
    Ex parte Bud Owens.
    Petition for Writ of Proh4b~tion.
    (Decided Dec. 6th, 1906.
    42 So. Rep. 676.)
    1. lifleclions; Removc&Z or Cov~~?~ty Seat; Nwnvber or Votes Reqwtred. -Section 41, Constitution 1901, does not require that a majority of all the qualified electors of the county is required to change the county seat; a majority of the number of votes cast is sufficient.
    2. ~tcttv,tes; Generci~l and ~peciaZ Laws; Const~itutionaZ Law; Cows-ti~s.-The acts of 1903, p. 117 is not violative of Section 190 of the Constitution of 1901.
    3. Constitutional Law; Validity or Statutes in G~eneral,-Before a statute will be held to be violative of the Constitution, it must be obnoxious to the express terms of the same, or the necessary implication from such terms.
    4. Elections; ~eorecy as to TTote._The act providing for the elections for change of county seat, in. its provision as •to nurn-ocring ballots, (Acts 1903, General, p. 117) is not violative of the Constitution upon the theory that the Constitution requires complete and inviolable secrecy of the ballot.
    ORIGINAL petition in Supreme Coult.
    Application by Bud Owens for prohibition to restrain Hon. John Peiharn, as judge of the circuit court of Ole-burne county, from proceeding to try the applicant oi, a criminal charges
    Application denied.
    WI-IITSON & DRYER, for petitioner.
    -If the act providing for the removal of county seats (General Acts 1903, p. 117) be invalid there could be no removal of tue county seat from Edwardsville to ileflin and any attempted judgment which might be rendered in said cause at Heflin would be void.—Maddox v. Dunklin, 39 So. Rep. 579; Barbour v. The State,- 39 So. Rep. 318. Common law prohibition is the proper remedy to prevent attempted usurpation of authority.—Ex parte Roundtree, 51 Ala. 42; Ex parte Birmingham & Atlantic Railway, 145 Ala. 514. The act violates Sec. 41 of the Constitution of 1901.—State ex rel. Porter v. Cook, 126 Ala. 600. The words employed show that it requires an affirmative vote of a majority of the qualified electors of the county before removal and it is well settled that the words are to be construed in their popular sense, in their natural sense,, unless it plainly appears otherwise.— Robertson v. McGough, 118 Ala. 166; Little v. Foster, 130 Ala. 154; Montgomery B. Works v. Gaston, 126 Ala. 446; Harrison v. The State, 102 Ala. 170. When read in connection with section 78 of the Constitution of 1901, it appears evident that the requirements are that á majority of the qualified electors of the county are required to cast an affirmative vote before removal can be accomplished. On this subject we call the court’s attention to the following cases: County of Cass v. Johnson, 95 U. S. 360; Carroll v. Smith, 111 U. S. 556; St. Joseph’s Township v. Rogers, 83 U. S. 644; Harshman v. Bates County, 92 U. S. 569; State v. Sutterfield, 54 Mo. 391; State v. Brassfield, 67 Mo. 331; State v. Francis, 95 Mo. 44; State v. Harris, 96 Mo. 29; Gavin v. Atlanta, 86 Ga. 132; Mattison v. Wade, 88 Ga. 699; Hawkins v. Carrol County, 50 Miss. 735; People v. Brown, 11 Ill. 478; C. L. & R. R. Co. v. Caldwell County, 72 N. C. 486; Duke v. Brown, 96 N. C. 127; Markham v. Manning, Id. 132; McDowell v. County, Id. 514; Wood v. Oxford, 97 N. C. 227; 109 N. C. 159; Cooke v. Gooch, 5 Heisk 295.
    The act' is violative of section 106 of .the Constitution of 1901.' Although the court has intimated in the case of State ex rel. Brown v. Porter, 145 Ala. 541, that this is not a local law, and has cited the case of Thompson v. Covington, in -support thereof, we think the court erred in so holding. To judge whether it is a general or local law or any law at all, it is necessary to ascertain what it means. One rule of construction is that whenever a statute is so uncertain in its provisions as not to inform the court what the legislature intended, it is void for uncertainty and will be so declared. This statute falls within the rule.—Johnson v. The State, 100 Ala. 42. What is a local law is determined in the following cases all of which are applicable to the case at bar.—State ex rel. Attorney General v. Sayre, 39 So. Rep. 240; Wallace v. Jefferson County, 37 So. Rep. 221; Lehman v. Robinson, 59 Ala. 241; State v. McGough, 118 Ala. 156; § 110, Constitution 1901.
    The act is violative of section 109 of the Constitution of 1301.—Anderson v. The State, 72 Ala. 189; Gandy v. The State, 82 Ala. 61, s. c. 86 Ala. 25; Cooley’s Const. Lt. (7th Ed. pp. 910-913 and notes; Pedigo v. Grimes, 113 Ala. 150; Williams v. Stein, 38 Ind. 89; Brisben v. Cleary, 26 Minn. 107; State v. Shaw, 9 S. C. 139, 141; State exrel. Bricson v. Barden, 77 Wis. 606; Runge’s Case, 42 L. R. A. (Wis.) 242; State ex rel. Smith v. Anderson, 26 Fla. 259; Taylor v. Bleakley, 55 Kansas 13; Ex parte Arnold, 128 Mo. 256; Pearson v. Supervisors, 91 Va. 322; Temple v. Mead, 4 Vt. 335; People ex rel. Gurdon v. Cicott, 16 Mich. 283; Atty. Gen. v. Bd. of Detroit, 58 Mich. 213; People v. Pease, 27 N. Y. 45, 81; 3 Am. & Eng. Enc. Law, (2nd Ed.) 768-769.
    The act is violative of section 190 of the Constitution of 1901. The act was not constitutionally passed.—§ 64 of the Constitution of 1901; Board of Revenue v. Crowe, 37 So. Rep. 473; § 66 Constitution 1901; Montomery B. Works v. Gaston, 126 Ala. 425.
    Knox, Acker & Blackmon, for respondent.
    — The constitutionality of the act has already been decided by this court. — State ex rel. Brotan v. Porter, 145 Ala. 541. This case also- settles the question of the proper enactment of the statute. On this point see also Mitch ell, et al. v. City of Gadsden, 145 Ala. 132; 26 A. & E. Ency. of Law, (2nd Ed.) pp. 612-633. The act is a general and not a local law. — State ex rel. Brown v. Porter, supra; Covington v. Thompson, 38 So. Rep. 679; § 110, Const. 190Í; State v. Newark, 40 N. J. L. 71; Heirs A. W. P. 2 L. R. A. 577; 122 Pa. 266; Edmunds v. Her-branson, 14 L. R. A. 725; Lloyd v. Smith, 35 Atl. 199; Samoood v. Wentworth, 162 U. S. 147; Bone v. The 
      
      State, 86 Ga. 108; People v. Hazlewood, 116 Ill. 319; State v. King, 37 la.; Bnmson v. Oberlin, 41 Obio St. 476; People v. Henshmc, 76 Cal. 436. Tlie act was'not unconstitutional on account of the manner prescribed for voting therein. — Preits v. Behronsmeyer, 125 Ill. 141; Blankenship v. Israel, 132 Ill. 516; Hodge v. Lynn, 100 Ill. 397; Ledbetter v. Hall, 62 Mo. 422; West v. Hall, 53 Mo. 352; State v. Conner, 86 Tex. 133; Richie v. Richards, 14 Utah, 345. Under section 41 of the Constitution it only requires that of the qualified electors voting at an election a majority should give an affirmative vote in order to. cause the removal. — Endlich’s Interpretation of Statutes, § 507.
   SIMPSON, J.

— This is an application for a writ of prohibition, to he directed to Hon. John Pelham, judge of the circuit court in Cleburne county, to prohibit and restrain him from proceeding to try said Bud Owens, on the ground that the county seat of said county is at Edwardsville, and not at Heflin, in said county, where the court is being held. The alternative writ is waived, and Judge Pelham answers, basing his authority to hold said court at Heflin on the act of March 3, 1903, and the election held thereunder, so that the entire contention rests upon the proposition as to whether or not said act is valid. This act was before this court heretofore, and the court, after full consideration, held that the act is a. general law, that it was properly exacted, and a valid law.— State ex rel. Brown v. Porter, 145 Ala. 541, 40 South. 144. We are satisfied with that decision, and shall not enter into any of the questions, therein litigated.

It is insisted noAV that the act in question is violative of section 41 of our Constitution, which provides that “no court house or county site shall be removed except by a majority vote of the qualified electors of paid county voting at an election held for such purpose,” because section 17 of the act (Acts 1903, p. 124). provides that “if, upon a canvass of the returns of said election, it shall be ascertained and declared, that a majority of all the legal votes cast were in favor of the removal of the county seat, then the city, town, or village thus selected shall thereafter be the. county seat”; the contention being that, under said section of the Constitution, it requires a majority of all of the qualified electors of said county to vote for the proposition in order to carry it, without regard to the number of votes actually .cast. Without dwelling on the improbability of the Constitution makers enacting a law with such an uncertain quantity in it as a determination of just how many qualified electors were in a certain county'at a given time, with no record of the deaths or removals that may have occurred up to the date of the election, we think the language of the section itself is very clear that it is only a majority of those- who vote that is required. Whether there be, or not, the distinction contended for between the words “voter” and “elector,” it matters not. Thé removal is by “a majority vote.” That of itself, if nothing else was said, would carry with- it the idea, of a majority of the votes; but it says “a majority vote” of whom? If it means of the qualified electors of the county, the word “voting” should be left out. It cannot mean anything else than that it is, as it states, “of the electors voting at an election held for such purposes.” It cannot be the majority vote “voting”; for that rvould be absurd. It cannot be the majority voting; for “majority” is an adjective, qualifying “vote.” There is nothing else for the word “voting” to- qualify, except “electors”; and it is the equivalent of a majority of the electors who vote. We regard' this as the plain and reasonable interpretation of the section,- and it is unnecessary to multiply authorities on this point.

It is next insisted that said act is violative of section 190 of our Constitution, which provides that “the Legislature shall pass laws, not inconsistent with this Constitution,'to regulate and govern elections, and all such laws shall be uniform throughout the state, and shall provide by law for the manner of holding elections and of ascertaining the result of the same.” This provision has reference particularly to the general election laws of the state; but, conceding that it applies to laws providing for elections in the various counties, this law makes provision for all of the counties according to their several needs, and in providing for so many counties, differently situated, it is necessary that they be classified according to their several needs and conditions. It would be manifestly unjust to provide for an election on the same teims and conditions in a county which had just paid- large sums of money and assumed heavy obligations to build a courthouse and jail, as in a new county which had neither. This principle of classification has been so often recognized as not impigning upon the principle of the uniformity of laws that it is unnecessary to discuss it at length. This is not violative of sec. 190 of our Constitution. — Harwood v. Wentworth, 162 U. S. 547, 16 Sup. Ct. 890, 4 0L. Ed. 1069; Bone v. State, 86 Ga. 108, 12 S. E. 205; People v. Haselwood, 116 Ill. 319, 6 N. E. 480; Bronson v. Oberlin, 41 Ohio St. 476, 52 Am. Rep. 90; People v. Henshaw, 76 Cal. 436, 18 Pac. 413.

It is next insisted that section 179 of our Constitution implies absolute and inviolable secrery in voting, not only at the time of casting the ballot, but for the future, and that the act in question violates this provision of our Constitution. As this insistence is very urgent, and supported by quotations from a number of cases, we have examined them with great care, and find that, in the greater number of them, the real point in controversy was not before the court, and these dicta are mainly remarks of the court in cases which sustained the constitutionality of various statutes, which were supposed to impigne on similar constitutional provisions.' In the case of State v. Shane, 9 S. C. 94, the only point decided was that, when the Constitution required judges to be elected by joint ballot, it did not mean viva voce voting. In the case of State ex rel. Briesen v. Barden, 77 Wis. 606, 46 N. W. 899, 10 L. R. A. 155, the point decided was that the printing of the word “judiciary’5 on the ballots cast for one candidate, and not on those cast for another, did not invalidate the ballots; the court saying: “It is not the ballot itself that is at fault, but the use made of it.”—Page 608 of 77 Wis., page 901 of 46 N. W. And this, notwithstanding the statute prohibited any device, etc., on the ballot. State ex rel. Runge v. Anderson, (Wis.) 76 N. W. 482, 42 L. R. A. 239, decided that a candidate’s name could not be placed on the ticket twice because he had been nominated by two parties, and that a statute providing for an official ballot was not unconstitutional because it deprived the voter of the right to make out his own ballot.— State ex rel. Smith v. Anderson., 26 Pla. 240, 8 South. 1, decides that, where a municipal ordinance provided for separate boxes, plainly marked, for the different offices voted for, and that the ballot should contain nothing but the name of the officer voted for, ballots placed in the proper box, but not having the name of the office to be filled, should be counted.—Taylor v. Bleakley, 55 Kan. 1, 39 Pac. 1045, 28 L. R. A. 683, 49 Am. St. Rep. 233, decides that, first, the Legislature may adopt such reasonable regulations and restrictions for the exercise of the elective franchise as may., be deemed necessary to prevent fraud, intimidation, etc.; and, second, the requirement that the ballots shall be numbered is mandatory, and not unconstitutional. The remarks quoted by counsel are in regard to the interpretation of the Kansas statute, and not of any constitutional provision.—Page 14 of 55 Kan., page 1049 of 39 Pac. (28 L. R. A. 683, 49 Am. St. Rep. 233). Ex parte Arnold, 128 Mo. 256, 30 S. W. 768, 1036, 33 L. R. A. 386, 49 Am. St. Rep. 557, decides that the court cannot compel the production of the ballot box before the grand jury, under a Constitution which provided for numbering the ballot, and forbade the officers to make known how the elector voted, except in contests of election.—Page 261 of 128 Mo., page 769 of of 30 S. W. (33 L. R. A. 386, 49 Am. St. Rep. 557). Pearson v. Supervisor, 91 Va. 322, 21 S. E. 483, decides that a statute providing for a constable to aid blind men in preparing their ballots was not unconstitutional; the court remarking that, “while the vote by ballot implies a secret ballot, etc., yet the main object, which is the right to vote, must not be defeated by a too rigid observance of the incidental right, which is that of secrecy.”—Page 334 of 91 Va., page 485 of 21 S. E. Temple v. Mead, 4 Vt. 535, simply held that a printed ballot was valid.—People v. Cicott, 16 Mich. 283, 97 Am. Dec. 141, merely passes upon the effect of several irregularities under the statute. No constitutional question is decided. Attorney General v. Detroit, 58 Mich. 213, 24 N. W. 887, 55 Am. Rep. 675, decides that the Requirement of the statute that the election inspectors must be of different political parties is unconstitutional, principally upon the ground That it is a superadded qualification test for office.

Williams v. Stein, 38 Ind. 89, 10 Am. Rep. 97, does decide that an act providing for numbering the ballot is unconstitutional, and for authority cites Judge Denio’s dissenting opinion in People v. Pease, 27 N. Y. 45, 84 Am. Dec. 242, to the effect that “the spirit of. the system requires that the elector should be secured then, and at all times thereafter”; also Temple v. Mead, and People v. Cicott, supra. The opinion, on these authorities, holds that the provision is “contrary to the spirit and substance of the constitutional provision.” The case of Brisbin v. Cleary, 36 Minn. 107, 1 N. Y. 825, does decide that a statute requiring ballots to be numbered is violative of a similar constitutional provision, on the theory that a vote by ballot implies complete and inviolable secrecy. As authorities for this decision, several of the cases supra and a few other are cited; but, upon an examination of them we find them to be expositions of statutes, without reference to constitutional interpretation—the question as to whether a. witness may he compelled to tell how he voted, etc., which do not throw any light on the interpretation of the constitutional provision. The case of Ritchie v. Richards, 14 Utah, 345, 47 Pac. 670, is based upon a constitutional provision requiring elections to be by “secret ballot,” and especially provided that “secrecy in voting shall be preserved.” And the. point decided is that a statute providing for numbering the ballot, and permitting the number to be revealed only in case of a contested election, is not a violation of the Constitution; and the court says: “While we are of opinion that a law might be framed * * better adapted to secure a secret ballot, we are disposed to hold the present law valid, notwithstanding this objection.”—Page 356 of 14 Utah, page 673 of 47 Pac. In the said case the two Associate Justices concur in the result, but differ from the Chief Justice on the validity of the provision requiring the numbering of the ballot, and emphasizing the different wording of their Constitution, which requires a “secret ballot” and also provides that “secrecy shall be preserved.”

In passing upon a constitutional question, there are ceitain fixed principles which should be kept in mind. At an early day in the constitutional history in this country, the question was fully discussed, and finally settled by the highest authorities in the land, that, in order to authorize a court to- declare an act violative of a state Constitution, it must be found obnoxious to the express terms or necessary implication of some article of the Constitution, and the court cannot declare a statute unconstitutional because it is opposed to the “spirit supposed to pervade the Constitution,” or ‘contrary to the first principles of right,” etc. The courts cannot go beyond the “natural and obvious sense” of the constitutional provision. Beyond the plain wording and necessary implications of the Constitution, the carrying out of the general spirit, or conserving the principles of right, becomes a matter of legislative discretion, and not of judicial interpretation. “Any assumption of authority beyond this would be to place in the hands of the judiciary powers too- great and too undefined, either for its own security or the protection of private rights.”— Cooley’s Const. Lim. (7th Ed.) pp. 239-242, and cases cited in note. Our constitutional provision is simply that “all elections by the people shall be by ballot, and all elections by persons in a representative capacity shall be. viva voce.” — Const. § 179.

If we look to the definition of the word “ballot,” we find that it runs back as far as to ancient Greece, and was derived from the Greek word bailo, to throw, and was originally applied to the casting of balls, shells, pebbles, or beans into a box, as the means of deciding, or voting, in both legislative and judicial bodies. It was not always secret, as it is said that the Grecian assemblies and courts were held in the daytime in public places, and the voters were separate from the popular audience only by a. cordon of ropes, and when the voters went up and deposited their ballots it was known how they voted.—2 Am. Ency. p. 541. It is unnecessary to go into the learning on this subject, bringing it through the laws of the Romans and the French. Suffice it to say that the balls, pebbles, etc., have been succeeded by the paper ballot, which is placed in the box, and, although it may be admitted that the spirit or general purpose of balloting is in the direction of secrecy, yet, as to the extent of that secrecy and the means of preserving it, that is a matter of legislative discretion. The member of a society votes by ballot, although the officer who carries the box around, may see whether he drops in a white marble or a black one, and the man who folds his ticket and drops it into a box ,or hands it to ■an officer to drop it in for him, certainly votes by ballot; and it is for the Legislature, governed by public policy, and in carrying out the spirit and general purpose of the Constitution, to make such regulations as it may deem best for the preservation of the secret thereafter.

The ballot is. simply “a little ball, * * a printed or written ticket used in voting,” etc.; “an act of voting by balls or tickets, by putting the same into a box or urn,” and thus “a secret method of voting.”—5 Cyc. 225. “A ticket or slip of paper, sometimes called a Noting paper,’ on which is printed or written an expression of the elect- or’s choice; a method of secret voting by means of small balls, or printed or written ballots, which are deposited in an urn or box, called a ballot box.’ ” —Century Dictionary. In these and a number of definitions collected in 1 Woods and Phrases, pp. 680, 681, the same idea is predominant—that the ballot is the instrument used in the act of voting, and by using it in that way it is considered a secret mode of voting, as distinguished from a viva voce vote. As to what may be done thereafter is clearly left to legislative discretion.

Resorting to the history of this provision of our Constitution, and the legislative construction of it, it is clear that it has not been understood as involving the interpretation adopted by the Supreme Courts of Minnesota and Indiana. This provision has been in all of the Constitutions of Alabama, from the original Constitution of 1819 to the present time, in practically the same' language. • Yet it is common knowledge that, up to the time of Acts 1878-79, p. 78, the ballots were always numbered and the ballots and the poll lists sent up together (see Code 1876, §§ 271-280), and until a recent period voters made out their own ballots, on any paper and with any device desired. It must be presumed that, if our Constitution makers had desired to- embody in the fundamental law of 1901 any further restrictions or requirements, they would have been expressed in apt words, and not by the adoption of the old expression, which had never been so understood. When we come to examine the act (Acts 1903, p. 117), we find it provides for a paper ticket, which may be either printed or written (section 9) ; for numbering the ballots, to correspond Avith the numbers on the poll list (section 10) ; that the inspectors shall count the voté, certify the poll lists, and send “statements of the vote and poll lists, together Avith the ballots cast,” securely sealed up and properly .indorsed, in an envelope or wrapper, by the returining officer to the board of commissioners at the courthouse (section 14) ; and at the time appointed the commissioners “shall malee a correct statement from the returns, in the presence of such persons as may choose to attend” (section 13). Thus it avüI be seen that the ballots are in the hands of SAVorn officials from the casting to the counting, and 'there is no provision looking to an examination of the ballots, except that they shall reject any ballots shoAvn to be illegal. The act is not violative of section 179 of the Constitution.

It thus appears that Heflin is the place fixed by law in which the courts of said county should be held, and a decree will be here rendered denying the petition.

Weakley, C. J., .and Haralson, Doavdell, and Anderson, JJ., concur.

SIMPSON, J. (On Rehearing.)

— While it is true that if a clause of a Constitution of a sister state, after having been construed by the highest court of that state, is copied for the first time into a Constitution adopted by our oavii state, the presumption is that Ave adopted it with its construction, yet this principle has .no application to a case like this one, where the constitutional provision was in our own previous Constitution, so that it cannot be said to- have been taken from the Constitution of the sister state. While, as this court has said, we are “authorized to consult them (the decisions of the highest courts of other states) as other reported cases aid us in arriving at correct conclusions,” yet we “are not permitted to regard them as authoritative and binding expositions.” And this language was used, even where the court was construing a statute of said sister state and the decision was not introduced in evidence.—Nelson v. Goree’s Adm’r, 34 Ala. 566, 580. It is the province of the highest court of each state to construe its own Constitution.—26 Am. & Eng. Ency. Law (2d Ed.) pp. 175, 176. Even the decisions of the Supreme Court of the United States are not binding upon- this court, unless it be in those matters in which said court has appellate jurisdiction.—Id. This court accords the utmost respect 16 the decisions of the highest courts of our sister states, but reserves to itself the right to determine whether they are based upon sound reasoning when applied to our own Constitution and laws. Especially can we not follow them when our own legislative and judicial history has placed a different constrution upon them.

It is true, as suggested by counsel for the petitioner, that our Constitution of 1819 did provide that the vote should be by ballot “until the General Assembly shall otherwise direct”; but it is also true that the General Assembly never did “otherwise direct.” When the statutes provided for the numbering of the ballots, there is nothing to indicate that the Legislature thought it was changing the mode of voting from voting by ballot to any other mode; but, on the contrary, it was always the “ballots” that were numbered, and no Legislature or court of the state seems to ever have had the least idea that we had ceased to vote by “ballot” because they were numbered. This clause was left off the section in the Constitution of 1868, and we continued to have the same kind of numbered ballot, without any safeguards against the ascertainment of the voter’s choice, and so it continued under the Constitution of 1875, until 1878, when the law was changed, for reasons which it is not necessary to rehearse.

The provision to the Constitution of Texas, in place of sustaining the contention of counsel, that the lawmakers of that state understood that the use of the word “ballot” meant such secrecy as to prohibit its being numbered, rather shows the contrary; for that provision is that “in .all elections by the people the vote shall be by ballot, and the Legislature shall provide for the numbering of the tickets.”— Const. Tex. art. 6, § 4. Thus tile voting by ballot and the requirement that they shall be numbered are coupled together by “and” (and not by “but”), indicating clearly that it was not intended as a modification of the word “ballot”; but they still vote by ballot, without qualification, and it is made the duty of the Legislature to provide that the ballot shall be numbered. Judge Cooley says that “a ballot may be defined to be a piece of paper or other suitable material, with the name written or printed upon it of the person to be voted for,” and that the “voter is thus enabled to secure and preserve the most complete and inviolable secrecy.”— Cooley’s Const. Lim. (7th Ed.) p. 910. The use of the word “thus” shows conclusively that it is the voting in the manner discribed which enables him to secure the secrecy, and, although he does go on to remark on the “spirit” of the provision, etc., yet he is speaking of the duty of the Legislature, and not of the constitutionality of the act under the Constitution. Nowhere does he declare that an act which does not provide absolutely against all contingencies by which the choice of the voter can be ascertained is violative of the constitutional provision, but, on the contrary, he goes on' to discuss devices which are adopted to ascertain how the voter has voted, and says that, while they may not render the election void, they are reprehensible, etc.—Page 912.

The rehearing is denied.' The entire court sitting and concurring in overruling the motion for a rehearing.

ANDERSON, J. (Concurring.)

— While I concur in the conclusion reached in this cause in affirming the appeal and in denying the application for rehearing, I do so for reasons entirely different from those given in the opinion of Justice Simpson. Regardless of the origin or ■derivation of the word “ballot,” the expression “election by ballot” has been expounded and construed by the various courts of last resort, and with entire unanimity they have declared it meant a secret ballot, and that the essential principle of this manner of voting was to protect the secrecy of the ballot, in order to guard and protect the voter against intimidation, secure to him absolute freedom in the exercise of the elective franchise* and reduce to a minimum the incentive to bribe tlié voter.—3 Am. & Eng. Ency. Law, 768, and other authorities cited on second page of brief on application for rehearing.

The Constitution contemplates, not only that secrecy he preserved at the time of voting, but that it he sacredly guarded for all time, unless the voter himself shall voluntarily divulge it. In Cooley’s Const. Lim. (5th Ed.) p. 762, the author says: “The system of ballot voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases, and with what party he pleases, and that no one is to have the right, or' he in position, to question his independent action, either then or at any subsequent time. The courts have held that a voter, even in case of a contested election, cannot he-compelled to disclose for whom he voted; and for the same reason we think others, who may accidentally, or by trick or artifice, have acquired knowledge on the subject, should not be allowed to testify to- such knowledge, or to give any information in the courts upon the subject. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it. His ballot is absolutely privileged, and to allow evidence of its contents, when he has not waived the privilege, is to encourage trickery and fraud, and would, in effect, establish this remarkable anomaly: that while the law, from motives of public policy, establishes the secret ballot, with a view to -conceal the elector’s action, it at the same time encourages a system of espionage by means of which the veil of secrecy may be penetrated, and the voter’s action disclosed to the public.” So in McCrary, Elect. § 453, it is said: “The secret ballot is just regarded as an important and valuable safeguard for the protection of the voter, and particularly the humble citizen, against the influence which wealth and station may be supposed to exercise. And it is for this reason that the privacy is held not to be limited to the moment of depositing the ballot, but is sacredly guarded by the law for all time, unless the voter himself shall voluntarily divulge it.” In Paine, Elect. § 453, the author states the law as 'follows: “A constitutional provision that all elections shall be held by ballot guaranties the secrecy of the ballot, and is violated by a statute requiring the tickets to be numbered to correspond with the voters’ numbers on the poll list.”

It has been pointedly held in .the cases of Brisbin v. Cleary, 26 Minn. 107, 1 N. W. 825; Williams v. Stein, 38 Ind. 89, 10 Am. Rep. 97 and Ritchie v. Richards, 14 Utah, 345, 47 Pac. 670, that a statute requiring the numbering of the balot and the keeping of corresponding poll lists was violative of the Constitution, inasmuch as said statute destroyed the secrecy of the ballot. The writer has been unable to find a single authority to the contrary. On the other hand, the framers of the Constitutions of Pennsylvania (1873), of Missouri, (1875) and of Colorado (1876), realizing, uo doubht, that the numbering of the ballot would be violative of the old Constitution, expressly provided that, while elections should be by ballot, the tickets should be numbered. I do not wish to be understood as holding that an act requiring the numbering of the ballot under any and all conditions would be violative of the Constitution. The purpose of the Constitution is to preserve the secrecy of the ballot, yet a statute might require the numbering of the ballot and at the same time preserve its secrecy, by imposing certain duties upon the election officers, such as destroying the ballots before comparison with the poll list, etc.; and this point was doubtless not considered by the courts when considering the numbering of the ballots,-else the respective acts construed may have had no provision for preserving the secrecy, notwithstanding the ballots were to be numbered.

Acts 1903, p. 122, § 10, provides for the numbering of the ballots and the keeping of corresponding poll lists, and the act nowhere provides for a destruction of the ballots or forbids a comparison. How each voter voted can be ascertained by the election managers or commissioners without a violation of law on their part, by a comparison of the ballots with the poll list, and said section 10 is clearly violative of section 179 of the Oonsti-tuition of 1901, in so far as it requires a numbering of tlie ballot. “The rule is well established, and founded' in the highest wisdom. Because, however, a small portion of an act is invalid, it does not necessarily follow that the whole act is void. All that portion of the act which is not repugnant to the Constitution is valid. While the numbering of the ballots was improper, still that circumstance should not have the force'to avoid the act and overturn the election. The electors were not responsible. Their ballots were honestly cast, and there has not been sufficient reason shown why they should not have been counted.”—Ritchie v. Richards, 14 Utah, 379, 47 Pac. 681. The manifest design of the Constitution in preserving the secrecy of the ballot is for the protection of the voter, and, while he cannot complain because of the numbering of his ballot, and could doubtless use the courts to enforce his constitutional right to vote secretly, yet, when he casts his vote without protest, the courts will not deprive him of same, simply because the managers, in compliance with an unconstitutional requirement of the act, numbered the ballot. This court, without determining the constitutionality of the general election law in this respect, has held that the section requiring the numbering of the ballot was merely directory, and that a failure to comply therewith on the part of the election officers did not affect the ballots cast which were not numbered, or the result of the election.—Montgomery v. Henry, 144 Ala. 629, 39 South. 507, 1 L. R. A. (N. S.) 656.

There is nothing in the statute invalidating the ballots when honestly cast without having been numbered, cr in the Constitution invalidating them because they were numbered; and the doing of or leaving undone something merely directory will not affect the result or annul the election, if there is enough left in the act providing for the holding of same with the unconstitutional portion eliminated. The Case of Brisbin, supra, wherein the statute requiring the numbering of the ballot was construed, was an action on the part of the elector against the election judges for refusing to let him vote without numbering his ballot. The Indiana .Case of Stein, supra, was an action by an elector against the election managers for numbering his ballot against his protest. The proceeding in the case at bar is not by an elector, complaining that- his ballot was improperly numbered, but by a defendant, under indictment, protesting against being tried at Heflin, the county site, because the election fixing the county site at said point was carried by ballots -which were numbered in violation of. the Constitution. This fact did not render the election void. “A mere irregularity in conducting an election, which deprives no legal voter of his vote and does not change the result, never has been held to invalidate an election. The rules prescribed by the law for conducting an election are designed chiefly to afford an opportunity for the free and fair exercise of the election franchise, to prevent illegal votes, and to ascertain with certainty the result. Such rules are directory merely, and npt jurisdictional or imperative.”—Hodge v. Linn, 100 Ill. 405; Platt v. People, 29 Ill. 54.

The Supreme Court of Missouri, a state -with a Constitution permitting the numbering of the ballots and with a statute requiring that they be numbered, and which further provided that ballots not numbered could not be counted, in case of State v. Mullix, 58 Mo. 355, held, in .an election contest, that the ballots not numbered should not have been counted and that the statute was not merely directory, because it expressly required that the ballots should be numbered, and not counted unless they were. We have nothing in our organic law or statutes striking down ballots because numbered dr not numbered. Therefore the doing of the one or leaving undone the other is merely directory, and neither of which invalidates the election.  