The age-herald. [volume] (Birmingham, Ala.) 1897-1902, 1899-07-02

fest an intention to voteagainst the amend
ment, and no affirmative action to manifest
an intention to vote in favor of It.
"(d) The constitution presumes that
every elector who votes for any state or
county office at the election but fails to
vote or for any reason refrains from voting
on the proposition to amend is against the
amendment, and, in effect requires his bal
lot for state and county offices to be
counted as vote against the amendment;
this statute assumes that every elector who
does not wish to vote directly against the
amendment by striking out the words For
Birmingham Amendment will vote in ia
vor of it, and requires his ballot to be
counted in favor of the amendment, al
though he may have had no intention to
vote in favor ofit. or any knowledge that
any such proposition was pending to be
voted on"
1t may well be assumed that the foregoing
skeleton of counsel's argument presents
every consideration worthy of attention
against the validity of this statute under
section of article l. of the constitution.
Certainly no other plausible objection to it's
integrity occurs to us; and upon the posi-
lions taken by them will consider this
part of the case. In the outset it is of
course to be admitted that it is essential to
the adoption of any proposed amendment
to the constitution that a majority of the
electors voting at the election at which
the proposition is submitted should vote
for the amendment That is the plain re-
quirement of the organic law And, of
course, any statute which undertook TO
provide for the adoption of such and amend
ment upon a less number of favoring votes
than majority of those so voting, or which
made 1t possible, in legal contemplation for
the amendment to rest upon the favoring
votes of a minority of the electors so vot-
ing would be violative of the constitution
md nfI
granted that a vote for a proposition nee
essarily implies the expression of the voters
opinion position or preference in favor of
or Tor That proposition; and a statute which
authorizes or admits of the counting for a
proposed amendment to the constitution a
ballot which does not involve directly or by
necessary implication such expression ia
Vorable thereto would be invalid and of no
effect. And so the inquiry in this connec-
tlon is whether this statute authorizes or
admits of the counting for this amendment
OF ballots which can be said not to evil
dence the voters prediction for and inten-
ton to support the amendment or
rather, which cannot be said to manifest
such prediction and intention. We do not
think the enactment authorizes or admits
of any such thing. Every voter is presum-
ed to know what is on any ballot he de-
posts as an expression of his will upon
men and measures submitted for his consid-
Grafton and action as an elector. And the
law furnishes the iliterate voter with easy
and convenient means of information as to
what his ballot contains. And when he de-
posts 1t, the presumption of law is that me-
as well as his educated fellow elector
Knows what is upon 1t and has expressed
the desire as between candidates and
upon propositions which the paper indi-
Gates. This presumtion of law is absolute
ly essential to popular government The
DrPSlImntiOO ic ind
tical means has been resorted to to ac-
quaint the voter with the contents of his
ballot, and he in fact does know its con-
tents. If the fact were otherwise the pre-
sumption could not exist, and government
by ballot would be impossible Until
within few years past, it was and for
long had been, under the present and for
mer constitutions, the law and practice for
the names of only certain set of cand-
dates, the nominees of a political party, to
appear upon a ballot. The voter who de-
posted such a ballot without erasing anv
OF the names upon it thereby expressed his
choice of all the persons whose names so
appeared. If he wished not to vote for
any person on the ticket, he could do so
only by striking out that name If he
wished to vote for a person for a particu-
lar office whose name did not appear on the
ballot he would have to strike out the can
didate for that office whose name did ap-
Pedli anu substitute the name OF the per-
son of his choice. If he erased no name
he was conclusively presumed to have
voted for every person on the list.
Or, when there had been no party
nominations and all candidates for
given office appeared on the same
ballot, as frequently occurred, the
voter had to erase the names of all the
candidates except the one for whom he
intended to vote; and if he left all the
names on the ballot he was held to have
voted for the person whose name first APP
peared thereon and that all candidates
might have equal advantage in view of the
law on this point, it was the custom to
give priority on the ballot to each on an
equal number of tickets, so that if A. B.
and Y. u. were candidates for an office
and a thousand tickets were printed, the
name A. B. would appear first on five hun
dred tickets and that of Y. q. would APP
pear first on the remaining five hundred
And where there a party ticket and no
erasure upon it, the conclusive presump-
ton of law was that the voter intended to
vote for every person whose name appeared
to fill the office for which he was a candi-
date, as indicated by the ticket; or in other
words that he knew all that the ticket con-
tanned, and adopted it as the expression of
his views, and there was really never any
question of fact as to whether such tickets
actually represented the intent of the vot-
ers; they always did. So where the names
of two or more candidates for the same
office appeared, and there was no erasure
the law held the voter to a knowledge that
under the law the first named person would
be credited with having received his vote;
and, while, as we have seen, there was
some notion abroad under this provision of
law and practice that in such case the per-
son first named might be credited with
votes which were not intended for him. or
for the office at all, leading to the alter
nation of names through series of
tickets, yet 1t was never seriously ques-
toned that such a ballot represented in
point of fact the affirmative choice of the
voter for the first named candidate. And
such was the necessary and conclusive pre-
Sumntion of law based unnn Slhst an Ii % 1