The opinion of the court was delivered by
HoetoN, C. J. :
The contention in this case is over the construction of the following provision of § 25, chapter 78, laws of 1893 : “If a voter . . . fails to mark the ballot as required by other section of this act, . . . his ballot shall not be counted for such office,” in connection with the other sections of, that act. The contest court found that Taylor had received 2,775 votes, and Bleakley 2,752, giving Taylor a majority of 23 votes. There were sufficient ballots counted by the contest court for Taylor, after deducting similar ballots counted for Bleakley, where the cross (X) or mark of the voter was entirety outside of the designated square or place at the left of his name, to change the result declared by that court. The district court ruled that the requirement of §25 was mandatory, and therefore refused to count the ballots in which the cross (X) or the mark of the voter was entirety outside of the designated place. This ruling is complained of.
[9]*93. Siiotsfnot counted. [8]*8It is insisted that the provision is directory only, and that, if the purpose of the voter can he ascertained with reasonable certainty from the ballot cast by him, effect should be given to it. Unquestionably, prior to the passage of chapter 78 by the legislature of 1893, the rule that the intent of the voter, as evidenced by his ballot, is controlling in the count thereof, was, by a long course of judicial determination, firmly imbedded in the jurisprudence of this state. [9]*9(Jones v. The State, 1 Kas. 273; Gilleland v. Schuyler, 9 id. 569 ; Wilds v. State Board, 50 id. 147.) But tlie legislature of 1893 adopted what is known as the “Australian-ballot system.” The enactment of that statute was designed to inaugurate an important departure from the mode of voting and counting votes which had existed in this state prior to its passage. If the legislature intended to say that a ballot which had failed to accord with certain specifically enumerated requirements on the part of the voter could not be counted, the purpose of the legislature, irrespective of all considerations as to the intent or effect of such failure, if not unconstitutional, cannot be disregarded by courts. If the statute is harsh in its terms, the remedy is with the legislature. Ofir statute was taken almost bodily from the Iowa law. The supreme court of that state has recently passed upon the pivotal question involved in this case. (Whittam v. Zahorik, 59 N. W. Rep. 57.) That court ruled: “That ballots not marked with a cross in any circle or square should not be counted.” That decision was followed in The State v. Hagen, 60 N. W. Rep.(Iowa) 108. See, also, the following cases : Lindstrom v. Board of Canvassers, 54 N.W. Rep. 280 ; The State, ex rel., v. Russell, 51 id. (Neb.) 465 ; Parvin v. Wimberg, 30 N. E. Rep.(Ind.) 790 ; Curran v. Clayton, 86 Me. 42 ; Bechtel v. Albin, 33 N. E. Rep. (Ind.) 967; Sego v. Stoddard, 36 id.(Ind.) 204; In re Vote Marks, 21 Atl. Rep. (R. I.) 962 ; In re Ballot Marks, 27 id. (R. I.) 608 ; Fields v. Osborne, 60 Conn. 544. In Parvin v. Wimberg, supra, it is observed:
“if a statute expressly declares any particular act to be essential to the validity of an election, or that its omission shall render the election void, the courts, [10]*10whose duty it is to enforce tlie law as they find it, must so hold, whether the particular act in question goes to the merits or affects the result of the election or not; for such a statute is mandatory, and the court cannot enter into the question of its policy. In this instance it has declared that the mode by which the elector shall express his choice shall be by stamping certain designated squares on the ballot. There is nothing unreasonable in the requirement, and it is simple and easily understood. Furthermore, if he is illiterate, or is in doubt, the law makes ample provision for his aid. If he does not choose to indicate his choice in the manner prescribed by law, he cannot complain if his ballot is not counted. (Kirk v. Rhoads, 46 Cal. 399.) If we hold this statute to be directory only, and not mandatory, we are left entirely without any fixed rule by which the officers of election are to be guided in counting the ballots.”
In Curran v. Clayton, supra, it was decided that under the statute of Maine giving the voter a clear opportunity to designate by a cross-mark (X) his choice of candidates, the place and method of marking the ballot being regulated and defined in the statute, ballots defectively and illegally marked should be rejected.
The provision of chapter 78, requiring the voter to make a cross-mark (X) to the left of the name of the candidate of his choice for the office to be filled, was construed by the house of representatives of the state at its late session. In the contest brought by W. M. Glenn v. C. E. Wightman, claiming to have been legally elected representative from Greeley county, a written report was filed by the election committee. From that report we take the following excerpt:
[11]*112. baíStsY S-ovisio°n.y [10]*10“After a very careful consideration of the ‘Australian-ballot law,’ and an exhaustive examination of the authorities of this and other states construing its provisions, your committee has reached the unanimous [11]*11conclusion that none of the ballots [ those in dispute J should have been coimted for either candidate. The great innovation upon the prior law made by the Australian law is that the intention of the voter shall be ascertained by an application to the ballot of the directions contained in the statute, and the provisions of our statute directing the manner in which the voter shall express his choice are mandatory. Another object of the law is to prevent the putting upon the ballot by the voter or any other person any mark save and except the cross in the proper space which will designate that ballot from any other ballot cast. Should the door be open to permit the counting of ballots containing any other than the marks permitted by the statute, it would enable persons who had bargained for votes to agree upon a distinguishing mark whereby it could be determined, by a mere inspection of the ballot, whéther or not the voter had carried out his part of the contract, thereby thwarting one of the main objects of the law.”
The report of the election committee was adopted by the house without dissent, the membership of which contained over 40 persons who were members of the legislature of 1893 which enacted chapter 78.
In Boyd v. Mills, 53 Kas. 594, where all the ballots used by the voters of one township were printed on colored paper instead of white, this court ruled that the ballots were properly counted, but remarked, “ they were furnished by the judges to the voters, and were the only ballots furnished to or used by any voter at the voting-place, and therefore the color of the ballots was not sufficient to prevent the counting thereof and added :
“The secrecy of the ballot has been in nowise impaired ; the voters themselves have manifested no disposition to disregard the law, and it may be fairly inferred that the use of the Qolored ballots was an [12]*12honest mistake on the part of the judges of the election.
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The opinion of the court was delivered by
HoetoN, C. J. :
The contention in this case is over the construction of the following provision of § 25, chapter 78, laws of 1893 : “If a voter . . . fails to mark the ballot as required by other section of this act, . . . his ballot shall not be counted for such office,” in connection with the other sections of, that act. The contest court found that Taylor had received 2,775 votes, and Bleakley 2,752, giving Taylor a majority of 23 votes. There were sufficient ballots counted by the contest court for Taylor, after deducting similar ballots counted for Bleakley, where the cross (X) or mark of the voter was entirety outside of the designated square or place at the left of his name, to change the result declared by that court. The district court ruled that the requirement of §25 was mandatory, and therefore refused to count the ballots in which the cross (X) or the mark of the voter was entirety outside of the designated place. This ruling is complained of.
[9]*93. Siiotsfnot counted. [8]*8It is insisted that the provision is directory only, and that, if the purpose of the voter can he ascertained with reasonable certainty from the ballot cast by him, effect should be given to it. Unquestionably, prior to the passage of chapter 78 by the legislature of 1893, the rule that the intent of the voter, as evidenced by his ballot, is controlling in the count thereof, was, by a long course of judicial determination, firmly imbedded in the jurisprudence of this state. [9]*9(Jones v. The State, 1 Kas. 273; Gilleland v. Schuyler, 9 id. 569 ; Wilds v. State Board, 50 id. 147.) But tlie legislature of 1893 adopted what is known as the “Australian-ballot system.” The enactment of that statute was designed to inaugurate an important departure from the mode of voting and counting votes which had existed in this state prior to its passage. If the legislature intended to say that a ballot which had failed to accord with certain specifically enumerated requirements on the part of the voter could not be counted, the purpose of the legislature, irrespective of all considerations as to the intent or effect of such failure, if not unconstitutional, cannot be disregarded by courts. If the statute is harsh in its terms, the remedy is with the legislature. Ofir statute was taken almost bodily from the Iowa law. The supreme court of that state has recently passed upon the pivotal question involved in this case. (Whittam v. Zahorik, 59 N. W. Rep. 57.) That court ruled: “That ballots not marked with a cross in any circle or square should not be counted.” That decision was followed in The State v. Hagen, 60 N. W. Rep.(Iowa) 108. See, also, the following cases : Lindstrom v. Board of Canvassers, 54 N.W. Rep. 280 ; The State, ex rel., v. Russell, 51 id. (Neb.) 465 ; Parvin v. Wimberg, 30 N. E. Rep.(Ind.) 790 ; Curran v. Clayton, 86 Me. 42 ; Bechtel v. Albin, 33 N. E. Rep. (Ind.) 967; Sego v. Stoddard, 36 id.(Ind.) 204; In re Vote Marks, 21 Atl. Rep. (R. I.) 962 ; In re Ballot Marks, 27 id. (R. I.) 608 ; Fields v. Osborne, 60 Conn. 544. In Parvin v. Wimberg, supra, it is observed:
“if a statute expressly declares any particular act to be essential to the validity of an election, or that its omission shall render the election void, the courts, [10]*10whose duty it is to enforce tlie law as they find it, must so hold, whether the particular act in question goes to the merits or affects the result of the election or not; for such a statute is mandatory, and the court cannot enter into the question of its policy. In this instance it has declared that the mode by which the elector shall express his choice shall be by stamping certain designated squares on the ballot. There is nothing unreasonable in the requirement, and it is simple and easily understood. Furthermore, if he is illiterate, or is in doubt, the law makes ample provision for his aid. If he does not choose to indicate his choice in the manner prescribed by law, he cannot complain if his ballot is not counted. (Kirk v. Rhoads, 46 Cal. 399.) If we hold this statute to be directory only, and not mandatory, we are left entirely without any fixed rule by which the officers of election are to be guided in counting the ballots.”
In Curran v. Clayton, supra, it was decided that under the statute of Maine giving the voter a clear opportunity to designate by a cross-mark (X) his choice of candidates, the place and method of marking the ballot being regulated and defined in the statute, ballots defectively and illegally marked should be rejected.
The provision of chapter 78, requiring the voter to make a cross-mark (X) to the left of the name of the candidate of his choice for the office to be filled, was construed by the house of representatives of the state at its late session. In the contest brought by W. M. Glenn v. C. E. Wightman, claiming to have been legally elected representative from Greeley county, a written report was filed by the election committee. From that report we take the following excerpt:
[11]*112. baíStsY S-ovisio°n.y [10]*10“After a very careful consideration of the ‘Australian-ballot law,’ and an exhaustive examination of the authorities of this and other states construing its provisions, your committee has reached the unanimous [11]*11conclusion that none of the ballots [ those in dispute J should have been coimted for either candidate. The great innovation upon the prior law made by the Australian law is that the intention of the voter shall be ascertained by an application to the ballot of the directions contained in the statute, and the provisions of our statute directing the manner in which the voter shall express his choice are mandatory. Another object of the law is to prevent the putting upon the ballot by the voter or any other person any mark save and except the cross in the proper space which will designate that ballot from any other ballot cast. Should the door be open to permit the counting of ballots containing any other than the marks permitted by the statute, it would enable persons who had bargained for votes to agree upon a distinguishing mark whereby it could be determined, by a mere inspection of the ballot, whéther or not the voter had carried out his part of the contract, thereby thwarting one of the main objects of the law.”
The report of the election committee was adopted by the house without dissent, the membership of which contained over 40 persons who were members of the legislature of 1893 which enacted chapter 78.
In Boyd v. Mills, 53 Kas. 594, where all the ballots used by the voters of one township were printed on colored paper instead of white, this court ruled that the ballots were properly counted, but remarked, “ they were furnished by the judges to the voters, and were the only ballots furnished to or used by any voter at the voting-place, and therefore the color of the ballots was not sufficient to prevent the counting thereof and added :
“The secrecy of the ballot has been in nowise impaired ; the voters themselves have manifested no disposition to disregard the law, and it may be fairly inferred that the use of the Qolored ballots was an [12]*12honest mistake on the part of the judges of the election. Had a part of the ballots been white and a part colored, so as to afford some grounds for identification of the votes cast by the individual electors, a different question would be presented.
“In considering the statute, we are to keep steadily in mind the evident purpose of the legislature in its enactment. It is plain that among the most prominent ends sought to be attained was that of absolute secrecy. Any mark or distinguishing feature on the ballots which would enable a person other than the voter himself to identify the ballot and find out how the elector had voted was intended to be strictly prohibited.
‘ ‘ By this decision we do not intend to say that any of the provisions of the law may be disregarded, or that any officer may escape liability to punishment for violating any of its provisions.”
As sustaining the final ruling of the contest court, our attention is called to Coleman v. Gernet, 14 Pa. County Ct. Rep. 578 ; Johnson v. Board of Canvassers, 59 N. W. Rep. (Mich.) 412 ; The State, ex rel., v. Russell, 51 id. 465 ; Spurgin v. Thompson, 55 id. (Neb.) 297. The Coleman case was decided by an inferior court, but follows the decision of Woodward v. Sarsons, L. R. 10 C. P. 733. In that case, the statute referred to differs from ours. Lord Coleridge, in the opinion, said: jj
‘ ‘ The second section enacts as to what the voter shall do ; that ‘ the voter, having secretly marked his vote on the paper, and folded it up so as to conceal his vote, shall place it in an inclosed box.’ This is all that is said in the body of the act about what the voter shall do with the ballot paper. That which is absolute, therefore, is, that the voter shall mark his paper secretly. Plow he shall mark it is in the directory part of the statute.”
The cases of The State, ex rel., v. Bassett, supra, and [13]*13Spurgin v. Thompson, supra, were decided by the supreme court of Nebraska. The statute of that state does not provide, if the ballot is not marked as required, it shall not be counted. That statute has the provision 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.”
Post, J., in referring to that provision, observed :
“It may be, as contended by respondents’ 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 exjjress 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.”
Johnson v. Board of Canvassers (Mich.), supra, gives some support to the rule adopted by the contest court in finally counting the ballots, but even that case differs from this. In that case, the official ballot contained the name of but one candidate for each office. A number of ballots voted were not marked in any manner. The court ruled that, in the absence of names of opposing candidates on the ballot,, those referred to should be counted. An examination of the various decisions construing the Australian-ballot law, adopted by so many states of the union, shows that the current and great weight of authority in this country supports the construction adopted by - the Iowa and Maine courts.
[15]*151. an|0Yo0te?s-seoreoy6 [13]*13It is next insisted if the provisions of §§22 and 25, [14]*14referred to, are mandatory, that tlie statute is in conflict with § 1, article 5 of the constitution, which ordains that “all elections by the people shall be by ballot, and all elections by the legislature shall be viva voce.” It is conceded that the word “ballot” means “a bit of paper having printed .or written thereon the designation of an office, and the name of a person to fill it, and that the person casting it has a right to do so in absolute secrecy.” The cardinal features of chapter 78 are two : First, an arrangement for polling by which compulsory secrecy of voting is secured; second, an official ballot containing the names of all candidates, printed and distributed under official authority. The act compels a vote by ballot, and absolute secrecy. The marking of the vote in seclusion, and in such a uniform way as not to be readily used for identification, reaches effectively a great class of evils, including violence, intimidation, bribery and corrupt practices, dictation by employers or organizations, the fear of ridicule and dislike, or of social or commercial injury, all coercive and improper influence of every sort depending on a knowledge of the voter’s political action. Voting according to a bargain or understanding is especially aimed at. No man has ever placed his money corruptly without satisfying himself that the vote was cast according to the agreement, or, in a phrase which has become only too common in elections, without proof that (‘ the goods were delivered ; ’ ’ and when there is to be no proof by any distinguishing mark, sign, or otherwise, but the word of the bribe-taker (who may have received thrice the sum to vote for the briber’s opponent), it is idle to place any trust in such a use of money. (Wigmore, Australian Ballot System, 52,) A ballot ought to be cast by [15]*15the voter intelligently and thoughtfully. If so cast, there is no trouble in complying with the provisions of chapter 78. If a person is illiterate or physically disabled, he may have assistants to mark his ballot. No one is disfranchised by the act, nor are the provisions concerning the marking of the ballot difficult to understand. The legislature, within the terms of the constitution, may adopt such reasonable regulations and restrictions for the exercise of the elective franchise as may be deemed necessary to prevent intimidation, bribery, and fraud, providing the voting he by ballot, and the person cast-ing "ballot may do so in secrecy. (Curran v. Clayton, supra; Whittam v. Zahorik, supra; Parvin v. Wimberg, supra; Boyd v. Mills, 53 Kas. 594; Blair v. Ridgley, 41 Mo. 63.) We do not think that the provisions of chapter 78 referred to; even if mandatory, conflict in any way with the constitution.
Finally, it is insisted that the district court, after reaching the conclusion it did concerning the counting of the ballots, should have sent the case back to the' contest court for a new trial, and not rendered final judgment. The case as presented to this court is upon admitted facts. The ballots in dispute are truly copied in the record. The case is before us in the nature of an agreed statement of facts. This court is able from the examination of the admitted facts- to direct the judgment. There appears no necessity for reconvening the contest-court.
The counting of the ballots by the district court is approved and the judgment of the court is affirmed.
All the Justices concurring.