
    Henry Lehman v. John K. McBride. Gideon B. Somers v. Charles E. Greater. Anthony Wright v. Matthew W. Pinkerton.
    1. The finding and judgment of a court of common pleas made in a case of contested election brought before it by appeal under the statute, are subject to review in the district court and supreme court, by petition in error.
    2. The act of April 13, 1863, “to enable qualified voters of this state, in the military service of this state, or of the United States, to exercise the right of suffrage,” was intended to enable qualified voters of the state,in the military service, to vote,in accordance with its provisions, as well without as within the territorial limits of this state.
    3. Said act is not clearly in conflict with any of the provisions of the constitution of this state, and is, therefore, to be regarded as a constitutional and valid enactment.
    4. Neither does said act purport to have such extra-territorial operation and effect as would place its enactments beyond the legitimate sphere of the legislative power of the state, and so render them invalid.
    5. The clause of the 16th seotion of the 2d article of the constitution, which provides that “the section or sections so amended,shall he repealed,” is directory only to the general assembly, and was not intended to abrogate the long-established rule as to repeals by implication.
    6. Under the provisions of the 7th section of said act, the poll-book of a company which designates the letter of the company and the number of the regimenfc, is sufficient in-substance, although the particular arm of the service of which it may form a part be not expressly designated, nor the fact that it is an Ohio company and regiment,* such fact being presumed where nothing appears to the contrary.
    Error to the court of common pleas of Wayne county.
    Henry Lehman and John K. McBride, at the general election, held for state and county .officers, on the second Tuesday of October, 1863, being residents and qualified electors of the county of Wayne, were severally candidates for the office of probate judge, within and for said county. It appears from the record, and the agreement of counsel, that of the votes polled at the elections held within the several election precincts of said county, Lehman, the’plaintiff in error, received 2987 votes, and McBride, the defendant in error, received 3170 votes, for said .office of probate judge; of the votes polled at elections held outside of said county of Wayne, but within the State of Ohio, Lehman received two votes, and McBride none; and of the votes polled at elections held outside of the limits of the State of Ohio, Lehman received 380 votes, and McBride received 57 votes.
    The county clerk, and justices of the peace by whom the poll-books were opened, and abstracts of the election made, counted and included in. said abstract all of said votes, whether polled at elections held within, or outside of, the limits of said county, and of said state; and accordingly found that Lehman had received 3369 votes, and McBride 3227 votes for said office. Lehman was, accordingly, declared duly elected probate judge of said county of Wayne, and received from the clerk a certificate of his election. McBride, claiming to have received a majority of ajl the votes legally polled for said office, gave notice of his intention to contest the election of said Lehman, and the case was duly brought before the court of common pleas, by the appeal of the said McBride, where it was heard, upon the evidence of the clerk (showing the facts hereinbefore stated), and the'poll-books of the elections held outside of the state, and upon which, only, a question was made. That court found and held as follows: “ That the act entitled ‘ an act to enable qualified voters of this state, in the military service of this state or of the United States, to exercise the right of suffrage,’ passed April 13, 1863, is unconstitutional and void, so far as it provides for voting outside of the state; and that all votes polled, under the provisions of said act, outside of the State of Ohio, are illegal, void, and to be held for nought. The court further find that said clerk of said court of common pleas erred in counting any and all votes polled at said election, outside of said State of Ohio. Thereupon the court order, adjudge, and decree that the certificate, issued by said clerk to said Henry Lehman, be, and the same hereby is, declared null and void; and that said John K. McBride was duly elected to the ofiice of probate judge, at the general election, held on the second Tuesday of October, 1863, within and for said county of Wayne; and that the said John K. McBride is entitled, and hereby authorized, upon qualifying himself according to the provisions of the constitution and laws of the said State of Ohio, to enter upon, and hold, said ofiice of probate judge, within and for said county of Wayne, by virtue of his said election, and shall be entitled to all the rights, emoluments and immunities arising therefrom.”
    To these several findings, order and judgment of the court, Lehman, the contestee, excepted, and his bill of exceptions, in that behalf, was allowed and signéd by the court. Lehman now’alleges that the court of common pleas erred in said findings, order and judgment, severally, and thereupon asks a reversal of the same.
    The other cases stated in the caption, are from the same county, and arise upon contests of election to the ofliees of county recorder and county treasurer respectively.
    All the cases depend upon the same questions, and the decision upon one must determine the issue as to all.
    
      0. Delano and M. Welker, for plaintiffs in error:
    The petition in error raises the question of the constitutionality of the act of April 13,1863, “to enable qualified voters of this state, in the military service of this state, or of the United States, to exercise the right of suffrage: ”
    I. An act of the general assembly will not be held by the courts to be unconstitutional unless the alleged violation of the constitution is palpable and free from doubt. So long as doubt remains, the legislative act should be enforced. Armstrong et al. v. The Treasurer of Athens County, 10 Ohio Rep. 237.
    II. As to the extent of the legislative power of the general assembly, we refer to Baker v. The City of Cincinnati, 11 Ohio St. Rep. 542. All legislative power being given by the terms of the constitution to the general assembly, they can exercise discretion in legislation in all cases where that instrument does not limit or define the exercise of legislative functions.
    III. The several provisions of the constitution in reference to electors and the election of different officers, show, that the constitution does not undertake to determine the place of voting, but leaves it for the legislature to say where the electors may cast their ballots. The legislature may authorize the elector to cast his ballot in another state to elect an officer in the county or district of his residence.
    The provision in the constitution of 1802, “that no person shall be entitled to vote except in the county or district in which he shall actually reside at the time of the election,” is an apparent limitation as to the place of voting. Rut no such provision is found in the new constitution. Why was this clause left out? Evidently because the makers' did not intend to prescribe the place in which voters were to exercise their privilege of voting, but did intend to leave it entirely under the control of the general assembly. Similar questions have arisen in Iowa and Connecticut. See Morrison v. Springer, 15 Iowa Rep. 304; 2 Am. Law Reg. 460.
    IV. Various objections are taken to the law in controversy:
    1. It is claimed that the law is in violation of the 16th section of the 2d article of the constitution, which provides, “that no law shall be revived or amended unless the new law contains the entire section amended.”
    
      1st. The election laws only provide the manner of exercising the elective franchise by citizens at home.
    
    The clause is: “But no elector shall vote except in the township or ward where he resides; ” which it is claimed is repealed by the last law.
    It does not repeal it — -
    (1.) Because the law under consideration was passed as an additional law to the other, and allows men only who are in the military service to vote whenever they are outside of their township; and, therefore, applies to a different class of voters, and is confined to them alone.
    (2.) It does not pretend to amend the other section. Both can stand together: the one is not inconsistent with the other — one operating only upon soldiers, and the other upon citizens generally.
    2d. This provision of the constitution is only directory. The three clauses of the section are alike directory. The last two have been decided by our supreme court to be merely directory. See 3 Ohio St. Rep. 475; 6 Ohio St. Rep. 177. Being merely directory, a failure to comply strictly with it does not invalidate the law. See Davis v. The State, 7 Md. Rep, 152.
    2. It is also claimed that it violates section 26, article 2, which provides that “ all laws of a general nature shall have a uniform operation,” etc.
    1st. This law does operate alike, all over the state, upon the persons coming within its provisions.
    2d. This clause was intended to remedy a defect of the old-constitution, under which laws were passed to operate in counties and townships differently, and of laws depending upon the-vote of counties for their validity.
    3d. It was only intended to apply to the territorial effect of laws — requiring all laws to operate throughout the state, and'1 not confined to particular counties and townships.
    4th. It was not intended as a personal limitation upon what has been denominated “ class legislation,” and which applies-only to personal subjects.
    5th. Our criminal laws do not operate upon all persons alike' in the state. ■ They only reach those who, by their acts, come within their provisions.
    6th. A general law was passed, in 1863, allowing county commissioners, in counties where bounties were paid, etc., to levy tax to repay, etc. All counties had not done so; yet the law was re-enforced, and operated alike over the state, but only applied where it met the proper condition of things. No lawyer has doubted its constitutionality. The election law operates in the same way.
    8. It is claimed that the law itself does not authorize soldiers to vote outside of the state.
    The 1st section provides, whenever any qualified voter shall be in the military service of the state, or United States, and absent from the township and ward of his residence, etc., he shall be allowed to vote. This absence can not be construed •to mean that he must be in the state. It applies to his absence anywhere. The act must be construed as a whole, and its ■other provisions examined to determine the intent of the legislature. Sedgwick on Stat. and Const. Law, page 234 (note).
    What was the intent of this section, and the cause of its passage ? The cause was, absence in the army, in every part of the United States, of voters, who, if at home, had a right to vote under the prior election laws — who were engaged in the service of the government for its preservation; and the intent was, to authorize and allow them to exercise the elective franchise in the same manner as if in their townships and wards on the day of election.
    In case of a doubtful meaning of a statute, the intent must :govern. lb. 230 (text).
    4. It is claimed that the law is unconstitutional and void 'because fraudulent voting can not be punished outside of the state.
    This can not destroy the validity of the vote. If the vote is authorized under the constitution, the failure or disability <of the legislature to provide punishment for frauds in voting, will not affect the right to vote. Suppose no law punishing fraudulent voting in our state were passed by the legislature, how could that affect the elections authorized to be held? The validity of an election can never depend upon the validity of a law punishing fraudulent acts of voters, nor upon whether the legislature provide for such punishment.
    This is a question of policy: they may provide for such punishment or may omit to do it. They may guard the exercise of the elective franchise, by such laws as they may think will prevent frauds, or they may not do so.
    The right to vote being guaranteed by the constitution, and qualification fixed, the legislature must provide the manner of its exercise, and may punish frauds as may be deemed proper.
    That the legislature can not punish fraudulent voting outside of the state, is an argument against the passage of such a law, but certainly can not affect the validity of the law itself, or the authority of the legislature to pass such an act.
    5. Can the legislature authorize the vote outside of the state ?
    1st. The act under consideration is a personal statute, ope-rating upon the person, and giving personal rights — the elective franchise — and is intended to protect and guard this right wherever the person may be at the time to exercise the right.,
    2d. On the subject of these rights, etc., we direct the attention of the court to Story on Conflict of Laws, sec. 113; 4 Barbour, 532,150 — 298; 7 Mass. 1; 1 Metcalf, 250; 11 Am. L. Reg. 735, note; 35 Eng. C. L. 532; 2 Parsons on Cont. 92.
    3d. Beings a citizen and resident of the state, this law follows each soldier, and allows him the personal right guaranteed to him by the constitution.
    4th. He may make a deed or a will to convey land in this state, wherever he is — our laws, as to capacity and age, etc., controlling whatever he does. Why not vote for officers to take care of his interests at home?
    5th. The legislature has authorized the appointment of commissioners in any state, and in foreign states, to take depositions and acknowledgment of deeds, etc.; also, to allow our officers in the army to take depositions, etc. All these statutes are in strong analogy to the voting law.
    
      6th. Our supreme court have decided that judges may take acknowledgment of deeds outside of their jurisdiction, and, in one case, outside of the'^state: 1 Ohio Rep. 1; 2 Ohio St, Rep. 154.
    7th. This act does not attempt to enforce a,ny law in another state. It simply allows our citizens to exercise a personal right to vote, while engaged in the public service away from home. It is a matter in which other states have no business to interfere — a matter entirely of our own state. The vote is returned to the voter’s township, etc., and there counted. Its effect is declared here. It has no extra-territorial effect, It violates no state sovereignty,
    Y. As to the questions sought to be made on the form of the poll-books, etc., we claim:
    1. That all presumptions are in favor of the compliance to the law by the officers and voters.
    2. That the statements of the law as to the manner of taking the vote, and certificate thereto, are merely directory.
    3. That the legislature prescribed a form for the returns, which has been followed.
    4. That the law directs the secretary and auditor of state to forward forms, to be used, and that they were so used by the electors and returned.
    
      T. W. Bartley, and McSweeny cf Bex, for defendants in error:
    I. The contest of an election in the common pleas is a simple inquest authorized by statute, and a part of the machinery of the regulations of elections, and is not a civil suit, cause, or action, within the meaning of our general statutes, and does not result in any final judgment or order, within the operation of the code of civil procedure. The authority to review it upon error in the supreme court has not been provided for. If any remedy exist after the disposition of the contest, it is by quo warranto. If the court, in Edwards v. Knight, 8 Ohio Rep. 375, did review such a proceeding by certiorari, that is not conclusive of the question here made. The writ of certiorari 
      has been repealed. But in that case, the question of jurisdiction was not made.
    2. The act of the 13th of April, 1863, providing for the vote of electors in the military .service, absent from their places of lesidence, is in direct conflict with the last clause of the 16th section of the second article of the constitution of the state, and, therefore, void. This provision of the constitution is as follows: “No law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.” This is a specific limitation on the legislative power. It is an express prohibition of any change of existing laws, unless made in conformity with the specific mode here prescribed.
    This act of 1863 is amendatory of prior existing election laws. This express limitation upon the legislative power is not merely directory, and therefore only discretionary with the legislature. This clause of the constituticn is a distinct, complete, and independent proposition within itself; and it is not merely advisory, but imperative, in its terms. The following cases are directly in point: Langdon v. Applegate, 5 Ind. Rep. 328; Walker v. Caldwell, 4 La. Ann. R. 277; 5 La. Ann. R. 94; Rogers v. The State, 6 Ind. Rep. 31; and 9 Ib. 154; and Armstrong v. Berremon, 13 Ib. 423.
    3. The 26th section of the 2d article of our constitution provides, that, “ all laws of a general nature shall have a uniform operation throughout the state.” The uniformity required by this provision is uniformity touching the subject matter of the law. It must be uniform throughout the state, that is, throughout the sphere of the operation of the law wherever the subject matter of the law may be found. No one questions the matter, that an election law, or law regulating the exercise of the elective franchise, is a law “ of a general nature.” Now, the subject matter of this election act of 1863 is the extension of the elective franchise to electors absent from the townships and wards of their residence; but the act discriminates, and extends the right only to those absent electors engaged in a particular employment. The constitution, in defining the qualifications of an elector, has made no distinction on account of the occupation or employment of a man. At the ballot-box all persons having the qualifications of electors are equals. If ther6 be political equality in regard to anything, under our institutions, it is in regard to the right of suffrage. It is plain, that the legislature has no right to make discriminations between electors on account of their employment when voting in their respective townships and wards. That would be violating the constitutional requirement of uniformity. In this act, of 1863, the legislature has adopted a system of “ class legislation,” and conferred this extra privilege of voting on a class of men supposed to be the most meritorious.
    4. The election law of 1863 is in violation of the 1st section of the 5th article of the constitution of the state, which defines the qualifications of electors and confers the right of the elective franchise. We recognize, to the fullest extent, the doctrine, that a court should not declare a legislative enactment void upon slight, vague or dubious grounds; yet, where the unwarranted assumption of power, or want of legislative authority, is manifest and plain, no court should shrink from the faithful discharge of its duty. The question here is not one of policy or expediency, but of legislative authority. See C. W. & Z. Railroad Co. v. The Comrs. of Clinton County, 1 Ohio St. Rep. 77.
    The legislature can not authorize the exercise of the elective franchise, by electors, when absent from the townships or wards of their residence, and at any place where they may happen to be on the day of election. In other words, the legislature has no authority to make the exercise of the elective franchise a mere transitory or migratory thing, to be exercised not at any stated or prescribed election precincts or districts, but anywhere, and in any part of the world where an elector may happen to be on the day of the election.
    The constitution requires, that all elections shall be by ballot. Let it be borne in mind, that voting by ballot requires the personal attendance of the electors at the polls. It appears to be a rule of the common law, that, in voting by ballot at public elections, each elector must appear in person and deliver his own ballot at the polls. 2 Kent’s Com. 294 (citing the case of The Dean, etc., of Fernes, Davies, 129); Taylor v. Griswold, 2 Green R. (N. J.) 226, 234 and 235; Philips v. Wickham, 1 Paige, 578; also, opinion of the supreme court of New Hampshire, 2 Amer. L. Reg. (N. S.) 743. This is not only a rule of the common law, but it has been the universal understanding of the nature of the act itself, from the origin of our government, and was the understanding at the time when the present constitution was adopted. Voting by proxy, therefore, could not be authorized short of an amendment of the constitution.
    The object of all elections being to gather a true and fair expression of the popular will, any thing which tends to the inevitable defeat of that object, either by authorizing unfair and unequal voting, or the holding of elections in such manner as to place it beyond the capability of the civil power of the state to guard the elective franchise against its unfair, unequal and fraudulent exercise, would be unconstitutional and void. Any act tending to the inevitable destruction of popular government, or to the unavoidable corruption and abuse of the elective franchise, or to placing the elections under the control of the military power, and beyond the pale of protection from the civil authority, is subversive of the very foundation of the state government, and, therefore, unconstitutional and void.
    The people, the original source of all civil power, have" conferred the right of the elective franchise, in the organic law of the state, which prescribes the form of the government, and the mode of selecting the publie officers. But it has been argued, that “ the time, place and manner of exercising” -this important privilege have been left to the discretion of the legislature. This most superficial view imputes inexcusable delinquency to the framers of the constitution. But it is wholly incorrect. As to the time, the constitution has fixed the second Tuesday of October in every year, for the election of all state and county officers, and members of the general assembly ; and the first Monday of April, annually, for the election of township officers; leaving no discretion in the legislature except to change the time of electing county officers. As to the manner of exercising the elective franchise, the constitution has left no discretion whatever to the legislature, but imperatively required, that, “all elections shall be by ballot,” which requires the attendance of every elector at the polls to deliver his ballot in person. The manner of conducting the elections by the officers holding them, for this prescribed mode of exercising the elective franchise, is a different matter, and one requiring much of detail necessarily left to the legislature. And as to the place of exercising this privilege, the provision, granting the right, authorizes its exercise only in the local election district or precinct of the elector’s residence.
    The right of the elective franchise, is, by the terms of the constitution, not only made incident to the locality of the elector’s residence in a local election district, but inseparable from it.
    This view is made even more manifest by the peculiar phraseology of the section of the constitution referred to, which is in the following words, to-wit:
    “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 [a resident] of the county, township, or ward in which he resides, such time [next preceding the election] as may be provided by law, shall have the qualifications of an elector, and be entitled to vote at all elections [at such place of his residence.”]
    An ellipsis occurs three times in this sentence, and the words manifestly omitted, but understood, are the words included in the brackets as above. The words in brackets, or other words of similar import, are essential to the manifest sense and meaning of this sentence.
    Upon the question of confining the exercise of the elective franchise to the counties of the residence of the electors respectively, there was no diversity of opinion expressed in the constitutional convention. Debates, 2 vol. pp. 9,10.
    5. The election returns in controversy, upon which the plaintiff claims the office, show upon their face that they are the returns of elections held beyond the limits of this state. * Were these elections authorized by the constitution and laws of this state? Are these the returns of elections held by the authority of the constitution and laws of this state, or of illegal and unauthorized elections? Can the general assembly of Ohio authorize the exercise of the elective franchise, and provide for and regulate the holding of elections in foreign states and countries, for the election of the state and county officers in this state ? Do the election laws of Ohio operate beyond the limits of the state ? These are pertinent inquiries arising in the case. Elections for our public officers are the mere creatures of internal municipal law. The right of the elective franchise, and the authority for holding the elections, are derived from the express authority of the constitution. There is nothing connected with the operation of our institutions more essentially requiring the obligatory force of the local municipal law of the state, at the time and place of the transaction, than that of holding the elections.. The officers of the board, holding and conducting the election, must be clothed with the authority of the constitution and the laws at the time and place of the discharge of their functions. By several express provisions of the constitution, laws are re? quired in various respects to govern and regulate the holding of elections. And the suffrage of the elector must have the living authority of the constitution, when it is delivered and. deposited in the ballot-box. No legal election can be held without the authority of the law clothing it with its sanction at the time and place of its occurrence. So plain a proposition, under ordinary circumstances, would not be questioned. McKune v. Weller, 11 Cal. R. 49
    If an election is a mere creature of the statute, it can be legally held only where the statute in proprio vigore operates. and has obligatory force by virtue of its own inherent authority: Miller v. Ever, 27 Maine R. 509.
    Our constitutional provisions and statutes’, relating to elections, have no extra-territorial operation — in other words, no binding obligatory force or authority ia other states and countries. Blanchard v. Russell, 13 Mass. R. 4; United States v. Massachusetts, 12 Pet. R. 740; Bank of Augusta v. Earle, 18 Pet. R. 519; 2 Pet. R. 540; 3 Wheat. R. 386; Booth et al. v. Hubbard’s Adm’r., 8 Ohio St. Rep. 245; Woodward v. The Michigan S. & N. Indiana Railroad Co., 10 Ohio St. Rep. 122; The Steamboat Ohio v. Stunt, 10 Ohio St. Rep. 583; Anderson v. Poindexter, 6 Ohio St. Rep. 622; Story’s Confl. of Laws, secs. 23, 405, 407; Wheaton’s International Law, p. 35.
    While the friends of this measure claim that the general assembly is charged with the duty of fixing the time, place and manner of exercising the elective franchise and holding elections, they admit that the constitution and statutes of Ohio have no operation in other states. How then can the legislature fix the time, place and manner of holding an election in Louisiana, or in England, or in China? If an election can not be held without a law proscribing the time, place and manner of conducting it, how can it be held in a country where the legislature has not and can not make any such regulations ? But all this is to be cured, we are told, when the returns reporting the .result of the election reach Ohio. But besides the conceded fact, that our law can not act extra-territorially, it can not be retroactive,expartfaeto, or curative in its operation. Const., art. 2, sec. 27. •
    6. There is yet another ground, upon which we rely with great confidence, in the defense. If the rule of construction, which is uniformly applied to other statutes, is to govern this, the act has not provided for extra-territorial elections. There is not one word in the act, either expressly or by necessary implication, providing for elections or the exercise of the elective franchise, beyond the limits of the state. The act provides, that whenever any elector of this state shall be in the military service, “ and as such, absent from the township or 
      
      ward of his residence on the days appointed by law for holding county, state, congressional, or presidential elections within this state,” etc., such an elector shall be entitled to exercise the right of suffrage as fully as, etc. The only elections spoken of in the whole act are elections within the state. It is provided, that electors may vote when absent from the townships or wards of their residence; but it is not said when absent from the state. Now, when elections within the state are expressly mentioned, and not one word pointing to elections out of the state, it would seem to be clear that it was the exercise of the elective franchise by electors absent from their townships or wards, and within the state, that Ayas provided for. It is argued, hoAvever, that the words, absent from their townships or wards, are general Avords, and would allow them to be in any other part of the Avorld. But “general words in statutes must always he construed in view of the territorial limit to the powers of the legislature.” Woodward v. The Michigan Southern and Northern Ind. R. R. Co., 10 Ohio St. Rep. 122; The Steamboat Ohio v. Stunt, Ib. 582; Miller v. Ewer, 27 Maine R. 509.
    Again, the 19th section applies the existing statutes providing against frauds at elections, only to elections under this' act in this state. Why was not some provision made to protect elections out of the state against frauds and abuses, if any such had been intended to be authorized?
    7. Some of the pretended poll-books are defective. Several of them omit to state the class of troops, or the state from which they went. This is insufficient to identify them, and is not in conformity with the act. Such returns are not legal, and ought to be rejected.
   Scott, J.

This case comes into this court by petition in error, and the plaintiff seeks to reverse a finding and judgment of the court of common pleas of Wayne county, pronounced and entered in a case of contested election, brought before it by appeal under the statute.

It is claimed, on behalf of the defendant in error, that the finding and judgment of the court of common pleas, in such a case, are not subject to review in tbe appellate courts of tbe state, by petition in error. This court has heretofore, unhesitatingly, and with unanimity of opinion, regarded its jurisdiction, in this class of cases, as unquestionable. Thus, in Ingerson v. Marlow, 14 Ohio St. Rep. 568 (which was a case of this kind), this court took jurisdiction, and affirmed the judgment of the court of common pleas. The same point was then made, on behalf of the defendant in error; but as the judgment of affirmance was in his favor, this question was not noticed in the report of the case. We still entertain no doubt as to our jurisdiction; and think it would be quite anomalous, if no mode were provided for the correction of errors occurring in the court of common pleas, in cases of such grave character, and such public interest, as contested elections usually are. But the statute is explicit on the subject, and provides expressly, that a judgment rendered, or final order made by the district court, the court of common pleas, probate court, justice of the peace, or any other tribunal or board exercising judicial functions and inferior in jurisdiction to the court of common pleas, may be reversed, vacated or modified, by the supreme court, for errors appearing upon the record. A judgment rendered or final order made by the court of common pleas, is also expressly made subject to similar review by the district court.. And the statute declares, among other things, that “ an order affecting a substantial right, made in a special proceeding, is a final order which may be thus vacated, modified, or reversed.” (Code, secs. 511, 512, 513 and 514.) This language leaves no room for doubt, or discussion, on the question of jurisdiction.

Proceeding, then, to the consideration of the case, it is evident that the rights of the parties to this contest, depend upon the legality of the votes claimed by the plaintiff in error to have been duly cast for him, at points outside of the territorial limits of the state, under and pursuant to the provisions of the act of April 3,1863, “to enable qualified voters of this state, in the military service of this state, or of the United States, to exercise the right of suffrage.” If the votes, thus claimed, were duly east and returned, pursuant to a valid enactment of the general assembly of the state, it is clear that the plaintiff in error was elected to the office which he claims; but if those votes are to be rejected, as having been cast without authority of law, it is equally clear that the defendant in error is entitled to the judgment of the court in his favor.

It is claimed, on behalf of McBride, the contestant, that the act referred to, was not intended to authorize votes to be cast outside of the territorial limits of the state; and the proper construction of the act, in this regard, must, therefore, be the first subject of consideration.

Does the act of April 13,1863, purport to authorize elections to be held at points outside of the State of Ohio ?

The first section of the act declares, that whenever any of the qualified voters of this state shall be in the actual military service of this state, or of the United States, and as such, absent from the township or ward of their residence, on the days appointed by law for holding elections within the state, such voters shall be entitled, at such time, to exercise the right of suffrage as fully as if they were present at their usual places of election. A.nd, to enable them to do so, the second section provides, that a poll shall be opened in each company, at the quarters of the captain or other commanding officer thereof; and all electors belonging to such company, who shall be within two miles of such quarters on the day of election, shall vote at such poll, and at no other place. The act contains no terms of limitation, confining its operation to the case of military companies, or of soldiers, who may be within the state on the day of election. On the contrary, its language is general, and its title is clothed in general terms: “ To enable qualified voters of this state, in the military service of this state, or of the United States, to exercise the right of suffrage.” It was well known, at the time of the passage of this act, that the great body of the voters of the state, who were then in the military service of the United States, were in fact outside of the State of Ohio; yet, all such persons were declared entitled to exercise the right of suffrage as fully as though they were at home; and, to that end, a poll was to be opened, on the day of election, in each company, at the quarters of its* commanding officer, wherever the company and the quarters of its commandant might happen to be. The fifteenth section prescribes the form of the poll-books to be kept at elections held under the act, and, in doing so, leaves a blank for the insertion of the name of the state, within which the election may have been held. This would have been wholly unnecessary, unless different states were contemplated as the possible locality of the polls authorized by the act. And the nineteenth section provides, that: “When any election under this act shall be held in this state, all the provisions of the general law in relation to fraud at elections, and the punishment thereof, consistent with the provisions of this act, shall apply to all elections under this act.” The limiting words, “ in this state,” which are found in this section, imply that elections might be held under the act outside of the state, as well as within it, and are wholly without force on any other supposition.

As well, then, from the avowed object and purpose of the act, as expressed in its title, and read in the light of the known military situation of the country, and the location of the Ohio soldiery at the time, as from the very general terms of the leading provisions of the act, found in the first and second sections, and from the tenor and import of the subsequent sections to which we have referred, no room is left to doubt that the legislature intended to authorize elections to be held outside of the limits of the state, as well as within it.

The court below properly so construed the act; but held the act itself to be “ unconstitutional and void, so far as it provides for voting outside of the state, and that all votes polled under its provisions, outside of the state, were illegal, void, and to be held for nought.”

The result of this judgment of the court below, in regard to the invalidity of the act in question, was to declare the defendant in' error elected to the office of probate judge of Wayne county; whilst, had the act been held valid, the plaintiff in error must have been declared elected to that office. The main question in the case arises, therefore, upon the constitutionality of this enactment. Under the constitution of this state, is it competent for the legislature to authorize elections to be held for state and county officers, and votes to be polled, at points outside of the territorial limits of the state?

Written constitutions, under which state governments are organized and conducted are usually rudimental in their character; their provisions are general and are confined to matters supposed to be of essential necessity, or of prime importance. Hence, questions in regard to the constitutionality of an act of the legislature, are, generally, if not always, of grave import. The question in this case is especially so, as it affects in a most important manner, the wielding of the whole political power of the state, through the ballot-box.

Before proceeding to the direct investigation of this question, it will be proper to state some general.principles, which should control our deliberations, and to which the ultimate conclusion should conform.

The following propositions we suppose to be incontrovertibly supported, both by reason and authority.

1. Whilst it is the right and the' duty of judicial tribunals to give full force and effect to the organic law of the state, and, therefore, to declare null and void any attempted acts of legislation which contravene the limitations imposed by the constitution upon legislative power; yet such judicial interference can not be justified in a doubtful case; for “the presumption must always be in favor of the validity of the laws,if the contrary is not clearly demonstrated.” Cooper v. Telfair, 4 Dallas’ R. 14; Armstrong v. Treas. Athens Co., 10 Ohio Rep. 237; C. W. & Z. R. R. Co. v. Comm. of Clinton Co., 1 Ohio St. Rep. 77, and authorities there cited; Goshorn v. Purcell, 11 Ohio St. Rep. 641.

2. By the terms of our state constitution, “ the legislative power of the state” is declared to be “vested in the general assembly.” This grant of power is general in' its terms, not special; it embraces all such legislative power as the people of the state could, under the federal constitution, confer — the whole “legislative power of the state.” The limitations upon the exercise of the power thus broadly conferred, are special, and are to be found in other parts of the same instrument. The act in question is not an encroachment upon the powers or functions delegated to other departments of the government; that is to say, the nature of its subject matter is such as to give its enactment a legislative character; and it is not claimed, in any quarter, that it interferes with the powers specially delegated to the government of the' United States. Therefore, when the power of the general assembly to enact such 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-. Baker v. City of Cincinnati, 11 Ohio St. Rep. 542, 543.

3. 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. Cass v. Dillon, 2 Ohio St. Rep. 607; Evans v. Budley, 1 Ohio St. Rep. 437.

Proceeding, then, to consider the constitutionality of' this enactment, in the light of the principles just stated, let us first inquire whether it clearly conflicts, in any respect, with the express terms of the constitution.

The provisions of the constitution which relate to the exercise of the elective franchise, are as follows:

Art. II, Sec. 2. “Senators and representatives shall be elected biennially, by the electors in the respective counties or districts, on the second Tuesday of October.”

Sec. 27. “ The election and appointment of all officers, and the filling of all vacancies, not otherwise provided for by this constitution, or the constitution of the United States, shall be made in such manner as may be directed by law.”

Art. Ill, Sec. 1. “The executive department shall consist of a governor, lieutenant-governor, secretary of state, auditor, treasurer, and an attorney general, who shall be chosen by the electors of the state, on the second Tuesday of October, and at the places of voting for members of the general assembly.”

Art. IV, Sec. 2. “ The judges of the supreme court shall be elected by the electors of the state at large.”

Sec. 3. “The state shall be divided into nine common pleas districts, . . . and each of said districts . . . shall be subdivided into three parts, ... in each of which, one judge of the court of common pleas for said district, and residing therein, shall be elected by the electors of said subdivision.”

Sec. 7. “There shall be established, in each county, a probate court, which shall be . . . holden by one judge, elected by the voters of the county.”

Sec. 9. “A competent number of justices of the peace shall be elected, by the electors in each township, in the several counties.”

Sec. 10. “ All judges, other than those provided for in this constitution, shall be elected by the electors of the judicial district for which they may be created.”

Sec. 16. “There shall be elected in each county, by the electors thereof, one clerk of the court of common pleas.”

Art. V, Sec. 1. “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 qualifications of an elector, and be entitled to vote at all elections.”

Sec. 2. “ All elections shall be by ballot.”

Sec. 3. “Electors, during their attendance at elections, andi in going to and returning therefrom, shall be privileged from arrest, in all cases, except treason, felony, and breach of the peace.”

Sec. 4. “The general assembly shall have power to exclude from the privilege of voting . . . any person convictedi of bribery, perjury, or other infamous crime.”

Sec. 5. “No person in the military, naval, or marine service of the United States, shall, by being stationed in any garrison, or military or naval station, within the state, be considered a resident of this state.”

Seo. 6. No idiot, or insane person, shall be entitled to the privileges of an elector.”

Art. YIII, Sec. 12. “ So long as this state shall have public works, which require superintendence, there shall be a board of public works, to consist of three members, who shall be elected by the people, at .the first general election after the adoption of this constitution — one for the term of one year, one for the term of two years, and one for the term of three years, and one member of said board shall be elected annually thereafter.”

Art. IX, Sec. 2. “Majors-general,brigadiers-general, col•onels, lieutenants-colonel, majors, captains, and subalterns, ¡shall be elected by the persons subject to military duty in thevr ■respective districts.”

Art. X, Sec. 1. “The general assembly shall provide by law for the election of such county and township officers as may be necessary.”

Sec. 2. “County officers shall be elected on the. second Tuesday of October, until otherwise directed by law, by the qualified electors of each county, in such manner, and for such ■term, not exceeding three years, as may be provided by law.”

Sec. 4. “ Township officers shall be elected on the first Monday of April annually, by the qualified electors of their respective itownships.”

These, we believe, embrace all the provisions of the constitution which can possibly bear upon the question under consideration; and, indeed, several which can have little or no ‘bearing upon the subject, but which we have extracted through abundant caution.

Now, upon these provisions, it may be remarked, in general, that the main object of such of them as relate to the election of particular officers, is, manifestly, to declare by what portion of the electors of the state they shall be chosen. Executive officers of the state are to be “ chosen by the electors of the state; ” judges of the supreme court are to be “ elected by the electors of the state at large; ” judges of the court of common pleas, “by the electors of their subdivision;” probate judges, “by the voters of the county;” justices of the peace, “ by the electors in each township; ” judges other than those provided for in the constitution, “by the electors of the judicial district for which they may be created; ” the clerk of the court of common pleas, “ by the electors of the county; ” members of the board of public works, “by the people;” and military officers, “by the persons subject to military duty in their respective districts.” The prepositions “in” and “of,” following the word “ electors,” in the foregoing connections, are of similar and equivalent import; they express the relation, created by residence, between the electors, and the state, county, district, or township in which they respectively reside; they contain no reference, express or implied, to the place where the elective franchise is to be exercised, but are equivalent to the words “residing in,” or, “who are residents of.”

As to the manner of electing all officers, the only provisions of the constitution are, that “all elections shall be by ballot,” and, that officers shall be elected “ in such manner as may be directed” (or “provided”) “bylaw.”

As to the time of holding elections, the constitution prescribes that, senators and representatives shall be elected biennially, on the second Tuesday of October; the state officers, constituting the executive department, shall be chosen “ on the second Tuesday of October;” members of the board of public works, at the “ first general election after the adoption of the constitution, and annually thereafter; ” county officers, “ on the second Tuesday of October, until otherwise directed by law;” and township officers, “on the first Monday of April, annually.”

As to the place at which elections shall be held, the only express provision of the constitution is, that the state officers composing the executive department, “shall be chosen . . at the places of voting for members of the general assembly.”

It may, then, be very safely affirmed, that whilst all the details in regard to the “manner” or mode of holding and conducting elections are expressly referred, by the constitution, to legislative discretion (excepting, only, that all elections shall be by ballot), it contains no express limitation upon that discretion, in regard to the places at which they shall be held.

But, in the absence of any express constitutional provision on the subject, it is insisted, in argument, that the exercise of the elective franchise is impliedly limited, by the first section of the fifth article of the constitution, to the local election district in which the voter resides. This section prescribes, specifically, the qualifications of an elector, and concludes by declaring that every citizen having such qualifications shall “be entitled to vote at all elections.” This last clause, which is, in terms, a mere declaration of the elector’s right, as such, is supposed, by counsel, very clearly, to imply the place in which alone that right can be exercised. The argument is, that the words “ all elections” can hot properly be understood in their broadest sense, otherwise the electors 'of one township, county, or district, would, under this provision, have a right to participate in the election of officers for other townships, counties, or districts; and that'each elector would have the right to vote at as many different places of holding an election for any particular office, as he could reach on the day of election. Inasmuch, then, as the word ilall” must evidently be understood in a limited sense, it is said that the clause is elliptical, and that the ellipsis can only be properly supplied by adding words of limitation, so as to make it read thus: “'And be entitled to vote at all elections ” in their respective townships or wards; or, at such place of his residence. But is it necessary, in order to a proper construction of this clause, to add such words of limitation as will prescribe where the elective franchise is to be exercised, and thus place a restriction upon legislative power, which is not suggested by the terms of the clause, nor even hinted at elsewhere, throughout the instrument? 'Properly speaking, there is no ellipsis at the end of this clause. Without any addition to it, the sentence is syntactically complete, and the sense perfect. There is no ellipsis, to be supplied by the mere grammarian, though there are terms to be construed by the jurist. An example of ellipsis proper, occurs in the first part of this same clause, where the nominative, as well as the auxiliary shall,.is suppressed before the verb “ he entilled.” But the question arising upon the words “ all elections,” is one of construction, and is simply this: What is the intent and meaning of these words, as employed in this section of the constitution? We understand the clause in question to be a definition (perhaps more brief than specific, or accurate) of the elective franchise. Every white male citizen of the United States, possessing certain specified requisites, as to age and residence, is first declared to have the qualifications of an elector; and then, by way of defining the right which these qualifications confer, and which attach to the elector as such, it is added, that he shall “be entitled to vote at all elections.” It is a mere declaration of the franchise or right which belongs to every elector, without any attempt to prescribe the place or manner of its exercise. We are, doubtless, to give such construction to the words “all elections,” as will be in harmony with the other clear and unmistakable provisions of the constitution on the same subject. Now, other portions of the same instrument clearly point out in what elections the several electors of the state may respectively participate, by their votes. And this is uniformly done, not by reference to the places where elections may be held, but to the character of the office to be filled by election, and the residence of the electors. Thus, as we have seen, senators and representatives are to be elected “by the electors in” (that is, residing in,) “the respective counties or districts” which they directly represent in the legislative branch to which they are chosen. The governor and other executive officers of the state, “by the electors of the state; ” judges of the supreme court, “ by the electors of the state at large;” judges of the courts of common pleas, “ by the electors of their respective subdivisions;” judges of probate courts, clerks of the court of common pleas, and county officers generally, “ by the electors of each county ” for which they are severally to be elected; justices of the peace, and township officers generally, “by the electors of their respective townships; ” judges, other than those provided for in the constitution, “ by the electors of the judicial district for which they may be created;” and officers in the militia, “by the persons subject to military duty in their respective districts.” On a well-recognized rule of construction, these various provisions, which specify the portion of electors by whom the different officers shall be chosen, exclude all others from a right to vote at such elections; and are, therefore, limitations or qualifications to be carefully respected in giving a construction to the words under consideration. The general principle which pervades the constitution on this subject, is, that no one shall be allowed to participate in the election of officers whose jurisdiction will not extend over him, or territorially include the place of his residence; but that the electors of each district or civil subdivision of the state, shall have the right to select their own official representatives, or public functionaries. And, keeping in view the limitations to which we have referred, there can be but little danger of misunderstanding what is meant by an elector’s right “to vote at all elections.” It is very clear that this phrase would not be correctly expounded, either by the words which counsel propose to add, or by any other words having reference solely to the place at which an election may be held. For, in the case of an election for officers in the militia, though it might be held at the residence of a person having the qualifications of a general elector of the state, yet if, by reason of age, disability, or otherwise, such person is not “ subject to military duty,” he has no right to vote at such election. We think that, under a proper construction of the constitution, persons having the qualifications of an elector, may justly claim “ a right to vote at all elections ” of officers of the state, and of such other civil officers as, Try the provisions of the constitution and, laws, are to he chosen hy the electors of the county, township, ward or district in which such persons respectively reside. And whatever terms may be regarded as most apposite for the expression of this idea, we trust enough has been said to show that the place of holding an election is-not the criterion, and furnishes no essential part of the test, which limits the elector’s right to vote “ at all elections.,” Besides, a right to vote at all elections, does not import, as counsel seem to suppose, a right to vote af, all places of holding elections. The election of a governor of the state, for example, is a single election, although the law provides for its being held simultaneously at more than a thousand different places within the state. A right to vote at all elections does not, therefore, import a right to vote at more than one of the places prescribed by law for holding an election, any more than it imports a right to vote more than once at the same place; nor is it necessary to supply a supposed ellipsis in order to avoid such a construction. We find nothing, then, in this section which refers, in the slightest degree, even by inqolication, to the place of holding elections.

Had it been the intention of the framers of our present constitution to fix or limit, by this section, the place at which the elective franchise should be exercised by the voters respectively, it is quite remarkable that no attempt should have been made to do so, in express terms; that such an important limitation of legislative power should have been left to be gathered from a supposed ellipsis — from something which is not said — or to be inferred from a declaration of the elector’s “right to vote at all elections.” And it is the more remarkable because, in the corresponding section of the constitution of 1802, which defines the qualification's of electors, there was a clause of express limitation, in the following terms: “No person shall be entitled to vote, except in the county or district in which he shall actually reside at the time of the election.” Now, the fact that this clause was wholly excluded from the present constitution, and no express limitation a-s to the place of .voting was inserted in its stead, would seem to be quite significant. It is in this part of the constitution, which treats solely of the elective franchise, that we should naturally expect to find, if any where, a restriction limiting the place of its exercise. Here such restriction was placed, in express terms, by the constitution of 1802, and from this, its appropriate place, it was stricken out in the constitution of 1851, and inserted in no other place. On the contrary, the latter instrument declares, in the most general terms, that “ county officers shall be elected . . in such manner . . as may be provided by law.” And that officers, whose election is not provided for in the constitution, shall be elected “in such manner as may be directed by law.” We think it may be very fairly inferred, that whilst the constitution defines the qualifications of electors, and prescribes by what portion of them all officers shall be chosen, it was intended to leave all further details, whether as to the place of holding elections, or the mode in which they should be conducted,'to the wisdom of the legislature, to be provided for, and modified, from time to time, as the ever-varying circumstances of the unknown future might seem to require. If prohibition was intended, why should the direct and express restriction of the former constitution have been rejected, and the matter left to vague conjecture, and doubtful inference?

It is said, in argument, that this section, by prescribing as one of the qualifications of an elector-, that he “shall have been a resident of the state one year next preceding the election, and of the township, county or ward, in which he resides, such time as may be provided by law,” has localized and limited the place where the elector’s right of voting must be exercised. Rut we do not clearly see the force of the logic on which this conclusion rests. Without entering into a labored disquisition upon thb import of the words “resident” and “residence,” it may be safely assumed that, in the proper interpi etafion of the constitution, the word residence may be regarded as synonymous with home; and that to. reside in a particular place, means to have one’s home there.' Such has long been its popular sense, and so it is used in statutes of the state passed before .the adoption of the present constitution, and still in force. In the act of 1841, “to preserve the purity of elections” (1 S. & C. St. 548), the word residence is thus defined: “First. That place shall be considered and held to be the residence of a person in which his habitation is fixed, without any present intention of removing therefrom; and to which, whenever he is absent, he has the intention of returning.” And to this is added: “Second. A person shall not be considered or held to have lost his-residence, who shall leave his home, and go into another state, or county of this state, for temporary purposes merely, with an intention of returning.” Here, it is evident, that “residence” and “home” are used as convertible terms. We concede, then, that the constitution makes the “residence” the “fixed habitation,” or “home,” of the voter, an essential part of his qualifications as an elector. It is the sole object of this section to define those qualifications, and to declare the right which they confer. It speaks of nothing else. And it is clear that the qualifications which confer the right to vote, and the place at which that right may be exercised, ar'e things quite distinct from each other. The elector who temporarily leaves wife, children and “ home,” for the defense of -his state and nation, with the intention of returning when his services are no longer demanded, does not thereby lose his residence, or cease to have a fixed local habitation and a home; nor does he lose the legal rights which that residence may confer. To qualify a person for voting for township officers, residence in the township, is clearly necessary. But it does not follow, as a logical consequence, that the right to vote can be exercised only within the township. If the enjoyment of the right is thus limited by the constitution, the restriction is not to be found in this section.

A farther objection is raised as to the validity of this law on account of the form in which it is enacted. The 16th section of the 2d article of the constitution provides as follows: “ Every bill shall be fully and distinctly read on three different days, unless, in case of urgency, three-fourths of the house in which it shall be pending, shall dispense with this rule.. No bill shall contain more than one subject, which shall be clearly expressed in its title; and no law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended; and the section or sections so amended shall be repealed.” Now, it is said, that the law in question is invalid, because it fails to comply with the requirements of the third and last clause, or provision, of the section just quoted, in this: that, though in several of its provisions it changes, and, therefore, is amendatory of the general election laws of the state, yet it does not contain the sections of the old law which are thus amended; nor does it expressly repeal any of them. Let us briefly examine this objection. The constitutional provision supposed to be violated (omitting what is irrelevant), reads thus: “No law shall be . . . amended, unless the new act contain . . . the section or sections amended; and the section or sections so amended shall be repealed.” From the argument of counsel, we are led to suppose that the objection to be considered rests, mainly, on what we conceive to be a misunderstanding of the meaning of this clause. We understand the main objection to be, that in the new act, the sections of the prior statutes, which it is supposed to modify or amend, are not set out and recited in full. We think the phraseology, reasonably construed, does not require this to be done. As we understand this clause of the constitution, it requires, in the case of an amendment of a section or sections of a prior statute, that the new act shall contain, not the .section or sections which it proposes to amend, but the section or sections in full, as it purports to amend them. That is, it requires, not a recital of the old section, but a full statement, in terms, of the new. one. Such has been the almost uniform legislative construction given to this clause; and a different judicial construction would invalidate nine-tenths of the amendatory acts of state legislation passed since 1851. Whatever inference might be drawn from the debates in the constitutional convention, every provision of the constitution should be construed agreeably to the import of its terms, as they may be fairly presumed to have been understood by the people, whose ratification alone gave validity to the whole instrument.

Now, in regard to the act before us, it may be said that it does not, either in its title or anywhere in the body of it, purport, in terms, to be amendatory of a former statute or statutes, or of any section or sections of a former act. Yery few of its provisions were intended to supersede or take the place of any former enactments. It is, in fact, in its main provisions, and in its general scope and purpose, an independent and original act of legislation, upon a subject not embraced in prior statutes, and in respect to which there had been no previous legislation. Its purpose, as declared in its title, was “to enable qualified voters of this state, in the military service of this state, or of the United States, to exercise the right of suffrage.” On this subject there was no prior legislation to be amended.

The act was intended to provide for a particular case, not hitherto provided for — that of voters in the military service; and as to the place and manner in which all other electors should exercise the right of suffrage, prior enactments were left unchanged and in full force. As to them, the law was not amended, and it was properly not repealed, because it was intended that it should still operate with full vigor.

But if we regard the act under consideration as properly amendatory of prior election laws (as some of its provisions, no doubt, are), yet all its sections are fully set out, in express terms. The constitutional provision to which, it is said, this act does not conform, was intended, mainly, to prevent improvident legislation; and with that view, as well as for the purpose of making all acts, when amended, intelligible, without an examination of the statute as it stood prior to the amendment, it requires every section which is intended to supersede a former one to be fully set out. No amendments are to be made by directing specified words or clauses to be stricken from, or inserted in, a section of a prior statute which may be referred to; but the new act must contain the section as amended. In this particular, we think, the act before us is not liable to exception. It is true, that some of its provisions are intended to change and supersede kindred provisions in the general election laws of the state. Eor example: it extends the time for receiving and opening the returns of votes cast under the act, and of making- abstracts thereof, and foi giving certificates of election, to thirty days from the day of election; whilst the general election law of 1852 required the same acts to be performed within six days from the day of election; and it extends the time for giving notice of a contest of the election, to twenty days after the opening of the returns, whilst the law of 1852 required such notice to be given within twenty days from the day of election.

The only just ground of exception to the regularity of these amendatory sections, is, that the former provisions of the statute, which are thus amended and superseded, are not expressly declared to be repealed. But, we are satisfied that the clause of the constitution which requires that “the sections so amended shall be repealed,” is merely directory to the general assembly; and that a statute can not be judicially declared invalid because that direction has not been complied with. This section of the constitution contains two distinct provisions preceding the one under consideration; first, that “ every bill shall be distinctly read on three different days,” etc.; second, that “no bill shall contain more than one subject, which shall be clearly expressed in its title.” In the case of Miller & Gibson v. The State (3 Ohio St. Rep, 475), the first of these provisions came under examination, and was held to be^ directory only. ' At least, the court say, “ this is an important provision, without doubt; but, nevertheless, there is much reason for saying that it is merely directory in its character, and that its observance by the assembly is secured by their sense of duty and official oaths, and not by any supervisory power of the courts. Any other construction, we incline to think, would lead to very absurd and alarming consequences.” The second provision Avas considered in the case of Pim v. Nicholson (6 Ohio St. Rep. 176), where.the court held, that “this clause was incorporated into the constitution for the purpose of making it a permanent rule of the houses. It is directory only, and the supervision of its observance must be left with the general assembly.” We think the reasons are equally cogent for regarding the subsequent clause, in regard to repeals, as also directory in its character, and that a contrary holding would result in consequences truly “ alarming.” It would at least nullify many statutes which the courts and the people of the state have hitherto regarded as valid, and have governed themselves accordingly in their transactions. We can not think that this clause was intended to abolish the doctrine of repeals by implication, and to reverse the established maxim, that where statutes are inconsistent with each other, the latter repeals the former. On the contrary, it was intended to secure and enforce the application of the principle embodied in this maxim, by directing the general assembly to act in accordance with it, by expressly declaring the former inconsistent and amended statute to be repealed.

The constitution of Maryland contains the following clause: “No law shall be revived, amended or repealed by reference to its title only.” In giving a construction to this clause, in the case of Davis v. The State (7 Md. Rep. 152), the court said: “ This was intended to prevent .incautious and fraudulent legislation. It does not apply to an independent act establishing a new, or reviving some previous, policy of the state. In such cases the enactment of one law is as much a repeal of inconsistent laws, as if the latter were repealed by express words.” The application of this principle to the act before us is apparent.

The clause in question was, clearly, not intended to deny or limit the legislative power of repeal in any case, but simply to direct the mode in which that power should be exercised; and, in this respect, it is of the same character with the preceding clauses of the same section; and if they are directory merely, we are unable to • say that the last clause is clearly otherwise.

Again, it is urged that the law in question is in conflict with the 26th section of the 2d article of the constitution, which provides, that “ all laws of a general nature, shall have a uniform operation throughout the state.” Under the former constitution, laws having a general subject matter, and, therefore, “ of a general nature,” were frequently limited expressly, in their operation, to one or more counties, to the exclusion of other portions of the state. As a consequence, on the same subject, there might be one law for Hamilton county, another for Franklin, and still a third for Ashtabula. This naturally led to improvident legislation, enacted by the votes of legislators who were indifferent in the premises, because their own immediate constituents were not to be affected by it. To arrest and, for the future, prevent this evil, the provision in question was inserted in the present constitution. But the law in question is the same for every part of the state; its operation is “uniform throughout the state.”- Its subject matter is the exercise of the elective franchise by electors of the state who are in its military service, or in that of the United States. And its provisions are the same for all such electors of the state, wherever their place of residence may be, and for all elections of officers for the state, and any and every portion thereof. Being thus uniform in its operation throughout the state, it is, clearly, in harmony with this provision, and does not fall within the mischief which it was intended to prevent. It is said, however, to be a species of class legislation, because its operation is limited to the case of electors who are in the military service of the state, or of the United States, and does not embrace all the electors of the state who may be absent from their place of residence on the day of election. But, class legislation, of this kind, is of frequent occurrence, and has never been supposed to be in conflict with the constitution. Many statutes are intended to operate exclusively, or mainly, upon certain classes of persons; as, for example, upon attorneys at law, auctioneers, brokers and bankers, etc.; criminal laws impose their penal sanctions only upon transgressors; and the elective franchise itself, is, by the constitution, limited to a class of citizens composing less than' one fourth of the whole. By statutes repeatedly enacted under the former constitution, voters, in attendance at court, on days of election, were authorized to. vote at the county seat, instead of their own township polls. Yet, it is apparent that all such enactments, though operating only on classes of persons, do not, for that reason, fail to have a uniform operation throughout the state. The argument, however, is, that the general assembly should not have discriminated between the case of the citizen soldiers, who are, compulsorily, or patriotically, absent from home on the day of election, periling their lives in defense of the life and integrity of the nation, and who constitute perhaps more than one fourth of the electoral body of the state; and the case of such few electors as may be voluntarily absent, in the pursuit of personal pleasure or gain. But if this objection be well taken (as to which, opinions may differ), still it goes only to the policy and wisdom of the enactment, and not to its constitutionality. It is not to be for- ■ gotten, that this law does not extend the elective franchise; it confers it upon no one. Its only object and aim is, so to provide that one third or one fourth of the citizens of the state, to whom the constitution guarantees the elective franchise, ■ shall not he disfranchised through their devotion to the vital interests of their country. The state has an undoubted right to demand the services of as many of her electors as she may deem necessary for her defense; and when, in the exercise of this right, she summons them to arms, and, at the same time, by her legislation, renders their constitutional “right to vote at all elections” available, by providing means for its exercise, and thus places them on a mere footing of equality, in this respect, with those electors who remain at home, such legislation can not be called “ class legislation,” in any odious or objectionable sense.

Again, it is urged that the law in question is null and void, in so far as it assumes to authorize elections to be held at places outside of the state. This objection rests, not on the ground of a constitutional limitation of the legislative power of the general assembly, but on the supposed want of power in any and every state, under the general principles of international law, to give an extra-territorial effect to any of its enactments. The argument, in brief, is, that the people of the state, in their collective capacity, never possessed such a power, and, therefore, can not have delegated it to the general assembly.

It is undoubtedly true, that legislative enactments can only operate, proprio vigore, upon persons and things within the jurisdiction of the law-making power. And it is also true, generally, that such jurisdiction can only be coextensive with the territorial limits of the state, or sovereignty. But, does the recognition of these principles, necessarily invalidate the law in question? We think, clearly not.

The operation of the law, that is to say, the effect which the law gives to the acts which it authorizes, is limited to the state and its own citizens, over whom its jurisdiction can not be questioned. Its subject matter is- the election of Ohio officers, whose sphere of official action lies wholly within the state, and who are the creatures of its sovereign will. In so far as Ohio may be regarded as an independent sovereignty, she has a right, as such, to adopt such form of government as she may think proper, and to provide for the creation of such officers, and to invest them with such powers, as she may deem expedient for the proper administration of good government ■within her own borders. And' she may ordain that such officers shall be elected, or appointed, in such manner, and by such persons, as she may think proper. All such power is implied in the idea of sovereignty. If a sovereign state, in any quarter of the world, should see fit to declare that all her officers should be appointed and commissioned by the Bey of Algiers, in so far as the result would affect herself, or her citizens or subjects alone, I do not readily perceive how, or by whom, her right to do so could be questioned. Whether the act of election, or appointment, were to be made outside of, or within, her own territorial limits, would be a question which concerned herself and her citizens alone; and in the determination of which there could, therefore, be no conflict with the legitimate jurisdiction of any other sovereignty. With such a case, international law could have nothing to do.

The statute law of the state prescribes how, and before whom, depositions may be taken outside of the state, and the effect which shall be given to them, when thus taken, in the tribunals of the state. The power of the state legislature, thus to give effect within the state to acts done outside of its limits, ■ has, I believe, never been questioned. And the same may be said in regard to statutes prescribing, the solemnities essential to the validity of deeds of conveyance, and of wills, wherever executed, affecting property, the situs of which is within this state. Over all such subjects, the legislative authority of the state is absolute, and her jurisdiction exclusive.

Now, as the sole purpose and scope of the law under consideration, is to declare in what manner her own citizens, resident within her own territory, engaged in her service, or in that of the nation of which she forms an integral part, and who are, by her organic law, invested with all the rights pertaining to the elective franchise, may cast their ballots at any place of which they hold actual military occupation, whether within or outside of the state, for officers of the state, or its civil subdivisions, and to declare the effect which shall be given, within the state, to ballots thus cast; I am wholly unable to perceive how such legislation can be held invalid, on the ground of a want of jurisdiction. Such a law is not extraterritorial in its operation, and is clearly within the just sphere of the legislative power of the state. Its whole subject matter, whether considered in reference to the rights of the electors, or in respect of the officers to be elected, is one of exclusive state jurisdiction.

It must be conceded that, in authorizing elections to be: held outside of the state, it may be found difficult to protect the independence of voters; to scrutinize thoroughly the right of all who claim to be .entitled to the elective franchise; to prevent frauds at elections, and in the returns thereof, and, preserve their purity, by the infliction of penalties upon the' perpetrators of fraudulent acts; and to surround the exercise* of this important franchise with al] the safeguards which might be thought advisable. These difficulties are, perhaps, much less formidable than has been supposed in argument. The-poll-books of the elections authorized by the act, are required' to show the name of every voter, with his alleged place of residence, and thus furnish the means of exposing and setting aside illegal votes. And I am by no means disposed to concede that citizens of the state, who owe obedience to her laws, and are in her actual service, can not be held responsible in her tribunals, upon them return to the state, if, in the exercise of rights conferred on them by her laws, even outside of her territory, they are guilty of a corrupt violatipn of the very laws of which they claim the benefit. On the contrary, I am quite clearly of a different opinion. But it is unnecessary to discuss this question; for, admitting the existence of all the difficulties which have been suggested, and the seriousness of their character, still they present considerations which address themselves solely to legislative wisdom and discretion. If, in the unforeseen and peculiar situation of the country, rather than to allow more than 100,000 voters of the state to be practically disfranchised, the general assembly has thought it just and wise to permit the elective franchise to be exercised in places, and under circumstances, which necessarily lessen ■the number and efficiency of the safeguards which might otherwise have been thought expedient, the courts have no super'visory power over the exercise of a discretion which the con■stitution intrusts to that body. Our inquiry relates solely to the existence of the power, and not to the wisdom, the policy -or prudence with which it may have been exercised.

Laws having a similar object with the one under consideration, have been enacted, or proposed to be enacted, by several •of our sister states; and we have the opinions of the supreme ■courts of those states on the question of the constitutionality and validity of such legislation in their respective states. It is obvious, however, that the relevancy of those opinions to this case, must depend on the coincidence of’.the constitutions of those states with our own, in respect to the subject of the elective franchise, and on the similarity of the statutes reviewed by these courts to the -acts now under our consideration.

The constitution of Pennsylvania requires the elector to .have resided for ten days immediately preceding the .election “in the election district where he offers to vote.” It was held, by the supreme court of Pennsylvania, that this phraseology imports that manual delivery of the ballot to the proper officer is to be made by the elector in the election district in which he resides, and that the legislature could not, therefore, authorize ballots to be cast outside of the election districts of the state. Chase v. Miller, 41 Penn. St. R. 403. The absence of any such clause in our state constitution, renders this decision inapplicable to the case before us.

So, in Connecticut, it was held, by the judges of the supreme court of that state, that various provisions of their state constitution clearly prescribed the place at which only the annual election could be held, viz: “m an ‘elector’s meeting,’ com•posed of the electors in the several towns, duly warned, convened, organized and held for that purpose;” that these provisions were so clear as to leave no room for construction, nor for doubt that the votes of the electors could be taken in no other place. But it was said by the judges, in their official opinion, that if the time, place and manner of holding elections had not been thus clearly and sufficiently fixed and prescribed by the constitution, it would, by implication, be “incident to the general legislative power” to do so. Independent of the express limitations of the constitution, they do not seem to have questioned the power of the legislature on the ground of the supposed extra-territorial operation of a law authorizing elections to be held outside of the state. (Opinion of the judges), 2 Am. Law. Reg. N. S. 460.

And in the opinion of the justices of the supreme judicial court of New Hampshire, given to the legislature of that state in 1863, upon the constitutionality of a bill having for its object to authorize electors who, in time of war, etc., being in the military or naval service of the state, or of the United States, should be without the limits of the state on the day of election, to vote in the towns of their respective residence, hy attorney, it was held, that, by the common law, every vote, at public elections, must be given personally by the voter, and could not be cast by attorney in the absence of the voter. The question thus decided, is not involved in the case before us. The act we are considering, does not purport'to authorize voting by attorney. 2 Am. Law Reg. N. S. 740.

On the other hand, though the constitution of Iowa makes it one of the necessary qualifications of an elector that he shall have been for sixty days, next preceding the election, a resident of “ the eounty in which he claims his vote;” yet the supreme court of that state has held, that a statute authorizing elections to be held outside of the state is not in conflict with this provision of the state constitution. Morrison v. Springer, 15 Iowa Rep. 304.

We may dismiss this brief reference to decisions of other states with the remark, that such of them as were adverse to the existence of the legislative power were apparently warranted by the clear language of the respective state constitutions under which the several enactments ay ere made; and that in the Iowa case, Avhere the validity of the law was sustained, there was much more room for doubt than in the case before us.

It has been said that the framers of the constitution never contemplated that, under it, laws would be enacted authorizing elections to be held outside of the state. This is probably quite true. But if so, it is at least equally certain that the circumstances Avhich, in the judgment of the legislature, rendered such a law expedient and necessary, could not have been foreseen or anticipated by them. If, conscious of human inability to penetrate the vail which conceals the future, they have not attempted to provide, in detail, for all its unknown exigencies and wants, but have referred such provision to subsequent legislative discretion, is it clear that, in so doing, they acted unwisely ? By the consideration and judgment of the people of a number of our sister states, who have recently amended their state constitutions so as to permit -such legislation, this question has been answered in the negative.

But, after all, the question is upon the restraints which the constitution has, in fact, imposed upon legislative discretion, and not as to what might or probably would have been done bad this legislation, and tbe circumstances wbicb induced it, been contemplated as a future possibility.

We have now noticed, and have endeavored, however imperfectly, to examine and consider the various grounds upon which the learned and able counsel for defendant in error have urged the unconstitutionality of this law. And we have done so with an earnest purpose, on the one hand, not to sanction a palpable infraction of any of the provisions of the constitution, when fairly construed according to their spirit and meaning, and, on the other hand, not to assume a veto power which has never been delegated to us. The result is, that we are wholly unable to discover a palpable repugnancy between the law and the constitution of the state, or to say that the statute is invalid for want of legislative power to enact it.

A farther question is made as to the sufficiency and regularity of some of the poll books of the elections held outside of the state. The 7th section of the act provides that, “The poll books shall name the company and regiment ... in which such-election is held.” Some of the poll books, in this case, designate the company in which the election was held by its letter and the number of the regiment, but do not expressly state the particular arm of the service of which it forms a part, nor the fact that it is an Ohio regiment. We are of opinion that the latter fact should be presumed where nothing appears to the contrary, inasmuch as the voters are resident citizens of Ohio, and that the former defect is not one of substance such as should invalidate the return.

Objection has also been taken to the regularity and sufficiency of other poll books on various grounds, not necessary to be considered or stated, inasmuch as their determination either way would not affect the result of the election.

The finding and judgment of the court of common pleas will be reversed; and this court, proceeding to adjudge as the court of common pleas should have done, find the law of the case to be with the said contestees, and adj.udge accordingty-

Brinkebhoee, C. J., and Wilder and White, JJ., concurred.

Ranney, J.,

dissenting: — These cases are petitions in error, prosecuted in this court to reverse the judgments of the court of common pleas of Wayne county, affirming the defendants in error to have been duly elected to county offices, at the general election on the second Tuesday of October, 1863. The material facts in all the cases are the same, and they have been heard and considered together. Of the legal votes polled in the county of Wayne, or elseAvhere in the stare of Ohio, it is conceded the defendants had a majority for the offices which they respectively claim; but if to these are added the votes polled in other states by electors of that county, absent from their places of residence in the military service of the United States, it is further conceded that the majorities are changed, and if these votes were legally given the plaintiffs in error were duly elected to these offices.

I have no doubt of the power of this court to review these decisions; and, passing by, without the expression of any opinion, most of the questions raised upon the argument, and assuming .the act of April 13, 1863, to have been intended, to authorize this extra-territorial voting, I shall confine myself to the question, whether, upon such a construction of its provisions, it is consistent with the constitution of the state. It is impossible to overrate the importance of this question. I have approached it with extreme reluctance, and nothing short of the high duties which this place imposes, would now induce me to record my dissent from the conclusions of my brethren, for whose opinions I entertain the highest respect. If I am still in error, it does not arise from any want of the most mature consideration. The question has been several times argued with distinguished ability, and I have again and again bestowed upon it the careful attention which its importance required; and the more I have investigated and reflected, the more thoroughly I have been brought to the absolute conviction, that such voting undermines the very foundation-principles upon which the constitution has founded the exercise of the elective franchise; deprives elections of all the restraints and protection of law, and opens a very wide door to the introduction of those frauds which, through the violence of parties and the greed of individuals for the emoluments and distinctions of office, continually beset this institution. Whether I am right or wrong, I think there will be no difficulty in un* derstanding the grounds upon which my conclusions are based. I shall simply invoke the application of a few familiar and perfectly well-settled- rules of construction to the language of the constitution itself, and shall only insist upon giving its provisions the operation and effect which it was understood they should have by those who framed and adopted the instrument.

But, before proceeding to a particular examination of the provisions of the constitution, and of the act drawn in question, it may not be improper, if not indispensably necessary, to dispose of a preliminary proposition. In the course of the argument, it has been many times asserted that no express prohibition upon the power of the general assembly to authorize elections to be held outside of the limits of the state, is to be found in the constitution; and that, in the absence of such prohibition, the power must necessarily exist. It is undoubtedly true, that no such express prohibition exists; and if it is further true, that the general assembly, in the absence of express prohibition, is invested with all the powers' -of sovereignty which belong to the people, and may exercise them at any time, and in all places, the conclusion drawn might be quite irresistible. But it is entirely clear that the general assembly is invested with no such unlimited and despotic authority ; and it is difficult to conceive of a doctrine more directly at variance with the genius and spirit of our institutions, or more explicitly negatived by the decisions of this court, as well as those of other states, and by the constitution itself.

The subject, however, is-too far incidental to the main purposes of this opinion to admit of a full exposition in all its bearings; and it may be sufficient to say, that this court, in the case of the Cincinnati W. & Z. R. R. Co. v. The Commissioners of Clinton Co., 1 Ohio St. Rep. 78, has unanimously declared, that the authority of the general assembly is much too broadly stated when it is claimed that all their acts must be regarded as valid which are not expressly prohibited by the constitution;” that, “like the other departments of government, it exercises only delegated authority; ” . . . “ that any act passed by it, not falling fairly within the scope of legislative power, is as clearly void as though expressly prohibited ; ” and that “ it 'is always legitimate to insist that any legislative enactment, drawn in question, is void, either because it does not fall within the general grant of power to that body, or because it is expressly prohibited by some provision of the constitution.” And the court gave its unqualified adhesion to the doctrine of the supreme court of Pennsylvania, in the case of Parker v. The Commonwealth, 6 Barr, 511, that “ it is this species of insidious infraction that is more to be feared and guarded against, than direct attacks upon any particular principle proclaimed as a part of the primordial law;"for attempts of the latter description will, generally, be met by instant reprobation; while the stealthy, and frequently seductive, character of the former is apt to escape detection, until the innovation is made manifest by the inflic tion of some startling wrong.” . These are no new doctrines. They were most emphatically declared, and distinctly applied, by the late court in bank, in the case of Bingham v. Miller, 17 Ohio Rep. 445. The question arose upon an act of the legislature granting a divorce. In denying the constitutional power to pass such acts, the court say: “ The constitution confers no such power. The legislature is not'sovereign; nor are all the departments of government combined. The people only'are sovereign. Nor can the matter be helped out by implication; for the constitution, in express terms, declares that “all powers not hereby delegated remain with the people.” The legislature, then, as well as the other departments of state, possesses only a delegated power, and can exercise no powers not delegated. The constitution confers no power to grant divorces ; from whence, then, can the legislature derive it? Not, like the British parliament, from sovereignty, because the legislature does not possess it; not from the constitution, because it does not confer it.” And after proceeding to state that the power is judicial in its nature, they add: “ Thus, the legislature, in granting divorces, have not only assumed a power not •delegated to them, but have usurped a power expressly conferred upon the judiciary.” It is thus made apparent that the supreme court of this state, under the former organization, as well as the present, has, in unanimous opinions, distinctly repudiated the position that every legislative enactment which is not expressly prohibited, must be held valid and binding.

The cases in other states, and in the supreme court of the United States, are equally explicit. It is both unnecessary and impracticable to enter upon a detailed examination of them. It is sufficient to say, that many of the most eminent jurists who have adorned our judicial annals, have expressed similar opinions; and to refer briefly to. the cases of Taylor v. Porter, 4 Hill, 140; Rogers v. Bradshaw, 20 J. R. 735; People v. Platt, 17 J. R. 195; Varick v. Smith, 5 Paige, 137; People v. Supervisors, etc., 4 Barb. 64; Benson v. Mayor of New York, 10 Barb. 223; Powers v. Bergen, 2 Seld. 358; People v. Edmonds, 15 Barb. 229; Calder v. Bull, 3 Dall. 386; Wilkinson v. Leland, 2 Pet. 627; Hatch v. Vermont Central R. R. Co., 25 Vt. R. 49; Railroad Co. v. Davis, 2 Dev. & Bat. 451. In the case of Taylor v. Porter, Chief Justice Bronson said: “ Under our form of government the legislature is not supreme. It is only one of the organs of that absolute sovereignty which resides in the whole body of the people. Like other departments of the government, it can only exercise such powers as have been delegated to it; and when it steps beyond that boundary, its acts, like those of the most humble magistrate in the state who transcends his jurisdiction, are utterly void.”

In Varick v. Smith, Chancellor Walworth, instancing a legislative enactment which transferred the private property of one person to another, declares that he “ should not hesitate to declare such an abuse of the right of eminent domain an infringement of the spirit of the constitution, and therefore not within the general powers delegated by the people to the legislature.” And Mr. Justice Barculo, in a similar case, says that such an enactment ought “to be adjudged jnvalid as being above the power and beyond the scope of legislative authority;” and upon a subsequent occasion he declared that the rights of parties, in such cases, “ rest not merely upon the constitution, but upon the great principles of eternal justice, which lie at the foundation 'of all free governments.” In the case-of Powers v. Bergen, decided by the court of appeals, Mr. Justice Jewett, in delivering the opinion, said: “ Here the sovereign and absolute power resides in the people, and the legislature can only exercise such powers as have been delegated to it.” In the case of Calder v. Bull, in the supreme court of the United States, Mr. Justice Chase says: “I can not subscribe to the omnipotence of a state legislature, or that it is absolute and without control, although its authority should not be expressly restrained by the constitution or fundamental law of the state. . . An act -of the legislature (for.I can not call it a law) contrary to the great first principles of the social compact, can not be considered a rightful exercise of legislative authority.” And Mr. Justice Story, in Wilkinson v. Leland, holds this language: “ The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred. At least no court of justice in this country would be warranted in assuming that the power to violate and disregard them — a power so repugnant to the common principles of justice and civil liberty — lurked under any general grant of legislative authority, or ought to be inferred from any general expressions of the will of the people.”

But this line of examination seems almost unnecessary in the light of the express language of the constitution of this state. By the last section of the bill of rights it is declared that “this enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers not herein delegated remain with the people.” No language more pertinent and expressive could have been employed to express the sense of those who framed and adopted this instrument that the people retained important rights not specifically'“enumerated;” that all the powers which any department or officer of the government could pretend to exercise, were derived from express delegation in the constitution; and that all other powers belonging to the people were left undelegated, and remained with them. If, therefore, any respect is due to judicial opinions, or constitutional provisions, we must dismiss the idea that the general assembly is invested with the unlimited and undefined power to do anything and everything which is not found expressly prohibited. The constitution is not framed upon that plan. It emanated from those in possession of all political power, with the perfect right to delegate as much or as little as they thought necessary for the preservation of their rights and liberties. They have only expressly prohibited the exercise of power when they wished to limit or restrain what otherwise would fall within the general terms of the delegation; and they have charged this court with the high duty of placing such a construction upon the instrument as shall equally protect them from the assumption of undelegated power, as well as the exercise of that which is expressly prohibited. In the discussions which this subject has undergone, undoubtedly expressions may be found asserting the right of the judiciary to arrest the acts of the lawmaking power when certain great principles of right and justice have been infringed, to which I am not prepared to yield my assent; but the great current of judicial opinion has been founded upon the clear line of distinction which divides delegated from undelegated authority; and, to this extent, it is wholly unassailable, and has never been disputed.

Under a constitution like ours, which, in addition to a complete frame of government, contains an extended statement of the great leading principles of liberty and justice upon which the government is founded, it can very seldom be necessary to bring legislation to any other test than that of the constitution itself. By the constitution, the powers it grants have been conferred upon three separate and independent departments — the legislative, executive, and judicial. If the first should attempt to exercise powers conferred upon either of the others, its acts would be void; not because it is expressly prohibited from doing so, but because it has been invested with no such authority. Eor the same reason, if it should allow things to be done which the general principles of 'the constitution prohibit, or prohibit those that it allows; or provide for accomplishing objects in other ways, or by different agencies, than those provided in the constitution, its acts would be equally void, although these powers should be legislative in their nature, and no express prohibition could be found. The fact is, the constitution has invested no mere instrument of its creation with any authority whatever to change its distribution of powers, to undermine or impair its declared principles, or to accomplish the purposes of government by other or different.agencies than those it has provided. Although it grants, in general terms, to the general assembly “the legislative power of this state,” still the grant must be so limited as to preserve the perfect integrity of every constitutional provision, and is necessarily narrowed, not only by what is taken away by prohibition and declaration of principles, but by all that mass of legislative power which the people themselves have exercised in the constitution itself. Any other construction would lead to the most absurd results. The article upon the elective franchise will furnish a pertinent illustration. By that article, “every white male citizen’of the United States, of the age of twenty-one years,” having a prescribed residence, “ shall have the qualifications of an elector; ” but the constitution, will be searched in vain for any express prohibition upon the legislature from making other persons electors; and, unless this affirmative action of the people imports an exclusion, the general assembly might extend the privilege to minors, aliens, or negroes. No one would pretend that it possesses any such power. This court has declared, that the use of the word white “necessarily excluded those inhabitants of the state, though otherwise qualified, who were not white; ” and the supreme court of Connecticut, acting upon an enactment of the general assembly of that state, nearly identical with that now under consideration, and in answer to a similar suggestion, say: “Neither in constitutions nor statutes, nor contracts, nor wills, nor in any oral directions of a superior to an inferior — as a master to a servant, or a parent to a child — do men deem it necessary to accompany an express and full direction to do a particular thing in a particular way, by an express direction not to do it in any other. Officers, civil and military, citizens, servants, and children, all understand that every such direction of a superior, carries with it an implied prohibition against doing the thing prescribed in any other way.” 2 Am. L. Reg. N. S. 470.

The principles elicited by this examination, authorize me to assume that an express prohibition is not the only test by which to try the validity of a legislative enactment; that the general assembly has been invested with no authority, and is, therefore, impliedly prohibited from passing any act which interferes in any manner, or to any extent, with the declared principles, or modes of action, prescribed by the constitution; and that no legislative act can be said to be oonsistent with the constitution which deprives electors, or elections, of any of the protections or safeguards which the people have deemed necessary to preserve the freedom and purity of the elective franchise. Before an act can be declared void for such inconsistency, I fully agree, that the repugnancy must be clear and decided. In the language of Chief Justice Marshall, in Fletcher v. Peck, 8 Cranch, 87, “the opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.” To proceed to such a conclusion upon slight implication and vague conjecture, would be to usurp powers not conferred upon the judiciary; while a refusal to interfere, in a palpable case, upon doubts raised upon the mere structure of language, when the spirit and substance of constitutional arrangements are subverted, is to surrender one of its most important functions, and decline performance of one of the most sacred of its duties. In the language of an eminent American author: “ Constitutions, from the nature and necessity of the case, in many instances go little beyond the mere enunciation of general principles; and it is impossible, and would lead to endless absurdity, to endeavor to apply to a declaration of principles the same rules that are proper in regard to an enactment of details. In regard to a statute, the general duty of the judge is that of a subordinate power, to ascertain and to obey the will of a superior; in regard to a constitution, his functions are those of a co-ordinate authority, to ascertain the spirit of the fundamental law, and so to carry it out as to avoid a sacrifice of those interests which it is designed to protect.” Sedg. on Stat. and Const. Law, 492.

In the light of these principles, and guided by these rules, I shall now proceed to a particular examination of the. provisions of the constitution relating to elections, and of the act upon which these cases depend.

In respect to every thing not expressly conferred upon the federal goArernment, nor denied by the federal constitution to the states, the political society constituting the State of Ohio, within her own territorial limits, is completely sovereign and independent. As a fundamental truth, lying at the foundation of all republican governments, and expressly declared in the constitution, “all political power is inherent in the people.” It was their' undoubted right, therefore, to provide for the choice of such ofiicers as should seem'to them necessary for the internal government of the state, through such agencies, and in such manner, as they thought proper. They have adopted the plan of constituting a body of “ electors,” whose qualifications and mode of action are clearly defined; and have devolved upon them the duty, in the manner provided in the constitution and laws, of making choice of nearly all the general and local ofiicers of the state — legislative, executive, judicial, and administrative; and, in this Avay, have created and organized the first great fundamental institution of the state government.

In the second article of the constitution it is provided, that senators and representatives shall be elected biennially, by the electors in the respective counties or districts, on the second Tuesday of October.”

In the third, that the officers composing the executive department “shall be chosen by the electors of the state, on the second Tuesday of October, and at the places of voting for members of the general assembly;” the returns to “be sealed up and transmitted to the seat of government by the returning officers,” etc. If a vacancy occurs in the office of auditor, treasurer, secretary, or attorney general, it is to “ be filled by election, at the first general election that occurs more than thirty days after it shall have happened.”

The 4th article relates to the judiciary, and provides, that “the judges of the supreme court shall be elected by the electors of the state at large;” those of the common pleas, “by the electors of the subdivisions of the judicial districts;” of the probate court, “by the voters of the county;” and justices of the peace, “by the electors in each township of the several counties.” If a vacancy happens in the office of any judge, it is to be filled “ at the first annual election that occurs more than thirty days after the vacancy shall have happened.”

In the 10th article it is provided: “County officers shall be elected on the second Tuesday of October, until otherwise directed by law, by the qualified electors of each county, in such manner and for such term, not exceeding three years, as may be provided by law.” “Township officers shall be elected on the first Monday of April, annually, by the qualified electors of their respective townships.”

Laws authorizing associations with banking powers, are, by the 7th section of the 13th article, to be “ submitted to the people at the general election next succeeding the passage thereof.”

Amendments to the constitution, originating with the legislature, or a recommendation of that body for a convention, are to be voted upon at the “next election for senators and representatives;” and “at the general election to be held in the year 1871, and in each twentieth year thereafter, the question, Shall there be a convention to revise, alter, or amend the constitution? shall be submitted to the electors of the state.” Art. 16.

And, finally, by the 17th section of the schedule, the constitution vfas directed to.be submitted, for ratification or rejection, “to the electors of the state, at an election to be held on the third Tuesday of June, 1851, in the several election districts of this state.”

The 5th article is devoted to the elective franchise, and Avas intended to furnish a full and accurate description of the qualifications of electors, and hoAV, and how only, they might exercise the great power with which the constitution invested them. The first three sections of that article, are in these words:

Seo. 1. “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 qualifications of an elector, and be entitled to vote at all elections.”

Sec. 2. “ All elections shall be by ballot.”

Sec. 8. “ Electors, during their attendance at elections, and in going to and returning therefrom, shall be privileged from arrest in all cases, except treason, felony, and breach of the peace.”

The foregoing are the leading provisions of the constitution relating to electors and elections; but a very imperfect understanding of the meaning and application of the terms employed would be obtained without referring to the previous legislation of the state, and the former constitution in force Avhen this was framed and adopted. For, as was well said by this court, in Cass v. Dillon, 2 Ohio St. Rep. 607, “ this constitution created no new state. It only altered, in some respects, the fundamental law of a state already in existence; and even this was done pursuant to the prior constitution, under whose provisions the convention was called, and the new constitution framed.” The influence of this fact is apparent in every part of the instrument. It nowhere enters upon extended definitions or descriptions. Not only the great body of the legislation of the state was expressly continued in force, but its principal institutions and agencies remained the same; and whenever their powers are enlarged or restricted, or independent regulations are made in respect to them, they are simply referred to as things well understood by the people of the state. To comprehend these references, and to give the language employed its just application, we must seek for the true character of these institutions and agencies as they were actually illustrated in the legislation and practical workings of the former government; and if we would arrive at a true construction, we must continually bear in mind, that they are no further changed, in their essential features and characteristics, than is expressed in the constitution. As an indispensable aid to such a construction, I shall present some of the leading provisions of the constitution of 1802, and of the legislation under it, relating to elections. The- 2d and 3d sections of the 4th article-, providing that all elections should be by ballot, and privileging electors from arrest, are the same as the corresponding sections of the 5th article of the present constitution. The 1st section was in these words: “ In all elections, all white male inhabitants above the age of twenty-one -years, having resided in the state one year next preceding the election, and who have paid or are charged with a state or county tax, shall enjoy the right of an elector; but no person shall be entitled to vote, except in the county or district in whieh he shall actually reside at ike time of the election.”

The policy upon which these provisions were founded, as appears by our legislative records, is older than this constitution, and has been adhered to with unyielding tenacity down to the passage of the act of 1863.

By the territorial act, “to regulate the elections of representatives,” approved Dec. 9, 1800, 1 Chase Stat. 304, the-courts of quarter sessions were required to divide the counties-into election districts, and “to name a certain house” in each-district “ at which the electors within such district shall meet,. when and as often as the law shall require, to vote for persons to serve in the general assembly.” After providing for the choice of judges and clerks, and their qualifications, and that “at all elections the manner of voting shall be by ballot,” the 4th section provides, that “ every elector shall, openly and in full view, deliver his ticket to one of the judges of the election, on which shall be written the name or names of the person or persons, as the case may be, for whom he votes; and the judge, on the receipt thereof, shall, with- an audible voice, pronounce the name of such voter, and, if no objection be made to the voter, and the judges be satisfied that he is a legal voter, shall put the ticket immediately into the ballot-box; and the clerks of the election shall thereupon, write ■down the name of the voter in a poll-book to be provided for sthat purpose.” The 5th section provides for the attestation ■of the poll-books, and the canvass of the ballots, and, after this ds done, declares that “the number of votes given for each ■candidate shall be carefully cast up, under the inspection of ■the judges, and be publicly declared to the people present.” In ■the 8th section it was enacted, “that no person or persons shall be allowed to vote for any representative to the general .assembly, at any other place than at the house pointed out by ■the court, within the election district wherein such voter actually resides.” At the first session of the general assembly held under the constitution of 1802, the act of April 15,1808, “to ■regulate elections,” was passed. 1 Chase, 364. By this act ■it was provided, “that each township now or hereafter to be ■erected in the several counties, shall compose an election district;” and the court of common pleas was required “to name a certain house in each,” where the electors should “meet,” and hold all state, county, and district elections. The provisions for the organization of the election boards, and for receiving and canvassing the ballots, with a public proclamation of the result, was substantially the same as in the territorial act; and it was also "provided, that “no elector shall wote except in the township in which he resides.”

/'General revisions of the statutes regulating elections were made in 1809 (1 Chase, 622), in 1820 (2 Chase, 1093), in 1824 (2 Chase, 1259), and in 1831 (3 Chase, 1663). By these several revisions the trustees of townships were required to* designate the place in each township for holding the election, and to act as judges; but all the other provisions of the act of 1803, to which I have called attention, were substantially, and in most instances literally, re-enacted; except, that, in the section of the act of 1831, which required the elector to vote in the township of his residence, a proviso was added allowing him to vote for state and county officers in any other township of the same county where he might be actually employed on the day of election. And in 1840 the same privilege was extended to electors in attendance upon the courts. These slight deviations from the uniform tenor of previous legislation, continued in force until the passage of the act of March 20,1841, “to preserve the purity of elections” (1 Curw. Rev. Stat. 767), when it was again provided, that “each elector shall, in full view of the people assembled at the polls where he offers to vote, deliver, in person, to one of the judges of the election a single ballot or piece of paper, on which shall be written or printed the names of the persons voted for, with a pertinent designation of the office which he or they may be intended to fill; lui no elector shall vote except in the township or ward in which he actually resides.”

This act of 1841, which has continued in force and marked the policy of the state for more than, twenty years, is perhaps one of the most perfect and stringent for the prevention of fraud at elections to be found in any state. It lays down clear and definite rules for ascertaining the residence of any person offering to vote, and, after punishing -with fine and imprisonment a large number of minor offenses, no less than nine of its sections, defining a still larger number of distinct crimes, are devoted to providing imprisonment in the penitentiary of officers and others for various frauds upon the elective franchise.

This, then, was the state of the law at the time the present constitution was framed and adopted. But before proceeding to consider what light it throws upon the provisions of this constitution, and that the comparison may be the more easily made, I shall here state the leading provisions of the act of 1868, now under consideration. By this act, the qualified voters of this state, absent from the township or ward of their residence in the actual military service of the United States or of this state, are entitled to exercise the right of suffrage as fully as if they were present at their usual places of election; and to enable them to do so a poll shall be opened in each company, at the quarters of the commanding officer, at which all electors belonging to the company, and within two milesj must vote; those on detached service, and more than' two miles away, when twenty in number, may organize a poll, and vote thereat. The election is to be conducted substantially as provided in the general law, except that separate returns are to be made for the voters of each county, and transmitted through the post office to the elerhs of their respective counties, where they are to be opened and counted “ as if received from the several townships or wards in said county.” The 19th section provides: “When any election under this act shall be held in this state, all the provisions of the general law in relation to fraud at elections, and the punishment thereof, consistent with the provisions of this act, shall apply to all elections under this act.”

The difference between this act and the requirements of the old constitution, and all previous legislation, is most apparent. And the direct question is presented, whether, without one word of complaint from1 any quarter that the existing constitution and laws, were unnecessarily strict to protect, the ballot box from perversion — nay, in the face of a most palpable attempt to establish another safeguard against abuse — it was intended’by those who framed and adopted the present constitution, that this great institution, in some of its most essential and vital features, should be left to the control of fluctuating majorities in the general assembly ? And whether, in obedience to what is expressly required, the sovereign powers of the state, upon which depends her entire internal government, must be exercised within her own limits, under the protection and restrictions of her own constitution and laws; or may be driven from her borders, and made to depend upon the comity and forbearance of other states ? In my opinion, the proper understanding of a single word, many times used in the constitution, will go far to answer these questions. The terms “ election,” “ annual election,” general election,” are constantly repeated, without express definition or description. At these nearly all officers are to be chosen, and “ at all elections ” the voter is to exercise the elective franchise. What, then, does the word election, as used in the constitution, ex vi termini, import ? My answer is that it imports precisely what it had been understood, for more than half a century, to mean — ■ what, at the time the constitution was adopted, statutes then in force, and expressly continued in force by the constitution itself, had clearly and accurately defined it to mean — a public meeting of the electors, within a prescribed election district, at a place designated by public authority, and there, in a public manner, and under the control of public officers, sworn to prevent fraud and make due return of the result, proceeding by ballot to the choice of persons to fill the various offices. Nobody had ever heard of any other sort of election; at such elections the members of the convention were returned, and to such elections they sent the constitution for ratification; and there can be no hazard in affirming that no elector who voted for that ratification could have supposed that the elections provided for the future could be substantially any thing else than those to which he had been accustomed in the past. No term employed in the constitution was better understood by every class of voters. Twice in each year at least they had been accustomed to resort to the polls, and there witness the practical workings of an election, until its essential features, and the time when and the place where the elective franchise was to be exercised had become as familiar as household words. I can not bring myself to the belief that a single individual supposed it possible that the officers of one county could be elected by votes given in another, much lesa by votes given out of the state. Under such circumstances the line of judicial duty is plain.. Words become things, and are to have the effect intended by those who employed them; The supreme court of New Hampshire say: “We regard it as a well settled and unquestioned rule of construction, that the language used by the legislature, in the statutes enacted by them, and that used by the people in the great paramount law which controls the legislature as well as the people, is to be always understood and explained in that sense in which it was used at the time when the constitution and the laws were adopted,” 41 N. H. R. 551.

As I have already intimated, the constitution abounds in general expressions, without any attempt to define the meaning of its terms; and scarcely one of its articles can be properly interpreted without resorting to this important rule of construction. The habeas corpus, the jury trial, and the entire original jurisdiction of this court, are provided for by simple expressions, which it would be impossible to understand without resorting to the definitions and doctrines of the common law as incorporated into the jurisprudence of this state. The case, of Work v. The State, 2 Ohio St. Rep. 296, announces the principle equally applicable to them all: that, wherever the constitution names and establishes any such institution or proceeding, its true character and essential features must be sought for in the system of law from which it is taken, and that it can not be materially changed by the general assembly. The election established by the constitution, was an institution of our own, of more than half a century^s duration, clearly defined by law, and perfectly understood by the people; and I know of no reason why the same principle does not apply to it.

While I admit, to the fullest extent, both the right and duty of the general assembly to supply all necessary legislation to carry these constitutional provisions into effect, and the same to alter at pleasure, I nevertheless insist, that it is no more competent for that body to make an election any thing else than a public meeting of the electors, within'a prescribed ele'c■tion district, with the right reserved to each, not only to vote himself, but also to guard the ballot-box from illegal voting or other frauds, than it would be to change the character of the habeas corpus or the jury trial. I insist upon this, because these were the indispensable elements which had entered into every election then known, and because this was the sense in which the term was used when the constitution was adopted. While it is exceedingly evident that it was contemplated the election districts would continue to be what they had been for fifty years, and what they were defined to be by legislation continued in force, I have no occasion to deny that they might be changed by law. What I do claim, is, that, upon the theory of an election as then understood, a time arid place, and meeting of the electors, residing within defined limits, for the joint performance of a high public duty, were indispensable to the very existence of the .institution. If I am right in this, and if such was the general understanding at the time, I think there is no particular difficulty in saying, that the constitution has fixed the place of voting, and confined it to the district within which the elector has the prescribed residence.

I grant, at once, that the 1st section of the 5th article is not so explicit upon this point as it should have been, nor nearly so explicit as the corresponding section in the constitution of 1802; but I insist, that any construction which fully preserves all the provisions of the present section, will result in making it substantially the same as the other, so far as this question goes.

The first thing to be noticed, is, that no possible construction, which any one will accept, can be adopted, which will not leave a necessity for implying one or more words at the end of the section. To this there is no objection. It is a perfectly well settled rule, that whatever is within the contemplation of a constitutional provision, or statute, or is necessarily implied from the language of either, is as effectually a part of the law as though it were fully expressed. Or, as expressed by the supreme court of the United States, “ what is "implied in a statute is as much a part of it as what is expressed,” Gelpeke v. City of Dubuque, 1 Wallace, 221; United States v. Babbit, 1 Black, 61; Height v. Holly, 10 Wend. 218: Rogers v. Kneeland, 20 Wend. 447.

But it is equally well settled, that no language can be implied which contradicts or impairs what is clearly expressed, but only such as is necessary to carry that fully into effect. Now, this section, after defining the qualifications of an elector, declares, that one having these qualifications shall “be entitled to vote at all elections.” Passing by the perfectly absurd proposition, for which no one would contend, that he was thus given the constitutional right to vote anywhere, or wherever he might select, we are brought to the direct question, Where, within the fair meaning of this provision, was it intended he should vote? I shall undoubtedly be answered, “Wherever the legislature direct or allow.” Whether such an implication can be made, must depend upon the further question, whether, when done, it can stand consistently with other parts of the section, and other provisions of the constitution ? In my opinion, it can not, but would completely nullify the only really new provision intended to be inserted in this section. Amongst the qualifications required of an elector, is that of having resided, “ next preceding the election,” in the “ county, township or ward in which he resides, such time as may be provided by law.” The time is not fixed, but it was made obligatory upon the general assembly to fix some time. The history of the provision, and the reasons upon which it was inserted, are clearly shown in the proceedings of the convention, and are familiar to us all.

By the former constitution, an actual residence “in the county or district, at the time of the election,” only was required. Under this provision abuses had grown up sufficient, in the opinion of a large majority of the convention, to demand correction ; they undertook to correct them by requiring, not only an actual residence “ in the county, township or ward,” at the time of the election, but also for a certain time previous thereto. The evil complained of was this: in the closely contested counties of the state, particularly along the lines of the public works, persons would present themselves on the day of the election, claiming to be actual residents of the townships or wards, and thus be permitted to vote, when in fact they had been brought from other counties or states, by interested parties, and disappeared as soon as the election was over; and in this way the actual residents of those counties were defrauded out of the right to elect their own officers. It was rightfully thought that the requisition of a previous residence would, to a large extent at least, break up these pernicious schemes; and to this end, and with this object, the provision was inserted. It was not adopted as a mere formada of words, but for the substantial purpose of enabling the bona fide electors of counties to know, before the elections, who were entitled to vote, and at the elections, through the officers charged with the duty of conducting them, to protect themselves from fraud. Any construction of the constitution which does not preserve to them this power, and answer this purpose, is a perversion of it; and any legislation which subverts this policy is flatly inconsistent with an important constitutional provision. Now, if the general assembly may authorize persons claiming to be residents of one county to vote at elections in any or all the other counties of the state, or themselves organize, conduct and vote at elections in such other counties, when the votes are never returned to, or in any way subjected to the scrutiny of, the local officers where they claim to reside; it is not too much to say, that the constitutional provision is not worth the parchment upon which it is written. Such legislation completely annihilates the means, and the only means, relied upon to make this provision practically operative. What knowledge can either the electors or officers in a distant county be presumed to have of the right of such persons to vote in the county where their residence is claimed? Or, if they should chance to have the knowledge, what interest can they have to guard the election of officers whose official acts can never concern them ? And, if such persons are not only empowered to vote, but to organize and conduct the elections at which they do it, is it to be expected that they will protect the community against their own frauds ? To suppose that no one will attempt to vote who is not legally authorized to do so, or that no fraud will be committed upon actual electors by officers or others, is not only to ignore all past experience, but to make all constitutional and statutory provisions made to prevent such frauds, unnecessary and absurd.

Two leading purposes are most apparent in every part of this 5th article of the constitution — a wide extension of the elective franchise, and careful provisions to protect it from fraud, and to secure the freedom of elections. Without a rigid enforcement of the last, the true will of the people can never be ascertained, and the first becomes worse than useless ; and, in my opinion, it does not admit of the slightest doubt that among these latter provisions none was regarded as more important than that Avhich required an actual previous residence of the elector in the place where he was expected to vote. Noav, as it is agreed that an implication must be made, and an implication restrictive of the general words importing a right “ to vote at all elections,” Avhat, in view of the whole section, should that implication be? The answer is plain and obvious. It only requires that the Avords “ therein,” or “held therein,” should be understood at the end of the section, to give full effect to every provision contained in it and in every other part of the instrument.

This is the natural and necessary implication. It simply restrains the meaning of the general words used at the close of the section, to make them consistent with language which stands in immediate connection with them. This section, no one doubts, has made a local residence, not lost or impaired by a temporary absence, in the K county, township, or ward,” at and before the election, an indispensable condition to the right to vote. Without local voting also this provision is unmeaning and useless ; and local voting is explicitly provided for when the last clause is construed to give the right to “ vote at all elections ” held in the locality of the voter’s residence. This construction neither contradicts nor perverts a single word of the section. It prevents one of its provisions from nullifying another; preserves the “places of voting” referred to in the constitution; and requires nothing more than an application of the well-settled rule which restrains general words “to the fitness of the matter,” when they would otherwise conflict with the general policy, or other provisions of the instrument in which they are used.

When a still broader view is taken, and. the section is read in the light of the former constitution, of previous legislation, and of the actual circumstances which surrounded those who framed and adopted the present, this construction becomes-still more obvious and imperative.

This is no new attempt to localize the exercise of the elective franchise. By the 1st section of the 4th article of the constitution of 1802, it was expressly provided that “ no person shall be entitled to vote except in the county or district in which he shall actually reside at the time of the election.”

As we have already seen every act of legislation under that constitution, with two slight and temporary exceptions, still further localized the right by confining it to the township or ward in which the elector had his actual residence. These exceptions, under peculiar circumstances, extending the right to other townships of the same county, after a very short experience were found to be dangerous or inexpedient, and the acts which created them were repealed. In the face of this uniform and long-continued policy of the state, the convention was called “ for the purpose of revising, amending or changing the constitution.” Its proceedings will.be searched in vain for the slightest indication of any dissatisfaction with this policy, or of any purpose to abandon this important safeguard against fraud in the future. On the contrary, it is abundantly manifest that its continuance was every where assumed, and undeniably clear that a new provision, in furtherance of the same general policy, was provided. In the absence of all complaint, in or out of the convention, no intentional change can be fairly presumed; and the utmost which candor will allow to be claimed is, that, in recasting the language of the section to introduce the new provision, the old restriction was lost. Such a construction, which ignores the intention by adhering to the letter, and substantially nullifies an important provision newly inserted, can never be satisfactory. It would come much nearer being due to a penal enactment than to the constitution of a state, in the construction of which it becomes the imperative duty of the court “ to ascertain the spirit of the fundamental law, and so to carry it out as to avoid a sacrifice of those interests which it is designed to protect.” In my opinion, this only is done when the clause of the section making a previous residence indispensable to the qualifications of an elector, is read and considered in connection with that declaring his right to vote “ at all elections,” and when both are subjected to the same geographical limitation. Thus, leaving to the General Assembly, under this constitution as under the former, the right to mold or change the election districts, to require a residence only in the county, and to give the right to vote for state or county officers any where in the county of the elector’s residence, at its discretion; but denying it the power to defeat the very object of a previous residence, by allowing the voting for one county to be done in another, away from the body of its electors, and from the supervision and control of the election officers constituted by them.

2. But, suppose I am wrong in the construction I have placed upon the 1st section of the 5th article, and that it was intended to leave the general assembly at liberty to allow or require the county officers of each county to be elected by votes given in any or all the other counties of the state — those of Cuyahoga by votes given in Hamilton, and e converso — I am still clear in the opinion that, when the act in question is construed to authorize elections to be held, and votes given, beyond the limits of this state, it is inconsistent, not only with the necessarily implied limitations upon the power of the general assembly, but also with several express provisions of the constitution. Amongst the implied limitations upon the legislative power of every government, none can be more obvious than that which confines its operation and effect within the limits of the state. No principle of public law is so universally acquiesced in by writers of every country, and every shade of opinion, as that which declares, that the laws of a country, in virtue of any inherent authority, can have no extra-territorial force.

The whole subject has been treated by two eminent jurists of our own, whose works are received as authority in every enlightened country, with such learning and ability as to make a resort to other authorities wholly unnecessary.

I shall only have occasion to refer to the most elementary of the principles stated by them, as alone necessary to the decision of the question under consideration.

In his work on the Conflict of Laws (sec. 7), Mr. Justice Story says: “ It is plain, that the laws of one country can have no intrinsic force, propio vigore, except within the territorial limits and jurisdiction of that country. They can bind only its own subjects, and others who are within its jurisdictional limits; and the latter only while they remain therein. No other nation, or its subjects, are bound to yield the slightest obedience to those laws.” And again, after stating and commenting upon the proposition, “that every nation possesses an exclusive sovereignty and jurisdiction within its own territory,” he says (sec. 20): “ Another maxim,, or proposition, is, that no state or nation can, by its laws, directly affect, or bind, property out of its own territory, or bind persons not resident therein, whether they are natural-born subjects or others. This is a natural consequence of the first proposition; for it would be wholly incompatible with the equality and exclusiveness of the sovereignty of all nations,, that any one nation should be at liberty to regulate either persons or things not within its own territory. It would be equivalent to a declaration that the sovereignty over a territory was never exclusive in any nation, but only concurrent with all nations; that each could legislate for all, and none for itself; and that all might establish rules, which none were bound to obey. The absurd results of such a state of things need not be dwelt upon.”

Mr. Wheaton, in his work on International Law, has treated both these propositions with his usual clearness and ability. In respect to the last, he says: “The second general principle is, that no state can, by its laws, directly affect, bind or regulate property beyond its own territory, or control persons who do not reside within it, whether they be native-born subjects or not. This is a consequence of the first general principle: a different system, which would recognize in each state the power of regulating persons or things beyond its territory, would exclude the equality of rights among different states, and the exclusive sovereignty which belongs to each of them.” Lawrence’s Wheaton, 161.

The cases now before the cpurt do not furnish any occasion for considering what have sometimes (but very improperly) been treated as exceptions to these general rules; as no one of them has the remotest relation to the act under consideration. I am quite well aware that, in European countries, where the doctrine of perpetual allegiance obtains, the claim is made, “ that every nation has a right to bind its own subjects by its own laws in every other place.” But, as Justice Story well remarks: “Whatever may be the intrinsic or ob-' ligatory force of such laws upon such persons, if they should return to their native country, they can have none in other nations wherein they reside;” and that, “when we speak of the right of a state to bind its own native subjects everywhere, we speak only of its own claim and exercise of sovereignty over them when they return within its own territorial jurisdiction, and not of its right to compel or require obedience to such laws on the part of other nations within their own territorial sovereignty.” Confl. of Laws, 23.

As the same learned author very correctly adds: “ Whatever force and obligation the laws of one country have in another, depend solely upon the laws and municipal regulations of the latter — that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent.” Id. This is but an application of the doctrine upon which the laws of one country are executed in another, by what is called the comity of states. This doctrine involves no claim, but distinctly repudiates it, for the extra-territorial force of laws. Its true foundation, and the theory upon which it is applied, have been nowhere more clearly and pertinently stated than by Swan, J., in Anderson v. Poindexter, 6 Ohio St. Rep. 622. He says: “It has been too often determined to admit of cavil or question that the laws of each state have no extra-territorial operation within the jurisdiction of another, except such as may be adopted by her laws; and if, by comity, operation is given to the laws of such other state, they are no longer extraterritorial, but become, thereby, the municipal law of the state which adopts them.”

I am also very well aware that, by the law of nations, states in the full exercise of all .political power, are invested, for certain purposes, with what is denominated external sovereignty. The distinction between that and internal sovereignty, is thus explicitly stated by Mr. Wheaton: “ Internal sovereignty is that which is inherent in the people of any state, or vested in its ruler, by its municipal constitution or fundamental laws. This is the object of what has been called internal public law, droit public interne, but which may more properly be termed constitutional law. External sovereignty consists in the independence of one political society in respect to all other political societies. It is by the exercise of this branch of sovereignty that the international relations of one political society are maintained, in peace and in Avar, with all other political societies. The laAV by which it is regulated has, therefore, been‘called external public law, droit public externe, but may more properly be termed international laAf.” Lawrence’s Wheaton, 35. ■

Whether the separate states composing the American union, divested of the power to make war, and to maintain treaty relations with each other, or foreign states, are wholly shorn (as Mr. Wheaton thinks) of all external sovereignty, it is in no way material to inquire. I suppose no one will doubt that the right to vote and hold office must be derived exclusively from the constitution of the state; nor but that the election and qualification of the necessary officers for her internal government, is the simple exercise of her internal sovereignty. And, on the other hand, it has never yet been doubted that, in respect to every thing not confided to the federal government by the constitution of the union, including territorial exclusiveness, these states are completely sovereign, and independent of, and foreign to, each other. This has been the current language of courts and jurists from the earliest period, and is nowhere declared with greater force and precision than by the supreme court of the United States, in Bank of Augusta v. Earl, 13 Pet. R. 584.

We are thus, for every purpose material to the present inquiry, remitted to the full force and effect of the proposition which denies to our legislation any effect beyond the limits of the state. Within the state, every provision of the constitution, and every statutory enactment designed to secure the freedom of the electors, the purity of the election, or to punish fraud, corruption and violence, has the force of law, and may be enforced for or against every person within its borders ; beyond its territorial jurisdiction, they are all utterly powerless, either for protection or punishment. I do not question the right of the people of the state to provide for the election of its officers by votes given outside of its limits; but I insist that as yet they have conferred no such power upon the general assembly, and that that body can make no such provision consistently'with the express requirements of the constitution. This presents a question of construction, with the constantly recurring obligation to interpret the language of the instrument as it was understood and intended by those who framed and adopted it. It will also be necessary to bear in mind that every direction of the constitution to accomplish an object in a specified manner, “carries with it an implied prohibition against, doing the thing prescribed in any other way.” Now, as we have already seen, by the 2d section of the 10th article, the necessary county officers are to be elected by the qualified electors in each county, in the manner provided by law. It was made the imperative duty of the general assembly to determine what officers were necessary, and to provide, by law, a mode and manner for electing them. The time when, and the persons by whom, they were to be elected are fixed by the constitution, but the mode and manner of their election are left to be supplied by legislation. It is quite immaterial whether this duty is imposed by permissive or mandatory language. Without such legislation no officers could be elected, and without officers the entire county organizations would be powerless to perform their public duties. Under such circumstances, it is perfectly well settled that may means shall, and that the power to do an act which concerns the public interests is a command to do it, and the execution of the power may be insisted on as a duty. (Sedg. on Star, and Const. Law, 438). And, as was well said by the supreme court of Connecticut, “No duty could be more imperative for legislators, sworn to support the constitution, than to make laws to carry that constitution into effect.” 13 Conn. R. 125.

We have, then, the positive command of a superior given to an inferior of its own creation, whose powers of legislation are confined within the limits of the state, to effect the election of officers in a manner prescribed by law, and denying it the power to accomplish this object in any other manner; and we have that inferior endeavoring to execute the power and avoid the prohibition, by providing for their election where it has no power to give effect to any law of its enactingj and where no law whatever can be made to govern one single step in the proceeding. The one may be consistent with the other, but if so, I confess my inability to see it. To my apprehension, this mandate of the people was intended to require every thing connected with the manner of conducting the elections at which these officers were chosen, from the first step in the proceeding to the last, to be governed, controlled and regulated by law — by that “ rule of civil conduct prescribed” by the law-making power which commands the right and prohibits the wrong, with .its sanctions and commanding authority to compel obedience to its requirements. ■ The language certainly imports nothing less, and no one will pretend that those who voted for the adoption of the constitution could, at that time, have contemplated any thing else. Fairly considered, it is a power coupled with an obligation to effect a prescribed object, by proceedings governed by the authority of law, and not otherwise'; and, in the nature of things, it can only be executed where law can be made to perform this office, which it is impossible to do beyond the jurisdiction of the law-making power.

The constitution abounds in provisions, either requiring or allowing the general assembly to accomplish particular purposes by legislation. Amongst others, by language as general as could be used, it is authorized to remove the seat of government, and to fix other places for holding the terms of this court. But would anybody suppose that it had the power to fix the one at Wheeling and the other at Pittsburg? Or, if it should, that a valid law could be passed, or judgment rendered, at either of those places? However general the language of a constitution or statute may be, it is always to be remembered that it.was made for the state, with its definite geographical limits, and when the language is applied to its proper rsubject matter, it becomes manifest that it was intended to have mo wider scope. This is the rule of construction universally .■•adopted; and this, and the proposition which denies the general assembly any extra-territorial power,havebeenrepeatedly mffirmed in the decisions of this court.

In Steamboat Ohio v. Stunt, 10 Ohio St. Rep. 582, the question was directly presented, whether, as against citizens of this .•state, -owning and running a steamboat on waters bordering •upon the state, it was competent for the legislature to create .a liability arising out of the use of the craft when employed ■beyond the limits of the state; and it was held, that it was not, 'That, while the legislature might provide remedies for the enforcement of liabilities arising out of the state, it could not M create personal liabilities and impose them on persons and ■property out of the jurisdiction of Ohio, and on account of ■transactions -occurring beyond the territorial limits of the •state.”

A like decision was made in Booth v. Hubbard, 8 Ohio St. Rep. 243, arising upon the “ act requiring compensation foi causing death by wrongful act, neglect or default.” This act, in terms wholly unlimited, declares the liability of any one causing the death of another by wrongful act, neglect, or default. In the defense it was claimed, that the act complained of occurred on the Virginia side of the Ohio river. Mr. Justice Scott, in delivering the opinion of the court, said: “ As the right of action in this case is given solely by statute, and as this statute oan have no extra-territorial force, it follows that unless the cause of action occurred within this state, the defendants were entitled to a verdict.”

In Stetson v. The City Bank of New Orleans, 2 Ohio St. Rep. 174, the court, in construing certain statutes relating to dissolved corporations, say: “The legislature, having no extra-territorial power, must be presumed to intend to confine their operation to institutions within its jurisdiction;” and in the case of Woodward v. The Michigan Southern and Northern Indiana R. R. Co., 10 Ohio St. Rep. 122, Judge Gholson, speaking of the same question in regard to an Illinois statute, said: “ General words in statutes must always be construed in view of the territorial limit to the powers of the legislature. The legislature of Illinois did not intend to provide as to acts of negligence not occurring in that state; and did not intend to impose a trust or duty upon officers not appointed or acting under its laws. It is clear that an effort of the kind, had it been made, would have availed nothing beyond the limits and jurisdiction of that state.”

The case of Miller v. Ewer, 27 Maine R. 509, is a most express and positive authority upon both the propositions under consideration. The legislature of that state, in granting an act of incorporation to certain persons, had authorized them to organize the corporation at a meeting called for that purpose, and had expressly provided that they “are hereby empowered to call the first meeting at such time and place, and in such manner, as they think proper.” They met in the city of New York, elected a board of directors, and appointed an-agent to dispose of property in Maine. The question arose as to the title to this property, and was made to depend upon the validity of the proceedings of the corporators in New York. The court concede the right of a corporation, created in one state, to contract and sue in another, when permitted to do so by the laws of the latter; and, after stating the rule of construction to be, “that legislation, if it be possible to avoid it, is not to be so construed as to exceed the sovereignty of the legislative power,” they proceed to express their opinion upon the act of incorporation thus: “ That law is imperative beyond the bounds of the legislative power by which it is enacted. As the corporate faculty can not accompany the natural persons beyond the bounds of the sovereignty which confers it, and they can not possess and exercise it there; they can have no more power there to make the artificial being act, than other persons not named or associated as corporators. Any attempt to exercise such a faculty there, is merely an usurpation of authority by persons destitute of it, and acting without any legal capacity to act in that manner. It follows that all votes and proceedings of persons professing to act in the capacity of corporators, when assembled without the bounds of the sovereignty granting the charter, are wholly void. This is a familiar principle when applied in analogous cases to persons upon whom the law has conferred some power or faculty, which, as natural persons, they do not possess. The power conferred by law upon executors and administrators can not accompany their persons beyond the bounds of the sovereignty which has conferred it. Story has collected numerous cases, in note under section 512, in his treaties upon the Conflict of Laws, proving this doctrine to be established both in England and in this country. The same doctrine prevails respecting the powers of guardians.”

And, finally, Mr. Justice Story, in Farnum v. Blackstone Canal Co., 1 Sum. R. 46, in holding that an act of the legislature of Massachusetts, expressed in general terms, was inoperative to justify the raising of a dam which flowed back-water into the State of Rhode Island, expressed himself thus, upon the rule of construction: “Now, the general rule certainly is, that every legislative act ought to receive a reasonable construction ; and it can not be presumed that a legislature authorizes any act to be done in a foreign territory, when that act is beyond the reach of its proper jurisdiction. Every legislature, however broad may be its enactments, is supposed to confine them to cases or persons within the reach of its sovereignty.”

I can not but feel that I am performing a work of supererrogation in entering upon so extended an examination of questions which are so conclusively settled. My object, however, has been to demonstate, beyond doubt or equivocation, from the language of the constitution, and the writings of jurists, and the solemn adjudications of courts, that the constitution itself has imposed upon the general assembly the positive obligation of prescribing and reguluting by law the manner of conducting the elections for these officers, and has thereby excluded all other modes for effecting this object; that the general assembly is invested with no power to authorize or control these elections, in foreign territory, beyond the limits of the state; and that a fair and reasonable construction of the constitutional mandate, in the light of principles universally acknowledged, requires that body to provide for holding them within the state, where they may be regulated and governed by law, and within the limits of the sovereign authority of the people who have conferred this power and imposed this duty. And, as a consequence, that all elections held, and votes given, beyond the state, are held and given without the authority of the constitution and laws of the state, from which alone they can derive any efficiency, and are null and void.

If it is true of a legislative enactment, however broad its terms may be, that it must nevertheless be construed to extend only “to cases or persons within the reach” of the lawmaking power; and if it be further true, that every “power or faculty” conferred by law upon individuals ceases to be operative when such persons are “ assembled without the bounds of tbe sovereignty granting it,” and so effectually so that a corporation even can not be there organized, it is equally true of a constitutional provision, and of the power and faculty conferred upon individuals of exercising the elective franchise. And I can conceive of nothing more nearly approaching an absurdity than that of a people, limited in their powers and faculties to the state they inhabit, expressly requiring a legislative body, Avith powers equally limited, to regulate and govern by law elections held outside of the territorial jurisdiction of either. The utmost that the people themselves, by an express provision, could do, would be to give effect within the state to votes cast at elections which they could neither regulate, govern, or control by law. It is enough to say, that no such intention is manifest in any part of the constitution. On the contrary, it is as true here as in California, that elections were intended to be made, from first to last, the subjects of legal regulation and control; and I adopt as my own, the language of the supreme court of that state, as declared by Mr. Justice Baldwin, in McCune v. Weller, 11 Cal. Rep. 49. He says: “ I had supposed that it was a proposition not to be controverted, that it is by virtue of statutes alone that all valid elections are held. It has never before been pretended that a person could make title to an office through the popular vote, unless such vote was cast in pursuance of legislative regulation and authority. All the efficacy given to the act of casting a ballot is derived from the law-making power, and through legal enactments; and, indeed, the legislature must provide for and regulate the, conduct of an election, or' there can be none. The convention found the subject of popular election instituted and regulated by law, and the framers of the constitution are to be understood as speaking of, and referring to, such an entity as then existed, or might afterward exist, by force of statute regulation.”

It will not be pretended that this construction of the constitution takes away any thing it was supposed to grant, or makes it any thing else than what it was supposed to be by those who framed and adopted it. It is to-day Avhat it was tbe da,y it took effect, and requires the construction now, which would have been given it then. I do not believe there was then an intelligent man in the state who supposed it legally possible that the local officers of the state could be chosen by votes given outside of its limits, or otherwise than at elections governed and regulated by law. If this is not entirely conclusive of what may be done without violating the provisions of the instrument, it ought at least to save it from those refinements of construction which result in consequences never contemplated; and especially from those which abridge the privileges expressly provided, or impair the means indispensably necessary to carry into effect its declared purposes. The act in question can not be executed without resulting in such consequences. To secure the freedom of elections, and the persons of the electors from restraint, they are privileged from arrest while attending upon elections, and in going to and returning therefrom, except upon charges of crime. This important provision, designed no less for the protection of the community than the elector, it must be admitted, becomes wholly inoperative when the boundaries of the state are passed. Again, no country in the world, it is believed, where popular elections have prevailed has been able to preserve their purity, and protect them from violence, corruption and fraud, without the aid of stringent penal enactments; and there is no reason to suppose that those who made them the corner stone of our political edifice entertained any idea that such enactments could be dispensed with here. Mr. Justice Blaclcstone informs us that, at Athens, “ a stranger who interfered in the assemblies of the people was punished by their laws with death; because such a man was deemed guilty of high treason by usurping those rights of sovereignty to which he had no title.” And, after quoting the opinion of Mr. Locke that any interference of the executive magistrate which destroys the freedom of elections, or corrupts the electors, is a breach of trust which “amounts to a dissolution of the government,” he proceeds, with admirable clearness, to delineate the measures adopted to secure the freedom and purity of an English election, and the multiplied punishments provided for bribery, fraud and corruption, which have been found necessary in one of the oldest and most enlightened of modern nations. 1 Black. Com. 179. It is certain that no election was ever held in this state without the restraining influence of such enactments; and equally certain that they can not be extended to the protection of elections held beyond its territorial jurisdiction. Indeed, the general assembly, in this very act, confesses its total inability to give them such extension by expressly confining their operation to elections held within the state. While, within the state, all illegal voting, all attempts to deceive, corrupt or coerce an elector, and all frauds committed by officers in receiving and canvassing the ballots, or making return of the result, are punished with the utmost severity, every one of these nefarious acts may be practiced with impunity at elections held outside of its boundaries. The constitution itself has, I think, settled the proposition, that acts committed beyond our jurisdiction can not be punished, by requiring every criminal prosecution to be tried by a “jury of the county or district in which the offense is alleged to have been committed.” But it is equally clear upon general principles. As is said by Mr. Wheaton: “ By the common law of England, which has been adopted, in this respect in the United States, criminal offenses are considered as altogether local, and are justiciable only by the courts of that county where the offense is committed.” Lawrence’s Wheat. 281. It is no where claimed that a state can arrest a supposed offender in the territory of another state, or that it can • provide punishments for acts done beyond its jurisdiction upon any but its own subjects; and even if the doctrine which obtains in continental countries, that such persons may be punished upon, their voluntary return into their own country, Avas applicable here, the bearing of the proposition would not be practically and materially changed. Candor and truth must compel the admission, that to authorize elections in foreign territory, is to nullify as to them the express provision of the constitution which privileges the elector from arrest, and practically to deprive them of all aid from criminal legislation, hitherto deemed essential to their very existence; and when the constitution is made consistent with itself, and full effect is given to all its parts, and all are made to harmonize, it seems to me evident that a construction resulting in such consequences is wholly inadmissible.

There is no weight in the argument, that the right to vote is a mere personal privilege, carried by the elector wherever he may go, and properly exercised wherever he may be. It is difficult to conceive of a more complete misconception of the foundation and objects of the elective franchise, than such an argument involves. It is a right derived from the constitution alone — a public franchise, belonging to the whole community, conferred upon about one fifth of its members, to be exercised for the common benefit of the whole, and under such proper safeguards against abuse and perversion, as the fundamental laws of the community have provided; and “whoever would claim the franchise which the constitution grants, must exercise it in the manner the constitution prescribes.” In -the language of the supreme court of Pennsylvania, “our constitution and laws treat the elective franchise as a sacred trust, committed only to that portion of the citizens who come up to the prescribed standards of qiralification, and to be exercised by them at the time and place, and in the manner prearranged by public law and proclamations — and whilst being exercised, to be guarded, down to the instant of its final consummation, by magistrates and constables, and by oaths and penalties.” Chase v. Miller, 2 Am. L. R. N. S. 160. As is further said by that court: “ The labor of the constitution has not been to restrict suffrage in any spirit of distrust of popular intelligence, but it has been to define it so exactly that it might be preserved from abuse and perversion.” And it may be added, that, while the constitution and a sound public policy equally foster and invite the fullest, freest and fairest expression of the whole body of electors which it is practicable to obtain, all its provisions, requiring them to vote where they reside, and where they are known to those who are to act with them, and under the restraints and protection of law, are intended to protect them, and the community whose franchise they exercise, from the unlawful intrusions of those not qualified; to insure honesty and fidelity in receiving, preserving, and returning their votes; and to inspire that confidence in the purity of elections, and the certainty of their results, which secures absolute acquiescence in the decisions of the majority, and constitutes the strength and security of popular governments.

When the present constitution was adopted, these regulations for the exercise of*the elective franchise had existed in constitutional provisions for nearly half a century; were perfectly understood and universally approved. No reason was then known, or could have been anticipated, why they should be changed or dispensed with in the future; and, as I think, no change was made, except to render them still more effective for the purposes intended. If such reasons are now thought to exist, it belongs neither to the general assembly nor to this court to make the change, but to the people, whose work the constitution is, who originally made and ordained it, and who can at all times, in the mode prescribed by themselves, make it conform to their sovereign will and pleasure.

In arriving at the conclusions I have, I have preferred to base them upon the language of the constitution itself, construed in the light of principles approved by time and experience, rather than to invoke the authority of a few very recent decisions, made upon similar enactments. I should not, however, omit to state, that in three of the old states, enactments, having the .same'object as ours, have been passed upon by the highest judicial tribunals of those states, and, in each instance, declared in conflict with the constitution; while in one of the new states (Iowa), it is said a different decision has been made, but upon what grounds — not having seen a report of the case— I am not advised.

In New Hampshire, the act allowed the vote to be polled by another person, under a power of attorney; and it was held, that voting by ballot, imported the personal presence of the voter at the polls. 1 Am. L. Reg. N. S. 740.

In Connecticut, the act was substantially like our own, and it was held to be in conflict with provisions of the constitution, which required the officers to be elected at “meetings of the electors” to be “holden on the first Monday of April in each year.” 2 Am. L. Reg. N. S. 460. I have already given my reasons for supposing that the elections required by our constitution are no less “ meetings of the electors.” They had always been so defined by law; and while the constitution of Connecticut enters much more into details than ours, an election there involves no single element which, by law and common understanding, has not always belonged to one here.

In Pennsylvania, a similar act was declared repugnant to a provision of the constitution of that state, which required a residence of one year in the state, “ and in the election district where he offers to ‘vote, ten days immediately preceding such election.” The court say: “Place became an element of suffrage for a two-fold purpose. "Without the district residence, no man shall vote; but having had the district residence, the right it confers is, to vote in that district. Such is the voice of the constitution. The test and the rule are equally obligatory.” Chase v. Miller, 2 Am. L. Reg. N. S. 146.

I have also given my reasons for the opinion, that the constitution of this state, when the clause requiring a previous residence,- and that which declares the right to vote, are construed, as they stand, together, and the natural implication, which saves the first from absurdity, is .made to the last, also confines the right to the county, township or ward of the elector’s residence.

In thus stating my views, at much greater length than I had originally intended, upon some of the important questions involved in these cases, I have intended to confine myself to the legal bearings of the controversy alone. With the policy of this enactment, any further than its policy is involved in a proper construction of the constitution, I have no concern. It will be a sad day for constitutional government, when legisIative enactments are either sustained or overthrown, upon mere considerations of temporary policy or expediency.

It would have given me much greater pleasure to have been able to concur with the general assembly, in the nearly or quite unanimous votes by which this act was passed,- than to be under the necessity of assigning the reasons which lead me to the conclusion that they have mistaken their constitutional powers. But my convictions are so unalterably fixed that I can not bring myself to that state of reasonable doubt even, upon which enactments are customarily saved. I have no doubt that this act, in so far as it substantially nullifies the express requirement of a previous residence, and undertakes to do, beyond the limits of the state, and without the force and authority of law, what is expressly required to be done within its limits, and by law, is inconsistent with both the letter and spirit of the constitution; and, with these convictions, fidelity to the high trust with which I have been invested by the people, and the solemn oath I have taken to support the constitution, equally require me so to declare.

I am not amongst those who believe that frequent and wide departures from the spirit and purposes of the fundamental law can be indulged in, and an easy and safe retumbe effected to that normal condition which makes the constitution what it was designed to be, the guardian of free institutions, and of life, liberty and property.

My views upon this subject have been so well expressed by a very learned and accomplished jurist in a sister state, that I can not do so well as to adopt his language. “ Believing,” he says, “as I do, that the success of free institutions depends on a rigid adherence to the fundamental law, I have never yielded to considerations of expediency in expounding it. There is always some plausible reason. for the latitudinarian constructions which are resorted to for the purpose.of acquiring power — some evil to be avoided, or some good to be attained by pushing the powers of the government beyond their legitimate boundary. It is by yielding to such influences that constitutions áre gradually undermined and finally overthrown. My rule has ever been to follow the fundamental law as it is written, regardless of consequences. If the law does not work well, the people can amend it; and inconveniences can be borne long enough to await that process. But if the legislature or the courts undertake to cure defects by forced and unnatural constructions, they inflict a wound upon the constitution which nothing can heal. One step taken by the legislature or the judiciary, in enlarging the powers of the government, opens the door for another, which will be sure to follow; aDd so the process goes on, until all respect for the fundamental law is lost, and the powers' of the government are just what those in authority please to call them,” Bronson, J., in Oakley v. Aspinwall, 3 Conn. 568.

In my opinion, the judgments of the court below are correct, and should be affirmed.  