Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1896-12-23

! When tho Jaw Is nelu VOID, becnuhe O
the violation OF mandatory prov!slOn
Of the Constitution, Than when It 10
held void for any other reason. II ls
the solemn duty OF courts to declare
what the law is, regardless of conse-
queuces.
In this case, looking TO the inurns!s,
there appears to hs no affirmative
statements recorded which conflict
with the validity Of the enrolled acl,
and the mere silence OF the Journals, ns
to the mandatory provision OF the
| Constitution, have Ia question, will
not justify the holding OF the aci void,
because the presumption in such case
! that the Legislature proceeded proper
/ ly, Ia cOncluBive.
] I am also unable to agree with the
! Cnioi JUSTICE In mis- views ms to tho
secret ballot. The constitutional pro-
Y,i0n on this question, Ar. l., Sec. 9,
is ns follows:
All elections shall bo by seorot ballot
! Nothing IN this Gec,iou shall be CON
! sttued to prevent the use of any machine
or mechanical cOntrivanco for tho pur-
pose OF receiving and regi toring the
! votes cast at any election; provided, that
secrecy in voting DO preserved.
This Ia an express provision for
secret ballot, anu cpArly tho word
"secroW should, In the Interpretation
Of this section, receive Its plain and
ordinary meaninr, because 1t does not
sppeAr from the C ,ntext that Auy other
meaning was Intended by the trainers
o; the Constitution. In fact, the words
'secret ballot" appear TO be empha-
sized. for while the use Of mach TO
or mechanical coptrivnuce 10 permitted
Tor certain purpose, II Ia only per.
mitted, "provided secrecy In voting DO
preserved"
Used as an adjective, Webster de.
fines the word secret az "nidGen;
cjncealeJ.o AS q noun, "s netting
stuuiously concealed; "a thing kept
from general knowleust; that rs not
revealed, Or not to be revealed.'
DjuOtless this latter lie the ssuse in
which the words SECRET bailoP' were
USED In the Constitution. This view
lie In harmony with iublic thought
and expression respecting the ballot
systems, al tue time OF, and before the
holding OF The constitution corven.
ton, and the courts have ths right TO
take notice Of the history OF the times,
for the purpose OF nscertaiBing the
latent OF the trainers OF the Cons,iiu-
ton. 1t is well uDderatood that the
questions Of open and secret ia,los
created.m much 1iscussisn in the several
states, as well as in Utah Territory, on
account of the improper influe noe,
whether supposed or real, VIII Oh could
be brought TO bear upon the humble
cltizens, by the employees or those to
whom they felt under obligations or
which might result IIom wealth and
talon.
The secret ballot is question of
public policy, and the trainers OF the
Constitution doubtless intendet to
make the veil OF secrecy img enetrable,
30 that the voter could make promises
to whom he pleased. and vote ne he
pleased, without fear OF aiierward
having the secrecy OF his ballot violat-
ed. The object to secure an inJepend.
ent ballot would be very imperiectly
accomplished II the secrecy was lin
iied to the moment OF casting the bal.
I lot. IT 10 apprehended that 1t lie not
80 much the lear oil the voter OF being
exposed then, as the fear OF sherwatu
having his ballot identified and be.
CONS exposed, whether c!audestiuely
or otherwise, that deprives him OF in.
, Dependence.
Bryoid all reasonable controversy,
the object aimed at by this provision Of
the COnsii vi on W y to secure the in
dependence OF tue voter. How then car
this object be attained II the voter be
compelled to cast a ballot which can bt
, tdenti 1ed? 10 my mind The conclusion
| 1 inevitable that any contrivapce oil
! method by which the ballot can be
identified, anu no legislative enact
ment can give it the force OF law, un.
3 der our Constitution, he the same fol
the purpose OF contest in court oil
| fua fnr nth
In arriving at this c1ncluiiDn, / ar
not unmlndiui of the grave duty Of the
! sovereign power to protect indivldua
rights by SURPRISING election frsuds
0 Such frauds shock the conscience OI
$ every true American citizen. But Il
a is not possible to peTpatrate the grav
est kind OF such frauIs by the intim
+, idstion of tue Independent vote 4
l Remove the safeguards and will II no
be possible to commit frauds ut cleo
II lions which will strike ut the vsry
foundation OF government Itself? Ihei
u why annul q wise provision OF tn
e Constitution by juticiol construction
Q anu render IL possible TO perpetrste tn
7 very offences which all good Citizen
3. oJndemL2
G From the lime OF placing a numbe
: on the ballot, as provided by the sec
!
0 ders 1t susceptible OF Identification, 1t
!; secret power Ia gone, whether tn
court prouounces 1t legal secIe
ballot or not. The fact IL that sucn
/ ballot 10 not secret within the meaning
D and intent OF tho Constitution
Whether the method provided by tn
\. Legislature Is the best or only methO,
e which can bs OF avail in an election
. contest does not concern this court. l
! might be suggested, however, tina
election contests occupied the atlen
tiun of courts before such a ballot WA
s Invented, anu considerations OF con
veniencr in election contests can hav
o no influence win the court In deter
T. mining the question under considera
e lion. A legal voter even, In contea
d cannot be compelled TO Disclose hi
1 ballot, much less should he be eom
L PEELED to vote one from which 1t ma!
l. ue ascertained by others, or even
c0utt, how he voted. Aud this upo
y consideration OF public policy that tn
e. spcrecy anu purify OF the ballot may b
: preserved.
In Cooley's Const. Lin. 762, (5tl
ed.l the author says.
Tho courts have hold that u voter, eve
in case Of "a contested election, cannot l.
| cput,allpd 10 disglOne for whom lg ND 90