the acts which the statute expressly per
mits. Hence they are within the spirit of the statute. A construction that would limit this section to the thing expressed would be unusual and we think unwarrantable.
Using ballots sent to wrong towns, with names of candidates thereon who were ineligible by reason of non-residence, did not vitiate. In
Fields
v. Osborne, 60 Conn., 544, ballots were used at a town election having the office of judge of probate thereon and the name of a candidate. This court held that the ballot was illegal. The extraneous matter was foreign to the ballot. A judge of probate could not be elected at an election for town officers, and the office of judge of probate and the name of a candidate for that office had no place on the ticket. It was therefore matter in excess of the express requirements of the statute and was in terms prohibited. Here the ballot was in the usual form and contained nothing foreign to it. The men named as candidates did not reside in the district, but that did not appear on the face of the ballot, and in law does not make the ballot void.
There was one ballot in the town of Sterling, counted for the relator, which had the part of the ballot below the words “judge of probate” cut or torn off. That ballot did not conform to the statute. The statute makes it void and it should not have been counted.
18. In the town of Litchfield the democratic ballots were printed with the name of Mr. DeForest, the candidate for congress, in capital letters, with one exception, as follows;— “ROBERT E. DeFOREST.” These ballots were used at the polls until about 10 o’clock, when it was suggested that the ballots were wrong. Thereupon the democratic committee, for the sole purpose of correcting the supposed error, had pasters printed changing the small “ e ” to a capital of the same size with the other letters and pasted them over the name as originally printed. After that 247 of those ballots were cast and 40 were cast before. All were counted for the relator.
We have no doubt that they were properly counted. The first section of the act requiring type of uniform size was
strictly complied with in all other respects. In that there was a violation of the strict letter of the law, but it was not a violation of its spirit and intent. We do not feel justified in throwing out votes for such a cause. It is a matter of common knowledge that this name, and many others of like character, are often, if not usually, printed in a similar manner. We cannot believe that the legislature intended to prohibit it in such cases. We cannot impute to it an intention to interfere with the ordinary mode of writing or printing a name.
The ballot as first printed was a substantial compliance with the statute, and the amendment, though unnecessary, was fairly justified by the twelfth section.
19. One Rathbun was the republican candidate for judge of probate in the district of Lyme. The democrats adopted the nomination, but in printing his name spelled the last syllable with an “ r.” The mistake was discovered and the “ r ’’ ■ erased in ink. In that condition the ballots were used by the voters.
Bad spelling does not vitiate; correcting it ought not to. The transaction carries on its face the explanation, which is consistent with the honesty of the voters, and there is no ground for supposing that it was designed for the purpose of identification. Nor is it additional matter within the prohibition of the first section of the statute. The ballots were properly counted.
20. There were four republican ballots in the town of Hartland with the name of Orton B. French, as candidate for judge of probate, printed thereon. Three of them had two pasters over the name of French, one of them containing the name of J. Hurlbut White, and the other the name of Almon C. Banning. White resided in Hartford, and was a candidate for judge of probate in the Hartford district. That three ballots should be treated in precisely the same very unusual way is a circumstance that requires explanation ; as none is given, and as we can imagine no honest one that can be given, we must regard them as within the prohibition of the ninth section. The other of said four
ballots has the name of Miles B. Preston written in pencil under the name of said French. That is within the prohibition of the first section. All said ballots should have been rejected.
22. Of the 126 ballots rejected in the town of Bridgeport, for the reason that they had thereon marks which were supposed to have been for the purpose of identifying them, 124 should be counted, as it now appears that the supposed marks were accidentally caused in printing.
25. Fourteen republican ballots in the town of Winchester were rejected because they had pasters written in ink, in the same handwriting, but a different name on each paster, pasted over the name of the candidate for lieutenant-governor. One of these ballots had the name of the relator on it pasted over the name of the opposing candidate. We are inclined to think that it was competent for the moderator to find that said pasters, each having a different name as a candidate for lieutenant-governor, written in the same handwriting, was a device for identifying the voter who cast each of said ballots, and was a distinguishing mark within the meaning of the law. Certainly no satisfactory explanation of the suspicious circumstances appears, and we cannot say that the action of the moderator was wrong or unjust.
The Superior Court is advised that the ballots rejected by the moderators, giving no reason therefor, and those rejected for being double, should be counted in estimating the whole number of votes cast.
That the errors in the count should be corrected.
That the “ For ballots,” so called, should all be counted.
That the folded or creased ballots in East Lyme and Sharon should be rejected.
That the ballots found in the envelopes with printed circulars should be rejected.
That all the ballots referred to in paragraphs six to seventeen inclusive should be counted, except the mutilated ballot in the town of Sterling, which should be rejected.
That the 287 ballots referred to in the town of Litchfield are legal and should be counted.
That the ballots in the town of Lyme, in which the letter “r” in the last name of the candidate for judge of probate was erased, are legal and should be counted.
That the four ballots described in paragraph twenty should be rejected.
That 124 of the 126 ballots rejected in the town of Bridgeport should be counted.
That the fourteen ballots in the town of Winchester, rejected by the moderator for the reason stated in paragraph twenty-five, were properly rejected.
In this opinion Andrews, C. J., and Torrance, J., concurred.