I concur in the result but not in the majority opinion as a whole. The relators sought clarification of Chapter 101 of the 1943 Session Laws and sought to have this court indicate the manner as to how it should be fitted into our election laws, and such purpose did not call for an extended and prolix discourse on elections generally.
I concur in holding sections 12, 13, 14, 15, 16 and 19 of Chapter 101 unconstitutional, and think section 23 should also be so held. But do not think section 1 is invalid. That section merely outlines the purpose of the Act and supplements the absent voters' law long in effect in this state, and I see no conflict between that section and any other provision of our laws. It comes close to falling within the constitutional prohibition against class legislation, but is not otherwise open to criticism.
I am emphatically opposed to any recognition of the right to cast a ballot on any other day than the one fixed by statute. The majority opinion by implication would approve a legislative Act authorizing the reception of and counting of ballots subsequent to the election day fixed by law. The majority do not state plainly whether they would approve such an Act for a certain class of voters or would include all voters, and I think *Page 229 the opinion would have been much better if any discussion of that particular phase of election laws had not been dealt with at all.
One general election day has been the established rule in America since early Colonial days, and by tradition and practice it has become in every state of the Union as firmly established in the American mind as any provision of our Constitution, and to countenance any different practice now would, in my opinion, be a revolutionary act almost universally condemned. But if election day were fixed by law to begin on a certain date and to continue for several weeks thereafter, to receive ballots daily and count the same, in order to meet the convenience of a certain class of voters, such election day being continued until a fixed time, all voters would demand the same right as that extended to the particular class, and the demand under our theory of equal rights to all would have to be granted.
If the majority opinion were confined to the questions which were presented by the petition and the other speculative questions saved until they could be properly presented for an opinion by the Court, the opinion would carry much greater weight.