42 So. 676 | Ala. | 1906
Lead Opinion
— This is an application for a writ of prohibition, to he directed to Hon. John Pelham, judge of the circuit court in Cleburne county, to prohibit and restrain him from proceeding to try said Bud Owens, on the ground that the county seat of said county is at Edwardsville, and not at Heflin, in said county, where the court is being held. The alternative writ is waived, and Judge Pelham answers, basing his authority to hold said court at Heflin on the act of March 3, 1903, and the election held thereunder, so that the entire contention rests upon the proposition as to whether or not said act is valid. This act was before this court heretofore, and the court, after full consideration, held that the act is a. general law, that it was properly exacted, and a valid law.— State ex rel. Brown v. Porter, 145 Ala. 541, 40 South. 144. We are satisfied with that decision, and shall not enter into any of the questions, therein litigated.
It is insisted noAV that the act in question is violative of section 41 of our Constitution, which provides that “no court house or county site shall be removed except by a majority vote of the qualified electors of paid county voting at an election held for such purpose,” because section 17 of the act (Acts 1903, p. 124). provides that “if, upon a canvass of the returns of said election, it shall be ascertained and declared, that a majority of all the legal votes cast were in favor of the removal of the county seat, then the city, town, or village thus selected shall thereafter be the. county seat”; the contention being
It is next insisted that said act is violative of section 190 of our Constitution, which provides that “the Legislature shall pass laws, not inconsistent with this Constitution,'to regulate and govern elections, and all such laws shall be uniform throughout the state, and shall provide by law for the manner of holding elections and of ascertaining the result of the same.” This provision has reference particularly to the general election laws of the state; but, conceding that it applies to laws providing for elections in the various counties, this law makes provision for all of the counties according to their several needs, and in providing for so many counties, differently situated, it is necessary that they be
It is next insisted that section 179 of our Constitution implies absolute and inviolable secrery in voting, not only at the time of casting the ballot, but for the future, and that the act in question violates this provision of our Constitution. As this insistence is very urgent, and supported by quotations from a number of cases, we have examined them with great care, and find that, in the greater number of them, the real point in controversy was not before the court, and these dicta are mainly remarks of the court in cases which sustained the constitutionality of various statutes, which were supposed to impigne on similar constitutional provisions.' In the case of State v. Shane, 9 S. C. 94, the only point decided was that, when the Constitution required judges to be elected by joint ballot, it did not mean viva voce voting. In the case of State ex rel. Briesen v. Barden, 77 Wis. 606, 46 N. W. 899, 10 L. R. A. 155, the point decided was that the printing of the word “judiciary’5 on the ballots cast for one candidate, and not on those cast for another, did not invalidate the ballots; the court saying: “It is not the ballot itself that is at fault, but the use made of it.”—Page 608 of 77 Wis., page 901 of 46 N. W. And this, notwithstanding the statute prohibited any device, etc., on the ballot. State ex rel. Runge v. Anderson, (Wis.) 76 N. W. 482, 42 L. R. A. 239, decided that a candidate’s name could not be placed on the ticket twice because he had been nominated by two parties,
Williams v. Stein, 38 Ind. 89, 10 Am. Rep. 97, does decide that an act providing for numbering the ballot is unconstitutional, and for authority cites Judge Denio’s dissenting opinion in People v. Pease, 27 N. Y. 45, 84 Am. Dec. 242, to the effect that “the spirit of. the system requires that the elector should be secured then, and at all times thereafter”; also Temple v. Mead, and People v. Cicott, supra. The opinion, on these authorities, holds that the provision is “contrary to the spirit and substance of the constitutional provision.” The case of Brisbin v. Cleary, 36 Minn. 107, 1 N. Y. 825, does decide that a statute requiring ballots to be numbered is violative of a similar constitutional provision, on the theory that a vote by ballot implies complete and inviolable secrecy. As authorities for this decision, several of the cases supra and a few other are cited; but, upon an examination of them we find them to be expositions of statutes, without reference to constitutional interpretation—the question as to whether a. witness may he compelled to tell how he voted, etc., which do not throw any light on the interpretation of the constitutional provision. The case of Ritchie v. Richards, 14 Utah, 345, 47 Pac. 670, is based upon a constitutional provision requiring elections to be by “secret ballot,” and especially provided that “secrecy in voting shall be preserved.” And the. point decided is that a statute providing for numbering the ballot, and permitting the number to be revealed only in case of a contested election, is not a violation of the Constitution; and the court says: “While we are of opinion that a law might be framed * * better adapted to secure a secret ballot, we are disposed to hold the present law valid, notwithstanding this objection.”—Page 356 of 14 Utah, page 673 of 47 Pac. In the said case the two Associate Justices concur in the result, but differ from the Chief Justice on the validity of the provision requiring the numbering of the ballot, and emphasizing the different wording of their Constitution,
In passing upon a constitutional question, there are ceitain fixed principles which should be kept in mind. At an early day in the constitutional history in this country, the question was fully discussed, and finally settled by the highest authorities in the land, that, in order to authorize a court to- declare an act violative of a state Constitution, it must be found obnoxious to the express terms or necessary implication of some article of the Constitution, and the court cannot declare a statute unconstitutional because it is opposed to the “spirit supposed to pervade the Constitution,” or ‘contrary to the first principles of right,” etc. The courts cannot go beyond the “natural and obvious sense” of the constitutional provision. Beyond the plain wording and necessary implications of the Constitution, the carrying out of the general spirit, or conserving the principles of right, becomes a matter of legislative discretion, and not of judicial interpretation. “Any assumption of authority beyond this would be to place in the hands of the judiciary powers too- great and too undefined, either for its own security or the protection of private rights.”— Cooley’s Const. Lim. (7th Ed.) pp. 239-242, and cases cited in note. Our constitutional provision is simply that “all elections by the people shall be by ballot, and all elections by persons in a representative capacity shall be. viva voce.” — Const. § 179.
If we look to the definition of the word “ballot,” we find that it runs back as far as to ancient Greece, and was derived from the Greek word bailo, to throw, and was originally applied to the casting of balls, shells, pebbles, or beans into a box, as the means of deciding, or voting, in both legislative and judicial bodies. It was not always secret, as it is said that the Grecian assemblies and courts were held in the daytime in public places, and the voters were separate from the popular audience only by a. cordon of ropes, and when the voters went up and deposited their ballots it was known how they voted.—2 Am. Ency. p. 541. It is unnecessary to go into the learning on this subject, bringing it through the laws of the Romans and the French. Suf
The ballot is. simply “a little ball, * * a printed or written ticket used in voting,” etc.; “an act of voting by balls or tickets, by putting the same into a box or urn,” and thus “a secret method of voting.”—5 Cyc. 225. “A ticket or slip of paper, sometimes called a Noting paper,’ on which is printed or written an expression of the elect- or’s choice; a method of secret voting by means of small balls, or printed or written ballots, which are deposited in an urn or box, called a ballot box.’ ” —Century Dictionary. In these and a number of definitions collected in 1 Woods and Phrases, pp. 680, 681, the same idea is predominant—that the ballot is the instrument used in the act of voting, and by using it in that way it is considered a secret mode of voting, as distinguished from a viva voce vote. As to what may be done thereafter is clearly left to legislative discretion.
Resorting to the history of this provision of our Constitution, and the legislative construction of it, it is clear that it has not been understood as involving the interpretation adopted by the Supreme Courts of Minnesota and Indiana. This provision has been in all of the Constitutions of Alabama, from the original Constitution of 1819 to the present time, in practically the same' language. • Yet it is common knowledge that, up to the time of Acts 1878-79, p. 78, the ballots were always numbered and the ballots and the poll lists sent up together
It thus appears that Heflin is the place fixed by law in which the courts of said county should be held, and a decree will be here rendered denying the petition.
Rehearing
— While it is true that if a clause of a Constitution of a sister state, after having been construed by the highest court of that state, is copied for the first time into a Constitution adopted by our oavii state, the presumption is that Ave adopted it with its construction, yet this principle has .no application to a case like this one, where the constitutional provision was in our own previous Constitution, so that it cannot be said to- have been taken from the Constitution of the sister state. While, as this court has said, we are
It is true, as suggested by counsel for the petitioner, that our Constitution of 1819 did provide that the vote should be by ballot “until the General Assembly shall otherwise direct”; but it is also true that the General Assembly never did “otherwise direct.” When the statutes provided for the numbering of the ballots, there is nothing to indicate that the Legislature thought it was changing the mode of voting from voting by ballot to any other mode; but, on the contrary, it was always the “ballots” that were numbered, and no Legislature or court of the state seems to ever have had the least idea that we had ceased to vote by “ballot” because they were numbered. This clause was left off the section in the Constitution of 1868, and we continued to have the same kind of numbered ballot, without any safeguards against the ascertainment of the voter’s choice, and so it continued under the Constitution of 1875, until 1878, when the law was changed, for reasons which it is not necessary to rehearse.
The provision to the Constitution of Texas, in place of sustaining the contention of counsel, that the lawmakers of that state understood that the use of the word
The rehearing is denied.' The entire court sitting and concurring in overruling the motion for a rehearing.
Concurrence Opinion
— While I concur in the conclusion reached in this cause in affirming the appeal and in denying the application for rehearing, I do so for reasons entirely different from those given in the opinion of Justice Simpson. Regardless of the origin or ■derivation of the word “ballot,” the expression “election by ballot” has been expounded and construed by the various courts of last resort, and with entire unanimity they have declared it meant a secret ballot, and that the
The Constitution contemplates, not only that secrecy he preserved at the time of voting, but that it he sacredly guarded for all time, unless the voter himself shall voluntarily divulge it. In Cooley’s Const. Lim. (5th Ed.) p. 762, the author says: “The system of ballot voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases, and with what party he pleases, and that no one is to have the right, or' he in position, to question his independent action, either then or at any subsequent time. The courts have held that a voter, even in case of a contested election, cannot he-compelled to disclose for whom he voted; and for the same reason we think others, who may accidentally, or by trick or artifice, have acquired knowledge on the subject, should not be allowed to testify to- such knowledge, or to give any information in the courts upon the subject. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it. His ballot is absolutely privileged, and to allow evidence of its contents, when he has not waived the privilege, is to encourage trickery and fraud, and would, in effect, establish this remarkable anomaly: that while the law, from motives of public policy, establishes the secret ballot, with a view to -conceal the elector’s action, it at the same time encourages a system of espionage by means of which the veil of secrecy may be penetrated, and the voter’s action disclosed to the public.” So in McCrary, Elect. § 453, it is said: “The secret ballot is just regarded as an important and valuable safeguard for the protection of the voter, and particularly the humble citizen, against the influence which wealth and station may be supposed to exercise. And it is for this reason that the privacy is held not to be limited to the moment of depositing the ballot, but
It has been pointedly held in .the cases of Brisbin v. Cleary, 26 Minn. 107, 1 N. W. 825; Williams v. Stein, 38 Ind. 89, 10 Am. Rep. 97 and Ritchie v. Richards, 14 Utah, 345, 47 Pac. 670, that a statute requiring the numbering of the balot and the keeping of corresponding poll lists was violative of the Constitution, inasmuch as said statute destroyed the secrecy of the ballot. The writer has been unable to find a single authority to the contrary. On the other hand, the framers of the Constitutions of Pennsylvania (1873), of Missouri, (1875) and of Colorado (1876), realizing, uo doubht, that the numbering of the ballot would be violative of the old Constitution, expressly provided that, while elections should be by ballot, the tickets should be numbered. I do not wish to be understood as holding that an act requiring the numbering of the ballot under any and all conditions would be violative of the Constitution. The purpose of the Constitution is to preserve the secrecy of the ballot, yet a statute might require the numbering of the ballot and at the same time preserve its secrecy, by imposing certain duties upon the election officers, such as destroying the ballots before comparison with the poll list, etc.; and this point was doubtless not considered by the courts when considering the numbering of the ballots,-else the respective acts construed may have had no provision for preserving the secrecy, notwithstanding the ballots were to be numbered.
Acts 1903, p. 122, § 10, provides for the numbering of the ballots and the keeping of corresponding poll lists, and the act nowhere provides for a destruction of the ballots or forbids a comparison. How each voter voted can be ascertained by the election managers or commissioners without a violation of law on their part, by a comparison of the ballots with the poll list, and said section 10 is clearly violative of section 179 of the Oonsti-
There is nothing in the statute invalidating the ballots when honestly cast without having been numbered, cr in the Constitution invalidating them because they were numbered; and the doing of or leaving undone something merely directory will not affect the result or annul the election, if there is enough left in the act providing for the holding of same with the unconstitutional portion eliminated. The Case of Brisbin, supra, wherein the statute requiring the numbering of the ballot was construed, was an action on the part of the elector against the election judges for refusing to let
The Supreme Court of Missouri, a state -with a Constitution permitting the numbering of the ballots and with a statute requiring that they be numbered, and which further provided that ballots not numbered could not be counted, in case of State v. Mullix, 58 Mo. 355, held, in .an election contest, that the ballots not numbered should not have been counted and that the statute was not merely directory, because it expressly required that the ballots should be numbered, and not counted unless they were. We have nothing in our organic law or statutes striking down ballots because numbered dr not numbered. Therefore the doing of the one or leaving undone the other is merely directory, and neither of which invalidates the election.
