mitted December 13, 1898. Decided December 21, 1898.

Mandamus by Washburn Horning to compel the board of canvassers of Saginaw county to count certain ballots rejected by it as invalid. From an order granting the writ, respondent brings certiorari. Affirmed.

L. E. Bradt and W. G. Gage, for relator.

James H. Davitt and George W. Weadock, for respondent.

MOORE, J. The relator, Washburn Horning, and James Creen, were rival candidates for the office of county treasurer of Saginaw county. Upon the face of the returns, Mr. Horning had 101 majority. Mr. Creen petitioned the board of county canvassers for a recount in a number of voting precincts, among which was the township of Chesaning. The recount was granted. The only question involved is whether a proper disposition was made of the votes of that township. The returns from Chesaning show that 346 votes were cast for Mr. Horning, and 123 for Mr. Creen. Upon the recount by the board of canvassers, 174 votes were credited to Mr. Horning from this township, and 53 votes to Mr. Creen. The result of this action, if allowed to stand, would be to elect Mr. Creen. Upon the petition of the relator, after a hearing, the circuit court for the county of Saginaw directed a writ of mandamus to issue to the canvassing board, directing it to reconvene and recount the ballots cast in the township of Chesaning, including the ones rejected by the board. The board then filed a petition in this court for a writ of certiorari to have the order of the circuit court granting the writ of mandamus vacated.

The ballots which were cast in the township of Chesaning were all marked upon the back thereof with the initials of one of the inspectors of election. Two hundred and thirty-nine of them were marked in the lower right-hand corner, instead of in the upper left-hand corner, as re

quired by the provisions of section 22, Act No. 190, Pub. Acts 1891. All of these ballots were rejected by the board of canvassers, upon the ground that the marking in the lower right-hand corner constituted a distinguishing mark. One hundred and seventy of the rejected ballots were cast for the relator and sixty-nine for Mr. Creen. It is urged upon the part of respondent that the requirement that the inspector's initials shall appear upon the back of the ballot, and the place where they shall be placed, is mandatory, and not merely directory,citing Attorney General v. May, 99 Mich. 538, 558, 559 (25 L. R. A. 325); Attorney General v. McQuade, 94 Mich. 439; 6 Am. & Eng. Enc. Law (1st Ed.), 348; People v. Board of Co. Canvassers, 129 N. Y. 395 (14 L. R. A. 624); Sweeney v. Hjul, 23 Nev. 409; Ex parte Riggs, 52 S. C. 298; West v. Ross, 53 Mo. 350, 355; State v. McKinnon, 8 Or. 500.

It is also said: The electors whose votes were thrown out by respondents in their recount cannot complain if that action is affirmed. An elector who votes a ballot not bearing the initials of the inspector, as required by law, or bearing any other distinguishing mark, is bound to know that it will not be counted. Every elector must know that the law forbids counting ballots which bear distinguishing marks, either on the back or face. If a ballot improperly marked with the initials of the inspector is given to a voter, the latter is not bound to vote it, but he should demand a lawful ballot. He cannot blindly rely upon the inspectors, "-citing People v. Board of Co. Canvassers, supra; Sweeney v. Hjul, supra.

It is further stated: "The fact that a considerable number of votes must be thrown out cannot affect the application of the rule,"-citing People v. Board of Co. Canvassers, 129 N. Y. 414 (14 L. R. A. 633), opinion of Ruger, C. J.; Attorney General v. Glaser, 102 Mich.

401.

None of these cases is directly in point, but it is asserted the reasoning contained in them justifies the action of

the canvassing board. We shall have occasion to refer to some of them later.

The provisions of the statute, so far as they relate to the initials, are as follows:

Section 22: "The inspector so designated shall at once proceed to write his initials in ink on the upper lefthand corner of the back of each of said ballots, in his ordinary handwriting, and without any distinguishing mark of any kind."

Section 26, as amended by Act No. 202, Pub. Acts 1893, provides:

"Before leaving the booth, the elector shall fold his ballot so that no part of the face thereof shall be exposed, and so that the initials of the inspector shall be on the outside thereof, and on leaving the booth shall at once deliver, in public view, such ballot to the inspector designated to receive the same, who shall thereupon announce audibly the name of the elector offering the same. The inspector shall then, in the presence of the elector and the board of inspectors, deposit the same in the ballot-box without opening the same."

Section 36 provides:

* * *

"In the canvass of the votes, any ballot which is not indorsed with the initials of the inspector as provided in this act, and any ballot which shall bear any distinguishing mark or mutilation, shall be void, and shall not be counted."

The record shows that all the ballots which were rejected bore the initials of the proper officer. To mark these ballots, the convenient and natural way would be to spread them before the inspector with face down. The rejected ballots were doubtless put before the inspector with the bottom of the sheet where the top should have been, and, as so placed, were marked in the upper left-hand corner with the initials of the inspector. This is shown by the fact that the upper part of the initial letters was next to the lower margin of the paper. The record does not disclose that either the electors or the inspectors knew any mistake had been made in the marking. When one of

the ballots was folded, it could not be told that the ballot was not marked in the upper left-hand corner. The ballots were voted and counted without their validity being questioned. There is nothing to indicate the inspector who marked them, or the electors who voted them, discovered they were not properly marked, or that there was any wrong intended by any one in connection with the transaction. Nor could it be told for whom any individual elector voted. Under such a state of facts, should the electors voting these tickets be disfranchised, and a man declared elected when fewer votes were cast for him than for his opponent?

In Attorney General v. McQuade, supra, and Attorney General v. May, supra, persons entered the booth with the electors, when they were not authorized to do so. by the statute, and the secrecy provided by the law was violated. The inspector and the electors were both parties to the illegality. The cases do not aid in the solution of the questions involved in this case. The case of West v. Ross, 53 Mo. 350, was under a statute which required the ballots to be numbered, and which provided in express terms that ballots not numbered should not be counted. It would be in point if our statute provided that no ballot should be counted unless the initials of the inspector were in the upper left-hand corner; but it does not so provide. In the case of State v. McKinnon, supra, the elector cast a ballot which was upon colored paper, when the law required the ballots to be upon plain white paper, thus making the ballot easily distinguishable. The case of People v. Board of Co. Canvassers, supra, was one where there was a ballot for each party ticket, instead of having the tickets all printed upon one ballot, as our law requires. The indorsement on the back of the ballots enabled the inspectors to know what party ticket the elector voted. Three of the seven judges dissented from the majority opinion. One of the majority judges based his opinion upon the fact that he thought the evidence disclosed the law had been designedly violated. The court

refused to follow this opinion in the later case of People v. Wood, 148 N. Y. 142.

While it cannot be said the authorities are uniform, we think a distinction is made between the act of the electors and that of the inspector. In People v. Bates, 11 Mich. 362 (83 Am. Dec. 745), Justice CHRISTIANCY said:

"If the fraud of the voters, the ballots should not be counted; if that of the inspector, they should."

In Lindstrom v. Board of Canvassers, 94 Mich. 467 (19 L. R. A. 171), in construing section 36 of the act, it is said:

"The evident intent of this provision was to provide against voters' marking the individual ballot which they cast in such manner as to distinguish it."

In Loranger v. Navarre, 102 Mich. 259, it is said:

"The voter, finding the ticket upon the ballot, cannot be required to determine its regularity at his peril. This might involve a necessary knowledge of facts difficult to ascertain. He may safely rely upon the action of the officers of the law, who he has a right to suppose have done their duty."

In People v. Avery, 102 Mich. 572, it is said:

"The electors are not to be deprived of the result of their votes at an election by the mistake of election officers, when it does not appear to have changed the result."

In Moyer v. Van De Vanter, 12 Wash. 377 (29 L. R. A. 670, 50 Am. St. Rep. 900), this language is used:

"Many cases have been cited by counsel as supporting the positions taken by them, respectively, and many of these involve a consideration of various phases of the law commonly known as the 'Australian Ballot Law,' in force here, but which is a comparatively new thing in this country. These cases cannot all be harmonized, but the general trend thereof has been to recognize a clear distinction between those things required of the individual voter and those imposed upon election officers. There is a disposition to hold the former valid and mandatory; but where there has been a substantial compliance with the