182 Ind. 523 | Ind. | 1914
Appellees filed a petition for a local option election in the city of Muncie under the provisions of the act of 1911, commonly called the Proctor Law. Acts 1911 p. 363, §§8316-8323c Burns 1914. An election was held March 9, 1914. The return of the canvassing board showed that a majority of the legal votes east favored prohibition of the sale of intoxicating liquors in the city. Appellants challenged the correctness of the return, and filed remonstrances. There was a hearing before the board of commissioners, which entered a judgment declaring the election legal, and that a majority of the legal votes cast favored prohibition. Appellants then appealed to the circuit court. A trial there resulted in a like judgment.
At the election in question voting machines were used. They were purchased in 1906 by the county commissioners under the law of 1901. Acts 1901 p. 591, §7021 et seq. Burns 1914. When the machines were purchased the precinct boundaries in Muncie were established so as to in-
Appellants contend that our statute which authorizes the use of voting machines in elections by the people is void because in conflict with §13 of Art. 2 of the Constitution of Indiana which provides that “All elections by the people shall be by ballot; and all elections by the general assembly, or by either branch thereof, shall be viva voce.” It is contended that when the Constitution was adopted (1851) the meaning of the word ballot was plain and well understood, and the word as used meant “a printed or written expression of the voter’s choice upon some material capable of receiving and reasonably retaining it, prepared or adopted by each individual voter, and passing by the act of voting from his exclusive control into that of the election officers, to be by them accepted as the expression of his choice.” State, ex rel. v. Board, etc. (1909), 80 Ohio St. 471, 89 N. E. 33, 24 L. R. A. (N. S.) 188. The constitutionality of acts authorizing the use of voting machines has been determined by various American courts, and generally they have been upheld. The machines have been in use in portions of this State for so long a period that we would not be inclined to consider at length the reasons urged against the law, were it not that the supreme judicial court of Massachusetts, in Nichols v. Board, etc. (1907), 196 Mass. 410, 82 N. E. 50, 124 Am. St. 568, 12 L. R. A. (N. S.) 280, held their use in conflict with the constitution of that state, which provides that certain officers shall be “chosen by written votes; and further, that the supreme court of Ohio, in State, ex rel. v. Board, etc., supra, has decided that the use of voting machines is prohibited by a constitutional provision that “all elections shall be by ballot”.
The purpose of the framers of a constitutional provision must be sought, and given effect, if found. Our organic law was framed to better secure to the people of the State
Our Constitution (Art. 7, §5) requires the opinions of this court to be given “in writing”. At the time of the convention, the opinions were delivered in the handwriting of the judges, with pen or quill as the mechanical device used. The object of course was not to preserve the mere handwriting of the judges, but to provide a permanent record of the court’s reasons for its mandates. An opinion as then written could be filed as a permanent record, and consequently the word “writing” was used to symbolize the purpose of requiring a permanent record. In recent years the court’s opinions have been printed on typewriting machines, and thereby the inconvenience resulting from poor handwriting has been eliminated, and no one has been no narrowdy technical as to claim the Constitution has been violated by the innovation.
Of course the framers of our Constitution knew nothing of voting machines: nor did they of the Australian ballot. Neither did they dream of the telephone or electric railway. They must have contemplated the use of new inventions, for during their own lives the industries of the State were greatly modified by railroad construction, and the electric telegraph had arrived. Because they did not know of telephones or electric railways would furnish no argument for their escape from taxation, nor for burdening them with an unequal rate of assessment, in the absence of a constitutional amendment. In reading the debates of the convention which framed our Constitution, one must be impressed with the fact that the members of that body not only contemplated the marvelous growth and progress of the State that have taken place, but, in some respects, anticipated even a greater
The structure of our organic law is sufficiently capacious to meet the requirements of any changes in the election laws designed to prevent fraud or promote a nearer approach to absolute secrecy in voting. That such was the purpose of the 1901 act authorizing the use of machine voting is apparent, and we hold it not violative of the constitutional provision in question. Lynch v. Malley (1905), 215 Il. 574, 74 N. E. 723, 2 Ann. Cas. 837; Elwell v. Comstock, supra; Detroit v. Board, etc., supra; In re Voting Machine (1897), 19 R. I. 729, 36 Atl. 716, 36 L. R. A. 547; United States, etc., Mach. Co. v. Hobson (1906), 132 Iowa 38, 109 N. W. 458, 7 L. R. A. (N. S.) 512, 119 Am. St. 539, 10 Ann. Cas. 972.
It is contended that, conceding the constitutionality of the voting machine law, nevertheless the election in question was void because the Proctor Act, by necessary implication, excludes the use of voting machines in elections held under its provisions. Section 4 of the act reads as follows: 4 4 The ballot in a special election held under the provisions of this act shall be in the following form: Shall the sale of intoxicating liquors as a beverage be prohibited in (here inserting the particular territory in which such election is held) ? All ballots marked with a cross in the square containing the word ‘yes’ shall YES be counted in favor of prohibiting the sale of in_toxicating liquors as a beverage in such territory, - and all ballots marked with a cross in the square no containing the word 4no’ shall be counted' opposed NO to prohibiting such sale therein.” §8319 Burns 1914, Acts 1911 p. 363. Section 10 of the act contains the
. The Australian ballot act was passed in 1889. Acts 1889 p. 157. Section 1 of the act, as amended in 1907, provides that each precinct shall contain, approximately, 250 voters, but this limitation is not applicable to counties where voting machines may be in use. Acts 1907 p. 659, §6882 Burns 1914.
Section 4 of the voting machine act of 1901, as amended, provides that in counties containing a city of 36,000 population, or more, the county commissioners shall, and in other counties may, procure voting machines, meeting the requirements of the act, for use in the various precincts of the county. The same section further provides that precincts where voting machines are used shall contain, approximately, 600 voters. Acts 1903 p. 278, §7024 Burns 1914. Section 3 of the voting machine act (Acts 1901 p. 591, §7023 Burns 1914), requires that voting machines must be provided with seven pairs of “yes” and “no” counters, “with the operating or voting devices therefor.” Section 8 (Acts 1901 p. 591, §7030 Burns 1914) relating to ballot labels, provides for printing thereon, a statement of a proposed constitutional amendment, “or other question or proposition to be voted on.” Section 12 (Acts 1901 p. 591, §7035 Burns 1914) relating to the announcement of the result by the inspector,
It is apparent that the voting machines provided for by the statute are adapted to the use by electors in voting on the question of prohibiting the sale of intoxicating liquors in the territory contemplated by the Proctor Act, and nothing in the construction of the machines renders their use inapplicable to local option elections. Does the language of §4 of the Proctor Act denote a legislative intention to exclude such use? Appellants contend that the use of the word “ballot”, of itself, as found in that section, indicates that the legislators had in mind the paper ballot therein described, and, by the use of that word, intended to distinguish between a vote cast by such ballot and one that might be cast on a voting machine. We cannot concur in such view. It is unnecessary to repeat what has been said about the word “ballot” as found in our Constitution. The same reasoning in the main, is applicable here. When the act was passed in 1911, the members of the General Assembly knew (because it was a matter of common knowledge) that in a great number of the counties of the State voting machines were not in use and in such counties voting was done under the provisions of the Australian ballot act. In such counties it was necessary to make provision for a form of ballot that would be applicable to the Australian t act, or make independent provision for ascertaining the will of the voters. The form of the ballot prescribed by §4, supra, was adaptable to use under the general provisions of the Australian ballot law, and, as the voting machines were adapted for the use of ascertaining the will of the electors, nothing more was required than to provide for the application of the general election laws to elections under the Proctor Act. Indeed, without such provision, it is probable that such intent would have been implied, for in the absence of an express intent to the- contrary, it would be fairly presum
3,393 “Yes” and 2,931 “No” votes were cast. The names of 6,821 voters were entered on the poll lists, making a difference of 497 between the poll list number and the number of votes cast. The election commissioners canvassed the returns, and certified that “Yes” had a majority of 462 votes. The certificate contains a tabulation, by precincts, under the following headings: “Precinct No., Yes, No, Unaccounted, Total.” Under the heading “unaccounted” was placed the number representing the difference between the total number of names on the poll lists in each precinct and the total number of yes and no votes east. In each precinct there was an “unaccounted” number, ranging from 13 in the sixth to 72 in the eighth. The evidence shows that all the 6,821 persons whose names appear on the poll lists went behind the machine and into the voting booth, and operated the lever; when the voters came out most of them said they had voted; “lots of men” did not respond to the question put by the clerk, asking them if they had voted, but in all cases, the clerk announced “voted” when the voter passed out and the word “voted” was written after his name on the poll list. No voter demanded a ballot, though there were ballots at each precinct, designed for use if the machine failed to work.
The machines in controversy are known as the Columbian machines. As shown by the evidence the method of their
It is finally contended by appellants that in determining the vote basis the 497 “unaccounted” voters must be considered, in which event the 3,393 “yes” votes did not constitute a majority. In support of this proposition, they cite In re Denny (1901), 156 Ind. 104, 124, 59 N. E. 359, 51 L. R. A. 722, and a number of cases from other states. Section 7 (Acts 1911 p. 363, §8322 Burns 1914) of the Proctor Act provides-that “If a majority of the legal votes cast at said election shall be in favor of prohibiting the sale of intoxicating liquors as a beverage in the territory * * * , it shall thereafter be unlawful for said commissioners or any court to grant a license * * * and the board * * * thereafter shall have no power * * * to hear * * * applications for license * * * in such territory until at a subsequent election * * * a majority of the legal voters * * * voting at such subsequent election shall vote against prohibiting the sale” etc. (Italics ours.) The first clause we have italicized also appears in §8 (Acts 1911 p. 363, §8323 Burns 1914), in describing “dry” territory, and in §9 (Acts 1911 p. 363, §8323a Burns 1914), in describing “wet” territory. Appellants claim that a different rule for determining the result was not intended to apply to the two elections contemplated by §7, supra, and a reasonable construction of the entire section must result in concluding that it wras intended that the majority contemplated is a majority of the electors taking part in the election. We cannot concur in this conclusion. While we are of the opinion that the same rule applies to the determination of the result of all elections held under the act, we are .also of the opinion, on a consideration of all the provisions of §§7, 8 and 9, supra, that the basis intended was the number of all the legal votes cast.
In the case of In re Denny, supra, this court held that
Appellees cite State v. Clausen (1913), 72 Wash. 409, 130 Pac. 479, 45 L. R. A. (N. S.) 714, which held that under a statute requiring a proposition to issue bonds to be ratified by “three-fifths of the qualified voters of the said city”, ballots rejected as unintelligible or illegal should not be counted in determining the. aggregate. In City of South Bend v. Lewis (1894), 138 Ind. 512, 37 N. E. 986, there was involved the question of the annexation of a town, to that city. The question voted on at the time of the regular city election. In South Bend there were cast 1,750 votes for annexation, and 237 votes against it. In the town there were 39 votes for, and 6 against. The total number of votes