author: Donahue, J. Davis, C. J., Shauck, J.,

text:
    The State, ex rel. Weinberger, a Taxpayer, v. Miller et al. The State, ex rel. Fritch, v. The Board of Deputy State Supervisors of Elections.

      Election of judicial oMcers — By separate ballot — Act of general assembly, passed February 17, 1911 — Is valid exercise of legislative power.

    The act of the general assembly of the state of Ohio passed February 17, 1911 (102 Ohio Laws, 5), entitled: “An act to provide for the election of - judicial officers by separate ballot,” is a valid exercise of legislative power and not repugnant to the constitution of this state.
    (No. 13666 and No. 13820
    Decided October 3, 1912.)
    Error to the Circuit Court of Cuyahoga county.
    In Mandamus.
    The facts are stated in the opinion.
    The State, ex rel. Weinberger, v. Miller et AL.

      Messrs. Hidy, Klein & Harris, for plaintiff in error.
    1. Said act is in violation of Section 2, Article V, Constitution of Ohio, requiring that all elections shall be by ballot.
    The meaning of the word “ballot” as used in Section 2 of Article V, is not vague or uncertain. More than one hundred years of legislation and judicial interpretation have served to impart .to the term both fixity and definiteness.

      In the Constitution of 1802 the. provision was identical with that used in 1851. Section 2, Article IV, Constitution of 1802. Even at that early date the method of voting had been established. In proof of this see the act of December 9, 1800 (2 Laws N. W. Terr., 90), from which act it will be seen that prior to the adoption of the Constitution of 1802, the operation of voting consisted in handing a single ticket to the judge of elections.
    Immediately following the adoption of the constitution, the general assembly adopted the act of April 15, 1803 (Revised Laws of 1805, 334).
    Section 13 thereof was re-enacted with slight changes in the various election laws passed by the general assembly from 1803 to 1851. Following the adoption of the Constitution of 1851 the general assembly passed an act regulating the election of city and county officers, being the act of May 3, 1852 (50 O. L., 313). Section 9 of that act reappears as Section 2949, Revised Statutes of 1880, and Giauque’s Revised Statutes.
    From this legislation it is clearly apparent that during the entire period from the adoption of the Constitution of 1802 until the adoption of the Australian ballot law in 1891, the word “ballot” in its primary signification as used pn the constitution meant a single ticket upon which appeared the names of all the officers for which the elector was entitled to vote, and that this primary meaning was placed beyond doubt by the action of the general assembly in applying the modifying adjective “single” so as to exclude the possibility of using a multiplicity of ballots.

      This view is sustained by the decision in the case of Roller v. Truesdale, 26 Ohio St., 586, where the court interprets this ancient statute together with the act of March 21, 1874 (71 O. L., 31).
    It is hardly necessary to observe that at the date of this decision (1875) ballots were printed under private or party control and distributed to the electors outside of the election booth. The right to vote such a ticket so distributed had been recognized for seventy-five years but always with the limitation the court expressly recognizes and applies in the case cited.
    That the ballot referred to in the constitution is a single physical entity was evidently in the mind of the court in State, ex rel. Bateman, v. Bode, 55 Ohio St., 224.
    We consider that the views here advanced are fully sustained by the decision of this court in State, ex rel. Karlinger, v. Board of Elections, 80 Ohio St., 489.
    The applicability of this doctrine to the question under discussion admits of no doubt. The constitution, by its language, plainly contemplates a single ballot and “this meaning of the provision has been illustrated and made absolutely certain” by the acts of the general assembly and the decisions of this court thereon.
    In providing for a separate ballot for the election of judicial candidates, the legislature in effect amends the constitution and declares that all elections shall be by ballots. It substitutes a plural for the singular, multiplicity for unity, confusion for certainty.
    It may be urged that separate ballots have been authorized by the legislature in respect to various minor officers, such as members of the board of education, assessors of real property and the like. So far as we are aware no question has been heretofore presented in any court as to the constitutionality of such statutes and they have been considered valid rather as a result of sufferance than of reflection.
    2. Said act is in violation of Section 1, Article Y, providing that all citizens possessed of the requisite qualifications shall be entitled to vote at all elections.
    If the act under examination directly or indirectly denies or abridges the constitutional right of citizens to vote, or unnecessarily impedes the exercise of such right, it cannot be sustained as a constitutional enactment. Monroe v. Collins, 17 Ohio St., 666; Daggett v. Hudson, 43 Ohio St., 548.
    If the practical effect of the act is to disfranchise the elector, the act is void. The constitutionality of such an act is to be determined by its practical operation. State v. Hipp, 38 Ohio St., 199.
    The constitutionality of. an act substantially similar to the one under consideration was at issue in the case of State, ex rel. Ragan, v. Junkin, 85 Neb., 1, where the court held that the act was in violation of Section 5, Nebraska Bill of Rights, and as being further in violation of Section 19, Bill of Rights.
    Similarly, in State, ex rel. Holliday, v. O'Leary, 43 Mont., 157, 115 Pac. Rep., 204, it was held that a “statute which denies to the electors of the state or any part of it the right to nominate candidates for public office is violative of Sections 5 and 26, Art. Ill, of the Bill of Rights.”
    ■ The constitutional clauses upon which the foregoing decisions rest are in substance the same as Section 3, Article I, and Section 11, Article I, Constitution of Ohio.
    It requires no argument to demonstrate that the abolition of party designations upon the ballot is a revolutionary innovation. The effect of such an enactment is to confront the bewildered voter with an unclassified list of candidates numbering thirty to three hundred, as the case may be, who, so far as the ballot discloses, are without ideas,- views or convictions upon any political or economic subject and who, for aught that the ballot discloses, may harbor undisclosed views which the elector considers destructive of government and hostile to the welfare of the electorate.
    It may be fairly said that political organizations are indispensable to our forms of government. This view is well sustained by judicial authority. State, ex rel. McGrael, v. Phelps, 144 Wis., 1; Dapper v. Smith, 138 Mich., 104; Britton v. Board of Elections, 129 Cal., 337.
    In Ohio continuous and extended recognition has been accorded political organizations. Express recognition may be considered as beginning with the act of February 24, 1871 (68 O. L., 27). By amendments the primary thus provided, which was wholly within the discretion and control of the party leaders, has been changed into the present primary law conducted at the public expense, controlled by public officials and held upon days fixed by law. The acts of April 20 and 23, 1904 (97 O. L., 107, 439), providing for such primaries, were subject to detailed examination by this court in State, ex rel. Webber, v. Felton, 77 Ohio St., 554.
    3. Said act is in violation of Section 26, Article II, in that it does not operate uniformly upon the subject-matter of elections.
    The subject-matter of elections is general in its nature, and all laws with reference thereto must be of uniform operation throughout the state. State, ex rel., v. Buckley, 60 Ohio St., 273.
    It is submitted that the provisions of the nonpartisan judiciary act .which single out judicial candidates and direct, as to them, a method of voting wholly different from that applicable to other candidates, are in violation of the constitutional clause requiring uniformity of operation.
    The validity of such an act should be tested in the light of its effect upon the voter especially where, as is shown in the case at bar, the electorate has been accustomed for generations to vote a single ballot containing the names of all the candidates. Hopper v. Britt, 203 N. Y., 144.

      Mr. Timothy S. Hogan, attorney general; Mr. Robert M. Morgan; Mr. J. J. Babka; Mr. Clarence D. Laylin and Mr. Prank Davis, Jr., for defendants in error.
    The plaintiff in error bases his whole brief upon the assumption that the law violates three certain provisions of the constitution, namely, Section 2, Article Y; Section 1, Article V, and Section 26, Article II.
    For the further convenience of the court, we call attention to the collection of the provisions of the Constitution of 1851 which relate to elections as assembled and pointed out by the court in Lehman v. McBride, 15 Ohio St., 593-595.
    If the relator is correct in analyzing his own case, then- it clearly appears, in our opinion, that the right that he is seeking to protect by his action is a political right and not a civil right. The conservation of this right does not fall within the jurisdiction of a court of equity. 1 High on Injunctions, Sec. 2Ob; Green v. Mills, 69 Fed. Rep., 852; In re Grear, 6 N. P., 312, 9 Dec., 299.
    It is the policy of the judiciary always to abstain from calling into question the constitutionality of a law if there is another ground upon which to rest their judgment. Ireland v. Turnpike Co., 19 Ohio St., 373; State, ex rel., v. Price, 8 C. C., 25, 4 C. D., 296.
    A statute will not be declared unconstitutional in case of doubt, but will be sustained unless clearly violating the constitution. State v. Kendle, 52 Ohio St., 346; C. C. C. & St. L. Ry. Co. v. Wells, 65 Ohio St., 313.

      Limitations or prohibitions put upon the exercise of the legislative power must be expressly found in the constitution or • be clearly inferable from its provisions. Lehman v. McBride, 15 Ohio St., 573; Mason v. State, ex rel., 58 Ohio St., 30.
    If an act is not found to violate the express words of the constitution it cannot be declared void as opposed to a spirit supposed to pervade the constitution but not expressed in words. State, ex rel., v. Cincinnati, 19 Ohio, 178; Walker v. Cincinnati, 21 Ohio St., 14.
    In the light of the above rules it certainly follows that if the legislature of Ohio had the power in its discretion to provide a special way for the election of judges as distinguished from other public officers, this court could not properly declare the act in question unconstitutional.
    We do not see how it can fairfy be claimed that the election of judges, as provided for, is not by ballot. As pointed out in the case of Lehman v. McBride, supra, this provision of the constitution applies to the manner of election only. The very fact that the legislature by previous laws saw fit to provide that a single ballot only should be used, as pointed out in plaintiff in error’s brief, is evidence that the legislature never considered that the constitution itself prescribed a single ballot.
    Section 1, Article V, Constitution of Ohio, is not violated. This section absolutely does nothing more than say who shall be electors. There is nothing in the act under consideration that restricts the class of citizens who shall be entitled to the franchise, or adds to or takes from the qualifications necessary for a citizen to be entitled to the privilege of the voting franchise.
    The legislature, however, is certainly the first, if not the final judge, of what are proper regulations for the exercise of the voting franchise.
    The act does not violate Section 26, Article II, of the constitution. We think the court can properly take judicial notice of the fact that the office of judge is one that is easily distinguishable from that of all other offices, the occupants of which the electors are given the privilege under the constitution of naming by the sanction of their votes.
    If this court can say that the office of judge is in a class by itself, certainly it cannot be said that the legislature did not have power to prescribe special regulations for the exercise of the franchise by the electors when considering candidates for •such office, and any regulations so provided by the legislature as in this act, it seems to us, cannot be claimed to violate any part of. the constitution prohibiting special legislation or general laws having special operation. The act in question is a general law, and has a general operation so far as the persons, privileges or things are concerned upon which it operates. State, ex rel., v. Creamer, 85 Ohio St., 349; Miller v. Crawford, 70 Ohio St., 207; State, ex rel., v. Spellmire, 67 Ohio St., 77.
    Because public money may be used for the expense of a party primary, and a judicial candidate so selected is not entitled to a place on his party ticket, does not make the law invalid. Such expenditure of public money is by virtue of a prior and independent law. If such prior law by reason of subsequent legislation, comes to have a complete or partial unconstitutional operation, it must under all rules for the construction of statutes, be considered to have been entirely or partially repealed, or become inoperative. Thorniley v. State, ex rel., 81 Ohio St., 118.
    The fact that it may be more difficult for an elector who cannot read because of lack of education to vote for judges, does not make the law invalid.

      We understand that this may be suggested as fatal to the law being construed by the court, and wish to notice the point. By Section 5078, General Code, it seems that election officers cannot aid an elector unable to read through lack of education, in marking his ballot. This has been the law, as far as we have been able to find out, since April 10, 1896 (92 O. L., 148). Previous to that the law permitted the voter to have assistance if “for any reason he is unable to mark his ballot” (90 O. L., 275). It has been suggested that Section 5078 is open to attack on constitutional grounds because of discrimination against such a voter (Wickham v. Coyner, 12 C. C., N. S., 433, 20 O. C. D., 765) ; however that may be, it certainly appears that any substantial hindrance to the exercise of his franchise by any such voter, is due to said Section 5078, and not to the law before the court for construction. As to the latter, it is a handicap inherent in the man and merely incidental to the law.
    It is clearly apparent that Section 5078 has just as much operation to hinder the uneducated voter, in marking a split ticket, as it has to hinder him in marking the ticket provided for by the act in question. We understand that in the case of State, ex rel. Gott, v. Board of Elections, 85 Ohio St., 436, reported without opinion, this court held that the legislature has a right to provide that upon the ballot only the names of such candidates as were nominated by political parties in convention or at primaries should be printed, and that the rights of the voters were fully protected by the opportunity given to write upon the ballot the name of such other candidates as they desired to vote for. This is in line with the case of State, ex rel., v. Bode, 55 Ohio St., 224.
    If this court should think that Section 5078, General Code, must be read as in effect part of the act now in question, it is not so inseparably connected that it raises a presumption that the act being construed would not have been passed except in connection therewith, and the judiciary act is entitled to be separately upheld, regardless of the weakness of such section. Treasurer v. Bank, 47 Ohio St., 503.
    Also if Section 5078 as last amended has been unconstitutional from its enactment, then the repealing clause of this act (92 O. L., 148) itself failed, and the previous statute providing for aid generally to incapacitated voters is still in force.
      State, ex rel., v. Buckley, 60 Ohio St., 290; State, ex rel., v. Heffner, 59 Ohio St., 368; State, ex rel., v. Smith, 48 Ohio St., 211.
    The State, ex rel. Fritch, v. The Board of Deputy State Supervisors of Elections, etc., et al.
    In this case the relator, Ervin D. Fritch, a citizen of the city of Akron, Summit county, Ohio, filed an original petition in the supreme court asking for a writ of mandamus to compel the board of deputy state supervisors of elections for Summit county, to place his name as candidate for probate judge on the official ballot of the Democratic party. — Reporter.

      Mr. W. A. Spencer, on behalf of respondents, filed a demurrer to the petition.

      Mr. Edwin F. Voris, attorney for relator, Edwin D. Fritch.
    It is well understood and settled, as to be beyond controversy, that under the Constitution of Ohio a statute may not deprive one person of a political right, privilege or advantage, and may not impose burdens, disabilities, restrictions, conditions or disadvantages on some which it does not impose on all others of the same class. State v. Gardner, 58 Ohio St., 599, and State v. Gravett, 65 Ohio St., 289.
    A nominated candidate, under our constitution, is entitled, so far as he is affected or controlled by statute, to all the rights, privileges and advantages of every other nominated candidate. Any statute which attempts to take from him advantages or privileges, which are not taken from other candidates, or to impose burdens, restrictions, conditions, disabilities or disadvantages upon him which are not imposed on others, is unconstitutional. Such a statute attempts to discriminate unjustly and unlawfully between candidates.
    If “the electors’ choice of persons for office, to be effective, must be from party candidates,” as this court has said in State, ex rel., v. Felton, 77 Ohio St., 570, then we must have party candidates.

      Mr. Philip Roettinger and Mr. Thomas Bentham submitted a brief defending the constitutionality of the act in behalf of a committee having in charge the campaign of certain candidates, nominated for judges of the common pleas court by the Hamilton County Bar.' — -Reporter.
    In their brief, counsel say: In this connection we call attention to the act passed in 1906 (98 O. L., 116), providing for the election of members of the boards of education by a separate ballot and the fact that the entire state has acquiesced in this law, and likewise the well-known fact that the law has carried out beneficially the intention of the legislature in that regard. The purpose was to eliminate the boards of education from politics and we fail to see why the same purpose should not, even to a greater extent, be carried into effect as to the judiciary. And we further call attention to the fact that the boards of education are not recognized by a separate classification in our constitution as is true of the judiciary.
    The supreme court of Ohio, in our judgment, has frequently given expression to principles of law which require that the non-partisan judicial ballot should be sustained and the petition of the relators dismissed. Monroe v. Collins, 17 Ohio St., 666; Gentsch v. State, ex rel., 71 Ohio St., 164; State, ex rel., v. Felton et al., 77 Ohio St., 586; Lewis v. McElvain, 16 Ohio, 348.
   Donahue, J.

The case of State, ex rel. Weinberger, a Taxpayer, v. Daniel T. Miller et al., is a proceeding in error to reverse the judgment of the circuit court of Cuyahoga county. The case of State, ex rel. Fritch, v. Board of Deputy State Supervisors of Elections for Summit County, et al., is an action in mandamus filed originally in this court, and the only question arising in both of these cases, is the question of the constitutionality of the act of the legislature passed February 17, 1911 (102 O. L., 5), entitled, “Ah act to provide for the election of judicial officers by separate ballot.” It is claimed on the part of the relator, in each of these cases, that this act is unconstitutional for the following reasons: 1. It is in violation of Section 2, of Article V, requiring that all elections shall be by ballot. 2. It is in violation of Section 1, of Article V, providing that all citizens possessed of the requisite qualifications shall be entitled to vote at all elections. 3. It is in violation of Section 26, of Article II, in that it does not operate uniformly upon the subject-matter of elections.

Before discussing in detail any of these objections to the validity of this legislation, it might be profitable to consider briefly the' right and authority of a court to declare statutes unconstitutional, and when and under what circumstances a court should do so. These subjects have been considered in a great many reported cases in the Supreme Court of the United States, in this court, and in the supreme court of other states of the Union, but nowhere is the principle involved more clearly stated than in the opinion of Chief Justice Marshall in the case of Marbury v. Madison, 1 Cranch, 137. In that case it is said: “That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. * * * The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. * * * The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. * * * It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it.”

There can be no honest controversy but that the written constitution of the state is the paramount law, and while courts are required to accept the law as given them by the lawmaking power of the state, yet when that law is clearly in conflict with the constitution under authority of which it was enacted, it is the duty of the court to sustain the paramount law and refuse to enforce any and all legislation in contravention thereof. Any other course would lead to the destruction of the constitution, which is the supreme law written by the supreme power of the state, the people themselves. The oath of office administered to every judge requires him to support the Constitution of the United States and the Constitution of the State of Ohio. It follows, therefore, that the question of the constitutionality of an act of the general assembly is a question that appeals to the conscience of the court, as well as the conscience of the individual members of the legislature, and by the very terms of his oath of office it becomes the duty of a judge to refuse to enforce any act of the legislature in conflict with the constitution.

It by no means follows, however, that a court should refuse to give full force and effect to an act of the general assembly of the state because its constitutionality is doubtful. Upon this question the same high authority, Chief Justice Marshall, in the case of Fletcher v. Peck, 6 Cranch, 87, declared: “It is not on slight implication and vague conjecture, that the legislature is to be pronounced to have transcended its powers, and its acts to be considered void. The opposition between the constitution and the laws should be such, that the judge feels a clear and strong conviction of their incompatibility with each other.” Judge Ranney in writing the opinion of this court in the case of C. W. & Z. Railroad Co. v. Commissioners, 1 Ohio St., 77, uses this language: “It is never to be forgotten, that the presumption is always in favor of the validity of the law; and it is only when manifest assumption of authority, and clear incompatibility between the constitution and the law appear, that the judicial power can refuse to execute it. Such interference can never be permitted in a doubtful case. And this results from-the very nature of the question involved in the inquiry.”

In the case of C. C. C. & St. L. Ry. Co. v. Wells, 65 Ohio St., 313, Davis, J., in writing the opinion of this court, epitomizes all the authorities on this question and gives expression to the principle to be deduced therefrom in this clear and forcible language: “It is not the duty of the courts, and they will not make haste, to declare á statute void upon a mere suggestion of conflict with the constitution. On the contrary, it is a principle firmly imbedded in our jurisprudence that it must be a clear infraction of the constitution which will authorize the courts to intervene and overthrow an act of the legislature.”

This then is the established doctrine in this state, and the discussion or citation of further authorities would be superfluous. But there are some other considerations that now obtain in Ohio that should be given due weight. It is incumbent on each officer of the different departments of our government to perform the duties and exercise the authority of his office without in anywise interfering with the power, discretion, or authority of the officers of either of the other departments. But, it is the duty of each and all to insist vigorously and effectively upon the observance of every provision of the constitution. In this state, the governor, as the chief executive officer, now has authority to veto the acts of the legislature, and therefore it becomes his first duty when a law is presented to him by the general assembly for his signature, to determine the constitutionality of that law, and if in his opinion it is clearly unconstitutional he violates his oath of office if he sign or approve the same; and, if he desires he may call to his aid in determining this question the attorney general of the state. This law here attacked as unconstitutional received the sanction of the executive head of our state government and the same was signed and approved by him, so that not only one but two of the coordinate branches of our state government have passed upon the constitutionality of this act, and it would seem that the presumption in its favor that always obtains because it was enacted into a law by the legislature of the state, is largely strengthened by the fact that its constitutionality has also been passed upon and approved by the executive department, and before a coordinate branch of the government should declare it unconstitutional it should now appear that it clearly and undoubtedly offends against the positive provisions of the constitution. Not only this, but in the case that is here upon error the common pleas court and the circuit court have held this law constitutional. It is said by counsel for relator in their briefs that the judgments in those courts were pro forma. But we do not understand that the courts of Ohio have any. right, to enter any judgments pro forma. The question was properly before each of these courts and it was the duty of each to determine the constitutionality of this act before giving it judicial sanction, and the presumption is that each court did its duty.

Another thing that should not be overlooked by this court in disposing of this question is the fact that by Section 2 of Article IV of the constitution recently adopted in this state, it is provided that: “No law shall be held unconstitutional and void by the supreme court without the concurrence of at least all but one of the judges, except in the affirmance of a judgment of a court of appeals declaring a law unconstitutional and void.” It is true that this provision of the new constitution is not now in effect, but the fact that it has been adopted clearly shows that the people of this state are of the opinion that courts have been too ready to find constitutional objection to legislation, and while personally I feel that the courts have done a splendid work in this behalf and have thereby protected the people from terrific burdens of local debt and have prevented a chaotic mass of local legislation that would be well-nigh intolerable, yet the opinion of one man is not important when the people of the state have declared for another policy.

A court does not hold a law unconstitutional for the mere pleasure of doing so. On the contrary, it is an unpleasant duty to declare that a coordinate branch of government has exceeded its authority, and it ought never to be done, and I think I do not state it too strongly when I say it never has been done, only when in the opinion of the court the act was absolutely irreconcilable with the constitution.

Nor is it of any importance to the court whether the legislation in its opinion is wise or unwise. With the policy or the practicability of the law the court has nothing to do. If the act is constitutional, or if its constitutionality is doubtful, the court has no discretion but to enforce the law as it is written, no matter what the effect of such enforcement may be. Courts are many times criticised for their judgments, when if their critics were to examine into the legislation upon which the judgment is predicated, the fault would be found not with the court, but with the law. However that may be, the fact remains that courts will not measure intellect with the lawmaking power of the state as to the wisdom of a law, but will enforce it regardless of consequences, unless forced to the conclusion that the act is clearly in conflict with the organic law of the state. With these principles in mind, we come to the consideration of the constitutional objections urged against this particular act.

First it is claimed that this act is in violation of Section 2 of Article V, of the constitution, requiring that all elections shall be by ballot. It is true that this section does use the word ballot in the singular, yet so far as this statute is concerned, it fills the terms of the constitution to the letter, for it provides for the election of judges by ballot. It is said that the spirit of the constitution is violated because it provides for a separate ballot and therefore the election must be by ballots instead of by ballot. This is no departure from the established methods of elections in this state. The legislature has by many laws provided for separate ballots at the same election, and while I have not fully investigated all of the legislation touching this subject, it is sufficient to say that as far back as May 14, 1878, a law was passed providing for separate ballots; and again, June 10, 1879, the legislature passed an act which provided that in cities having a population of twenty thousand and upwards the names of candidates for representatives in congress should not be placed upon the same ticket with the name of a candidate for any state, county, township, or municipal office, to be voted for at the same election. This law also provided for a separate voting place. Section 5035,-General Code, provides that the names of candidates for assessor of real property, however nominated, shall be placed on an independent and separate ballot without any designation whatever, except for assessor of real property and the number of assessors to be elected. Section 5032, General Code, makes the same provision with reference to boards of education. To the same effect is Section 5029, General Code, and the law providing for the election of delegates to the last constitutional convention contains identical provisions with the provisions of this act.

Counsel for relator call attention in argument and in their briefs to this legislation, but urge that no effect should be given to this, because the constitutionality of such statutes has never been questioned, and they have been considered valid rather by sufferance than reflection. It is undoubtedly true that two wrongs do not make a right, and if this act is clearly in violation of the provisions of this section of the constitution, then the fact that other legislation has been enacted by the general assembly of this state, also in contravention of its terms could be given no consideration in determining the question at bar. However, the fact that such legislation has been accepted and acted upon by the people of this state without objection is a matter of importance where there is any doubt touching the constitutionality of the act. It is an established doctrine of the law that where private citizens have made a contract and their conduct under that contract has given construction to its terms, the court in construing the same, will give great weight to the construction given it by the parties themselves, especially if the language is in any wise ambiguous. So in this case, where the people of this state have written a constitution defining and limiting the right and authority of the legislature, and the legislature in pursuance of the authority so conferred has enacted man}'- laws similar to the one now under consideration, that for years have been accepted without protest, not even one citizen challenging the right of the legislature to pass such a law, it would seem that those who have written the fundamental law of the state for their own protection have so construed it as to authorize such legislation, and this fact is one that should receive the consideration of this court. 'But aside from this, if we are to look to the language of Section 2 of Article V only, still it would appear that this objection to this law is hypercritical and untenable. It is merely “sticking in the bark” to say that because the constitution provides for an election by ballot that that means that only one ballot may be used at the same election under any and all circumstances. If the legislature has authority to make a proper classification, which is no longer a question of doubt in this state, it follows then that such classification would require a separate ballot, and this one provision of the constitution must be construed so that effect may be given to all of its other provisions. This law requiring a separate ballot, if it offends for that reason against any of the provisions of the constitution, it would seem to be Section 1 of Article Y. This court in construing that section of the constitution in the case of Monroe v. Collins, 17 Ohio St., 665, among other things held that, “the legislature has no power, directly or indirectly, to deny or abridge the constitutional right of citizens to vote or unnecessarily to impede its exercise.” This we believe to be the correct view. A great many separate ballots might impede the constitutional right of citizens to vote, but it is apparent that this objection does not now obtain, and it is unnecessary for the court to anticipate it.

The second objection urged by counsel for relators is a much more serious one, and one that cannot be classed as technical in any sense of the word. Section 1 of Article V of the constitution, provides that: “Every white male citizen of the United States of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county, township or ward in which he resides such time as may be provided by law, shall have the qualification of an elector and be entitled to vote at all elections.” It is insisted that this act adds another provision to the qualification of an elector, in that it requires him to be able to read in order to select the candidate for a judicial office for whom he may desire to vote. Counsel in their argument in support of this proposition, make the mistake of assuming that under the Australian ballot law, and the laws theretofore existing relating to the ballot, the illiterate voter could readily and without any difficulty whatever vote for the candidates of his choice. We are unable to see how the act in question adds anything to the past legislation, or the existing legislation on this subject, that would place such illiterate voter at any greater disadvantage than he was under prior to its passage. Laws must be general in their nature. They must afford to everybody equal opportunities under the law, but it is not possible for constitutions or legislation to make all men equal in understanding, intelligence and education, notwithstanding the whole course of our legislation tends in that direction, for it has been the care of the state that every individual should have equal opportunity to become educated, and to that end it is magnanimous in the expenditure of public funds. Not only that, the state not content with furnishing the means of education, has passed laws compelling the youth of our country to take advantage of these opportunities. With reference to foreign born citizens who may become naturalized in this country, the laws of the United States require that every foreign born person who desires to become a citizen of the republic must file a petition in writing signed by the applicant in his own handwriting. (Section 15350-2, General Code; 34 U. S. Stats, at Large, 597, Chap. 3592; 4 U. S. Comp. Stats., 529.) Yet notwithstanding the provisions made by the state for the education of its citizens and the requirement of the act of Congress of the United States that an applicant for citizenship must subscribe his name to his application in his own handwriting, if this act in question adds anything further to the requisite qualification of a voter than is found in Section 1 of Article V, of our constitution, the act must fail, for it- is not the province of a court, nor of the general assembly, to change the constitution of the' state, even though it be conceded that the time has arrived when it ought to be changed. This question must be met and answered by the consideration of the language of this provision of the constitution and the language of the act under consideration, keeping in mind at all times not only the language of the act, but the necessary and natural effect that must follow. It must be conceded that the intention and purpose of all elections is to register the will of the people honestly expressed through the ballot, and every voter must use some intelligence in the exercise of his right and privilege, otherwise an election would be nothing more than a farce, unless indeed it should later develop into' a state tragedy. The provisions of the constitution on this subject must be construed in light of the purposes to be accomplished, otherwise all legislation on the subject of the form and requirements of the ballot must be held to be in violation of these provisions. The constitution is silent as to the kind and character of ballot that shall be used. For many years the legislature left this important part of the machinery of our elections solely within the control of political parties, but there came a time when it was apparent that the legislature must deal with this subject and provide a uniform ballot for the use of the voters, otherwise it would be impossible to guard against election frauds.

Under the old order of things when political parties furnished to the voters ballots of different color and different size, it does not appear how it could have been easier then for an illiterate man to vote for the candidate of his choice, if that candidate happened to be upon a ballot opposite in politics to the ballot of his own political faith, than it now is for him to vote for a judicial candidate. It is true that he did have some advantage in selecting his party ballot, but that was the whole extent of the assistance given him by ballots differing in size and color. The legislature of the state in order to guard against election frauds, was compelled to and did take away from him even this slight advantage, and provided by law that all ballots should be uniform as to writing, printing and size and without any device or mark by which one ballot may be known or distinguished from another, except the words at the head of the ballot. ' That provision of law with reference to the ballot was many-fold more vulnerable to attack as offending against Section 1 of Article V of the constitution than this act in question, for it deprived an illiterate voter of all means, except the writing or printing on the ballot itself, of determining the candidates of his party for purely political offices as well as judicial officers. The voter who could not read could not vote without the assistance of some one more fortunate than himself. He was compelled to rely upon others and therefore might become an easy victim of corrupt men, and yet no one seemed to think that this provision was unconstitutional or that it added an educational qualification to the qualifications named, in the constitution. This act was passed March 21, 1874, and elections were held under it without even challenging its constitutionality until the passage of the Australian ballot law.

The Australian ballot law permits political parties to select a device to be placed at the head of the column on the ballot occupied by the names of that party’s candidates. The legislature had theretofore provided that there should be no mark or device upon the ballot that would enable the voter to distinguish one from another by reason thereof, and the present provision allowing the same can be changed at the will of the legislature. If the present Australian ballot were to be stripped of these distinguishing marks or devices, in what position would it leave the illiterate voter? But even with these devices or emblems at the head of the party column, the only aid they afford him is an opportunity to vote a straight party ticket. If he desires to vote for a friend of opposite politics, or if he desires to vote against any of the candidates on his party ticket, he is absolutely helpless and must depend upon the aid and assistance of others.

The laws of this state control party primary elections. The ballots to be voted at these elections have printed thereon the name of the office for which the candidate is to be selected, followed by a list of the names proposed for that particular office. The illiterate voter has the same right to vote at these primary elections as any other citizen of the state, and yet if he cannot read or write, how is he to select from these names the name of the candidate of his choice? In this year there was held in this state a Republican primary election for the purpose, among other things, of selecting delegates to the state convention. The names of delegates representing diametrically opposed views were placed indiscriminately upon this ballot, and the voter was compelled to select from these names the delegates for whom he desired to vote with no means whatever furnished by the ballot, or the election officers, to aid him in determining which delegates stood for certain principles and which for another, or to be more specific, which delegates stood for the endorsement of President Taft, and which stood for the endorsement of Ex-president Roosevelt, and even if this information were furnished to him, if he could not read or write, how would it aid him in casting this primary ballot?

Exactly in line with the legislation .here in question is the act of the General Assembly of Ohio providing for the election of delegates to the last constitutional convention. That act provided that these officers should not even receive a party nomination, but that they should be nominated by petition only. Section 15 of the act reads as follows: “The names of candidates for members of the constitutional convention nominated as provided herein, shall be placed on an independent and separate ballot without any emblem or designation except the statement referring to separate submission of the question as herein provided, and the name or names of candidates for election and the number to be elected.” Section 16 of the same act provides for the rotation on the ballot of the names of the candidates. So that every argument against the constitutionality of this act, obtained against the act for the selection of delegates to prepare and present to the people of Ohio a new constitution. It would seem that in a matter of such grave importance as this the lawmaking power of the state would exercise extraordinary care and caution not to offend against any provision of the existing constitution, and the governor of the state when it was presented to him for his signature would also examine with particular care and diligence every provision thereof to determine whether constitutional or not before signing and approving the same. That law passed the scrutiny of both these branches of our state government, and yet it provided for a separate ballot and for non-partisan candidates, and presented to the illiterate voter the same difficulties that it is now insisted he should not be compelled to encounter by the law relating to the election of a non-partisan, judiciary.

One of the leading cases involving the same principle is the case of Cook v. State, 90 Tenn., 408. Section 1 of Article IV, of the Constitution of Tennessee, provides that there can be no restrictions or qualification of the right to vote except the condition of the payment of a poll tax. On March 11, 1890, the legislature of that state passed an act entitled: “An act to provide more stringent regulations for securing the purity of elections,” etc. It was urged that this law was unconstitutional, because it required an educational qualification in that it imposed upon the elector the duty of being able to select for himself a ballot, and mark for himself the name or names of the candidates for whom he desired to vote. In disposing of the question the supreme court of that state said: “It is evident the framers of the constitution did not intend, by its conference of the right to vote, to ignore an educational qualification in all respects. It fixes the age at twenty-one, with a citizenship of the United States, and twelve months’ residence in the state, and of six months in the county. The age was fixed as one of maturity, at which period the law presumes the proposed voter to have sufficiently ripened in mental power to determine for himself the soundness or unsoundness of the measures upon which he is called to vote. Citizenship of the United States is a prerequisite, as fixing such interest in the welfare of the Federal Government as supposes a study of and acquaintance with its governmental policy, and so of residence in the state and county, as well as to become acquainted with the character and capacity of the men who might ask office. These restrictions are terms of educational probation.”

No one questions that the word “ballot” used in the constitution means a written or printed ballot. The same provision was found in the constitution of this state adopted in 1802. So that, with more than one hundred years’ experience under this and an identical provision in our former constitution, a written or printed ballot has alwajrs been used in supposed conformity to this section. The question is, however, no longer an open one in this state. In the case of State, ex rel. Karlinger, v. Board of Deputy State Supervisors of Elections, 80 Ohio St., 471, this court held that the act of the general assembly providing for the use of voting machines at elections violated the terms of this section of the constitution providing that “all elections shall be by ballot,” and gave as its reasons for doing so that the word “ballot” as used in our constitution must be construed to mean a written or printed ballot. In the opinion by Shauck, J., at page 489, it is said:. “It was'not doubted then, nor has it ever been really doubted since, that it is 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.”

The framers of our constitution and the people of the state when they adopted this section, must have known that there were then, and in all probability would. continue to be, electors of this state unable to read. Every argument made against this particular law might have been urged with equal force against the adoption of this provision of the constitution. But, if made, they'were made to no purpose, and the provision was adopted and is now unalterable except *by the same authority that made it the organic law of this state. It seems strange, almost amusing, that after more than half a century of experience under this constitutional provision, during all of which time the uneducated voter was laboring under equal and at times greater difficulties than are now presented by this law for the non-partisan election of judicial officers, the discovery should only now be made that all this is unconstitutional. When we turn to the provision of the constitution which is said to be violated by it, and find that the same objection might have been urged with equal propriety against its adoption, these objections lose all force, for it is apparent that just so long as we are to have elections by written or printed ballot, just so long must the uneducated man find it a difficult matter to vote for the candidate of his choice. In the case of State, ex rel. Bateman, v. Bode, 55 Ohio St., 224, Burket, J., writing the opinion of this court, said: “The ballot is the same for all, and gives equal protection and benefit to all. There is no discrimination against or in favor of any one; and if any inequality arises, it arises not from any inequality caused by the statute, but by reason of inequalities in the persons of the voters, and such inequalities are unavoidable. It is always much more difficult for some electors to cast their ballots than for others. * * * But these difficulties inhere in the men themselves and not in the law.” In the consideration of these objections to this law, we must not overlook the fact that the election of officers is not the only purpose of an election. Other questions are submitted to the people of this state to be answered by the ballot. Very recently there was submitted the question of holding a constitutional convention, and following an affirmative vote a convention was held, and proposed changes in the constitution were submitted to the electors of this state. Every qualified elector has the same right to vote upon these questions as he has to vote for the election of officers. Any ballot provided for these elections' must meet the same constitutional requirements as a ballot for the election of officers. On these ballots there can be neither mark nor device of any kind. The voter must depend upon the written or printed matter upon the ballot. In such case, in what way is it possible to provide a ballot that will not be subject to each and every objection that is urged against this law?

This provision of the constitution was never written and adopted for the purpose and intention of compelling that to be done, which in the very nature of things could not be done. In construing all laws, whether it be the acts of die general assembly or a provision of the constitution of the state, the necéssities of the situation must be taken into account. The very best that can be .done is to give to all electors an equal opportunity. In every phase of our social and civic life the uneducated man is at a disadvantage. The opportunities are the same for him as for others, but the unfortunate fact remains and must forever remain that he is not in position to take advantage of these opportunities. It is undoubtedly the duty of the legislature to guard and protect him in his rights in every possible way, consistent with the welfare of the state and the absolute necessity of securing by ballot an intelligent expression of the people’s will, but human ingenuity has not j^et discovered, and it is not likely that it ever will discover, any better or fairer means than the written or printed ballot, and if that ballot presents to the uneducated voter the difficulties complained of, the state is powerless to give him further aid, until some Solomon shall devise a plan and method that will obviate all these difficulties, and provide not only equal opportunities to all electors, but also provide some method by which all electors may be able to take advantage of these equal opportunities. Even then, the remedy must come, if it come at all, by a change in the provision of the constitution requiring elections to be held by ballot, and not by objections to the constitutionality of laws enacted in conformity therewith. It necessarily follows that this law must stand as a valid act of the lawmaking power of this state, or each and every other law that has been passed during all these years must fail for the same reasons that are urged against the constitutionality of this act.

The claim is also made that this law does not take the judiciary out of partisan politics, but, on the contrary, involves the candidates in a personal political contest, that is far more dangerous and disastrous than if they were placed upon the party ballot. That may all be true. But, if this law does not effect the purposes for which it was passed, then it becomes the duty of the legislature to act and make such changes as in its wisdom may be necessary, even if that should require the repeal of the law itself. At all events, that inquiry is not for the court.

In view, therefore, of the fact that the constitution provides that all elections shall be by ballot; that this means a written or a printed ballot; that every written or printed ballot must necessarily present some difficulties to the voter who cannot read; that there is no constitutional guaranty that the ballot shall bear any mark or device by which a voter may determine from the ballot itself, except from the written or printed matter thereon, which is and which is not the ballot of the party of his affiliation, it follows that this legislation does not offend against this provision of the constitution.

The third objection advanced by counsel for relators is that this law is in violation of Section 26, of Article II, of the constitution, in that it does not operate uniformly on the subject-matter of elections. This provision of the constitution requires that all laws of a general nature shall have uniform operation throughout the state, but the question is now settled that a law that “operates upon every person brought within the relation and circumstances provided for and in every locality where the condition exists is a law of uniform operation throughout the state.” Cincinnati v. Steinkamp, 54 Ohio St., 284-295; State, ex rel., v. Creamer, 85 Ohio St., 349; Miller v. Crawford, 70 Ohio St., 207; State, ex rel., v. Spellmire, 67 Ohio St., 77.

It would therefore appear that the general assembly has authority to make a reasonable and proper classification, and if it has done so in this case, that is the end of the inquiry.

The purpose of this law is to withdraw candidates for judicial offices from partisan politics. It still leaves to political parties the right to place candidates for judicial offices in nomination, and when so nominated the names of these candidates must be placed upon a separate non-partisan ballot. If there is no reason for the classification attempted in this law, then the legislature would have no authority arbitrarily to deprive a candidate for judge of the privilege enjoyed by candidates for offices in other departments of state. In order to determine the reasonableness or unreasonableness of this classification, it is necessary to compare the respective duties of the officers of these different branches of government. Legislative and executive officers are selected for the avowed purpose of promulgating definite principles and methods of government advanced by the respective parties that place them in nomination, and to this end party platforms are written for the purpose of enunciating the principles for which that party and its candidates stand, and the candidates for these offices so placed in nomination are pledged to the support of these principles; therefore, it is highly important that the electors of the state should know the political affiliation'of the candidates for these offices, for in this respect it is perhaps not so much the personality of the candidate, as the measures they advocate and are pledged to support, that influence the individual voter. No partisan political platform can be written for the judge. He is charged with the interpretation and the administration of the law as he finds it. He has no voice in framing it. He must not depart from the plain provisions thereof, no matter how much he may be opposed to the principles or purposes of it. In the discharge of his duty a judge is not concerned with party platforms or party expediency. In his official capacity he can serve no party, promulgate no partisan theories of government, encourage no partisan economic measures.

By common consent it has always been regarded highly improper for a judge or a candidate for judicial position, to serve upon party committees or make partisan speeches. He is required to keep his mind free from partisan bias and prejudice, so that he may be in a position to protect the rights of all litigants and determine the justice of every cause, regardless of political influence. If the judicial office is a political office in the sense in which that term is generally understood, there would be neither “rhyme nor reason” in placing such restrictions upon a candidate for judge. In the year following the adoption of the present constitution, the general assembly of this state recognized this difference between judicial officers and officers in the other departments of state, and required by an act passed February 19, 1852 (50 Ohio Laws, 67-71), that a different oath of office should be administered to the judge than the oath required to be taken by other officers, and that act still remains the law of this state. This oath of office requires him “to support the Constitution of the United States and the Constitution of the State of Ohio, to administer justice without respect to persons, and faithfully and impartially to discharge and perform all the duties incumbent upon him as such judge according to the best of his ability and understanding.” The right of the legislature so to place the judiciary in a separate and distinct class, and require them to take this different oath from the oath administered to all other officers has never yet been questioned, although this law was enacted by the first general assembly of Ohio following the adoption of the constitution of 1851. It follows then from a consideration of these facts, that there is a substantial difference between the duties of judicial officers and the officers in the other departments of our government, and a consideration of these differences leads to the conclusion that the classification made by the legislature is a reasonable one. The question of the advisability of making such a classification is one for the legislature and not for the courts. The only question with which the court is concerned is whether there is such a difference in the duties of these officers as to make such classification reasonable. It is contended that the voter is entitled to know the candidate for judge placed in nomination by his party, to the end that he may be advised of the principles. and policies for which he stands. But, if the legislature has the right to take the judiciary out of partisan politics, then the reasoning upon which this argument is based must fail. As a matter of fact, it never had any foundation in law. No matter how necessary political parties may be to a republic, in this state they have not been made the beneficiary of any constitutional provision whatever, and while many of our laws are framed with reference to the fact that political parties exist, yet there is absolutely no constitutional objection whatever to legislation, however unwise such legislation may be, that does not recognize them as a factor in our state and national existence. That a candidate may be placed in nomination for a political office, suggests the idea that the candidate so nominated has a right to have his name printed upon that party’s ballot. The constitution guarantees him no such right. The legislature of the state may give or take such right from him at its pleasure, provided, however, that it does not confer such right upon candidates for some office and refuse such right to candidates for other offices, unless there is such a difference in the offices to be filled as would make such classification reasonable. There is undoubtedly merit in the argument that no political party would likely place in nomination a candidate for judge unworthy of the place or unfitted for the position. A political party may recognize the fact that a judicial officer cannot be of service to it in a partisan way, and yet be deeply concerned in giving to the state an honest and capable public servant, and where the individual voter is not fully advised of the respective merits of the candidates he might be, and probably would be, very willing to rely upon the judgment of his party, but, under the existing legislation there is absolutely no reason why he should not know the candidates for these offices placed in nomination by his party. Every individual educated or uneducated seeks to advise himself with reference to every important affair of life. The casting of a ballot is one of the most important, duties of citizenship, and every good citizen should be willing to give some investigation to the character, the standing, the ability and if he deems it important, to the political affiliation of judicial candidates. The voter who will not undertake to advise himself upon these matters, holds too lightly the privilege and prerogative of the ballot, and there would seem to be no just reason why legislation should be shaped to meet his convenience.

These questions, however, are for the legislature and not for the court. With the wisdom of this law we have nothing to do, nor is our opinion in that respect in any wise important. It is sufficient to say that for the reasons given the constitutionality of this law is not even doubtful, but on the contrary, it is clear that it does not offend in any particular against the constitution of our state, and, therefore, it is a valid act of the legislature, and as such must be given full force and effect.

The judgment of the circuit court in the case of State, ex rel. Morris J. Weinberger, a Taxpayer, v. Daniel T. Miller et al., is affirmed. In the case of State, ex rel. Fritch, v. Board of Deputy State Supervisors of Elections, a peremptory writ of mandamus is refused, and the petition in said cause dismissed at cost of relator.

Judgment accordingly.

Johnson and O'Hara, JJ., concur. Davis, C. J., and Shauck, J., dissent. Spear, J., not participating.

Davis, C. J.,

dissenting. I do not dispute the proposition that, ordinarily, a statute is presumed to be constitutional; and that courts should have a clear conviction of its conflict with the constitution before they will be justified in declaring it unconstitutional. This rule of construction is based on another presumption, namely, that the legislature acted with due respect to the constitution and enacted the law in the belief that it was within legislative power. There is nothing, however, in the history of the seventy-ninth general assembly, which passed the act now under consideration, nor in its attitude toward the judiciary, that would justify any such presumption.

But be that as it may, the question is not one of motives or of conduct, but of legislative power; and therefore as against a fair and reasonable showing of want of such power the presumption is slight. The doubt in the judicial mind, which must prevail in favor of the statute, must be not a mere doubt such as is an easy refuge for an unwilling mind, but a real and substantial doubt, based on reasons which would have weight with any unprejudiced and reasonable mind.' It must be, as was said by Chief Justice Shaw, in Wellington et al., Petitioners, 16 Pick., 95, a “reasonable doubt.” This rule is recognized in many cases, too numerous to be cited here. Some of them are collected in Cooley’s Const. Lim. (7 ed.), pages 252, 253, note 1; and 8 Cyc., 803, note 77. The phrase “a reasonable doubt” has been the subject of much analysis and of many refined distinctions, especially in criminal cases; but it seems to be incapable of satisfactory definition, probably because it defines itself; for a reasonable doubt is, after all that may be said, a doubt that is reasonable, and until definite limits can be found for the word “reasonable” the phrase cannot be made any clearer by definition. For practical purposes it is easier to say what is not a reasonable doubt than to frame an all inclusive definition of the phrase; and it is generally agreed that a merely speculative or captious doubt raised to avoid a disagreeable conclusion, is not a reasonable doubt.

Accordingly, in Regents of the University of Maryland v. Williams, 9 Gill & Johnson, 383, the court, Buchanan, C. J., delivering the opinion, says: “It has been said, that a legislative act should not be pronounced unconstitutional or invalid, in a doubtful case; nor should it, where the doubt is bona ñde, and well founded, and not the result of a disinclination to deny the authority of the legislature which all must feel, but none should yield to in violation of a solemn duty. But where a judge is satisfied upon full consideration, that an act of the legislature is contrary to the Constitution of the United States, the supreme law which he is bound to obey, and which must prevail over any act which comes in conflict, and cannot stand with it, or is for any other reason invalid, he has no choice; and all that is left him is honestly and fearlessly to do his duty; — from the faithful discharge of which, however unpleasant the task, no upright judge can shrink if he would. On the other -hand, a judge should not suffer himself to be betrayed to pronounce an act unconstitutional or invalid on insufficient grounds, by a morbid apprehension that a contrary decision might be ascribed to the want of a just and proper, sense of judicial duty.”

With these maxims of the law kept in view all the while, let us test this statute to see whether it be clear beyond a reasonable doubt, that it is in conflict with the constitution.

One of the propositions upon which the defendants in error base their contention for the constitutionality of this statute, is the doctrine stated in Lehman v. McBride, 15 Ohio St., 573, that “when the power of the general assembly to enact a law is drawn in question, the proper inquiry is, whether such an exercise of legislative power is clearly prohibited by the constitution. The grant of power being general, the question is as to the existence of a limitation, arising from special prohibition. Such prohibition must either be found in express terms, or be clearly inferable, by necessary implication from the language of the instrument, when fairly construed according to its manifest spirit and meaning.” I accept that statement of the law as entirely correct. It was applied in Lehman v. McBride in considering the constitutionality of a statute which was enacted to facilitate the exercise of the constitutional right of every elector to vote. In the present case the doctrine is invoked to sustain an enactment, the effect of which, if it was not its purpose, is to impede and abridge the free and equal exercise by the elector of the right of suffrage as conferred by the constitution in Article Y, Section 1. The right thus conferred is unqualified in the constitution, save as to persons convicted of infamous crime and persons non compos mentis. The rule of construction in such cases is, that where the power is granted in general terms, the power is to be construed as co-extensive with the terms, unless some clear restriction upon it is deducible from the context; and when the constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases. Cooley Const. Limitations (7 ed.), 98.

Here then is a provision of the constitution which confers on the elector the untrammeled right to vote intelligently and as he pleases at every election. Any other construction of the grant would be subversive of free government; and any attempt by the legislature, under pretext of regulating elections, or otherwise, to add to or abridge the right thus conferred on the elector would be clearly repugnant to the constitution.

Accordingly it was held in Monroe v. Collins, 17 Ohio St., 665, that “the legislature have no power, directly or indirectly, to deny or abridge the constitutional right of citizens to vote, or unnecessarily to impede its exercise; and laws passed professedly to regulate its exercise or prevent its abuse must be reasonable, uniform and impartial.” This ruling was approved and followed in an elaborate opinion of this court, per Atherton, J., in Daggett v. Hudson, 43 Ohio St., 548.

The doctrine of these cases has been distinctly approved in numerous cases, some of which I cite as follows: Yick Wo v. Hopkins, 118 U. S., 356, 371; State, ex rel., v. Findlay, 20 Nev., 198; State, ex rel. Atty. Gen., v. Dillon et al., 32 Fla., 545, 557; Atty. Gen. v. Detroit, 78 Mich., 546; Lyman v. Martin, 2 Utah, 136; State, ex rel., v. Corner, 22 Neb., 265; Capen v. Foster, 12 Pick. (Mass.), 485, 489; Kinneen v. Wells, 144 Mass., 497; see also Mechem on Public Offices and Officers, Sec. 148; 10 Am. & Eng. Ency. Law (2 ed.), 580. I assume that no one will have the hardihood to dispute a doctrine so well intrenched in principle and authority.

How do these principles apply to the statute now under consideration? — a statute which the majority do not deny is vicious and dangerous in the extreme; a statute which will obviously a'ccomplish a result the opposite of that for which it was professedly enacted, a non-partisan judiciary; because it forces every candidate for a judicial office to get into politics and entices him to appeal to every powerful or influential interest or combination which may seem to control votes.

The statute provides that the names of all candidates for judicial offices shall be placed upon a separate and independent ballot without any distinctive mark whatever, which shall be deposited in a separate ballot box; and that there shall be separate poll books and tally sheets used for the election of all such officers. The act further provides that such election “shall be governed and controlled by the general election laws of the state except as otherwise provided by this act.” The general election laws give to the elector the amplest opportunity for intelligent and independent voting. He may vote a straight party ticket of his own choosing, if he so wishes. He may by comparison of the different party tickets, choose and vote for candidates selected from the various tickets, who may seem to him to be most nearly representative of his own personal views; or he may ignore all party tickets and vote only for independent candidates. Even the illiterate voter is aided as much as possible by provision that he may vote his straight party ticket by making a cross in the circle under his party emblem. Fernbacher v. Roosevelt, 90 Hun (N. Y.), 441. All this is in recognition of, and in aid of, the right of the voter to make his own choice as to whether he will vote for a party candidate or not.

This privilege which the constitution guarantees to the elector, he may exercise as to every office to be filled, except a judicial office, as provided in this act. The legislature by this exception has put a condition upon the right of suffrage which the constitution does not impose, and which, as I have shown, is not within the exercise of legislative power, as limited in the constitution, because it denies, abridges and impedes the right of the citizen to cast a free, untrammeled vote and have it honestly counted; and it is not reasonable, uniform nor impartial. Monroe v. Collins, supra, and Daggett v. Hudson, supra. Even if this provision does not effectually deny the right to vote as the voter wishes, the legislature may not make the exercise of the right so difficult as to amount to a denial. DeWalt v. Bartley, 146 Pa. St., 529; Attorney General v. Detroit, 78 Mich., 545. The municipal elections of last year demonstrated this to be the effect of the law; because thousands of voters who voted for other officers, did not vote at all for judicial officers; and from the best information which I am now able to obtain concerning the recent national and state election, it is apparent that not more than thirty per cent., probably not more than twenty-five per cent., of the total vote was cast for judges of this court. It is impossible to maintain, in the face of these stupendous facts, that this law does not impede the free and uniform exercise of the right of suffrage to an.extent that, in many cases, it may result in a denial of the right.

Furthermore, the act provides that the whole number of ballots to be printed shall be divided by the number of candidates for each of the offices respectively, and the quotient so obtained shall be the number of tickets in each of the series of ballots to be printed as follows: the names of candidates shall be arranged in alphabetical order and the first series of ballots printed; then the first name shall be printed last and the next series printed, and so shall the process be repeated until each name shall have been first. These ballots shall then be combined in tablets with no two of the same order of names together, except when there is but one candidate for any of said offices, etc. Can anybody conceive of any purpose for which such a scheme was devised, other than to make it difficult, if not impossible, for an elector,, especially for an elector who has not the equipment or the opportunity to make a thorough investigation, to vote for a party candidate? And is not this providing a limitation upon the free and untrammeled right to vote which is given by the constitution? Does not this act clearly abridge such right by unreasonably impeding its exercise? And again, is the act “reasonable, uniform and impartial” in applying its restrictions only to the judicial branch of the government, which is equal in rank and equal in importance with the executive and legislative branches?

The majority admit that these criticisms of the act are forcible and persuasive. Still they doubt. In Independence Party Nomination, 208 Pa. St., 108, per Mitchell, C. J., the supreme court of Pennsylvania said: “The constitution confers the right of suffrage on every citizen possessing the qualifications named in that instrument. It is an individual right and each elector is entitled to express his own individual will in his own way. His right cannot be denied, qualified or restricted, and is only subject to such regulation in the manner of its exercise, as is necessary for the peaceable and orderly exercise of the same right in other electors. * * * Every doubt, therefore, in the construction of the statute must be resolved in favor of the elector.” So the supreme court of Colorado, in People, ex rel., v. District Court, 18 Colo., 26, held: “In cases of' doubt between two constructions, that should be adopted which will afford the citizen the greater liberty in casting his ballot. The legislature may. enact necessary laws for the purpose of regulating in detail the manner of conducting elections, but it cannot, under the guise of regulation, substantially impair the constitutional right of any elector to cast his vote at each election according to his own preference, and to have it counted as cast.” And upon authority of the case, just quoted from, the supreme court of Wyoming, in State, ex rel., v. Burdick, Secretary of State, 6 Wyo., 448, 465, declared the same doctrine.

Upon the whole case, therefore, and for the reasons stated, it convincingly appears to me that this statute is repugnant to the constitution; and I can see no place for any doubt that has a substantial reason back of it.

There is another phase of this case which should' not be passed over, for I regard it as conclusive of the unconstitutionality of the statute. Confessedly the exercise of the right to vote by any voter, and especially an ignorant or illiterate voter, is made more difficult, confusing and embarrassing by this act, in that it obliterates the party designations and party emblems allowed in other cases; and there can be no reasonable doubt that in the case of an ignorant or illiterate voter the provisions of this act amount to a practical denial of the right to vote. It may or may not be desirable to eliminate this class of voters, but the constitution does not disqualify them, and it is clearly not within the power of the legislature to do so. In Rogers v. Jacob, Mayor, 88 Ky., 502, it was held that “a statute which requires votes to be given by ballot must not deprive illiterate persons of such reasonable aid and information as may be necessary to enable them to cast their ballots understandingly, and in so far as it attempts to do so it will be held invalid. A statute which requires each voter to retire to a compartment and there alone and unaided indicate by a mark on his ballot, the various candidates for numerous offices he wishes to vote for, is held to be inoperative in so far as it deprives persons unable to read or write of such reasonable aid and information as may be necessary to enable them to- cast their ballots understandingly.”

The supreme court of Wisconsin expressed this distinction in the following concise and forcible language: “We have no doubt that the legislature have the- power to provide that a person who has a right to vote under the constitution, shall be allowed to exercise this right only in the town where he resides, because this would be only to prescribe the place where a right which he possessed under the constitution should be exercised, and fixes upon the most convenient place for its exercise. Such a provision does not add to the qualifications which the constitution requires; but an act of the legislature which deprives a person of the right to vote, although he has every qualification which the constitution makes necessary, cannot be sustained.”

Since the judgment of the majority, in my opinion, disregards fundamental rules of constitutional interpretation, as well as fundamental rights of the citizen, I have felt it to be proper to make a more profuse citation of authorities than would ordinarily seem to be required. ' I have tried to uncover and make plain again some of the ancient landmarks which the modern iconoclast would destroy, in his zeal for so-called reform.

Shauck, J.,

dissenting. Much need .not be added to what has already been said in the present case. I am entirely content with the opinion of the Chief Justice as demonstrating that the act in question is repugnant to the section of the constitution which prescribes the qualifications of electors; and there is much in the opinion written to support the judgment announced from which there appears to be no reason for dissent. I quite concur in that portion of it which declares the high duty of this court to sustain the organic law against all legislation in conflict with it, and believe that the scope of that duty might be more broadly stated without violence to the views of those who have been attentive to the functions of written constitutions in governments like ours. Upon this point my dissent is from the judgment. We cannot regard ourselves as sustaining the paramount law if we adjudge the validity of a statute in conflict with it, whatever may be said in our opinions. Nor do I dissent from the proposition that acts should not be adjudged to be void upon mere doubt, slight implication or vague conjecture. This, however, is a rule for resolving doubts, not for raising them. In so far as doubts depend upon the subjective condition of the doubter, or his attitude toward duty, they cannot be profitably or even decorously discussed. One who rejoices in the performance of every clearly ascertained duty, will often find himself in disagreement with one who regards some duties of that character as unpleasant. I further desire to express my hearty concurrence in all that is said in the principal opinion to extol the benefits of education.

But the force of inferences drawn from a comparison of this with other statutes is not apparent. Some of those statutes are so obviously different that they distinguish themselves. Respecting one of them — that to authorize the late constitutional convention — that cannot be said; at least no difference is readily apparent to me. But the validity of that act was not challenged, and it is convenient to refute the inference which the majority draws from it by quoting the words of Judge Cooley: “Acquiescence for no length of time can legalize a clear usurpation of powers, where the people have plainly expressed their will in the constitution, and appointed judicial tribunals to enforce it. A power is frequently yielded to merely because it is claimed, and it may be exercised for a long period, in violation of the constitutional prohibition, without the mischief which the constitution was designed to guard against appearing, or without any one being sufficiently interested in the subject to raise the question; but these circumstances cannot be allowed to sanction a clear infraction of the constitution.” Constitutional Limitations (7 ed.), 106. Nor can the conclusion announced derive support from an anticipation of the time fixed by the people when, in case of an alleged conflict between their will as expressed in the organic law and the will of their servants as expressed in an act of the legislature, the concurrence of at least two-thirds of this court will be required to sustain what we now call the paramount law. A little later, respect for the meaning of words may require us to change our legal nomenclature; but the constitution is yet the paramount law.

The attempt to make the act to appear to be a permissible classification of the officers of the state for the purpose of their election fails for reasons which are very obvious. It is said that the duties of judges are confined to the determination of rights under the law, and that they have nothing to do with policies. This statement is quite remarkable since the courts of the states and nation, since their organization, in determining the validity of contracts, have covered the entire field of public policy, except the limited portions thereof, which are covered by valid statutes. On the other hand, we look in vain for any duty to be discharged by the executive and administrative officers of the state, except to execute and administer the laws as they are made. But even if there were the suggested differences in their functions, all are officers of the state, most of them filling stations created by the constitution and exercising powers which reside in the people and which are delegated because the people themselves are unable to perform them, and all are required alike to be chosen by popular election, and it is idle to say that a difference in the manner of their election was contemplated. It seems, therefore, that the reasons assigned for the conclusion that this is permissible classification are unsound. If they were sound thejr would still be manifestly inadequate, for it is conceded that there can be no classification among judicial officers. There will perhaps not be required a citation of authority to support the proposition that all statutes in pari materia should be construed together. An essential part of the legislation on this subject is the act of May 10, 1911 (102- O. L., 155), creating the municipal court of the city of Cleveland, and providing for the nomination of its judges. This act was passed by the same general assembly which enacted the statute providing for the separate ballot. In the Sth section of the act there are provisions which without exception, require that all of the candidates for judge of that court shall be nominated by parties, either at a primary election or by delegate conventions, as the controlling committee of the party may determine. There is thus created for that city an exception to the general section authorizing nominations by petition, and the requirement that the judicial officers named must be nominated by parties makes it clear that only the names of those who have been nominated by political parties for those offices can be placed upon the judicial ballot, and the legislature has thus provided a classification by which the choice of judicial officers is made subject to one rule in one part of the state and by a different rule in the remaining part; and the classification proceeds upon the assumption that the voters of Cleveland know so little respecting the character and ability of their neighbors living within the limits of the same city that it is imperative that they shall have the guidance of party nominations, while in entire counties, in judicial subdivisions, in the circuits, and even in the entire state, they are so familiar with the characters and abilities of those from whom the judges are to be chosen that they must be denied such guidance. May we not conclude, without proceeding upon mere suspicion or vague conjecture, that this classification is arbitrary, and, therefore, not permissible? It seems clear to me that the opinion of the majority fails to sustain the act at the points upon which its validity has been challenged.

A few observations upon a point not noticed in that opinion are due to a full consideration of the case. If it is assumed that every act of the legislature is valid unless it transcends some limitation expressed in the constitution, or clearly to be inferred from what is there expressed, the assumption is wholly without warrant. Those who have seriously studied constitutions as instruments locating the powers of government and defining the modes of their exercise, concur in the view that limitations operate only upon powers conferred. Powers not conferred cannot be exercised to any extent or in any manner. The functions of the state are governmental only, and there is vested in the general assembly the legislative power of such a government as was formed, and nothing more. Confessedly, the government formed consists of three equal coordinate departments. None of them is subordinate. Care having been taken to form a government of departments thus related, every construction should be consistent with that purpose and with the intention that the relation thus established should continue. In view of that purpose will it be considerately said that the grant of legislative power carried with it authority to weaken the coordinate judicial department, either by providing special opportunities for weakening the character or abilities of those who exercise its functions, or by destroying the public confidence in it by making it representative of only' small minorities ? If the legislative power conferred was less than that which, nearly contemporaneously, was exercised by the French Assembly to the horror of mankind, the power must be defined by a consideration of the character of the government formed independently of limitations imposed upon the exercise of the power which is' conferred.

■ It is appropriate here to consider another reason for denying that the power to pass an act of the character of this was included in the general grant of legislative power. At the timé of the adoption of the constitution there was, as in representative governments there always had been, universal comprehension that political parties are inseparable from such governments. As thoughtful men would conjecture, and as all experience had shown, men admitted to participation in the exercise of the powers and duties of governing arranged themselves in groups, or parties, for the purpose of effectively advancing policies and of choosing those who should represent them in the exercise of the powers of government. For purposes which required the concurrence of majorities no other mode or procedure was known or séemed practicable. No other that is practicable now seems to be known. If there were in the constitution no limitation upon the exercise of powers conferred, would it be rational to so define the grant of legislative power in the governméiit thus established as to make the servant greater than his lord, and to' authorize the legislature to restrict, or impede, the people in the exercise of their right to participate in the government in the only known mode in which they could participate, and in the choice of the officers who should represent them in the discharge of its functions? One not engaged in teaching the elements of constitutional law need not enlarge upon the importance to a people, jealous of personal liberty, of rights which they did not surrender because they were not necessary to competent and stable government.

Whatever may have been the motives which prompted to the enactment in question, however diverse they may have been, it is entitled “An act to provide for the election of judicial officers by separate ballot.” However sinister or commendable those motives may have been, they are. conjectural and immaterial. The purposes and effect of the act may be gathered from its provisions. An obvious purpose was to withhold from the voter the aid of his party in the choice of important officers to be made from those of whose fitness he could at most have but accidental and limited knowledge. Purposes only a little less obvious were to make hopeful the candidacy of men who could not secure the nomination of any party desiring to secure the confidence of intelligent and considerate voters, and to make easy the election of judicial officers by small minorities of the voters banded for purposes which may not comprehend the general good. The purpose first stated won some favor by the insinuation that judges nominated and elected as candidates of political parties had been subservient to their parties. However deep may be the resentment which the insinuation starts, it need not be repelled in violent language. Nothing more is necessary than to refer to the roll which bears the honored names of my predecessors and associates, who, though chosen by all the parties which have risen to influence in the state, have, for more than a century, avoided occasion for such reproach. Indeed, parties organized to endure are too wise to demand such subserviency from judicial officers. If, in an instance in our history, a great political party so far forgot its high duty as one of the recognized conservators of our institutions as to demand that this court, then composed wholly of men selected by that party, commit an act of nullification by denying the authority of the supreme court of the United States on a federal question, Ex parte Bushnell, 9 Ohio St., 77, was the court’s noble and dignified defiance.

Although since the judgment in this case was' announced, an election of judges of the various courts of the state has been held the tendency and effect of the act are scarcely better, though they may be much more generally known, than when the announcement was made. By these and not by the title or language of the act its validity should be determined. If authority for that elementary proposition is needed, it may be found in the approved text-books, and in many cases including State v. Hipp, 38 Ohio St., 199. If in the adjudication of cases of the character of this we ignore the clear effect of legislation we shall render but lip service to the constitution. We have seen as results of that judgment, not only the imperative disfranchisement of all constitutionally qualified electors who cannot read, but the most intelligent voters driven to annoying, and sometimes vain, search for information respecting the character and ability of candidates whose names they could read. Many of the latter class of electors, finding that the source of information upon which they were accustomed to rely had been arbitrarily closed, and finding no other means of obtaining information practicable, accepted their lot as equivalent to disfranchisement. Although both of the regular political parties had made nominations for three positions in this court, each of them naming reputable candidates, the places have been filled by small minorities of the electors, no candidate receiving, according to present returns, as much as one-fifth of the number of votes which were cast at the same election for officers whose election was untrammeled.

That part of the responsibility for this condition which the general assembly assumed by passing this act is apparent. It would be unjust, if it were practicable, to shift to that department the responsibility which belongs to this. All the reasons for adjudging this act to be void, which are here presented, and those which are presented in the opinion of the chief justice, with others, were, before the judgment was announced, presented to the majority for such consideration as they chose to give them.