The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1903-01-04
Friends of the Movement Are Raising
Constitutional Questions to Have
Them Settled Quickly.
ADVERSE OPINION IN OHIO
RULING OF A CIRCUIT COURT DOES
NOT COVER THE GROUND.
Test Case Decided on Ground of Alb
sence of Necessity-Ruling of New
York Appellate Court.

Senator Charles NJ Thompson, of this
city, recently raised the question of the
constitutionality of law providing for the
compulsory adoption of voting machines In
Indiana, bis object being not to oppose
such law, but to have the point settled
before a bill to this end is passed by the
Legislature this winter. Several prominent
attorneys have agreed with him that there
was a serious question involved, while
others have unhesitatingly declared that
such a law would be constitutional In
this competition the fact that an identically
similar question has been raised in Ohio
and carried into the courts may be of inter-
est to Indiana legislators.
The Ohio Legislature in May, 1902 adopt
ed a law providing that wherever 65 per
cent. of the voters of any precinct petit
toned for voting machines the board Of
elections should Immediately purchase ma
chimes for that precinct The required per
cent. of the voters in one of the Cincinnati
precincts petitioned for machines but the
board of elections for the city refused to
grant the petition. Thereupon an action IN
mandamus was brought in the Circuit
Court of Hamilton county to compel the
board of elections to proceed to purchase
machines according to the provision Of the
statute in that case. The title of the case
was THE State of Ohio, on the relation of
John NJ. Fanger. citizen and taxpayer of
and on behalf of the city of Cincinnati, O.,
VS.. Benjamin F. Ehrman and others, mem
bers of the Board of Elections of the city
of Cincinnati, o."
CONSTITUTIONAL QUESTION.
The counsel for the defendants, the mem
bers of the board of elections, contended
that the voting machine law was in con-
travention of Section of Article of the
Ohio State Constitution, which provides
"All elections shall be by ballot" The ar
guments of the attorneys on both sides
were largely confined to this constitutional
question. the attorneys for the board en-
phasizing particularly that machine did
not Lermt the casting of a ballot within
the meaning of the Constitution. How
ever, the case was brought to an unex.
pected close and the Circuit Court did not
pass on this question at all, but decided
the cause on entirely different grounds.
The judges held that the board of cleo
tions had not violated legal duty in refus-
ing to purchase a machine for the precinct
general revenue fund of the city for this
purpose, and, not having the means or the
power to comply. and there being no tax
levy for the purchase of the machine. a
mandamus could not act against them. II
was also held that 1t was not shown by
the plaintiff that there was any necessity
at the present time for the purchase of a
machine. The court intimated that the next
election was more than three months of.
and, in consequence, there was no necessity
for the purchase of a machine now The
decision was the unanimous opinion of
Judges Swing, Giffen and Jelke.
Under the circumstances the result of the
Ohio case casts no light on the question
of the constitutionality of a voting ma
chine law, but the fact that the suit was
brought and that it was defended on the
ground that the law was unconstitutional
shows that there really is question in
volved. The suit In the Ohio court was
brought in the interests of the voting ma
chine companies. and they made the fight
for the law. employing formidable array
of five attorneys to look after their inte.
rests. The provision of the Ohio Constitu.