Upon Rehearing. Counsel for movant urge that we are in error in treating too seriously the opinion in the case of State ex rel. Austin v. Black, 224 Ala. 200, 139 So. 431, 434 — that what was there said as to section 190 of the Constitution was dictum and is unsound, especially as to the meaning and purpose as to the added words appearing in said section, "shall provide by law for the manner of holding elections and of ascertaining the result of the same."
As this provision stood in the Constitution of 1875, this court had, in effect, held that the uniformity there required did not apply to elections for the removal of county sites, State ex rel. Porter v. Crook, Judge c., 126 Ala. 600,28 So. 745, and that uniformity was not required as to the building or structures in which elections were held, Lovejoy v. Beeson,121 Ala. 605, 25 So. 599, and no doubt would have held that uniformity was not required as to the hours for opening and closing the polls, owing to the density of population and voters, these being minor details. So when the framers of the Constitution of 1901 convened for the paramount purpose of dealing with suffrage and elections, spending weeks and months considering this serious subject, and being confronted with section 190 as it appeared in the Constitution of 1875, also being aware of the fact that it had been construed as not requiring uniformity as to certain minor details, inserted therein the above quoted words as being of substantive requirement, thus, in effect, emphasizing and accentuating that "uniformity" should apply to the "manner of holding elections and of ascertaining the result of the same." Had they meant that uniformity should not apply to the manner of holding elections and ascertaining the result of same, it would have been much plainer and simpler to have excepted same.
Reverting to the case of State ex rel. Austin v. Black, supra, it is possible that the decision did not hinge on an interpretation of these added words, but in the opinion in said case appears: "The amended information assails the act as being violative of section 190 of the Constitution, as to regulation and government of election laws throughout the state, and as to providing for the manner of holding elections, and of the ascertainment of the result of the same." The opinion, then in response to this contention, naturally and very properly proceeded to discuss the meaning of the section and to point out that uniformity applied only to substantive matter and not minor details, and then points out that the added words were not intended as an exception but were in the nature of a constitutional definition, that these added words were a matter of substantive *Page 20 requirement for uniformity. Therefore, this holding, whether dictum or not, was a reasonable and sound one and is now adopted and followed as a proper interpretation of the added words to section 190.
We, of course, have not held that uniformity must be so technical or literal as to require all ballots to be marked with pen and ink instead of a pencil, or that all marks should be of the same color, or that it could not be made with a stamp or other device, or that the voting machine can not be used throughout the state if so constructed and operated as to meet all constitutional requirements, but we do hold that holding the election and the ascertainment of the result in one or a few counties in the state, as authorized by the Douglass Act, permits an entirely different system for holding elections in some counties from that prevailing in others and is repugnant to section 190 of the Constitution of 1901.
We still think, that counsel, as well as our dissenting brothers, have confused the holding of this and other courts in construing section 110 defining general laws and have erroneously applied those cases to our section 190.
It is urged for the first time, upon rehearing, that section 190 applies only to legally required general elections and not to primary elections for party nominations and that the Douglass Act should be upheld as to primary elections. True, primary elections are not compulsory and the holding of same is left to the discretion of the governing authorities of the respective political parties, but section 190 provides that when adopted or ordered they shall not be "inconsistent with this article." Therefore, whether primary elections are or are not governed by section 190, we need not decide, as such holding by us would be contrary to both the letter and spirit of the Douglass Act which deals throughout with all elections, and to hold that it applies only to primary elections would be equivalent to adopting an act totally different from the one enacted by the legislature.
The application for rehearing is overruled.
THOMAS, BOULDIN, and BROWN, JJ., concur.
GARDNER, FOSTER, and KNIGHT, JJ., dissent.