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ticket, upon which is indicated, by printing | Cal. 136; Taylor v. Bleakley, 55 Kan. 14, or writing, the choice of the elector. 28 L. R. A. 683, 49 Am. St. Rep. 233, 39 Cooley, Const. Lim. 604; Wharton, Law Pac. 1045; State ex rel. Runge v. Anderson, Dict. 100 Wis. 530, 42 L. R. A. 239, 76 N. W. 482.

When the Constitution was framed, the term "ballot," as designating a mode of election, was then well ascertained and clearly defined.

The relator, the city of Detroit, filed its petition in the circuit court for the county of Wayne, setting out, in substance, the following facts: That at the meeting of the common council of the city of Detroit, held March 7, 1905, the city clerk was directed by resolution to have voting machines placed in divers election districts in said city (amongst others, in the fourth district of the second ward), to be used at the election to be held Monday, April 3, 1905; that the

3 Coke Inst. 11, 136, 181.

Comstock v. Gage, 91 Ill. 328; Anderson, Law Dict. 104; Cyclopædic Law Dict. 84; Cohen v. Virginia, 6 Wheat. 264, 5 L. ed. 257; People ex rel. Williams v. Dayton, 55 N. Y. 377.

At the time our Constitution was adopt-resolution specified a particular kind of voted, the word "ballot" was defined by law ing machine; that the board of inspectors dictionaries, and generally referred to in of the named district, and each of them, legal decisions, as a piece of paper. have refused to obey the order of the common council, and assert that they will not obey it, giving as reason for their refusal that such method of voting is not a constitutional method. It is further set out that the particular voting machine is a complete and perfect piece of mechanism, thoroughly tested and reliable, constructed and operated in such a way as to permit an elector to vote secretly for a candidate or candidates of his choice upon any and all tickets, and that the same opportunity for discrimination is provided for the elector as if a paper ticket were used. The petition prays for a writ of mandamus, directed to the board of inspectors of said election district, commanding them to obey the resolution of the council. An order to show cause was issued, and the inspectors of said election district filed an answer, in which they admit the facts stated and set forth in the petition of relator, and they aver that they have refused and will refuse to obey the said order and direction of the common council to use the voting machine named, or any other voting machine, because they are advised that, under and by virtue of the provisions of § 2 of article 7 of the Constitution of this state, all votes given at any election

The meaning of our Constitution was fixed when it was adopted, and cannot be changed by events alone.

People ex rel. Twitchell v. Blodgett, 13 must be by ballot, except as stated in said Mich. 139. Constitution, "and that the word 'ballot,' as

The voting machine does not permit the contained in said provision of the Constituvoter to cast a ballot. tion, does not permit the use of said voting machines, or any other voting machine, at elections, but means only a ticket upon which shall be written or printed the names of the candidates to be voted for at said election, and that the use of any other device is without warrant or authority of law." The cause coming on to be heard upon the petition and answer, the court denied

Cushing, Parliamentary Law, chap. 4. Every qualified elector is entitled to vote. under the Constitution. If a voter is not permitted to see and know that he has deposited with the officers of the election some material thing upon which is expressed his choice, he is deprived of his constitutional right to vote. Anderson, Law Dict. 104; Black, Law the writ. The proceeding is brought into Dict. 116; People ex rel. Budd v. Holden, 28 this court by certiorari, has been argued

Williams v. Stein, 38 Ind. 95, 10 Am. Rep. 97; Collins v. Henderson, 11 Bush, 74.

In construing a statute, great regard ought to be paid to the construction which the sages of the law who lived about the time or soon after it was made put upon it, because they were best able to judge of the intention of the makers at the time when the law was made.

Contemporaneous construction of an ambiguous provision of the Constitution is always important, and is frequently of controlling influence in determining its meaning.

Ostrander, J., delivered the opinion of the court:

6 Am. & Eng. Enc. Law, 2d ed. p. 931; Martin v. Hunter, 1 Wheat. 351, 4 L. ed. 97; Ex parte McNiel, 13 Wall. 236, 20 L. ed. 624: Bank of United States v. Halstead, 10 Wheat. 63, 6 L. ed. 267; Stuart v. Laird, 1 Cranch, 308, 2 L. ed. 118; Briscoe v. Bank of Commonwealth, 11 Pet. 257, 9 L. ed. 709; People ex rel. Livesay v. Wright, 6 Colo. 92; Morgan v. Dudley, 18 B. Mon. 694, 68 Am. Dec. 735; State ex rel. Cardwell v. Glenn, 18 Nev. 44, 1 Pac. 186; People ex rel. Gallup v. Green, 2 Wend. 266; People ex rel. Lynch v. La Salle County, 100 Ill. 495; Field v. People, 3 Ill. 79; Easton v. Scott, Clarke & H. Contested Elect. Cas. 272.

ducting elections shall receive legislative
sanction must have, as an integral, manda-
tory part of it, voting by ballot. In our
opinion, the question is not to be determined
as one of mere philology; nor should we ap-
ply, as we are asked to do, the rule of con-
struction, often of great assistance, which
limits the meaning of the words "given by
ballot" to the vehicle used in voting or the
method of depositing the vote which was
probably in the contemplation of the fram-
ers of the Constitution. Neither do we re-
gard as controlling the fact that previous
legislative enactments have, with few ex-
ceptions, and those like the one now before
us, uniformly provided for written or print-
ed tickets for use in elections. We may as-
sume that they have adopted the best known
and most convenient way of voting by bal-
lot,-of obeying the constitutional mandate.
And a ticket so provided was not a ballot,
but, when properly deposited, or properly
marked and deposited, by the elector, was a
vote given by ballot. State ex rel. Runge v.
Anderson, 100 Wis. 523, 531, 42 L. R. A.
239, 76 N. W. 482. We regard the provision
of the Constitution as a declaration of state
policy, assuring to the elector a secret, as
distinguished from an open, or announced,

And in reaching this conclusion, we
apply those rules of construction which sub-
serve the apparent purpose of the provi-
sion questioned.— its generality, whether
the language used is broader in meaning
than the individual conceptions at the time
of its adoption, and broad enough to sus-
tain the legislation now considered.

The necessity for an early opinion in this
case prevents any considerable references to
the history of voting by ballot. The uses of
the white and black balls in the club and in
Some of the early
the lodge are familiar.
laws of the colonies provided that freemen
might vote in the affirmative by the use of
an Indian corn; in the negative, by putting
in a bean. Lexicographers seem not agreed
upon the derivation of the word "ballot." It
has been said that it was adopted from the
French language, without change of mean-
ing (State v. Shaw, 9 S. C. N. S. 94, 138);
that it comes from the Greek word meaning
"to throw" (2 Am. Cyc. 245). In common
speech, the word "ballot" is used to mean
the ball or ticket used in voting; the act of
voting; the result of voting. It seems clear,
however, that, from the earliest times, vot-
ing by ballot has been a term used to con-
tradistinguish open, viva voce, or public vot-
ing, and secret voting. "Voting by ballots
is by a ticket or ball, and secrecy is an es-
sential part of this manner of voting."
Bouvier, Law Dict. (Rawle's Rev.) title Bal-
lots. "The material guaranty of the provi
sion of the Constitution (§ 6, art. 6), that

orally, and very full briefs have been submitted in behalf of both the relator and the respondents.


The act of the legislature which is brought into question is act No. 61, p. 71, of 1897, Comp. Laws 1897, §§ 3750-3758, as amended by act No. 234, p. 383, of the Public Acts of 1903. The title of the act is, "An Act to Authorize the Use of Any Thoroughly Tested and Reliable Voting Machine at Any Election Held in This State." The act provides that any city council or village council may, at any regular meeting, authorize the use of such voting machines at any election be held within their respective cities or incorporated villages during the ensuing year, but that "all voting by machine shall be a secret vote, as hereinafter provided," and that all election laws not incompatible with the act are continued in full force and effect. The pleadings before us, read in connection with the legislation referred to, not only assume, but afford assurance of, the fact that the voting machines in question will, if used, insure to the elector proper instruction in the use of the machines, absolute secrecy in voting, opportunity to vote for any person or candidate of his choice for any office to be filled at a particular election, a knowledge that he has voted, a correct record of the vote or votes, and a public and correct declaration of the total result of the election, and the recording and preservation of such result by officers chosen and sworn for that purpose. It is with reference to this statement of facts, and upon the assumption of the verity of each of them, that we proceed to discuss the only question before us, which is, Does the legislation in question contravene the provisions of § 2 of article 7 of the Constitution? That section reads: "All votes shall be given by ballot, except for such township officers as may be authorized by law to be otherwise chosen." The same language was used in the Constitution of 1835. There is but one other provision of the Constitution relating to the method of voting at elections, and that is § 11 of article 4, which is: "In all elections by either house or in joint convention, the vote shall be given viva voce." The question may Is be stated in simpler form in this way: a vote given or cast by the use of the machine-secrecy, free choice of candidates, a correct record of the vote, and a correct record and announcement of the total vote given for each candidate being assured-a vote "given by ballot?"

All reasonable presumptions are to be indulged to support the questioned legislation. The Constitution of Michigan is not a code, nor is the particular provision in any way self-executing. The language is imperative, and requires that whatever system of con


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'all elections by the people shall be by ballot' | fect is Temple v. Mead, 4 Vt. 535. In the is inviolable secrecy as to the person for whom an elector shall vote; and this guaranty is binding upon municipal governments in the regulation of elections." State ex rel. Smith v. Anderson, 26 Fla. 240, 8 So. 1 (syllabus). “The expression 'election by ballots' had been expounded and construed by the various courts of last resort, and, with entire unanimity, they had declared it meant a secret ballot, and that the essential principle of this manner of voting was that the elector might conceal from every person the name of the candidate for whom he voted." Ex parte Arnold, 128 Mo. 260, 33 L. R. A. 386, 49 Am. St. Rep. 557, 30 S. W. 769, 1036. See also Williams v. Stein, 38 Ind. 90, 10 Am. Rep. 97; Ritchie v. Richards, 14 Utah, 345, 47 Pac. 670; Brisbin v. Cleary, 26 Minn. 107, 1 N. W. 825. References to the principal lexicographers will discover the same concept and definitions of ballot voting. In Opinion of Justices, 7 Me. 495, Appx., one of the questions answered was whether printed ballots came within the meaning of a constitutional provision which required that all elections shall be by written ballots. The answer was, in part: "It may be observed that those who framed the Constitution undoubtedly intended to guard against many inconveniences in the beforenamed elections, by excluding all those other modes by which questions are often decided in popular assemblies. This was the general object. The word 'ballot' may be considered as opposed to a vote by word or by signs,-as, for instance, a vote by yeas and nays, or the common mode of voting, by holding up the hand, or by rising and standing till counted. It may well be supposed that the mode prescribed was preferred because it secures a greater degree of independence than any other in the exercise of the elective franchise." And the printed ballot was held good. Henshaw v. Foster, 9 Pick. 312, 320, is, as to the question presented, like the case last cited, and to that question the same answer was returned. But the opinion is of further in terest here. It was urged "that the uniform and constant use of manuscript ballots in elections amounts to a construction of the terms of the Constitution which ought now to be received as the only true one." Of this the court, speaking by Chief Justice Parker, said: "This practice of a mode of voting which is undoubtedly constitutional, founded in existing convenience, and never brought into competition with the use of printed votes, scarcely furnishes an argument against the latter. 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." To the same ef

opinions and briefs in State v. Shaw, 9 S. C. N. S. 94, will be found an exhaustive discussion of the meaning of the word "ballot," its derivation and definitions, some history of its employment, and its meaning, as used in the Constitution of that state. That Constitution provided that "in all elections by the general assembly, or either house thereof, the members shall vote viva voce, and their votes thus given shall be entered upon the journal of the house to which they respectively belong." [S. C. Const. art. 2, § 24.] Another section of the same instrument required the state to be divided into convenient circuits, and that for each the assembly should elect a judge by "joint ballot." In the election of certain judges, the vote was given viva voce; and upon application of the attorney general, who invoked the original jurisdiction of the supreme court of the state, and who contended that a secret ballot was, by the Constitution, made imperative in such elections, there was a judgment of ouster. The case, Re Voting Machine, 19 R. I. 729, 36 L. R. A. 547, 36 Atl. 716, is not precisely in point here, because of differences in the constitutional provisions of the two states. The opinion is of interest, however, because the court considered the argument that the framers of the Constitution, as individuals, never had in mind such a method of voting. Of this it is said: "The question, however, is not what limitations they may have had in mind, by reason of the methods to which they were accustomed, but what the language of the Constitution means, or may reasonably mean, with reference to the matter before us." In Re House Bill No. 1,291, 178 Mass. 605, 54 L. R. A. 430, 60 N. E. 129, the question presented was: "Has the general court the right to authorize the use of voting and counting machines at elections by the people of national, state, district, county, city, or town officers?" The Constitution, as has been noticed, provided that representatives shall be chosen by written vote. It was held by three of the justices that the requirement might be complied with in voting by a machine which registers each vote cast, without the use of separate ballots. One justice concurred, provided the results of the action of the machine in registering each vote were visible to the voter, and the work of the machine in adding up votes was done under the supervision of some person or persons charged with the duty of counting the votes cast. Three justices dissented upon the ground that "the turn of a wheel or a dial, the punching of a hole in an unseen roll of paper on which are the names of candidates, by a voter who pulls a lever or turns a key, is not the use of a written vote, within the

meaning of the Constitution." The majority opinion, which seems to have been prepared by Chief Justice Holmes, referring to the opinion in Ilenshaw v. Foster, in which it was said that the word "ballot" is ambiguous, which was the reason for the constitutional requirement of a written vote, contains this language: "No doubt, the picture in the minds of those who used the words was that of a piece of paper with the names of the candidates voted for written upon it in manuscript; but the thing which they meant to stop was oral or hand voting, and the benefits which they meant to secure were the greater certainty and permanence of a material record of each voter's act, and the relative privacy incident to doing that act in silence. . . It seems to us that the object and even the words of the Constitution, in requiring 'written votes,' are satisfied when the voter makes a change in a material object, for instance, by causing a wheel to revolve a fixed distance,-if the material object changed is so connected with or related to a written or printed name purporting to be the name of a candidate for of fice that, by the understanding of all, the making of the change expresses a vote for the candidate whose name is thus connected with the device."

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obvious, in our opinion, is the purpose of the provision under consideration. It is undoubted, as is claimed by counsel for respondents, that, as early as 1835, the method of voting by the use of tickets was known. It was nevertheless important that the policy of the new state with reference to the subject of voting at elections should be declared in the Constitution. Agitation for the vote by ballot had only then begun in England, nor was it ended and the ballot assured until 1872. In 1835, and after, voting other than by ballot was practised in the United States. To say that the purpose of the framers of our Constitution was not to secure a particular mode of voting secretly, but was to make manifest in the organic and continuing law a policy to be perpetuated, is to give to the words of the instrument no forced or unnatural meaning. As was said by Mr. Justice Campbell in People ex rel. Williams v. Cicott, 16 Mich. 283, 297, 97 Am. Dec. 141: "Our whole ballot system is based upon the idea that, unless inviolable secrecy is preserved concerning every voter's action, there can be no safety against those personal or political influences which destroy individual freedom of choice." If we could imagine our Constitution adopted to-day, and the legislation in question enacted, with reference to all the facts stated, to-morrow, would it be contended that the legislation was unconstitutional because not providing that "votes shall be given by ballot?"

We are of opinion that we should not hold the legislation to be invalid for any of the reasons urged. The Circuit Court for the County of Wayne was in error in denying the writ of mandamus, which should issue as prayed. The proceeding being one of public interest and importance, no costs will be awarded.

NOTE. For a case in this series as to care re quired of persons crossing tracks of electric railway in country, see Keenan v. Union Traction Co. 58 L. R. A. 217.

For intoxication as affecting negligence, see Kingston v. Ft. Wayne & E. R. Co. 40 L. R. A. 131, and note; Bageard v. Consolidated Trac

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of a man on his hands and knees on the | Northern C. R. Co. v. State, 29 Md. 420, 96 track in front of an electric car on a dark Am. Dec. 545; Johnson v. Hudson River R. night, and to run the car so as to provide for Co. 20 N. Y. 65, 75 Am. Dec. 375; Prue v. that contingency, is not negligence on the New York, P & B. R. Co. 18 R. I. 360, 27 part of the motorman. Atl. 450; Tuff v. Warman, 5 C. B. N. S. 573.

3. The negligence of a man in crawling on his hands and knees towards an approaching electric car in the dark after the appearance of the headlight, which can be seen 800 feet away, is continuing, so

as not to entitle his personal representative to hold the company liable for his death on the theory of last clear chance, because the speed of the car is so great that it cannot be stopped after his presence on the track is


Where both parties are negligent, and the negligence of each contributes in some degree to the injury sustained by the plaintiff, yet, if the negligence of the plaintiff is remote in point of time, and results merely in putting him or his property in a position or condition of danger, so that the acting or casual negligence of the defendant, otherwise harmless in the particular case, is

4. Intoxication does not relieve a man

from the degree of care required of a sober given an opportunity to operate, a verdict for the plaintiff is proper.

man under the same circumstances.

(September 21, 1904.)

Davies v. Mann, 10 Mees. & W. 546; Tuff v. Warman, 2 C. B. N. S. 740, 5 C. B. N. S. 573; Radley v. London & N. W. R. Co. L. R.

PETITION by defendant for a new trial 10 Exch. 100; Pickett v. Wilmington & W.

after verdict in plaintiff's favor in an action brought to recover damages for the alleged negligent killing of plaintiff's intestate. Judgment for defendant.

The facts are stated in the opinion. Mr. Henry W. Hayes, for defendant: To say that a street car shall not be run any faster than at a speed which will enable the car to be stopped within the distance within which the headlight throws its rays is manifestly absurd.

R. Co. 117 N. C. 616, 30 L. R. A. 257, 53 Am. St. Rep. 611, 23 S. E. 264; Lloyd v. Albemarle & R. R. Co. 118 N. C. 1010, 54 Am. St. Rep. 764, 24 S. E. 805; Pharr v. Southern R. Co. 119 N. C. 751, 26 S. E. 149; Chicago, B. & Q. R. Co. v. Grablin, 38 Neb. 90, 56 N. W. 796, 57 N. W. 522; Omaha Street R. Co. v. Martin, 48 Neb. 65, 66 N. W. 1007; Hilz v. Missouri P. R. Co. 101 Mo. 36, 13 S. W. 946; Moore v. St. Louis Transit Co. (Mo. App.) 75 S. W. 699; Haley v. Earle, 30 N. Y. 208;

Kline v. Electric Traction Co. 181 Pa. 276, O'Brien v. McGlinchy, 68 Me. 552; Nashua 37 Atl. 522. Iron & Steel Co. v. Worcester & N. R. Co. 62 N. H. 159; Isbell v. New York & N. H. R. Co. 27 Conn. 393, 71 Am. Dec. 78; Northern C. R. Co. v. State, 29 Md. 420, 96 Am. Dec. 545; Pruc v. New York, P. & B. R. Co. 18 R. I. 360, 27 Atl. 450.

The decision that the motorman was proceeding in violation of his duty is wholly contrary to the rule established by innumerable decisions throughout the country, and also by the decisions of our own court.

Stelk v. McNulta, 40 C. C. A. 357, 99 Fed. 138; New York Condensed Milk Co. v. Nassau Electric R. Co. 29 Misc. 127, 60 N. Y. Supp. 234; Murray v. Forty-Second Street, M. & St. N. R. Co. 9 App. Div. 610, 41 N. Y. Supp. 620; Mathison v. Staten Island Midland R. Co. 66 App. Div. 610, 72 N. Y. Supp. 954; Chicago City R. Co. v. Lewis, 5 Ill. App. 243; Winter v. Federal Street & P. Valley Pass. R. Co. 153 Pa. 27, 19 L. R. A. 232, 25 Atl. 1028; State use of Meidling v. United Railways & Electric Co. 97 Md. 73, 54 Atl. 612; Bittner v. Crosstown Street R. Co. 153 N. Y. 76, 60 Am. St. Rep. 588, 46 N. E. 1044.

Messrs. Frank T. Easton and Lefferts
S. Hoffman also for defendant.
Messrs. Lewis S. Thompson and Liv-
ingston Ham, for plaintiff :

In the absence of evidence of due care, or want of due care, the plaintiff is entitled to the benefit of a presumption of due care on his part.

Cassidy v. Angell, 12 R. I. 447, 34 Am. Rep. 690; Judge v. Narragansett Electric Lighting Co. 21 R. I. 128, 42 Atl. 507;

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