annum; and that, upon the final payment being made, the Cascade Mining Company should convey, "by good and sufficient deed in fee simple," the property described. Subsequently, on March 1, 1892, the time for making the $1,000 payment was extended to September 1, 1892, and the time for making the $15,000 payment was extended to the 2d day of January, 1893. The contract further provided that Mr. Bash should have possession of the property with privilege to improve the same, and that, in case the payments were not made when due, then all payments theretofore made should be forfeited to the Cascade Mining Company. Mr. Bash went into possession of the property under the contract, and the first and second payments were made as agreed upon. When the last payment became due, on January 2, 1893, it was not paid. On the following day, the Cascade Mining Company, by a resolution, declared a forfeiture of the contract. There is some dispute in the evidence as to whether or not, after this forfeiture had been declared, an extension of time for three days was given to Mr. Bash to make the last payment. This point, however, becomes immaterial, for the reason that on the 5th day of January, 1893, Mr. Bash made a tender of the balance due under the contract, and demanded a deed in fee simple. Thereupon, the Cascade Mining Company agreed to accept the money, and offered to make Mr. Bash a warranty deed for all the property. Mr. Bash refused to take this deed for the reason that patents had not been issued by the United States to the Cascade Mining Company. He thereupon took his money, and went away.

ly issued; that the Casco de Mining Company did not refuse to make deeds, but that respondent, Bash, refused to accept deeds without the patent being exhibited and delivered to him; that the contract provided that the Cascade Mining Company should, upon the payments being made, convey to Bash, by good and sufficient deed in fee simple, the property described. There was no claim or evidence of any character tending to show that the receiver's certificates were obtained fraudulently, or that there were any liens or incumbrances. of any kind against the property; and at the time the tender was made there was no claim that the Cascade Mining Company was not the owner of the property; but the conveyance was refused by Bash simply upon the ground that patents had not issued. The sole question in the case, therefore, is, can the plaintiff rescind his contract simply because patents for the mining claims named had not issued to the appellant at the time the tender was made?

In Carroll v. Safford, 3 How. 441, 11 L. Ed. 671, it was held that after the price of government land had been paid, and the purchaser held the receiver's certificate therefor, the land was subject to taxation, although the patent was not then issued. The court there said: "Lands which have been sold by the United States can in no sense be called the property of the United States. They are no more the property of the United States than lands patented. So far as the rights of the purchaser are considered, they are protected under the patent-certificate as fully as under the patent.

The government, until the patent shall issue, holds the mere legal title for the land, in trust for the purchaser." Witherspoon v. Duncan, 4 Wall. 210, 18 L. Ed. 339; French v. Spencer, 21 How. 228, 16 L. Ed. 97; Stark v. Starr, 6 Wall. 402, 18 L. Ed. 925; Wirth v. Branson. 98 U. S. 118, 25 L. Ed. 86; Simmons v. Wagner, 101 U. S. 260, 25 L. Ed. 910; Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. 95, 29 L. Ed. 423; Benson Mining & Smelting Co. v. Alta Mining & Smelting Co., 145 U. S. 428, 12 Sup. Ct. 877, 36 L. Ed. 762. In Stark v. Starr, supra, it was said: "The right to a patent once vested is treated by the government, when dealing with the public lands, as equivalent to a patent issued." In Deffeback v. Hawke, supra, the court held that the same rule applied to mineral lands as applied to cash and donation entries of agricultural lands; and in Benson Mining & Smelting Co. v. Alta Mining & Smelting Co.. supra, where a receiver's receipt had been issued for mineral lands, the court, after reviewing the decisons of the secretary of the interior and the cases above cited, said: "There is no conflict in the rulings of this court upon the question. With one voice they affirm that, when the right to a patent exists, the full equitable title has passed to the purchaser,

with all the benefits, immunities, and burdens of ownership, and that no third party can acquire from the government interests as against him." It follows that the Cascade Mining Company, at the time it purchased the property from the United States and paid therefor, and received the proper receiver's certificates, was the fee-simple owner of the estate. These certificates stood in place of the patents, and could be set aside only for the same reason, and in the same way, and in the same forum, that patents could be set aside. Wilson v. Fine (C. C.) 40 Fed. 52, 5 L. R. A. 141; Cornėlius v. Kessel, 128 U. S. 456, 9 Sup. Ct. 122, 32 L. Ed. 482. That the patents were not issued at once was because of the magnitude of business in the land department. But such delay in the mere administration of the affairs of the land department does not lessen the title of the purchaser in the lands purchased. The estate was vested upon the issuance of the certificates of purchase, and a deed would convey the fee as well before patent issued as after. There was no claim that there were any defects in the title of the property; no pretense of any liens or incumbrances. The purchaser was in possession. We are, therefore, of the opinion that the respondent was not justified in refusing to take the deeds when offered, and that he could not rescind the contract and recover back the money paid.

The cause will be reversed, with instructions to the lower court to dismiss the action.

STATE ex rel. HARKINS v. ROUNDTREE. (Supreme Court of Washington. June 24, 1902.) ELECTIONS-PREPARATION OF BALLOTS-PASTING NAME ON BALLOT-FAILURE TO MARK BALLOT IDENTIFICATION MARKS -STATUTES AMENDMENT AND REPEAL.

1. Laws 1889-90, p. 405, § 15, corresponding to 1 Ballinger's Ann. Codes & St. § 1362, provided that a voter might vote for any person by pasting the name of such person on the ballot, and that such vote should be counted the same as if printed thereon and marked; and section 23 provided that the ballot might be prepared by marking a cross (X) before or after the person intended to be voted for, or by pasting his name over any other name. 1 Ballinger's Ann. Codes & St. § 1370,-a substitute for Laws 1889-90, p. 409, § 23,-provides that all the candidates of any party may be voted for by marking the X after the party name, but that, if the voter wishes to vote for candidates of other parties than the one thus indieated, he may do so by marking the X after their names, provided that, if more than one candidate for any one office is to be elected, the X shall be placed after the name of each intended to be voted for, in which case he will be deemed to vote for all the candidates of the party whose name is marked, except those otherwise indicated as provided in the act; that the ballot may be prepared by making the X after every name intended to be voted for; and

that names may be pasted over other names, etc. Held, that section 1370 did not repeal Laws 1889-90, p. 405, § 15, or the provision of section 23 relating to pasting names on ballots.

2. Attempting to vote by pasting the name of a candidate on a ballot, as authorized by 1 Ballinger's Ann. Codes & St. §§ 1362, 1370, but without making thereafter the mark X, by which the act authorizes a voter to indicate the names intended to be voted for, is not a mark of identification, within section 1380, prohibiting making any marks of identification on ballots.

3. 1 Ballinger's Ann. Codes & St. § 1376, provides that a ballot, or part thereof, from which it is impossible to determine the voter's choice, is void, but that, when it is sufficiently plain to indicate a part of the voter's intention, such part shall be counted; section 1362, that a voter may vote for any person by pasting the name of such person on the ballot, and that such vote shall be counted the same as if printed thereon and marked; and section 1370, that all the candidates of any party may be voted for by making a mark, X, after the party name, but that, if the voter wishes to vote for candidates of other parties also, he may do so by making the X after the names of such candidates, provided that, if more than one is to be elected to any office, the X shall be placed after the names of each intended to be voted for, in which case the vote shall be for all the candidates of the party indicated by the mark, except those otherwise indicated as provided by the act; that the voter may prepare his ballot by making the X after every name intended to be voted for, and that he may paste the name of any person over the name of any other person. Held, that where the ballots used in an election contained only one set of names for the offices to be filled, the pasting of the name of a person not on the printed ballot over a name printed thereon, but without marking such name or making any mark on the ballot whatsoever, was a sufficient indication of the voter's intention to vote for the person whose name was so pasted on, and should have been counted for him.

Appeal from superior court, Lewis county; A. E. Rice, Judge.

Action by the state, on the relation of C. J. Harkins, against Otis Roundtree. From a judgment in favor of relator, respondent appeals. Reversed.

Millett & Harmon, for appellant. Maurice A. Langhorne, for respondent.

WHITE, J. On the 4th day of December, 1901, an election was held in the town of Winlock, a municipal corporation of the fourth class, for the purpose of electing two councilmen to serve for a period of two years each, and a treasurer for one year. Previous to said election a caucus of the citizens of Winlock was held, and a ticket nominated. The persons nominated at said caucus, and whose names subsequently were placed upon the official ballot, were Howard Darrah and C. J. Harkins for councilmen, and H. A. Baldwin for treasurer, there being but one ticket on said ballot, and said ticket being designated as the "Citizens' Ticket." Otis Roundtree was not nominated, either by caucus or petition, and his name was not printed on the official ballot, but he was voted for by the citizens of Winlock, who pasted his name on the official ballot. The returns of the said election were duly certified to the

council, and, when canvassed, it was determined that C. J. Harkins had received 60 votes for councilman, Howard Darrah S7 votes, and Otis Roundtree 62 votes. Darrah and Roundtree were declared elected, took the oath of office, and entered upon their duties as councilmen of said town. This action was commenced by C. J. Harkins, relator and respondent, against Otis Round. tree, appellant; the information, among other things, alleging that there had been counted for appellant four votes to which he was not entitled, four electors having voted bal lots on which the name of Otis Roundtree was pasted over the name of the relator, C. J. Harkins, and no more names were left on the ballot or ticket than the elector was entitled to vote for, but no cross or mark was placed opposite the name of Roundtree, nor were the four ballots marked with a cross at any place whatsoever. These ballots were counted for appellant, giving him two votes more than were cast for relator. The issue is narrowed to the legality of these four votes so counted for appellant, and the law of the case was argued upon appellant's demurrer to the information. The court overruled the demurrer. Appellant excepted, elected to stand upon his demurrer, and refused to plead further, whereupon formal proof of allegations was waived, and judgment was entered against appellant, to which he duly excepted. Thereafter he filed formal exceptions, and now brings the case to this court on appeal, asking that said ballots as cast be counted for him; also for a reversal of the action of the lower court in the premises, and for reinstatement as councilman of the town of Winlock, to which he claims he was legally elected.

We think the demurrer should have been sustained, and the four ballots as cast should have been counted for the appellant. Municipal elections in towns of the fourth class, such as Winlock, are governed by the general election laws of the state. Section 1001, 1 Ballinger's Ann. Codes & St. The statute specifically provides that a ballot or a part of a ballot is not void unless it is impossible to determine the elector's choice. When a part of a ballot is sufficiently plain to gather therefrom the voter's intention, such part shall be counted. Section 1376, Id. As was said by Justice Dunbar, in delivering the opinion of this court in State v. Fawcett, 17 Wash. 188, 49 Pac. 346: "The whole is composed of parts, and, if it is the duty of the judges of the election to count a part when the intention in relation to such part can be ascertained, it follows that they must count the whole ballot when the intention in relation to all of the parts can be ascertained." "No ticket shall be lost for want of form or mistake in initials of names if the board or judges can determine to their satisfaction the person voted for and office intended." Section 1403, 1 Ballinger's Ann. Codes & St. The presumption is that, when an

elector procures an official ballot from the officers in charge of an election, and returns it to them to be put into the ballot box, the elector intends to vote at such election. In the absence of a willful intent to violate the laws relative to elections, everything is construed in favor of the elector, and in favor of giving effect to his vote. The requirements of statutes are a means to an end, not the end itself. We said in State v. Fawcett, supra: "It is also true, however, that in the absence of constitutional inhibition all statutes tending to limit the citizen in the exercise of the right of suffrage should be liberally construed in his favor. If his ballot is rejected, it must come within the letter of the prohibition; and, when the statute specifically declares under what conditions ballots shall be rejected, courts should not enlarge those conditions, or make other or different conditions from those expressed in the statute grounds for rejecting the ballots. It will be noted that our statute provides only one condition under which a ballot should be rejected, viz., a ballot from which it is impossible to determine the elector's choice; and, after all, this should and must be the intention of the legislature. The important thing is to determine the intention of the voter, and to give it effect." Section 15, Laws 1889-90, p. 405, corresponds with section 1362, 1 Ballinger's Ann. Codes & St., relative to the official ballot, and in part is as follows: "Nothing in this chapter contained shall prevent any voter from writing or pasting on his ballot the name of any person for whom he desires to vote for any office, and such vote shall be counted the same as if printed upon the ballot, and marked by the voter." Section 1370, 1 Ballinger's Ann. Codes & St., is a substitute for section 23, Laws 1889-90, p. 409, and is as follows: "On receipt of his ballot the elector shall forthwith and without leaving the polling place retire alone to one of the places, booths or apartments provided to prepare his ballot. If he desires to vote for all the candidates of any political party he may mark a cross 'X' after the name, against the political designation of such party, and shall then be deemed to have voted for all the persons named as the candidates of such party. If he desires to vote for any particular candidate of any other political party he may do so by placing after the name of such candidate a mark 'X': provided, that if two or more candidates for such office are to be elected, then such voter shall place his mark 'X' after the name of each of the candidates for whom he wishes to vote for that particular office, and in that case such voter shall then be deemed to have voted for all the persons named as the candidates of the political party after which he shall have made his mark 'X,' except those who are otherwise designated as herein provided. Each elector may prepare his ballot by marking a cross 'X' after the name of every per

So far

son or candidate for whom he wishes to vote. In case of a ballot containing a constitutional amendment or other question to be submitted to the vote of the people the voter shall mark a cross 'X' after the question, for or against the amendment or proposition, as the case may be. Any elector may write in the blank spaces, or paste over any other name, the name of any person for whom he may wish to vote." The respondent contends that section 1362, supra, is repealed by section 1370, supra. Section 23, Laws 1889-90, for which section 1370, 1 Ballinger's Ann. Codes & St., is a substitute, required the elector to prepare his ballot by marking an X before or after the name of the person for whom he intended to vote, and provided that the elector might paste over any other name the name of any person for whom he wished to vote; just as section 1370, supra, required such marking after the name and the pasting of names over the names on the ballot. Section 1370, supra, amended section 23, supra, so far as to allow the elector to vote for all the candidates of any political party by making a cross after the party name, and in some other particulars. as the marking of an X after the person voted for and the pasting of the name of any person for whom the elector wished to vote over the name on the ballot, section 1370 is but a re-enactment of section 23, Laws 1889-90, and not a repeal thereof, or of section 15 of the same act. We so held in State v. Fawcett, supra. We there said: "The law of 1895 was largely amendatory of the law incorporated in the general statutes, and it in no way undertook to supersede any of the provisions of the old law." No elector, under a penalty, is allowed to place any mark upon his ballot by which it may be identified. Section 1380, 1 Ballinger's Ann. Codes & St. There is nothing on the four ballots that renders them susceptible of identification by the person who cast them. The mere absence of a mark of identification or an X should not be held as a mark of identification. The statutes having permitted the use of the paster, compliance with the statute by the voter in this respect cannot be urged as a reason for the exclusion of the ballot under the law prohibiting identification marks. The paster in itself is not a distinguishing mark. If an X had been placed after the name on the paster, we do not understand the respondent as contending that the paster itself would be a distinguishing mark. The entire question turns upon the proposition that no vote can be counted unless the elector has marked his ballot with an X after the official designation of the party, or after the name of the person he intends to vote for, whether he uses a paster or not; that the only way the voter can manifest his intention under the law is by making the X required by the law on the ballot; and this, too, irrespective of the fact that the official ballot contained but one

ticket. We think the voter could manifest his intention by voting a ballot such as the official ballot in this instance without any X whatever after the names of the persons on the ballot; and when a name is pasted upon such a ballot, and no more names are left upon the ballot for the office than are to be elected to such office, the intention is equally manifest that the elector intends to vote for the persons left upon the ticket and the person named in the paster, if the elector delivers the ticket to the election officers to be placed in the ballot box. In enacting section 1370 the legislature had in view that the official ticket might contain the names of two or more persons for the single office to be filled. Hence it became necessary in such a case that the elector should use the X as a mark of identification of the person voted for. But this is not necessary where there is but one set of names for the particular office to be filled, and the voter can express his intention of voting for all such persons by leaving the names unmarked with a cross, or by voting for some of such persons by marking an X after their names and leaving the others for whom he does not intend to vote unmarked with an X, as the statute provides. As these four ballots contained but one name for each office, there can be no doubt that the voter intended to vote for all of the persons whose names appeared thereon for the particular office named, unless we conclude that the voter desired that his ballot should not be counted, and that he put it into the ballot box to deceive somebody, or for a useless purpose. As was said by the supreme court of Michigan in a similar case, "This would be going a great way to avoid the duties of citizenship." Johnson v. Board (Mich.) 59 N. W. 412. As we have said, procuring the official ballot and returning it to the officer in charge, to be placed in the box, raises the presumption that the elector intended to vote at such election. On an official ballot containing but a single list of persons to be voted for for the offices to be filled, an X, as we have seen, is not essential in every instance to express the voter's intention, and it is not exclusively the way to express such intention, as the statute does not positively make it so. The placing of a paster containing the name of Roundtree over the name of Harkins on the official ballot clearly indicates an intention to subIstitute that name for the name of Harkins, originally printed thereon, and to this extent changes the official ballot. The ballot should be considered and construed in the light of the facts connected with the election; as, for instance, that it contained but one set of names for the offices to be filled, and, in view of this, the voter is presumed to have exercised his franchise when he deposited the ballot and left all the names unmarked with an X. When the statute does not expressly declare that particular informalities will avoid the ballot, it would seem best to

Mitchell Gilliam and Wm. Parmerlee, for appellant. Preston, Carr & Gilman and John F. Dore, for respondent.

The judgment of the court below is reversed, and the appellant is ordered reinstated as councilman of the town of Winlock. He shall also recover his costs in the court below and on this appeal.

REAVIS, C. J., and HADLEY, FULLERTON, ANDERS, DUNBAR, and MOUNT, JJ., concur.

(28 Wash. 717)

CITY OF SEATTLE v. CLARK. (Supreme Court of Washington. June 27, 1902.) INTOXICATING LIQUORS-LICENSE BY CITYFIXING AMOUNT NECESSITY FOR ORDINANCE-STATUTES-AMENDMENT- REPEAL -RIGHTS OF LICENSEE.

1. Ballinger's Ann. Codes & St. § 2934, giving the exclusive right to license the sale of intoxicating liquor in cities, towns, or villages to the mayor and council, or other governing body, is repealed, in so far as it affects cities of the first class, by Laws 1889-90, p. 215, authorizing cities having a population of 20,000 or over to form charters for their own government, and providing in section 5 (subdivisions 31, 32, 33, § 739, Ballinger's Ann. Codes & St.) that such cities may license the sale of intoxicating liquors and fix the license fees; a legislative intent to repeal such former act being apparent from Sess. Laws 1889-90, p. 148, § 38, and Acts 1895, p. 50, § 1, which operate to repeal the statute as it affects cities of the second, third, and fourth classes.

2. Ballinger's Ann. Codes & St. § 739, subd. 33, which is part of the act authorizing cities of the first class to form charters, authorizes such cities to grant licenses for any lawful purpose, and fix the amount to be paid therefor, by ordinance. Section 742, also a part of such act, provides that the act is to be liberally construed. Sections 735 and 739 provide that such cities may form charters for their own government, and shall have power to provide for general and special elections for voting on questions to be submitted. Held, that section 739 was directory only, and did not preclude a city of the first class from fixing the amount of liquor licenses by charter adopted by popular vote, instead of by ordinance.

3. The Seattle ordinance providing that, in case an amendment to the city charter fixing liquor licenses shall carry at an election, the license fees shall be as so fixed, is a compliance with Ballinger's Ann. Codes & St. § 739, subd. 33, providing that the amount of liquor licenses in cities of the first class shall be fixed by ordinance.

4. The holder of a liquor license granted on condition that the holder shall pay an increased license fee if the fee is increased by an amendment of the city charter has no right to continue such business after such amendment without paying the increased rate.

Appeal from superior court, King county; Arthur E. Griffin, Judge.

Action by the city of Seattle against J. B. Clark to collect a liquor license. From a

WHITE, J. This is an action brought by the appellant for the purpose of recovering from the respondent the sum of $304.69, claimed to be due as the increased license rate for the sale of intoxicating liquors at retail in accordance with the provisions of an amendment to the city charter of Seattle passed at the general election in March, 1902. Prior to said election the license fee for retail liquor licenses in said city was fixed by ordinance at $600 per annum. The freeholders' charter of the city of Seattle, in addition to the laws for the government of cities of the first class, originally provided that the city had power "to license, tax, confine within limits of time and place to be by the city council prescribed, and to otherwise regulate the selling or giving away of intoxicating, spirituous, malt, vinous, mixed or fermented liquors, and the collection of the license money therefrom for the use of the city: provided, that no license shall be granted to any person or persons who shall not first comply with the general laws of the state in force at the time the same is granted, nor shall any license be granted authorizing the selling or giving away of any such liquors within one mile of any military post or reservation established by the United States. The sum required for such license shall in no case be less than the amount required by the general laws of the state for houses or business of like character, and no remission of such license shall be made during the period for which it is granted; and bonds required to be given by keepers or proprietors of saloons or drinking houses shall not in any case be fixed at less than two thousand dollars." Subdivision 32, § 18, of the charter of Seattle. In March, 1902, the people, by a vote of 6,213 against 4,877, amended this charter provision so that after the words "United States" it read: "The sum required for such license shall in no case be less than one thousand dollars, except that licenses for the selling or giving away of such liquors in quantities of not less than one gallon shall in no case be less than four hundred and fifty dollars, and shall in no case be less than the amount required by the general laws of the state for houses or business of like character, and no remission of such license shall be made during the period for which it is granted and bonds required to be given by keepers or proprietors of saloons or drinking houses shall not in any case be fixed at less than two thousand dollars." Since the Sth of March, 1902, said amendment has been a part of the charter of the city of Seattle. On the 4th of June, 1901, the city council passed an ordinance, the material portions of which are as follows: