COULEHAN v. WHITE

William E. Walsh, for the appellant.

Only one judge of election and one clerk signed the return from ward six, which was accompanied by a written statement from the other judges and clerk of the reason why they declined to sign the return. We submit that this is a strict and literal compliance with sec. 68, Art. 33 of the Code, which says: "If any judge or clerk shall decline to sign such return, he shall state his reason therefor in writing, and a copy thereof, signed by himself, shall be enclosed with each return."

Had the return in this ward been defective and such as the canvassing board should not have accepted, the Court had a right notwithstanding to resort to the original ballots to ascertain the will of the voters and the rights of the parties to this proceeding as determined thereby. Leonard v. Woolford, 91 Md. 634; Magruder v. Swann, 25 Md. 209. The record shows that the Court below examined the original ballots in ward six at the instance of appellee, and, that these original ballots had been preserved in the manner prescribed by law and were intact when opened by the Court for examination. The results of this examination cannot be disregard.

Concerning the uninitialed ballots in ward 3. The words of the law are: "no ballot without the endorsement of the name or initials of the judge thereon, shall be deposited in said ballot-box" (sec. 61.) " No ballot" excludes from the box every ballot without the endorsement, whether there be one such, a hundred such. or whether all in a ward be such. The word "no" signifies "not any; not one; none." Prof. Bain, in his Composition Grammar, page 107, speaking of the words "none, no," says: "This is the type of universal denial, and it is the most emphatic form of negation to be found in the language." The law does not stop short when it has provided that no uninitialled ballots shall be deposited. Says the Attorney-General of Maryland, in his "Instructions to Officers of Election and Registration," published with the "Registration and Election Laws of Maryland" by the Secretary of State: "The judge at the ballot-box must make sure that each ballot handed to him has upon it the initials of the judge in charge of the ballots, for under the law, no ballot without such initials upon it can lawfully be deposited in the ballot-box. Knowingly to put in the ballot-box any ballot without its having such initials upon it, or wilfully to neglect to examine a ballot to find out whether it has or has not such initials upon it is an offence punishable by imprisonment," etc. Whatever weight may be due to Haller's profession of ignorance of the requirements of the law, and to his assertion that he tried to perform his duties under the law as he understood it, it is impossible to close one's eyes to the fact (1) that Martz, the judge at the box, knew that the initials of the judge holding the ballots should be on the back of the ballots, and to the fact (2) that he did not look either before putting the ballots into the box nor after taking them out of the box, to see whether they were or were not initialled. We have Martz's own words for these two facts; and so we are dealing with an election officer who confesses himself, in the performance of his duty as judge at the box, guilty of wilful negligence, such as may amount in law to corrupt or fraudulent conduct. Every time he deposited a ballot in the box, having wilfully neglected to look and see whether it had or had not the required initials upon it, Martz, according to the opinion of the Attorney-General committed a crime which rendered him liable to imprisonment, or fine, or both imprisonment or fine; and Martz himself tells us that he did this every time he deposited a ballot in the box, that is to say, four hundred and sixty-four times! The pretense that in this cuse we have to do with an innocent mistake, an act or mere inadvertence or oversight, as distinguished from a wilful neglect or corrupt violation of the law, is utterly demolished by Martz's testimony; and any argument based on that guileless and unwarrantable idea must go with the foundation upon which it is rested. If Martz had even once done his duty, which he confesses he knew; if he had examined the first ballot handed him by voter and which he admits he was aware should have been initialled, the whole trouble would have been avoided.

What shall be done with them? Three things, says the law. First: "But if deposited, shall be counted for the purpose of ascertaining the number thereof" (sec. 61), — so that, we submit, in making up the returns every ballot shall be kept track of, and any discrepancy between the number of ballots enumerated on the tally-sheet and the number of persons voting as shown by the poll-books, shall be accounted for. This is another contrivance of the law for preserving the inviolability of the ballot, because it prevents even the judge who held the ballots from slipping in ballots initialed by himself to take the place of those removed from the box without initials on them. Second: "And the judges shall in ink mark on the back thereof the word "Counted," and endorse their names (sec. 61) — the purpose of which requirement, we submit, is to prevent the initialing of the uninitialed ballots after their removal from the box; and to preserve their identity as ballots deposited without initials and as ballots repudiated by the law for that reason as spurious and fraudulent. Third: "They shall reject * * * * * any ballots which do not have endorsed thereon the name or initials of the judge who held the ballots" (sec. 66). The Standard Dictionary, under the word "every," says: " Any makes no selection and may not reach to the full limits of all * * * * * a promise made to any may not reach all," — which is, in other words, that any, includes all as well as a number less than all. In McComas v. Amos, 29 Md. 141, this Court says: "The word `any' means every." In Duvall v. Miller, 94 Md. at p. 716, this Court interprets the provision that the judges "shall reject any ballots which are deceitfully folded together" meaning all ballots so folded. It is difficult to see why a like significance should not be given to the word "any" in the immediately following requirement that "any" ballots without initials shall be rejected; and especially is this true when it is remembered that previously in the same statute the law provides that uninitialed ballots shall not be deposited at all, in another section makes it a crime to deposit them, directs that they shall be branded with the word "Counted" and be endorsed by the judges, — whereas it makes but the one mention of deceitfully folded ballots that is found in sec. 66 in the words already quoted. If any conclusion is to be drawn from these facts, if any distinction is to be made in the interpretation of the law as between deceitfully folded ballots on the one hand and uninitialed ballots on the other, the fact that the law denounces the former but once, whereas it levels several separate and distinct provisions against the latter, would strongly indicate that the law looks with greater disfavor on uninitialed ballots, it is more careful to guard against them, more anxious to nullify them, than it is to reject deceitfully folded ballots. Yet this Court has held that "any" deceitfully folded ballots means "all" deceitfully folded ballots. It is impossible to escape the conclusion that the intention and design of the law is none other than to exclude all uninitialed ballots, whether part only or all of the ballots in a ward.

If the law means that uninitialed ballots shall be rejected only in case they form but part of all the ballots in a ward, how little a part, or how great a part, must they be? where shall the dividing line be drawn?

In this case it is said that the ballots in ward three are uninitialed by reason of a mistake, that Haller put his initials on the coupons instead of on the ballots themselves, and it is argued that, because this mistake extended to and affected every ballot in the ward, it shows absence of fraud and negatives an intention to wilfully disobey the law, and this alleged want of fraud and of intentional disobedience of the law is urged as reason for accepting these ballots, instead of rejecting them as the law so plainly requires. A stronger case in favor of accepting such ballots would be where the initials had been omitted designedly and with the corrupt purpose of causing the rejection of the ballots, for certainly Courts will go further to render nugatory corrupt efforts, or to undo results attained by such efforts, than they will go to remedy a situation brought about innocently or ignorantly. If this sort of argument is to prevail, and if testimony explaining noncompliance with the law is to be substituted in lieu of compliance, then the election law as a binding force is at an end, and in each case we are remitted, not to an ascertainment and application of the law's mandates but to an investigation of the causes why they were disregarded or not observed. These causes determined, is like weight and equal effect to be given to each? If not, which of them shall necessitate the rejection of uninitialled ballots, and which warrant their acceptance? What weight shall be given to proven fraud? to alleged mistake? to confessed ignorance? to admitted negligence? to oversight due to hurry in a rush of voters? Where two causes contribute to the omission of initialling, and one of these causes is held to avoid the ballots, the other not to affect their validity, shall the judge who held them be called to testify that he omitted initialling such and such ballots — those in favor of his party's candidate, for example, — by reason of this innocent cause, and such and such others, — those of the opposition candidate, for instance, — by reason of this prejudicial cause?

The Legislature having commanded the voter to fold his ballot in a certain way, by the following of which he must necessarily arrive at a knowledge whether his ballot bears the required endorsement, will the Court hold that he is free to disregard the legislative injunction, or will it hold that, despite the fact that the law requires him to so fold his ballot as to display, and, consequently, to observe the endorsement, the voter shall not be presumed to know that law. In Orr v. Bailey, 80 N.W. 495, 499 (Nebraska), the Court holds that the voter "must take notice of the signatures of the two judges on the back of his ballot, and so notice as to materially assist in the process of casting the ballot and its identification prior to deposit by the proper official. The elector is charged with a knowledge of the law, and he can hardly escape the discovery, that the signatures are or are not on the back of the ballot when he folds it, and that it is or is not a ballot which can be used. To this extent he must be asked to give his attention, and that he is asked is certainly not destructive of the freedom of the election, nor do we deem it an impediment or a hindrance of the exercise of the election franchise, nor a new qualification of an elector."

There are a number of recent cases in which the constitutionality of requiring initialling has been declared, and in which the requirement is held to be mandatory. Kelly v. Adams, 183 Ill. 193; Kelso v. Wright, 81 N.W. 805 (Iowa); McKay v. Minner, 55 S.W. 866 (Mo.); Miller v. Schallner, 79 N.W. 865 (N.D.); Orr v. Bailey, 80 N.W. 495 (Neb.); Slaymaker v. Phillips, 47 L.R.A. 842 (Wyo.)

In the three last, all the ballots of one or more precincts were involved and were rejected. In West v. Ross, 53 Mo. 350, and in Ledbetter v. Hall, 62 Mo. 422, the Court rejected 251 and 247 ballots respectively, in each case all in the voting precinct, because not numbered as required by law. These cases indicated that Courts do not hesitate because of the number of ballots to be rejected by reason of obedience to the words of the law-makers.

The case of Hehl v. Cuion, 55 S.W. 1024, decided by the Supreme Court of Missouri, Division No. 1, on March 14th, 1900, is noticeable because it seems to stop short of the length to which the Supreme Court of Missouri, Division No. 2, went in the case of McKay v. Minner, decided February 20th, 1900 (55 S.W. 866), in interpreting the statute of that State which forbids the depositing of unintialed ballots in the ballot-boxes; and also because the statute of that State, inasmuch as it merely requires that ballots without initials shall not be deposited in the box, differs vastly from our own election law, which not only requires that such ballots shall not be deposited, but in addition provides that, if deposited, they shall be counted for the purpose of ascertaining the number thereof, shall be marked "counted" and endorsed by the judges (sec. 61), and that they shall be rejected (sec. 66), remembering that these provisions were part of the law under consideration in Duvall v. Miller, 94 Md. 697, where it was held that a number of unintialed ballots, less than all in a district, should be rejected because so required by these provisions of our law, we presume the Court will not now lend an ear to the suggestion that the Legislature meant by the last few words of sec. 61 that uninitialed ballots, if deposited, should be counted not only "for the purpose of ascertaining the number thereof," as the statute says, but should also be counted for the candidates for whom marked, and especially because to so hold would be to annul the law's latest words on the subject, in sec. 66, that the judges shall reject such ballots.

"The account of the election at Lake precinct is a breeze from Arcady," is the opinion of the California Supreme Court of a situation concerning which it says the case of Tebbe v. Smith, 29 L.R.A. 676: "In this case we are quite willing to believe that the misconduct of the officers of Lake precinct was prompted by nothing worse than ignorance, and lack of appreciation of the responsibilities of their positions, and we may say, further — for such is the evidence — that no harm is shown to have resulted from their conduct; but, looking to the purity of elections and integrity of the ballot-box, we are constrained to hold that conduct like this amounts, in itself, to such a failure to observe the substantial requirements of the law as must invalidate the election."

In Duvall v. Miller, 94 Md. 697, it was held that the voter's mark must be wholly within the square to entitle his ballot to be counted. The inquiry now is, what constitutes such a mark as the law requires the voter to make upon his ballot if he will have it counted. The statute uses the words "cross" and "cross-mark" and the sign or letter "X" in its efforts to make clear what it requires. We have not found in any accessible dictionary the two words "cross" and "mark" given or considered as forming one. The word "cross" has many significations, one dictionary enumerating as many as nineteen. The Standard Dictionary pictures the Greek cross + the cross oblique, X; the Latin cross † the tau cross, T, and a number of other signs to which the name "cross" has been given. The law-makers, certainly aware of the multiplicity of definitions and figures of "cross," and alive to the uncertainty which must follow the unexplained use of the word, come to the aid of the voter and tell him to "prepare his ballot by marking * * * in the blank space provided therefor, a cross — for example (X) — and in case of a question * * * a cross-mark (X) * * *." Here, then, we have the Legislature's illustrated definition of what it means by the words "cross" and "cross-mark," which is none other than what the Standard Dictionary pictures as the oblique cross, crux decussata, or St. Andrew's cross. That same Legislature says "if there shall be any mark on the ballot other than the cross-mark in a square opposite to the name of a candidate * * * his ballot shall not be counted" (sec. 66.) This Court held that this "cross-mark" must be made entirely within the square. Is it essential that this "cross-mark" shall be such a mark as the Legislature pictures? The solution of the inquiry will be found to depend upon the answer to be returned here to questions asked and answered in Duvall v. Miller. It follows, therefor, that the only "cross" or "cross-mark" that the voter has a right to make on his ballot, the only "cross" or "cross-mark" that this Court can countenance at all, is that contemplated and pictured by the statute in the sign — "X."

The requirement that ballots to be counted, shall be marked with X, is in its nature mandatory. Duvall v. Miller, 94 Md. 715; Sego v. Stoddard, 163 Ind. 297; Taylor v. Bleakley, 28 L.R.A. 683 (Kansas); Whittam v. Zahorik, 59 N.W. 57 (Iowa); Curran v. Clayton, 29 A. 930 (Maine); Kearns v. Edwards, 28 A. 723 (New Jersey); In re Flyan, 37 A. 524 (Penna); State v. McElroy, 11 So. 133 (Louisiana).

But, it is to be noted that in Maryland, it is not distinguishing alone that necessitate the rejection of ballots, but any mark on the ballot other than that designated by the law. We so understand Duvall v. Miller, which is in accord with the Maine Court ( Curran v. Clayton, 29 A. 930), the New Jersey Court (28 A. 723, Kearns v. Edwards), and others. If only "distinguishing" marks are forbidden, immediattly the question arises, what is a "distinguishing" mark? and the door is opened at once for one opinion here, another there, and no certainty or uniformity anywhere.

Tested by these statements, which we conceive to be the law, the ballots in class 7 — where the arms of some of the marks on a ballot are at right angles to the sides of the square, and the arms of other marks on the same ballot point to the corners of the square — should have been rejected. This class uses two distinct marks, the Standard Dictionary's Greek cross and its cross oblique — such an arrangement that it is indeed difficult to imagine how a voter could adopt it accidentally. This scheme, if sanctioned by this Court, will afford an easy way of evading the law and of defeating its object. The vote-buyer can instruct his victim to put the Greek cross after A's name, the cross oblique after B's name; the vote-seller can obey these instructions and the execution of the scheme can be certified by corrupt election officials, challengers or watchers ( Sego v. Stoddara, 136 Ind. 307.) Another combination of the same distinct marks can be used with another vote-seller, and so on through many variations. The ballot in this case contained fourteen names, a number quite sufficient to enable an ingenious briber — and these gentlemen are usually ingenious — by the use of + and X to devise an extensive and effective system of tell-tale markings to be used by vote-sellers and to be witnessed by confederate officials. The question is not, whether bribery or other wrong has been done in this case; the question is to guard against the possibility of its accomplishment, which is the object of the law.

Class 9, where some of the lines of the mark "are double lines," illustrated in the record by an X with a fifth arm, should have been rejected. The Court below counted this class "as it is manifest the voters were simply undertaking to make the cross more distinct." Whittam v. Zahorik, 59 N.W. 62, 91 Iowa 23, shows that the Court of Iowa, where marks made "for the purpose of identifying the ballot" are expressly forbidden by statute, rejected ballots bearing "crosses made with more than two intersecting straight lines." Clearly the mark in class 9 is X; but it is more than X — it is four armed X with a fifth arm added — it is X specified by the law plus something, plus a "mark on the ballot other than the cross-mark" pictured in the statute (sec. 66.) If such ballots bearing such marks are rejected in a State where only marks made "for the purpose of identifying the ballot" are forbidden, what shall be done in this State where the law prohibits absolutely "any mark on the ballot other than the cross mark" — X?

Class 11, where the mark shows "only three sides of a cross complete, the fourth side being shorter or incomplete, the mark only having three legs," assuredly does not answer to the picture of a cross — X — shown in the statutes, certainly not to the idea of a cross held by ordinary people — for which two-fold reason we hold that it does not correspond with the idea in the mind of the law-makers when they enacted the election law, and that the ballots bearing this mark should have been rejected by the Court below. It is scarcely reasonable to suppose that the Legislature had a different notion of a cross from that current among common people, or that they hunted up dictionaries to see how many different meanings are assigned to the word "cross," or that they searched for pictures and illustrations and descriptions in order to learn the number and shapes of the different things to which the name "cross" had been given; but if the Legislature did any of these things, and if it is to be judged by its words and acts, as ordinary men are judged, then it is fair to say that its investigations discovered to it what confusion must follow the undefined use of the word "cross" and that, consequently, the Legislature advisedly defined and pictured what it meant by the word "cross" and by the words "cross-mark" to wit, X; and Courts and voters alike are bound thereby.

Of marks such as Class 11 the Iowa Court said, in Voorhees v. Arnold, 78 N.W. 797, paragraph 5: "Several of his markings do no more than have one line barely cross the other, so as to leave it somewhat in doubt if it really is a cross. In one of the squares the lines just meet; that is, one line just reaches the other, so that it is not a cross. Not being a cross it is an unauthorized mark, and does not indicate a choice or vote for the particular candidate." Yet the Iowa statute, whilst prescribing the mark to be used by voters, only requires the rejection of ballots bearing marks made "for the purpose of identifying the ballot."

It goes without saying that Class 11 mark added to Classes 7 and 9 would incline the buyers and sellers of votes to believe that the law is not such a bad thing after all.

Class 24 contains fourteen ballots whereon the mark is "made with blue pencil, but whether indelible pencil or not is not known." The Court counted these "as the statute does not name the color of pencil." This Court said, 94 Md. 713-4, "that it was intended that the use of the indelible pencil should also be taken as mandatory." The statute then under consideration also provides that the supervisors of elections shall provide indelible pencils for marking the ballots at every election (sec. 54), from which it would seem to follow that it was part of the scheme of the lawmakers that the voters should use the indelible pencil so furnished. These blue-marked ballots were put in a class to themselves because they are blue-marked, and because they are in this respect marked differently, and so are distinguishable from all the other ballots cast at the election in question. If the letter of the law fails to specify the color of pencil to be used, assuredly its spirit requires that the same color be used by every voter. Otherwise the way is opened for endless frauds whereby the great objects of the law will be utterly defeated; for no doubt indelible pencils can be and are made in a variety of colors. The corrupt, whether buyers or sellers of votes, or whether intimidators of the dependent and weak, are waiting with eagerness for the day when this Court will nullify the election law by declaring that it permits to voters the use of many different colors of indelible pencils, and the marking of ballots with many varieties of marks other than the X prescribed by the law. The Court must continue to construe the law as it has begun its construction, by insisting upon a strict and literal compliance with the law's mandates — either this, or throw down the bars behind which the lawmakers would secure the secrecy and inviolability of the ballot. Any one mark, and any one color of pencil with which to make it, and the objects and purposes of the law are attained. The moment two or more marks or two or more colors, whether totally different or mere varieties of one another, are held by this Court to comply with the law, that moment the attainment of the objects and purposes of the law is rendered impossible.

Benjamin A. Richmond and Albert A. Doub (with whom was David A. Robb on the brief), for the appellee.

It was wholly immaterial after the judge received the ballot back from the voter and identified it and put it in the box, whether the initials were still on the ballot or not. The plain object of the law was to get into the ballot-box the identical official ballot, which had been handed out by the judges and when that was done there was no possible way in which (if the judges did their duty) a fraudulent ballot could get into the box; there were no fraudulent ballots in the box, as is shown by the fact that the number of the ballots found in the box corresponded exactly with the number of voted names on the poll-books. We have here then a case, which never was contemplated by the Legislature; a case in which the letter of the law has been strictly complied with and the object of the law has been fully carried out, and yet a case differing in one respect from any possible situation contemplated by the Act of the Assembly, and because of this difference in an immatierial detail, not contemplated or provided for by the Legislature, are the voters of a whole ward of a city to be disfranchised en masse, or five hundred and forty-four voters otherwise competent, backed by the constitutional guarantee of their suffrages, to be deprived of them, merely because a judge of election with the most honest intentions inadvertently has done that, which offends neither against the letter, object nor spirit of the law, under which the election was held?

When, therefore, the Legislature said in section 66 that "they (the judges) shall reject any ballots which are deceitfully folded together and any ballots which do not have endorsed thereon the name or initials of the judge who held the ballots," it is clear it did not have and could not have any reference to the case at bar; if a large number of the ballots in the box had been initialed and some were found without initials, as was the case in ward No. 6, there the presumption is, of course, against the validity of said ballots; they are there unexplained, with no evidence that they ever had been initialed, or identified in any way before they were put in the box. It is very easy to see why the law provided that such ballots should be rejected; they are stamped with the suspicion that they were not handed out by the judges, but fraudulently imposed by the voter upon said judges. No such suspicion or presumption, however, can be indulged in with regard to the ballots in ward 3; they were initialed and they either were or could have been identified before they were put into the box, and if the judges did their duty they were so identified and the voter has a right to rely upon the presumption that the judges of election did their duty. Moyer v. Van De Vanter, 12 Wn. 377; 50 Am. State Rep. 903.

In Jones v. State, 153 Ind. 450, the poll clerks wrote their initials upon the outside upper right hand corner of each ballot before it was delivered to the voter. The statute prescribed that they should be written upon the outer lower left hand corner. The Court said: "To hold that all prescribed duties of election officers are mandatory, in the sense that their non-performance shall vitiate the election, is to engraft upon the law the very powers for mischief it was intended to prevent. If the mistake or inadvertence of the officer shall be fatal to the election, then his intentional wrong may so impress the ballot as to accomplish the defeat of a particular candidate or the disfranchisement of a party. And it is no answer to say that the offending officer may be punished by the criminal laws, for his punishment will not repair the injury done to those affected by his acts. It is the duty of the Courts to uphold the law by sustaining elections thereunder that have resulted in a full and fair expression of the public will, and, from the current of authority, the following may be stated as the approved rule; all provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election, all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void. See also Parvin v. Wimbern, 130 Ind. 570.

A voter should not be deprived of his rights as an elector either by the fraud or the mistake of the election officer if it be possible to prevent it. Hodge v. Linn, 100 Ill. 401; Hehl v. Guion, 55 S.W. Rep. 1026; State v. Gay, 60 N.W. Rep. 677, 47 L.R.A., 808 notes; Gumm v. Hubbard, 97 Mo. 311; Caldwell v. McElvain, 184 Ill. 559; Horing v. Burgees, 77 N.W. Rep. 446.

These authorities, taken in connection with those cited by the Court below, in support of its ruling, in rejecting plaintiff's first prayer, show, we believe, the current of judicial decisions on this and similar questions so far as the same have been decided in this country. In many of them, the validity of the votes was sustained on a state of facts varying much more widely from the requirements of the statute than the facts in the case at bar. Here it is obvious that no substantial error was committed and no wrong done to the integrity of the election and that no wrong could have been done. If a trifling distinction of this kind is to be held in this State as sufficient to vitiate an election and entirely defeat the will of the people, it is perfectly obvious that the stringency of election laws will soon be seized upon by designing persons as a convenient means of fraud and thus become a powerful engine for the defeat of the very purpose for which the measure was enacted. We take it to be clear that Courts ought to be and will be more jealous of the constitutional rights of the voters than astute in relying upon immaterial technicalities to cast out a whole ward or district in an election.

We, therefore, respectfully insist that the ballots in both ward No. 3 and ward No. 6, if otherwise properly marked, should not be rejected as a whole for the above errors in the election officers, but should both be counted; but if the votes of ward No. 3 are not to be counted, then by the same token we invoke the letter of the law to exclude also the votes of ward No. 6 en masse. This point is raised by our first and second and appellant's first prayer. That a failure of a majority of the election officers to sign the returns, has caused their rejection by some Courts at least, we refer to the following cases: Jackson v. Wayne, Cl. and H. El. cases, 247; Niblack v. Walls, Smith Election cases, 103; Perry v. Whittaker, 71 N. Car. 475.

Class 9. The marks are wholly within the square, not touching it; it is a cross-mark; there is no part of it on any other part of the ballot except in the square and the fact that the voter at the first stroke of his pencil failed to make a plain mark and made a second mark over the first to be sure of making his cross, throws no suspicion upon the ballot. There is no evidence that it was used as a distinguishing mark, and as we understand the ruling of Duvall and Miller the Court cannot look at the marking of the ballot with an eye to determining whether the voter has marked it with such marks as the Court might construe to be distinguishing marks.

If, therefore, the marking under this clause, in no way offends against the statute law, the judges of election can institute no inquiry as to the intention of the voter in making any kind of mark. They cannot go into the question whether the mark looks like a distinguishing mark; if the mark literally complies with the law, that is the end of it; no discretion is left with the judges of election. Here the marks under class nine are certainly cross-marks; the statute does not prescribe any particular kind of a cross, or whether it shall be made with two strokes of the pencil, or three. This mark is certainly a cross-mark and it is certainly no less a cross-mark because part of one line is marked over with a second stroke of the pencil; besides it must be remembered that the Act of Assembly does not undertake to limit the voter in the form of his cross; it says he shall make "in the blank space provided therefor, a cross — for example (X);" this example does not show perfect cross; it shows a cross-mark with four straight sides, and a cross at the end of each arm of the cross; and besides this form of cross is only given for example. Unless, therefore, we are to reduce the whole election law to an absurdity, by quibbling of this sort, there is nothing whatever to support this contention.

Class 11. The same argument applies to this class. The sample given in the agreed statement of facts presents a case where the lines of the cross are wholly within the square, and there is nothing else on the ballot which offends against the statute; the only complaint being that the fourth side of the cross is shorter or incomplete. There is nothing said in the statute as to how long the arms of the cross should be.

On the subject of these sub-classes, we cite the Court to the following instructive case where very similar questions arose as to the sufficiency of the various markings of crosses, and wherein the Court overruled such objections as frivolous and not sound. State v. Sadler, 58 Pac. Rep. 291.

What constitutes an identifying mark upon a ballot is a question of fact for the trial Court or jury according as the trial may be had, and the finding of either upon such question is conclusive on appeal. Kelso v. Wright, 81 N.W. Rep. 805.