216, wherein the Supreme Court of that state was passing on the same question, was quoted: "A ballot bearing a distinguishing mark purposely made should be rejected if the mark is of such nature, or is so placed on the ballot, that the judges or courts might find, in the absence of testimony, or upon testimony if offered, that there were reasonable grounds for believing that such mark was made by the voter with the intent that his ballot should be distinguished from others in the box; that, in determining what ballots should be counted, the court should look at the questioned one, and from such inspection, aided by the notorious facts and circumstances of the election at which it was cast, determine whether the questioned mark was intended by the voter as a distinguishing mark or not, and if, upon such inspection and consideration, aided by evidence aliunde if offered, the court should conclude that the mark was made for the purpose of distinguishing the ballot, or might be reasonably thought to be so intended, the ballot should not be counted." We are not referred to, nor have we been able to find, any case wherein this identical question has been decided. The nearest ap- preme Court of Nevada. Lynip v. Buckner, statute which provided as above set out, the Supreme Court of that state said, in construing the same: "This meaning is undoubtedly to be ascertained from the language of the act viewed in the light of the circumstances under which it is used. If plain and unambiguous, it must be construed as it reads, no matter how unreasonable its operation may be. But as it is not to be presumed that the Legislature intended to enact an unreasonable or unjust law, where such would be the result of its operation if construed in a certain way, and the language is not positive and direct to that effect, it is the duty of the courts to cast about to see if it is not susceptible of some other construction, and in doing this they should consider, not only the language used in some particular section, but the whole scope and purpose of the act, and adopt, if possible, such a construction as will harmonize the various sections with this purpose and with the demands of justice. * Where it is forbidden to count ballots containing names, words, or marks other than those provided for in the act, notwithstand ing the generality of the language, only such as to tend to distinguish the ballots were intended, and such as were, or may have been, placed upon the ticket for that purpose. language has overrun the intention. But in * * * They are instances of where the the case we have to deal with here, the marks upon the ballots (admitting that marks upon the strip attached to the ballot are marks upon the ballot itself, as is doubtless within the intention, if not the letter, of the law), although not placed thereon intentionally, nor with the voters' knowledge or consent, are such as to identify the ballots. Does this alter the case? Under the circumstances. existing here, could this fact have been used for the purposes of intimidation or bribery? It is not possible to intimidate a man into voting for men or measures against his will, unless he has reason to believe that if he does not so vote it will become known to the intimidator. Here the voter knew that if the law was complied with no one could ever ascertain how he had voted. It is not shown that any knew that it was not being complied with, and in fact the fair inference from the testimony is that it was not known to any one until after the polls closed. All supposed that the slips were being removed, and it follows that none could have been intimidated by the fact that they were left on the ballots. But the principat reason for forbidding these distinguishing marks was undoubtedly to defeat bribery. It was believed that the vote buyer would not invest money in the purchase of votes if there was no way by which he could ascertain whether the voter had voted as agreed. The only way in which this could be done by means of marks would be by some mark being placed upon the ballot which had been agreed upon between them; and it must be done either by the voter himself, or by some one else with his knowledge and consent. It is clear that this slip was left on the ballots accidentally, and not for any such purpose as that; and therefore it is not within the spirit or meaning of the law, so far as corruption is concerned. By the blunder of the Inspectors, the strips and numbers were left upon the ballots, whereby it was possible to ascertain just how each one had voted. This was done unintentionally, and without the voters' knowledge. Consequently, as we have tried to show, it could not have been made the means of intimidation, nor the agent of corruption. But by reason of it, without being at all in fault themselves, the voters have incurred all the odium and disadvantages of having the knowledge of how they voted made public. What reason can there be for adding to their punishment that of disfranchisement? To so hold would be like piling Ossa upon Pelion, and, it would seem, was clearly not intended by the law. To hold that it was, would be not to liberally construe the act in favor of the voter, but strictly against him." The reasoning of the court in this case, it seems to us, is entirely applicable to the facts in the case at bar, and to hold that these ballots were not distinguished, but should be counted as cast where otherwise valid, is in consonance with authority as well as good reason and justice. A voter ought not to be disfranchised and his ballot rejected where, as in this case, an election official improperly marks or numbers it, when it is not shown when it was done or that it was done with the connivance, consent, or knowledge of the voter, and for the purpose of distinguishing it. Another thought in this connection which in our judgment strengthens the view we have above expressed is this: If three of the precincts were not to be counted by reason of the innocent and ignorant numbering of the ballots by the officials, many more, onehalf-indeed, to carry the example to the extreme, the ballots in all but one precinctmight have been so treated, and, if contention of counsel be sustained, then the majority of the valid votes cast in one precinct would determine the location of the county seat, the vast majority of the electors of the county who attended and voted on the proposition being disfranchised by the innocent, ignorant, and mistaken acts of others over which they had no control. Can it be thought that such a construction is within the law? We are familiar with the rules and cases on statutory construction declaring the doctrine that where the statute is plain and unambiguous there is no room for construction by the courts, and that those portions of the election laws proclaimed in mandatory language are to be so construed and sustained by the courts; but the very warp of the woof of the whole law on the subject of the construction of written laws is, as is stated in the case of People ex rel. Keeney v. City of Chicago, 152 Ill. 546, 38 N. E. 744, as follows: "A thing within the intention is regarded as within the statute though not within the letter, and a thing within the letter is not within the statute unless within the intention. Perry County v. Jefferson County, 94 Ill. 214; People v. Hoffman, 97 Ill. 234; Anderson v. Chicago, Burlington & Quincy Railroad Co., 117 Ill. 26, 7 N. E. 129. The several provisions of the statute should be construed together in the light of the general objects and purposes of the enactment, and so as to give effect to the main intent, although particular provisions are thus construed not according to their literal reading. Hill v. Harding, 93 Ill. 77; Wabash, St. Louis & Pacific Railway Co. v. Binkert, 106 Ill. 298. The intention is to be gathered from the necessity or reason of the enactment, and the meaning of words enlarged or restricted according to the true intent. Castner v. Walrod, 83 Ill. 171, 25 Am. Rep. 369; Cruse v. Aden, 127 Ill. 231, 20 N. E. 73, 3 L. R. A. 327. That which is implied is as much a part of the statute as that which is expressed. Potter's Dwarris, 145; United States v. Babbitt, When the literal 1 Black, 55, 17 L. Ed. 94. enforcement of a statute would result in great inconvenience and cause great injustice, and lead to consequences which are absurd and which the Legislature could not have contemplated, the courts are bound to presume that such consequences were not intended, and adopt a construction which will promote the ends of justice and avoid the absurdity. Bryan v. Buckmaster, Breese, 408; People v. Marshall, 1 Gilman, 672.” Moreover, the statute provides that a ballot shall not be counted where it bears any distinguishing mark or on which any writing appears. The question may well arise, when, in order to render a ballot invalid, shall such mark or writing appear? Clearly, in our. judgment, prior to the time it is taken If such up to be counted by the officials. mark or writing does not so appear, then the In the case at ballot should be counted. bar we have no light on this subject; that is, the evidence does not disclose whether those numbers were placed on the ballots prior to being deposited in the ballot boxes or after being taken therefrom and in the course of the canvass. If in the latter case, we believe there could be no doubt on the subject; if in the former, we hold, in view of the fact that the numbers made upon the 167 ballots involved herein were not made by the voter but by the election officials, and there being a total absence of evidence showing that they were made either prior to being deposited in the boxes or with the connivance, knowledge, or consent of the electors, or for the purpose of distinguishing them, the same should be counted as cast. We do not mean to pass upon in this case, for the reason that we need not, what the | which only two towns which received the effect would be on the ballot had the evi- greatest number of votes cast at the first elecdence shown that the voter was aware of tion shall be voted for. * * the fact, knew, and saw without protest, the number being placed upon his ballot prior to its being deposited in the box by the election officials. In a later case from the Supreme Court of Nevada, the case of Sweeney v. Hjul, 23 Nev. 409, 48 Pac. 1036, 49 Pac. 169, the case of Buckner v. Lynip, supra, was cited and distinguished. That case was one wherein the voters of one precinct were delivered the ballots with both the stub end and the number thereon, and in this condition cast them. The law required the ballot to be separated from the stub on being delivered to the voter, and the Supreme Court, held, in a contest that. the voter knowing this, and being a party to the identification of his own ballot, cast one which was distinguished and declined to count the same. Now the question which presents itself under this is, Does the phrase "votes cast" mean votes cast and counted, or does it mean ballots cast or votes cast, both counted and not counted because of mutilation? It is the contention of counsel for defendant that the former is the construction to which this language is susceptible, and counsel for plaintiff insist that it is open to the latter construction only, and they have been diligent and vigorous in presenting their different views. The adjudications of neither the territorial Supreme Court or of our own court afford us any light on the subject, and it has been found necessary by all parties to resort to the decisions of the other courts for assistance in determining the proper construction of this language This conclusion on our part brings us to There are almost a countless number of the most serious question in the case, and opinions of the different courts in cases upon the solution of which we have devoted where constitutional and other provisions much effort, and on which will depend wheth-have been submitted for the consideration of er the Governor's proclamation fixing the the electors of a state or a subdivision therecounty seat of McIntosh county at Checotah of, the decision of which turned on the law will be sustained and become final, or wheth-relating to the number of votes which the er another election shall be called with Checotah and Eufaula as the candidates in accordance with the Constitution. proposition must secure in order to become a law, whether by a majority of the voters voting at the election or whether by merely a If the law requires the elimination, in com- majority of the voters voting upon the propoputing the whole number on which the ma-sition presented. They will not, however, asjority is to be computed, of the 87 ballots sist us much in this controversy, for it must found by the referee to be mutilated, Che- be decided upon the language of our Constitucotah, having received 1,664 votes, would tion; but as some of the cases relied on by have a majority of the votes cast. If, how-defendant are of this class, we deem it proper ever, we hold that the term "votes cast" prop-to discuss the leading ones of those cited for erly includes not only the votes counted, but the purpose of distinguishing them from the also the ballots cast by the electors where proposition here presented. valid and free from fraud, and which manifest an honest effort on the part of the voter to participate in the election, but which were so mutilated that they were unintelligible and for this reason could not be counted for either place, then Checotah would not have received a majority. The provisions for locating and relocating county seats of different counties of the state are contained in article 17 of the Constitution, section 6 whereof (section 328, Bunn's Ed.) is as follows: "The towns herein named as county seats shall be and remain the county seats of their respective counties until changed by vote of the qualified electors of such county." Paragraph "b" of said section, being section 333 of Bunn's Constitution, provides: "If a majority of all the votes cast in the county at such county seat election shall be in favor of any town, such town shall thereafter be the county seat; * but, if more than two towns are voted for and no town receive the requisite proportion of all the votes cast, then all names of towns voted for on said ballot, except the two receiving the greatest number of votes, shall be dropped; and a second election, at One of the best-considered of these cases is that of In re Denny, 156 Ind. 104, found in 59 N. E. 359, 51 L. R. A. 722. That was a case in which an amendment to the Constitution was submitted to the voters of Indiana, the Constitution providing, upon the submission to the electors of the state of an amendment, that, "if a majority of said electors shall ratify the same, such amendment or amendments shall become a part of this Constitution." The consideration given to the law on this subject by Justice Baker, of that court, and the thoroughness with which he has treated the entire general question, justifies us in our judgment in quoting at length from his learned opinion. He states: "Where a question is required to be submitted at a certain general election, and is made to depend upon a majority of the votes cast at 'such election,' a majority of all the votes cast at the election is meant, and not merely a majority of the votes cast on that particular question. The conclusion at which we have arrived is sustained, in our opinion, by the overwhelming weight of authority. The following decisions are directly in point: (Cases cited from California, Illinois, Kentucky, Michigan, Minnesota, Mississippi, Mis * * * * souri, Nebraska, and Ohio). And see San- | jority of those voting on the amendment was ford v. Prentice, 28 Wis. 358, on the differ- insufficient. In State v. Bechel, 22 Neb. 158, ence between an elector and a voter. In Peo- 34 N. W. 342, the Constitution provided: 'No ple v. Town of Berkeley, 102 Cal. 298, 36 Pac. such general law shall be passed by the Legis591, 23 L. R. A. 838, the court said of a con- lature, granting the right to construct and stitutional provision: "These words (when- operate a street railroad within any city, ever a majority of the electors voting at a town, or incorporated village, without first general election shall so determine) clearly do requiring the consent of a majority of the not indicate that only a majority of the elec- electors thereof.' The question of having a tors voting upon the proposition is necessary, street railroad was submitted at a general but would seem to imply that a majority of city election, at which 3,146 voters particiall those voting at the election is required.' pated, of whom 1,650 voted for and 1,470 In People v. Brown, 11 Ill. 478, the Constitu- against the railroad. The court said: 'It is tion provided: 'Whenever a majority of the impossible for us, by any system of logical voters of such county, at any general election, reasoning, to say that the election held in the shall so determine.' The court held: 'It does city of Omaha on the 3d day of May, 1887, not mean a majority of those voting on the was other than one election. * * That question to be submitted, but a majority of being the case, * the consent of a all the legal voters of the county.' In People majority of the electors was not given.' In v. Wiant, 48 Ill. 263, the language of the Con- State v. Foraker, 46 Ohio St. 677, 23 N. E. stitution under consideration was 'a majority 491, 6 L. R. A. 422, the constitutional proviof the voters.' Held, that a majority of the sion was that a proposed amendment should votes cast on the question was insufficient. be published 'for six months preceding the In Stebbins v. Judge, 108 Mich. 693, 66 N. W. next election for Senators and Representa594, the statute forbade the incurrence of tives, at which time the same shall be subbonded indebtedness 'unless the qualified mitted to the electors, and if a mavoters of said city, voting in their respective jority of the electors voting at such election wards, shall have authorized the issuing of shall adopt,' etc. Held, that a majority of said bonds by a majority of their votes cast those voting on the amendment was insuffiat any regular election or at a special elec- cient. There are many other cases that are tion called for the purpose of voting upon in harmony with our conclusions, but in such question.' The vote in question was which the constitutional or statutory provitaken at a regular election. Held, that the sion under consideration was found, as in our decision was determinable by a majority of own case of City of South Bend v. Lewis, 138 the votes cast upon the question. In Bayard Ind. 512, 37 N. E. 986, to condition the adopv. Klinge, 16 Minn. 249 (Gil. 221), the words tion of a particular question only upon its of the Constitution under examination were receiving a majority of the votes cast for 'a majority of such electors.' The court de- and against it. (Citing cases from Georgia, cided that a majority of those voting on the Idaho, Illinois, Kansas, Kentucky, Louisiana, question was not sufficient. In Slingerland v. Maryland, Nebraska, New York, North CaroNorton, 59 Minn. 351, 61 N. W. 322, and in lina, North Dakota, Oregon, Tennessee, West Smith v. Board, 64 Minn. 16, 65 N. W. 956, Virginia, Wisconsin, United States Supreme it was held that the whole number voting at Court, and federal courts.) In the great maan election must be determined from the polljority of these the principles that control us lists, not from the return of the votes count-in our holding in the present case are dised as effective. For example: In re The language of the Consti- tinctly recognized. tution under consideration in State v. Powell, County Seat of Linn County, 15 Kan. 500, the 77 Miss. 543, 27 South. 927, 48 L. R. A. 652, phrase 'a majority of the electors of the counwas 'a majority of the qualified electors vot-ty' was considered in connection with the reing.' It was held that the proposed constitutional amendment could only be adopted by a majority of those voting at the same time for any purpose. In State v. Winkelmeier, 35 Mo. 103, the language of the statute was 'a majority of the legal voters.' More than 13,000 voters participated in the election, 5,035 favored, and 2,001 opposed, the adoption of the question submitted. The court said: 'It is evident that the vote of 5,000 out of 13,000 voters is not the vote of a majority, and under the act quoted no authority was given the city.' In State v. Babcock, 17 Neb. 188, 22 N. W. 372, the Constitution provided that 'proposed amendments shall be published for three months preceding the next election of senators and representatives, * * * and if a majority of the electors voting at such election adopt,' etc. Held, that a ma turns of a special election at which the par- cases that cannot be reconciled with the great weight of the decided law, but they probably all belong to the class of which Gillespie v. Palmer, 20 Wis. 544, may be taken as illustrative." that he was not eligible, taking the position that, because of the ineligibility of his rival, he alone had received a majority of the legal votes cast, and was entitled to the office; and the court, discussing this theory in the light Among the authorities to which we have of these facts, gave utterance to the followreferred by the defendant, are several which ing, which was quoted by counsel for defendare cited in the Indiana case just quoted, and ant as sustaining their contention under the are clearly distinguishable from the principle | facts presented in this case: "It is the theinvolved in the case at bar, as the discussion ory and the general practice of our governcontained in that case shows. ment that the candidate who had but a minority of the legal votes cast does not become a duly elected officer. But it is also the theory and practice of our government that a minority of the whole body of qualified electors may elect to an office, when a majority of that body refuse or decline to vote for any one for that office. Those of them who are absent from the polls, in theory and practical result are assumed to assent to the action of those who go to the polls; and those who go to the polls, and who do not vote for any candidate for an office, are bound by the result of the action of those who do; and those who go to the polls and who vote for a person for an office, if for any valid reason their votes are as if no votes, they also are bound by the result of the action of those whose votes are valid and of effect. As if, in voting for an office to which one only can be elected, two are voted for, and their names appear together on the ballot, the ballot so far is lost. The votes are as if for a dead man or for no man. They are thrown away; and those who cast them are to be held as intending to throw them away, and not to vote for any person capable of the office. And then he who receives the highest number of earnest valid ballots is the one chosen to the One of the first cases presented to us for our consideration by counsel for defendant in their brief is the case of Gillespie v. Palmer et al., 20 Wis. 544, which is the same case mentioneu in the closing paragraph of the quotation above given. That was a case which grew out of a submission of an amendment to the Constitution of the state of Wisconsin, under which it was intended to extend the privilege of the franchise to colored persons. The provision of the Constitution providing for its amendment required the proposition to be "submitted to the vote of the people at a general election, and approved by a majority of all the votes cast at such election." The court held that this language was susceptible to the construction that the amendment would become a law when it had been approved by a majority of the votes cast upon that subject, and counsel for defendant argue from this that this would necessarily be construing this language to mean that only those votes counted were in fact cast upon that subject. This decision is against the weight of authority in the United States, and was subsequently criticized in the case of Sawyer v. Dodge County Mutual Insurance Company, 37 Wis. 503-534, where the court stated that it had been subjected to the crit-office." icism that the court decided it in accordance with "the logic of war" rather than the "logic of the law," and in a later case, Bound v. Wisconsin Central Railroad Company, 45 Wis. 543, Mr. Chief Justice Ryan, speaking of the decision, then being rendered by the court, and not agreeing on one proposition decided, said: "I deplore the decision on this point; not merely because I think it wrong, but because I am apprehensive that it will be classed with such cases as * * Gillespie v. Palmer, 20 Wis. 544, which have long been made a reproach to the court, as judgments proceeding upon policy rather than principle." It will thus be seen that this authority, if not overruled, is at least to some extent discredited by the Supreme Court of the state where rendered. It can hardly be said to be in point anyhow. The next case to which counsel directs our attention is that of People v. Clute, 50 N. Y. 451, 10 Am. Rep. 508. This was a case in which one Furman and Clute were candidates in one of the counties in the state of York for the office of superintendent of Clute received a majority of the nan contested him on the ground When the facts and situation under which this discussion was made are taken into consideration, we believe that it will then be clearly apparent that it is not referable to the proposition now before this court. The court follows this by saying that: "They who, knowing that a person is ineligible to office by reason of any disqualification, persistently give their ballots for him, do throw away their votes, and are to be held as meaning not to vote for any one for that office;" and the court held in the syllabus that: "A minority of the whole body of qualified electors may elect to an office where the majority decline to vote, or where they vote for one who is ineligible to the office, knowing of the disqualification. Notice of the disqualifying fact, and of its legal effect, may be given so directly to the voter as to charge him with actual knowledge of the disqualification; or the disqualifying fact may be so patent or notorious as that his knowledge of the ineligibility may be presumed as matter of law. But not only the fact which disqualifies, but also the rule or enactment of law which makes it thus effectual, must be brought home so clearly to |