author: Shauck, J.

text:
    The State, ex rel. Karlinger, v. The Board of Deputy State Supervisors of Elections.

      Use of voting machines — Under Sections 2966-54 to 2966-67, Revised Statutes — Void, because repugnant to constitution.

    The act of April 25, 1898 (93 O. L., 277), and the amendments thereto, being Sections 2966-54 to 2966-67, inclusive, Revised Statutes, to provide for the use of voting machines at elections, are void, because repugnant to the second section of the fifth article of the constitution which ordains that “all elections shall be by ballot.”
    (No. 11292
    Decided June 25, 1909.
    Error to the Circuit Court of Cuyahoga county.
    The plaintiff in error, as an elector and taxpayer of the county of Cuyahoga, city of Cleveland, brought suit in the court of common pleas to enjoin the alleged unlawful expenditure of public money, and the interference with the free and lawful exercise of the elective franchise by payment out of the public treasury for voting machines, about 76 in number, already purchased by the defendants, and by the purchase of additional machines and the requiring of their use at elections to be held in said county. ■ He alleged that said purchases and requirements made and to be made by authority assumed to have been conferred by the act of April 25, 1898, (93 O. L., 277) and several acts amendatory thereof, being Sections 2966-54 to 2966-67, inclusive, Revised Statutes, and without other authority, and that all of said legislative acts are void because in contravention of the following provisions of the constitution:

      Article II, Section 26, being a law of a general nature and not being of uniform operation throughout the state.
    Article II, Section 26, in that said acts become effective upon the approval of authorities other than the general assembly, to-wit, the electors of different communities voting in favor of such machines'; and upon further approval of the executive officers named as voting' commissioners in said act.
    Article V, Section 1, in that said law impedes, subverts and restricts the constitutional right of suffrage.
    Article V, Section 2, in that said voting machines do not permit the elector to vote by ballot.
    Article IV, Section 1, in that said law attempts to confer upon the governor, attorney general and secretary of state, a power judicial in character.
    The petition contains the .following allegations in support of the conclusions stated:
    Relator further says that on the 25th day of April, 1898, the date of said original act, the provision made by the congress of the United States respecting the election of the members of the house of representatives of said congress was in. -full force and operation in the state of Ohio; that Section 27 of the act of...................... required that votes at all elections of such members should be by printed or written ballot; that by the laws of the state of Ohio on the said 25th day of • April, 1898, and thereafter the date of state, county and other election^ was coincident with the date of such congressional elections, the same voting booths, election officers, ballot boxes and election machinery being provided by said state law for both congressional and state elections; that said act of April 25th, 1898, was in conflict with said provisions of congress and was an attempt to alter, restrict, and impede the method of voting for representatives and congress and was in contravention of Article I, Section 4, of the Constitution of the United States, and of Section 27 of said act of............................ in that it does not permit a voter to cast a written or printed ballot for candidates for congress.
    Relator further says that Section 9 of said act, of April 25th, 1898, provides that , no voter shall remain within the voting machine booth longer than one minute and directs the judges of elections to remove such voter if he refuses to leave said booth after the lapse of said period of one minute. Relator says that in operation said provision is an unreasonable restriction upon the exercise of the elective franchise; thát said voting, machines are of complicated mechanism, consisting of large number of mechanical devices and parts, presents ing to the voter a plane surface measuring 80 inches in width and .40 inches in height with numerous cogs, buttons, dials and levers necessary to be actuated by the voter in order to make an intelligent selection of candidates; that it is impossible for a voter of ordinary intelligence and comprehension, without previous instruction in the mechanism and workings of such machines and the position of the names of the candidates upon the several ballots to vote within the period óf one minute as required by said act.
    Relator further says that said, machine does not permit a vote by ballot; that the list of the names of the candidates is posted upon the face of the machine with a metallic pointer assigned to each name; that at the left of said machine is placed a lever for use in voting straight tickets; that the voter is required after having indicated his choice of candidates by means of individual pointers or the adjustment of said lever at the left of said machine to actuate a larger lever suspended above said machine for the pttrpose of registering his vote; that the movement of said lever does not cast a ballot of any kind, but results solely in the turning of dials and cogs in the interior of the machine, the operation whereof is concealed from the voter and from all other persons; that at no time during the operation of voting by means of such machines does the elector perforate, mark or otherwise employ any paper or other form -of ballot nor is the same used or employed in, upon or by said voting machine, except that the list of candidates herein described is maintained upon the face or front of such machines without change from the opening to the closing of the polls; that no voter knows or can know whether or not the movement o'f said pointer, cogs, and levers has in fact registered his vote.
    Relator further says that such voting machines do not permit the enjoyment by each elector of his full right and privileges in the exercise of the elective franchise under the constitution and laws of the state of Ohio; that by an act of the general assembly of the state adopted March 22, 1906, being Section 3970-10, Revised Statutes, ballots containing the names of the candidates for membership upon the board of education of any school district were required to contain the names of all such candidates without party designation, and that such names should appear upon said ballots by rotation in the manner prescribed in said act: said act further provided that such ballots should be combined in tablets with no two of the same order of names together. Relator further says that such machines are not so constructed as to permit of the serial distribution and rotation of ballots required by said act; that said machine permits only of a printed form of ballot attached to the front of said' machine and which remains unchanged in its place, all of the voters at a given booth being obliged to vote like ballots in contravention of said act.
    In their answer the defendants admitted the purchases, and contemplated purchases, of voting machines alleged in the petition, but alleged full compliance with the requirements of the legislative acts referred to. After final judgment in the court ' of common pleas, the cause was appealed to the circuit court where judgment was rendered in favor of the defendants upon the following statement of facts to which the parties agreed:
    For the purpose of this case the respective parties, plaintiff and defendant, agree to the following facts:
    1. That the relator is an elector of the city of Cleveland and the county of Cuyahoga and state of Ohio, and is a taxpayer of said city and county, and that relator as such taxpayer made due demand in writing upon the prosecutor and legal counsel of said county that this case be instituted, and that said demand was refused.
    2. That it is the present intention and purpose of the board of deputy state supervisors and inspectors of elections to purchase at the expense of said county, voting machines of a kind that will comply with the requirements of the Ohio law relating to voting machines as found in Revised Statutes 2966-54 to 67, inclusive; and that has been examined and approved by the Ohio state board of voting machine commissioners as provided in Sections 1 and 2 of the act of April 25, 1898 (93 O. L., 277, 278), and-of which examination and approval a report or certificate made by said board has been filed in the office of the secretary of state, of the state of Ohio.
    3. That the voting machines which the board now has on hand and which it contemplates purchasing, and which are hereinafter generally described will comply with the requirements of said voting machine law, and that the question at issue is, Do such voting machines, complying with the requirements of said statute and used in conformity therewith, afford a constitutional method of voting by ballot as contemplated by the constitution of the state of Ohio?
    4. That paragraphs 2 and 3 above, however, shall not be construed as stipulating that such machines are so constructed as to comply with the act of March 22, 1906 (98 O. L., 116), requiring the rotation of names of candidates for membership upon a board of education of any school district, it being agreed that such machines do not allow such rotation on any given machine.
    5. That the following is a correct description of one of said voting machines above referred to and that the others are of the same kind:
    The said voting machine consists of a key-board, or what is alleged to be mechanical Australian ballot, and a counting machine which tabulates the totals of the votes on counters as fast as the. votes are cast so that at any time the counters show the total vote cast for each candidate, but do not preserve a separate record of each vote or each voter’s ballot. The alleged mechanical ballot of the machine consists of a metal plate on which are placed parallel rows of small pointers or keys with a label holder under each row of keys or pointers. A separate row of keys is provided for each party as a separate key is provided for each candidate in that party. Card board ballot labels are provided on which are printed the names of the candidates and the offices, or a statement of the amendment or question or proposition to be voted upon. The card board labels are then inserted in the label holders on the alleged mechanical ballot so that each candidate’s name comes opposite or below the key or pointer that belongs to him. The card labels can be locked in place so that the name of the candidate will remain under its key, just as on the paper ballot the name of the candidate will occur opposite the square in which votes are marked by the letter “X,” the square of the paper ballot being replaced on the machine by the metal lever which is used instead of the square and the voter’s pencil. When, the key-board of the machine, or the alleged ballot has placed thereon the card board labels the machine is ready for voting. At the left or head of each horizontal list of candidates, or party row, is a party lever containing the name of the party and its emblem, by the use of which the voter may turn down collectively all of the metallic pointers over the names of the candidates of that party. The voter may therefore vote collectively or individually for the candidates of his party. Above each vertical office row appears a metal slide which, when opened by the voter, locks all of the metallic pointers for the regularly nominated candidates for that office and permits the voter to cast a printed or written ballot for any other candidate of his choice who may not have been nominated by any of the parties. On a separate portion of the key-board, space is allotted for the ballot containing questions, constitutional amendments, appropriations, etc., whereby a voter may cast a vote in the affirmative or the negative by turning a metal pointer over the same. Whenever-it is required that the candidates for a certain office or offices shall be voted for separately, a portion of the key-board may be set aside for this purpose and disconnected from operation of the party lever or party levers. The voter must then vote separately for the candidates of his choice for such office. The voter indicates his choice of candidates by turning a pointer over the name of each. Provision is made to enable the -voter to vote for the presidential electors of his party by the operation of a single pointer. The interlocking mechanism of the machine prevents the voter from voting for more candidates than he is entitled to vote for or otherwise spoiling his ballot. In the event that he indicates a vote for some candidate, for whom he did not intend to vote, or if he desires to change his vote for some other -candidate, he may do so by turning back the pointer which he has turned down and turning down another pointer in its place. The one alleged ballot on the key-board of the machine is used by all voters that vote in that precinct, the voting by each voter consisting of turning down pointers over the names of the candidates of his choice, until the voter has the ballot arranged according to his choice. By moving the operating lever this ballot is then counted into the totals of the election returns and the key-board is re-set for the next voter who goes through the same operation. One ballot in this way serves for all voters in the precinct.
    6. That the following is a correct description of the method of casting and counting the votes of the electors by said voting machines:
    After he has arranged his ticket to his own satisfaction, he thereupon turns the over-head “curtain” lever which casts and counts his ballot, opens the curtain and re-sets the machine for the succeeding voter. The mechanical counting of the ballot is effected by the operation of metal dials in connection with the over-head “curtain” lever. The internal workings of the machine in registering such vote is concealed from the view of the voter. At no time during the operation of voting does the elector have manual possession of any detached written or printed ticket or ballot, nor does he “cast” any such ticket or ballot except as the result of his vote is mechanically registered by such voting machines as herein described, as consequent upon his operating the “curtain” lever; but during the voting operation each voter in succession does have possession of the machine with all its labels and voting keys so that he can vote in secrecy and without interference. He does not move the machine from place to place, but such movement is not necessary to operate the machine and count the vote. Accuracy in operation of registering the vote is secured by mechanically positive movements and is not dependent upon springs, gravity or other uncertain methods. This operation corresponds to the acts of casting and counting the ballots under the paper ticket system, except that the voter does it himself. The above secures an absolutely accurate register of the votes as cast by the voters and an immediate ascertainment thereof at the close of the polls.
    7. That the defendants have heretofore purchased in all seventy-six (76) of the voting machines hereinbefore described, and that the same have been in use at elections in various election precincts of the city of Cleveland and Cuyahoga county, state of Ohio, some of them since the year 1905.
    In addition to the requirements contained in said voting machine law; the machine provides the following:
    1. Provision for the positive detection of interference or tampering with the vote as shown on the dials of the machine at the close of the polls;
    2. Provision for detection of any interference with the mechanism between the time at which it was prepared for the election and the time for opening the polls ;■
    3. Provision • .for preventing the election officers, even if in collusion, from changing the result of the vote or otherwise interfering with the correct operation of the machine without subsequent detection;
    4. Provision for restraining the voter from leaving the booth before he has succeeded in properly operating the machine;
    5. Provision for preventing a voter casting more than one vote for the same candidate in cases where that candidate’s name appears more than once upon the ballot, he having been nominated by two or more parties;
    6. Provision for cumulative voting (minority representation) permitting the voter to vote fractions or multiples of one vote;

      7. Provision for restraining a non-taxpayer from voting on appropriations, but permitting him to vote on all other questions and all candidates;
    8. Provision for receiving, casting and counting the votes, in one election district; of voters comprising two different political subdivisions; permitting the voter to vote for only the candidate that he is legally entitled to vote for.
    The above was all the evidence adduced at said hearing of said cause.
    And thereupon after argument by counsel for plaintiff and defendant, and after due consideration of this cause, the court entered judgment in favor of defendants as appears of record.

      Messrs. Mathews & Or gill, for plaintiff in error. '
    The voting machine law is in violation of Article Y, Section 2 of the constitution. The present provision is identical with Article TV, Section 2, Constitution of 1802.
    The relator contends that the principle of contemporaneous construction of constitutional clauses applies to, and is decisive of, the question presented in this case.'
    When the Constitution of 1851 was adopted, the whole body of legislative and judicial determinations. under the Constitution of 1802 constituted the system of law upon which the new constitution was modeled. Hence the interpretation .of the former instrument is crystallized in the latter and conclusively defines the scope of its language. Lehman v. McBride, 15 Ohio St., 630; 6 Am. & Eng. Ency. Law (2 ed.), 935.
    Applying this general principle of interpretation to Article V, Section 2, we observe at the outset that it is necessary to ascertain what is the scope of. the word “ballot.”
    What constituted voting “by ballot” was defined and understood prior to the adoption of the Constitution of 1802. In proof whereof, we refer to the following' legislative enactments; Act of December 9, 1800, Laws of N.‘ W. Territory, 1799-1801, page 112; Act of December 9, 1800, 2 Laws of N. W. Territory, 90.
    Section 5 of this act employs the word “ballot” twelve times in the sense of á written ticket or piece of paper and Section 6 provides for boxes of sufficient size to hold .the “ballots.”
    The first law upon the subject of voting adopted by the new legislature appears in Revised Laws of 1805, 334, being the act'of April 15, 1803.
    Section 14 contains the direction that the judge shall immediately put the ticket into the box without inspecting' the name written thereon. Sections 13, 17, 19, 20, 21 and 22 employ the word “ballot” in the sense of a written or printed ticket.
    Section 13 was re-adopted in the various election acts passed since 1803 without substantial change. It will be found in the act of February 15, 1809, 1 Chase, 622, and re-enacted with slight changes in the following statutes: Act of January 26, 1820, 2 Chase, 1049; Act of January 7, 1824, 2 Chase, 1260; Act of February 18, 1831, 3 Chase, 1663, the word “openly” being omitted; Act of March 20, 1841, 1 Curwen, 767; Revised Statutes of 1880, Sect'on 2949; Giauque’s Revised Statutes, 2949.
    Section 13 was finally repealed April 23, 1904, and was succeeded by Section 2966-37, of the present Revised Statutes, which, however, retains all the original elements of the section. Act of May 5, 1868, 2 Sayle, 1608.
    The act of March 21, 1874, Section 4928, Revised Statutes of 1880, and the act of April 12, 1889, serve to interpret ’the word “ballot.”
    Perhaps the clearest judicial' interpretation of the word “ballot” yet made in Ohio is found in State v. Bode, 55 Ohio St., 224, where the court held that placing a ^candidate’s .name upon two party tickets constituted a ballot.
    The constituional requirement that “all elections shall be by ballot” if resolved into its factors would have read the same as if the component details of an election had been set forth 'at length and the expression “by ballot” had been translated into “written or printed paper ticket.”
    When the new constitution of 1851 was made to include the precise terms of the former provision that “all elections .shall be by ballot,” the “system of law” from which the institution was taken, namely, the laws of this state during the first half century of its existence, was the ultimate determinant as to the meaning of the terms so adopted. And such meaning cannot be changed by the general assembly. Collins v. Henderson, 74 Ky., 74; Briscoe v. Bank, 11 Pet., 257; Cohens v. Virginia, 6 Wheat., 264; Jenkins v. Bwin, 55 Tenn., 456.
    The case at bar would seem to be governed by the decision of the supreme court in Anderson v.
      Millikin, 9 Ohio St., 568. There the court applied the rule contended for in interpreting the word “white,” as used in both constitutions. See also: Wolf v.- State, 19 Ohio St., 248; Daily v. Swope, 47 Miss., 385; Leavenworth County v. Miller, 7 Kans., 479; Fontain v. Ravenel, 17 How., 369; People v. Green, 2 Wend., 266.
    While it is true that the Australian ballot system is not'identical in every detail with the method of voting' in vogue in 1851, yet this fact should áfforcl little aid to the argument on behalf of machine legislation. The form of the ballot was the only thing in which a change has been wrought. State, ex rel., v. Bode, 55 Ohio St., 224.
    In Nicholas v. Minton, 82 N. E. Rep., 50, the supreme judicial court of Massachusetts held unconstitutional an act providing for the use of voting machines, reversing the former opinion of the judges of said court (178 Mass., 605) rendered to the house of representatives.

      Mr. T. H. ILogsett; Mr. John A. Alburn; Mr. Frank Keiper and Mr. Wade H. Ellis, attorney general, for defendants in error.
    An election by voting- machines is an election by ballot within the meaning of Article V, Section 2, of the constitution of Ohio.
    A similar requirement exists in the constitutions of nearly all of the states of the United States and in about twenty of these states voting machine laws have been enacted. Four states in which substantially this requirement exists have passed upon the constitutionality of the voting' machine law and of the machines used in pursuance thereof, and in all of these cases the constitutionality of the law and the use of the machines have been affirmed. In each case the court has decided that the use of the voting machine under the voting machine law of the state in question complied with the requirement that all elections should be by ballot. The wording of this requirement differs in the different states but the intent is the same in all of them where the word “ballot” occurs. The cases in which this question has been specifically passed upon are as follows: City of Detroit v. Election Inspectors, 139 Mich., 548; Lynch v. Malley, 215 111., 574; Voting Machine Co. v. Hob-son, 132 la., 38; Elwell v. Comstock, 99 Minn., 261.
    The original ballot was a little ball. The word is derived from the French, Italian or Spanish word meaning a little ball, one that could be concealed in the hand and used for voting without letting bystanders know what the voter was doing. But other substances or materials were used as a substitute for the little balls.. In this way came to be used corn and beans, coins, stones, shells, wooden'rods, finally pieces of paper, and as these articles were used as the equivalent of the original little ball they were called by its name. In other words, each in turn was called a ballot because it was the equivalent of the ballot for the purpose for which the balls were originally used, and the purpose for which the balls were originally used was the purpose of secret voting, and it was because this function of secret voting attached to other substituted materials that caused such substitutes to be called by the same name.
    Standard reference works of the highest authority recognize this as the proper meaning of the word. 13 Encyclopedia Britannica, (9 ed.) See title “Ballot.”
    This authority includes voting machines under the head of “Ballot.”
    See also the title “Ballot” in the following authorities: Chambers Encyclopedia Dictionary; Imperial Dictionary; International Encyclopedia; Johnson’s Universal Cyclopedia; Knight’s Encyclopedia of the Arts and Sciences; Johnson’s Dictionary, edited by Latham; Lalor’s Cyclopedia of Political Science; Murray’s Oxford Dictionary; Brown & Strauss’ Dictionary of American Politics; Worcester’s Dictionary; Webster’s Imperial Dictionary; Index of the “Messages and State Papers' of Presidents.”
    The question of ballot voting was much discussed in the English parliament from 1830 to 1840, and in this discussion, as reported in Hansard’s “Parliamentary Debates,” the term “ballot” and secret voting are used all along as being synonymous. See -the following references: Vol. 203, Columns 11 and 12 '; Vol. 218, Columns 608, 613, 618, 630, 637; Vol. 229, Columns 371, 416, 425; Vol. 235, Columns 790, 792, 821; Vol. 238, Column 32; Vol., 249, Columns 446 and 477.
    A number of the American colonies had adopted the system of secret voting by ballot prior to the Revolution. Douglas Campbell on “The Puritan in Holland, England and America,” Vol. 2, 333; 1 Pa. Colonial Records, 282; Learning and Spicer, 385, 405; Connecticut statute of'October 10, 1689, Colonial Records, 11; Colonial Records of Rhode Island, Vol. 1, 147, Vol. 4, 195, 207; Bishop on Colonial Elections, 149, 173; Winthrop, New Engr land, 65, 81; Henshaw v. Foster, 26 Mass., 312.

      Certain decisions have held that the form or material of the ballot was immaterial, so long as it did the work and protected the voter. Opinion of the Judges, 7 Me.,-495; Temple v. Mead, 4 Vt, 540.
    As further throwing light on the meaning of this word “ballot,” see the following: State v. Shazv, 9.S. Car., 138; State v. Anderson, 26 Fla., 259; Ex parte Arnold, 128 Mo., 260; People v. Cicott, 16 Mich., 297; Attorney General v. Detroit Common Council, 58 Mich., 217; People v. Pease, 27 éí. Y., 81.
    The inevitable conclusion from the foregoing authorities is that the word “ballot” as used in the constitution of Ohio and elsewhere means any instrument that permits the casting of a secret vote and that this is the only test that courts have ever seen fit to apply.
    As the voting machine law of Ohio requires that all machines used thereunder must preserve secrecy in voting, and as the stipulation of facts entered into in connection with this case admits that the voting machine in question complies with the law and does preserve secrecy in voting, the conclusion is irresistible that the voting machine complies with the constitutional requirement that all elections must be by ballot and cannot be objected to on that account.
    Contemporaneous .construction always affords a safe guide where it is apparent that the original construction excluded the possibility of alternatives; but, where there are two legal or constitutional modes of performing a duty or exercising a right, the use of one for any length of time cannot render the other unconstitutional or illegal. It merely shows a preference of one over the other, or that one during the time of the practice is more convenient than the other. Henshaw v. Foster, 26 Mass., 319; Lithographic Co. v. Sarony, 111 U. S., 53.
   Shauck, J.

The agreed statement of facts upon which the case was ' submitted in the circuit court contains a sufficiently definite description of the voting machine which is the subject of actual and contemplated purchases for use in Cuyahoga county. It also describes with unfaltering confidence the manner in which the voter’s choice is indicated when the machine is manipulated by one who has mastered its intricacies and when it operates in accordance with the expectations of its designer. The reader of that statement may find that his own confidence halts when he recalls observed instances of the failure of machinery to operate according to the designer’s intention, and when he remembers the necessity for the frequent duplication of essential mechanical devices to provide for contingencies. Perhaps we may not take notice of the demonstrated interruption and partial failure to realize the essential purposes of elections which have resulted from the propensity of voting machines to disappoint the expectation of designer and manufacturers.

But if the case required it, .it would be easy to maintain that a judicial question is presented, by the consideration, that however consistently with the intention of the designer the machine may operate, and however simple its manipulation may be to those who have become familiar with it, it is in contemplation that it shall be used by the body of the electors, most ot whom have no knowledge whatever of its operation, and that ' from the necessities of the use but little time can be allowed to acquire such knowledge and understanding, one minute being the time allowed by the statute to each elector for that purpose. Since Monroe v. Collins, 17 Ohio St., 665, it has been recognized as the established law of the state, that while the constitutionally guaranteed right to vote may be the subject of legislative regulation, all laws passed “to regulate its exercise or prevent its abuse must be reasonable, uniform and impartial.” They must promote and not hinder its exercise. It is within the judicial function to give effect to the right plainly guaranteed by the paramount law by seeing that under the guise of regulation, a mode shall not be provided which unnecessarily diminishes the elector’s confidence that he is certainly giving expression to his own choice. It would be interesting to apply this general view of the subject to the legislation in question, but it is quite unnecessary in view of the definite requirement of the second section of the fifth article of the constitution that “all elections shall be by ballot.”

This provision is taken literally from the former constitution of the state adopted in 1802. In a school for the study of English, it might be both interesting and useful to consider the meanings of the word “ballot” in primitive times, and the process b}^ which its present meaning has been derived. But when the word was originally used as a part of the organic law of the state, the process of derivation had been completed and its meaning in the connection had become plain and well understood. 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. When the phrase was readopted, in our present constitution, this meaning of the provision had been illustrated and made absolutely certain by repeated acts of legislation. It is conjectured that those who framed and adopted the constitution thought that a secret vote would contribute to the freedom with which the right of suffrage would be exercised, and the conjecture may be well founded. It is perhaps historically true that the two modes of voting in vogue at the time of the adoption of the constitution, were voting by ballot and voting viva voce, and that for many reasons the latter mode was rejected from the permanent policy of the state. But this does not aid the inquiry. The framers of the constitution did not place in the organic law the negative provision that the legislature shall not enact such law for the government of elections as would provide for voting viva voce, or communicate to the public a knowledge of the votes of the electors. What object they sought to accomplish by what they ordained may be the subject of divers conjectures, but respecting what . they ordained there is no room for conjecture or doubt. They ordained that all elections shall be by ballot.

It does appear from the statement of the case, that card boards are attached to the machines bearing the names of candidates and the propositions and amendments upon which the electors are to express a choice. These remain attached to the machine' for the information of all voters. They do not pass into the control of any voter, nor by the act of voting into the control of the officers of the election. To speak of such a card board as the ballot of the constitution is obviously paying but mock deference to that instrument.

The abstract of the briefs shows that the courts of different states have reached conflicting conclusions upon the question presented, and some of the cases have arisen under constitutional provisions not differing substantially from' our own.' A careful consideration of the decisions shows that the real question does not concern the strictness with which a doubtful provision of the constitution should be construed. The question here is, whether a provision, whose meaning is certain, shall be enforced. It cannot be necessary to repeat the reasons which have led this court to give an affirmative answer to that question, and to reject utterly the theory of equivalents to the plain requirements of the constitution. According to the view entertained by all constitutional lawyers, constitutions may not be amended by violence. If a regard for the interests of taxpayers, and for the importance of certainty and confidence in the exercise of the elective franchise, shall prevent such amendment of the constitution in the mode appointed as would be necessary to authorize the use of voting machines, it would only justify the prevision of those who framed and adopted the instrument that its requirements and prohibitions would save the people from the consequences of their impulses, while the provision for its orderly amendment would enable them to give effect to their deliberately formed opinions.

Judgment reversed, and judgment for plaintiff in error.

.Summers, Spear and Price, JJ., concur.

Crew, C. J., and Davis, J.; dissent.