Ritchie v. Richards | Cases | Westlaw

I concur in the result, that the application for the writ must be denied. But I do not concur in the proposition, which appears to be maintained in the opinion, that when an enrolled act of the legislature is duly signed, approved, and deposited in the office of the secretary of state, this court must conclusively presume that all constitutional requisites were complied with in its enactment. This, it occurs to me, is extending the rule further than is warranted by the decisions of the courts of the United States, or by the welfare of this state, or by the will of the people, as announced in the constitution. Carried to its legitimate effect, this proposition means that when an enrolled act has been properly signed, approved, and deposited with the secretary of state, it is the law of this commonwealth, even though, in its enactment, express limitations of the constitution have been violated, and that when drawn in question the judges who are called upon to determine its validity have no power to go beyond the enrolled act, and look into the journals of the legislature, required to be kept by the constitution, to satisfy the judicial mind of its constitutional passage. This would place the legislature, in the mode of the enactment of laws, beyond the control of the sovereignty itself, and the limitations contained in the constitution respecting the manner of enacting laws would be mere useless verbiage. With all due respect to that co–ordinate branch of the government, I cannot consent to a proposition that would invest it with a power so arbitrary. Because such a rule obtains as to the parliament of Great Britain, under a monarchial form of government, that cannot be regarded as a very potent reason for its application in this state, where the will of the sovereign power has been declared in the organic law. The people, in their sovereign capacity, after great deliberation, adopted a constitution, and established a government consisting of an executive, a legislative, and a judicial department. That constitution is their supreme will, which must be obeyed by every individual, be he of high station or of low. Those composing the several departments are but agents, and in their acts are bound by the organic law; and the limitations and restrictions contained therein are not mere abstract principles, but solemn declarations by the people themselves. They are as conclusive upon such agents as any other portion of the written charter. Limitations are not peculiar to any one branch of the government, but there are those which apply to each department, and they are imposed as a security to the rights of the principal,—the people. The power of the government is vested in the three departments, to be exercised subject to these limitations. The power to declare what the law shall be is legislative. The power to declare what is the law is judicial. The power to declare what is the law is delegated to the judicial department, *676 and therefore the courts have the unquestioned right to declare any act of the government, in any of the departments, which violates the constitution, to be utterly void. This right or power necessarily includes the power to declare what enactments of the legislature are, and what are not, laws; and in exercising this function the courts do not trench upon the domain of the legislative department, although they pass judgment upon its official acts. When the enrolled act is assailed in a court of law on the ground that it was not constitutionally passed by the legislature, the court must determine whether there was a compliance or noncompliance with the mandatory provisions of the constitution respecting the mode and manner of the passing of the act. For this purpose, I have no doubt that, upon principle, as well as authority, the court may take judicial notice of the legislative journals, and, in a proper case, go behind the enrolled act, even when such act has been properly authenticated and deposited with the secretary of state, and examine such journals, giving their contents such weight as evidence as they may be entitled to receive, considering the manner in which they are kept, and circumstances under which the entries have been made; and if, in such case, it should affirmatively appear upon the journals, or either of them, that in passing the act the legislature had disregarded a mandatory provision of the constitution, the court would be justified in holding the same unconstitutional and void. If, however, the journals are merely silent as to the subject under investigation, then the presumption that the legislature acted according to its delegated power should prevail, unless an omission of some matter which the constitution expressly requires to be entered therein be shown by such journals, or either of them. It seems that even the English rule admits the journals of parliament to be evidence for such purposes as they are there considered to be provided, but they cannot there be referred to for the purpose of impeaching the enrolled act. I am therefore of the opinion that in this country the enrolled act of the legislature, duly signed, approved, and deposited with the proper custodian, is prima facie, but not conclusive, evidence of its constitutional enactment and of what the law is; that the courts may take judicial notice of the legislative journals required to be kept by the constitution; and that such journals possess the character of public records, their value in each case being a question for the courts. In fact, some of counsel for respondents, in their oral arguments, admitted that the courts had the right to take judicial notice of the journals, but claimed that they contained nothing derogatory to the validity of the act, and in this I think they were correct. The journals required to be kept by the constitution were evidently intended for the purpose of making a record of the daily proceedings of the legislature. They are therefore public records made in perpetuam memoriam re–entered therein, and where questions arise as to what is contained therein, or what proceedings were had, the court has the right to inspect the record. Such record is like any other public record, which, in the language of Sir Edward Coke, is “a monument of so high a nature, and importeth in itself such absolute verity, that, if it be pleaded that there is no such record, it shall not receive any trial by witness, jury, or otherwise, but only by itself.” 3 Bl. Comm. 331.

When a similar proposition was before our late territorial supreme court, in People v. Clayton, 5 Utah, 598, 18 Pac. 628, Chief Justice Zane, then speaking for the court, observed: “Whenever such a question arises, the court, in deciding the issue, should take judicial notice of such facts as it may properly consider. The evidence of public laws should be preserved in public and permanent records, “—and, after reviewing a number of authorities, said: “In the light of authority, we are of the opinion *** that where the journals of the two houses, showing their action, are kept in pursuance of law, the court may look to such journals to ascertain whether the constitutional requirements have been complied with.” Thus, the journals were at that time recognized as evidence by the court. Why should this case be overruled, and a different doctrine prevail now? It certainly cannot be successfully contended that the reasons for recognizing the journals as evidence then were stronger than now, because, in addition to the reasons which then existed, we have now the mandate of the constitution that “each house shall keep a journal of its proceedings.” Article 6, § 14. Clearly, the affirmative of the question is supported by the weight of authority in the several states of the Union, as well as by eminent text writers. Judge Cooley, in his treatise on Constitutional Limitations, on page 162, says: “Each house keeps a journal of its proceedings, which is a public record, and of which the courts are at liberty to take judicial notice. If it should appear from these journals that any act did not receive the requisite majority, or that in respect to it the legislature did not follow any requirement of the constitution, or that in any other respect the act was not constitutionally adopted, the courts may act upon this evidence, and adjudge the statute void.” Judge Sutherland, in his work on Statutory Construction (section 46), states the law as follows: “When an act is found lodged in the office of the secretary of state, with the public acts passed at the same session, signed by the presiding officers, approved and signed by the governor, and it is published by authority as one of the public statutes of the state, or is otherwise authenticated according to law, and in proper custody, the presumption is that it was regularly passed, unless there *677 is evidence of which the courts take judicial notice showing the contrary. The journals are records, and, in all respects touching proceedings under the mandatory provision of the constitution, will be effectual to impeach and avoid the acts recorded as laws, and duly authenticated, if the journals affirmatively show that these provisions have been disregarded. In the absence of such an affirmative showing, and even in cases of doubt, it will be presumed that a quorum was present; that the necessary readings occurred; that amendments made by one branch, though extensive, were germane; that they were concurred in by the other branch,—though the journals may be silent.” And in section 42 he says: “The tendency, however, of the law's growth, is to preserve the supremacy of constitutional authority, leaving it to the wisdom of the legislature to mitigate any incidental inconvenience by closer observance of the prescribed procedure, and more diligent attention to the making and preservation of a public record of the essentials. The cases cited in the preceding section hold the constitutional injunctions imperative, and, as the constitutions require the keeping and publication of legislative journals, these are treated as sources of information to be relied on by the courts as well as the public.” In section 44 he says: “The journals, by being required by the constitution or laws, are records. At common law the legislative journals were not strictly records. While admissible in evidence for certain purposes, as official memorials or remembrances, they were not admissible to show that an act of parliament had not been passed according to its own rules. But when required, as is extensively the case in this country, by a paramount law, for the obvious purpose of showing how the mandatory provisions of that law have been followed in the methods and forms of legislation they are thus made records in dignity, and of great importance. The legislative acts regularly authenticated are also records. The acts passed, duly authenticated, and such journals are parallel records, but the latter are superior, when explicit and conflicting with the other; for the acts authenticated speak decisively only when the journals are silent, and not even then as to particulars required to be entered therein.” See, also, section 41. So Black, in his late work on Interpretation of Laws (published in 1896) p. 225, after speaking of the right of referring to the journals of the legislature in aid of the interpretation of statutes, says: “It will be observed that this question is an entirely different matter from resorting to the legislative journals to ascertain whether an act was constitutionally passed; that is, passed with the requisite majority, or after the required number of readings, or with a call of the house on its final passage, or otherwise in conformity with the requirements of the constitution. On this point the rule settled by a majority of the courts is that it is competent to go behind the enrolled act, and consult the journals, but that the act will not be declared void for lack of compliance with the constitutional forms, unless their nonobservance is shown affirmatively by the journals. If the journals are silent as to these matters, it will be presumed that the legislature complied with all the constitutional requisites. In any event, no evidence can be received to contradict the journals.”

In the state of New Hampshire, in 1858, an act was found lodged in the office of the secretary of state, with other public acts passed at the same session. It was signed by the speaker of the house of representatives and the president of the senate, and had upon it the approval of the governor, and had been published, by authority, as one of the public statutes enacted at that session. The validity of the act having been questioned, because in its enactment the legislature had failed to comply with a certain requirement of the constitution, the governor submitted the question of its validity to the supreme court of that state. In their opinion (35 N. H. 579), unanimously holding the act invalid, the court, upon the question whether they could look into the journals, said: “We are of opinion that the journals which the constitution thus requires to be kept by the senate and house of representatives, to be lodged and preserved in the general public depository of the state records, and to be published annually in the same manner as the public laws, were intended to furnish the courts and the public with the means of ascertaining what was actually done in and by each branch of the legislature, not merely for the purpose of enabling the people to judge of the manner in which their public servants have conducted themselves in their office of legislators, but also for the purpose of determining whether the proceedings of the legislature have been in conformity with the provisions of the constitution; that these journals, under our constitution, are not to be regarded as ‘mere remembrances of proceedings,’ kept by each house for its own use and convenience, which expire when the act is passed, or the business is disposed of, to which they relate. But we think they are to be treated as authentic records of the proceedings, and that we may resort to them in this case to ascertain whether the two houses in fact concurred in the passage of the before–mentioned act; that, if it appears by the journals that they did not, the prima facie evidence derived from an examination of the act itself will be overcome.” Mr. Justice Gray, in Post v. Sup'rs, 105 U. S. 667, said: “The copies of the journals, certified by the secretary of state, and the printed journals published in obedience to law, are both competent evidence of the proceedings in the legislature.” In *678 Hall v. Steele, 82 Ala. 562, 2 South. 650, Mr. Justice Clopton said: “We have uniformly held that, when the constitution does not require the journals to affirmatively show that a particular thing necessary to the validity of the legislative action was done, mere silence will not invalidate; and in such case we will presume that the legislators observed their obligation, and did not pass such bill without sufficient proof that the proper notice had been given. The unconstitutionality of an act enrolled, authenticated by the signatures of the presiding officers, and approved and signed by the governor, must be affirmatively and clearly shown, before the courts are authorized to treat it as void because not having been passed in accordance with the rules of parliamentary law prescribed in the constitution.” So, in Sup'rs v. Heenan, 2 Minn. 330 (Gil. 281), Mr. Justice Flandrau stated: “The court may inspect the original bills on file with the secretary of state, and have recourse to the journals of the houses of the legislature, to ascertain whether or not the law has received all the constitutional sanctions to its validity.”

In Gardner v. Collector, 6 Wall. 499 (Mr. Justice Miller delivering the opinion of the court), it was said: “We are of opinion, therefore, on principle as well as authority, that whenever a question arises in a court of law of the existence of a statute, or of the time when the statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to resort to any source of information which, in its nature, is capable of conveying to the judicial mind a clear and satisfactory answer to such question,—always seeking first for that which, in its nature, is most appropriate.—unless the positive law has enacted a different rule.” In the case of People v. Mahaney, 13 Mich. 481, the supreme court of Michigan, speaking through Mr. Justice Cooley, said: “As the court are bound judicially to take notice of what the law is, we have no doubt it is our right, as well as our duty, to take notice, not only of the printed statute books, but also of the journals of the two houses, to enable us to determine whether all the constitutional requisites to the validity of a statute have been complied with. The printed statute is not even prima facie valid, when other records, of which the court must equally take notice, show that some constitutional formality is wanting.” The supreme court of Illinois, in Illinois Cent. R. Co. v. People, 148 Ill. 434, 33 N. E. 173, said: “It is not denied that the amendatory act received the signatures of the speakers of both houses, and the approval of the governor. Such verification is prima facie evidence of its validity as a legislative enactment. But it is the settled law of this state that the journals of either branch of the legislature may be resorted to for the purpose of overcoming such prima facie evidence. It may be shown from the journals that an act was not passed in the mode prescribed by the constitution.” So the supreme court of Florida, in State v. Brown, 20 Fla. 407, says: “If the journals show conclusively that any material portion of a bill, as passed, was omitted in the enrolling, so that it may be considered that the act, as approved, was not passed by the legislature, and does not express the legislative will, the act, as approved, at least to the extent that it is affected by the omission, must be held invalid. This is a rule well settled now by the American courts. The constitution requires the keeping of journals of their proceedings by the respective houses of the legislature, and these journals are received as evidence of such proceedings. When an act is duly approved and published, it is prima facie a law; but if the legislative journals show that, instead of being passed, it was defeated, or that it is not the same that was passed, it is not a law.” Sedg. St. & Const. Law (2d Ed.) §§ 54, 55; Black, Const. Law, 60, 265; End. Interp. St. § 33; 1 Whart. Ev. §§ 290–295; 1 Greenl. Ev. § 491; 2 Whart. Ev. § 1309; Henderson v. State, 94 Ala. 95, 10 South. 332; State v. Wright, 14 Or. 365, 12 Pac. 708; Chicot Co. v. Davies, 40 Ark. 200; Spangler v. Jacoby, 14 Ill. 397; Currie v. Southern Pac. Co., 21 Or. 560, 28 Pac. 884; State v. Robinson, 20 Neb. 96, 29 N. W. 246; Osburn v. Staley, 5 W. Va. 85; In re Roberts, 5 Colo. 525; Hart v. McElroy, 72 Mich. 446, 40 N. W. 750; State v. Hagood, 13 S. C. 46; Com'rs v. Higginbotham, 17 Kan. 62; Koehler v. Hill, 60 Iowa, 542, 14 N. W. 738, and 15 N. W. 609; Wise v. Bigger, 79 Va. 269; Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; People v. Dunn, 80 Cal. 211, 22 Pac. 140; Glidewell v. Martin, 51 Ark. 559, 11 S. W. 882; State v. Robertson, 41 Kan. 390, 21 Pac. 382; State v. Van Duyn, 24 Neb. 586, 39 N. W. 612; State v. Kiesewetter, 45 Ohio St. 254, 12 N. E. 807; Berry v. Railroad Co., 41 Md. 446; State v. Algood, 87 Tenn. 163, 10 S. W. 310; State v. Platt, 2 S. C. 150; Brown v. Nash, 1 Wyo. 85; People v. Campbell, 3 Gilm. 466; State v. McBride, 4 Mo. 302; State v. Mead, 71 Mo. 266; Southwark Bank v. Com., 26 Pa. St. 446; City of Watertown v. Cady, 20 Wis. 501; State v. Babbitts, 46 Ohio St. 173, 19 N. E. 437; People v. Clayton, 5 Utah, 598, 18 Pac. 628; Meracle v. Down, 64 Wis. 323, 25 N. W. 412; Territory v. O'Connor, 5 Dak. 397, 41 N. W. 746; Hughes v. Felton, 11 Colo. 489, 19 Pac. 444; San Mateo Co. v. Southern Pac. R. Co., 8 Sawy. 238, 13 Fed. 722; State v. Deal, 24 Fla. 293, 4 South. 899; People v. Burch, 84 Mich. 408, 47 N. W. 765; Burritt v. Com'rs, 120 Ill. 222, 11 N. E. 180; Nelson v. Haywood Co., 91 Tenn. 596, 20 S. W. 1.

The above constitutes but a small portion of the cases which support the views herein contended for. They are sufficient, however, to show that over 20 states have held that the journals of the houses of the legislature may be looked to in deciding the constitutionality of an enrolled act. 23 Am. & Eng. Enc. Law, 208. Seven states appear to have no decisions on the subject. Connecticut, Indiana. *679 Kentucky, Louisiana, Maine, Nevada, and Mississippi have decided that the enrolled act is conclusive, and in several other states the decisions do not appear to be uniform. Field v. Clark, 143 U. S. 649, 661, and note, 12 Sup. Ct. 495. It will be noticed, from an examination of the cases which hold the affirmative of this proposition, that the decisions, in the main, are not based on any peculiar constitutional provision, but on principle, and the ground that the constitution requires the journals to be kept.

It is quite clear that under the American rule, adopted by a large majority of the states of the Union, the legislative journals may be consulted to determine whether the enrolled act was constitutionally passed; and this has also the support of the text writers. That to hold a statute void may work a hardship upon people is quite true, but that fact has no more force when the law is held void because of the violation of a mandatory provision of the constitution than when it is held void for any other reason. It is the solemn duty of courts to declare what the law is, regardless of consequences. In this case, looking to the journals, there appear to be no affirmative statements recorded which conflict with the validity of the enrolled act; and the mere silence of the journals as to the mandatory provision of the constitution here in question will not justify the holding of the act void, because the presumption in such case that the legislature proceeded properly is conclusive.

I am also unable to agree with the Chief Justice in his views as to a secret ballot. The constitutional provision on this question (article 4, § 8) is as follows: “All elections shall be by secret ballot. Nothing in this section shall be construed to prevent the use of any machine or mechanical contrivance for the purpose of receiving and registering the votes cast at any election: provided, that secrecy in voting be preserved.” This is an express provision for a secret ballot, and clearly the word “secret” should, in the interpretation of this section, receive its plain and ordinary meaning, because it does not appear from the context that any other meaning was intended by the framers of the constitution. In fact, the words “secret ballot” appear to be emphasized; for, while the use of a machine or mechanical contrivance is permitted for a certain purpose, it is only permitted “provided, that secrecy in voting be preserved.” Used as an adjective, Webster defines the word “secret” as “hidden; concealed.” As a noun, “something studiously concealed; a thing kept from general knowledge; what is not revealed, or not to be revealed.” Doubtless this latter is the sense in which the words “secret ballot” were used in the constitution. This view is in harmony with public thought and expression respecting the ballot systems at the time of and before the holding of the constitutional convention, and the courts have the right to take notice of the history of the times, for the purpose of ascertaining the intent of the framers of the constitution. It is well understood that the questions of open and secret ballots created much discussion in the several states, as well as in Utah territory, on account of the improper influence, whether supposed or real, which could be brought to bear upon the humble citizens by their employers, or those to whom they felt under obligations, or which might result from wealth and station. The secret ballot is a question of public policy, and the framers of the constitution doubtless intended to make the veil of secrecy impenetrable, so that the voter could make promises to whom he pleased, and vote as he pleased, without fear of afterwards having the secrecy of his ballot violated. The object to secure an independent ballot would be very imperfectly accomplished if the secrecy was limited to the moment of casting the ballot. It is apprehended that it is not so much the fear of the voter of being exposed then, as the fear of afterwards having his ballot identified and becoming exposed, whether clandestinely or otherwise, that deprives him of independence. Beyond all reasonable controversy, the object aimed at by this provision of the constitution was to secure the independence of the voter. How, then, can this object be attained, if the voter be compelled to cast a ballot which can be identified? To my mind, the conclusion is inevitable that any contrivance or method by which the ballot can be identified and the voter exposed is unauthorized, and no legislative enactment can give it the force of law, under our constitution, be the same for the purpose of contest in a court of justice, or for any other purpose. In arriving at this conclusion, I am not unmindful of the grave duty of the sovereign power to protect individual rights by suppressing election frauds. Such frauds shock the conscience of every true American citizen. But is it not possible to perpetrate the gravest kind of such frauds by the intimidation of the independent voter? Remove the safeguards, and will it not be possible to commit frauds at elections which will strike at the very foundation of government itself? Then why annul a wise provision of the constitution by judicial construction, and render it possible to perpetrate the very offenses which all good citizens condemn? From the time of placing a number on the ballot, as provided by the section of the act in question which renders it susceptible of identification, its secret character is gone, whether the court pronounces it a legal secret ballot or not. The fact is that such a ballot is not secret, within the meaning and intent of the constitution. Whether the method provided by the legislature is the best or only method which can be of avail in an election contest does not concern this court. It might be suggested, however, that election contests *680 occupied the attention of courts before such a ballot was invented, and considerations of convenience in election contests can have no influence with the court in determining the question under consideration. A legal voter, even in a contest, cannot be compelled to disclose his ballot. Much less should he be compelled to vote one from which it may be ascertained by others, or even a court, how he voted. And this upon consideration of public policy that the secrecy and purity of the ballot may be preserved.

In Cooley, Const. Lim. (5th Ed.) 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 be 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 be 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 justly 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.” In the case of People v. Cicott, 16 Mich. 283, Mr. Justice Campbell said: “The reason why the ballot is made obligatory by our constitution is to secure every one the right of preventing any one else from knowing how he voted, and there is no propriety in any rule which renders such a safeguard valueless.” And again he says: “It would be better to do away at once with the whole ballot than to have legal tribunals give any aid or countenance to indirect violations of its security.” So the supreme court of Minnesota, in Brisbin v. Cleary, 26 Minn. 107, 1 N. W. 825, speaking through Mr. Justice Berry, said: “The statutory provision with regard to the numbering of tickets, above quoted, clearly interferes with and violates the voter's constitutional privilege of secrecy. The voter cannot be required to submit to its application the ticket offered by him, and if, upon refusing to so submit, he is debarred from voting, he may maintain his action for damages against the persons debarring him.” The constitution of Indiana (article 2, § 13) containing a provision that “all elections shall be by ballot,” a statute was enacted which provided as follows: “It shall be the duty of the inspector of any election held in this state, on receiving the ballot of a voter, to have the same numbered with figures on the outside or back thereof, to correspond with the number placed opposite the name of such voter on the poll list kept by the clerks of said election.” 3 Rev. St. Ind. 1870, p. 235. The supreme court of that state, in Williams v. Stein, 38 Ind. 89, held that the ballot secured by the constitution was a secret ballot. Mr. Justice Pettit, delivering the opinion of the court, said: “My convictions are clear that our constitution was intended to and does secure the absolute secrecy of a ballot, and that the act in question, which directs the numbering of tickets to correspond with the numbers opposite the names of the electors on the poll lists, is in palpable conflict, not only with the spirit, but with the substance, of the constitutional provision. This act was intended to and does clearly identify every man's ticket, and renders it easy to ascertain exactly how any particular person voted. That secrecy which is esteemed by all authority to be essential to the free exercise of suffrage is as much violated by this law as if it had declared that the election should be viva voce.” Mr. Chief Justice Denio, in People v. Pease, 27 N. Y. 45, 81, used the following language: “I have already alluded to the policy of the law providing for a secret ballot. The right to vote in this manner has usually been considered an important and valuable safeguard of the independence of the humble citizen against the influence which wealth and station might be supposed to exercise. This object would be accomplished but very imperfectly if the privacy supposed to be secured was limited to the moment of depositing the ballot. The spirit of the system requires that the elector should be secured then, and at all times thereafter, against reproach or animadversion, or any other prejudice, on acount of having voted according to his own unbiased judgment, and that security is made to consist in shutting up within the privacy of his own mind all knowledge of the manner in which he has *681 bestowed his suffrage.” Cooley, Const. Lim. (5th Ed.) p. 700; McCrary, Elect. § 454; Williams v. Stein, 38 Ind. 89; Pennington v. Hare (Minn.) 62 N. W. 116; Attorney General v. McQuade, 94 Mich. 439, 53 N. W. 944; Parvin v. Wimberg (Ind. Sup.) 30 N. E. 791; State v. Anderson (Fla.) 8 South. 1; Ex parte Arnold, 128 Mo. 256, 30 S. W. 768, 1036.

In states where the constitution expressly provides for numbering the ballots, the courts doubtless hold such numbering lawful, and the provision mandatory. This is so in Texas, where the constitution, in article 6, § 4, provides: “In all elections by the people, the vote shall be by ballot, and the legislature shall provide for the numbering of tickets,” etc. State v. Connor, 86 Tex. 133, 23 S. W. 1103. As will be seen, in that state the numbering of ballots is expressly authorized by the organic law, whereas our constitution not only has no such provision, but expressly commands a secret ballot. The case of Hodge v. Linn, 100 Ill. 397, cited in the opinion of the Chief Justice, ought not to be regarded as a controlling authority in the case at bar, because the constitution of that state does not expressly provide that the ballot shall be secret. See Const. Ill. 1870, art. 7, § 2. The same may be said of the Missouri cases cited in the opinion. See Const. Mo. 1865, art. 2. § 1.

I am of opinion that so much of section 26 of the act approved March 28, 1896 (Sess. Laws, p. 183), as provides for the identification of the ballot, is in violation of the constitution and void; and, in arriving at this conclusion, I am not unmindful of the salutary rule that in the interpretation of statutes all doubts should be solved in favor of the constitutionality of their enactment. 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 so counted. The writ ought to be denied.

I concur in the opinion of Justice BARTCH, and in the holding that the journal of proceedings to be kept by the two houses composing the legislature, under section 14, art. 6. of the constitution, may be examined and inquired into for the purpose of determining any conflict between them and the enrolled acts. In cases of conflict the journal entries should govern and control the presumption arising from enrollment. I also concur in holding that part of section 26, c. 69, p. 183. Laws 1896, with reference to numbering the ballots as being in violation of section 8 of article 4 of the constitution, which requires all elections to be by secret ballot. I also concur in the opinion of Chief Justice ZANE, with the exception of the matters above referred to.