— Dissenting.—There are several doctrines advanced by the majority of the Court in the foregoing opinion to which I find myself unable to assent. Two only will be particularly referred to, and that briefly. In the first place, I dissent from the position that a valid election can be held without the use of poll lists.
. It is true that under our system of overnment the right of suffrage is one of great value and importance. But it is not like the right to breathe. It is a right conferred and regulated by law, cither organic or statutory. ' And while it is of great importance to the individual elector that in the exercise and enjoyment of this right he should not be embarrassed by the requirement df useless forms, it is just as important to the rest of the community *128that he should exercise his right in such manner as to ensure purity of elections according to some general and practical rule. The Legislature of this State has determined that the registration of persons entitled lo vote and the use of poll lists at elections are proper and necessary regulations of the exercise of the .right of suffrage. And, in my judgment, for this Court to say that these regulations are not necessary to he observed — that they are merely directory — that an election is as good and valid without them as with them, is virtually to override the express will of the Legislature. It is equivalent to saying to the Legislature that notwithstanding you deem such requirements necessary to protect the ballot box from fraud, we think otherwise, and that too when the subject is one of purely legislative cognizance. It is said that in the interpretation of law's we are to look for the intention of the law-maker. Can it be contended that when the Legislature for the very purpose of preventing frauds, and affording facilities for their detection, have prescribed certain express and explicit rules, in accordance with which elections shall be conducted, that it was the intention to make the observance of those rules a matter of indifference ? . Or that an election conducted in entire disregard of such rules should be as valid to all intents and purposes as one which complies strictly Avith the law ? I think not.
I also differ with the majority of the Court as to the construction of that part of the constitution relating to proceedings of this nature. See. 1, Art. 11, declares that “all laws * * * for removing county seats shall, before taking effect, be submitted to the electors of the county to be affected thereby, * * * and be adopted by a majority of such electors.”
The plain natural meaning of this provision is that the law must be adopted by a majority of the actual electors of the county, and I am unable to agree with the reasoning through which the majority of the Court arrive at the conclusion that the clause “ a majority of such electors ” means a majority of those who vote at the' election. If it be true, as claimed, that the law presumes “ that every citizen does his duty,” it occurs to me that this principle (if it have any existence) could hardly apply here. If the *129exercise of the right of suffrage be a duty, it is rather a moral than a legal duty; and as a matter of fact any presumption that every elector who is entitled to vote does vote, is against all experience.
A studied difference of language implies difference of intention, especially when the passages of an instrument in which the difference occurs are contiguous. There are several places in the constitution in which it is provided that certain things may be accomplished by vote of a majority of the electors voting thereon. One of these is referred to in the majority opinion in this case. It relates to change of county lines, and is found in the section immediately succeeding the section under consideration. See also Sees. 1, 2, Art. 14; Schedule, Secs. 18, 22. But a careful inspection of the constitution will show that the section in question furnishes the only instance in which it is required that the proposition submitted shall be adopted by a majority of the electors. This difference appears to me to be significant. But it is urged that to put this construction upon the constitution would be to render it inoperative in this respect.
That is a matter to be addressed to the people who make constitutions. If it be true that in adopting the constitution they have adopted a provision which will not woi-k in practice, it would not be the first mistake of the kind on record. And even if the doubtful paternity of our constitution would render any reference to the constitutional debates illegitimate as authority upon the question of construction, it is certainly proper to refer to them for the purpose of showing that it was possible for some members of the convention to put the construction for which I contend on this provision without being aware that it would render it of no practical value, and to show that it might possibly have been the intention to make the removal of a county seat dependent on the will of a majority of all the electors of the county affected, without looking ahead far enough to see that there was no way to ascertain who or how many all the electors were. And an examination of these debates (see Minn. Con. Debates, 472) shows that the position' taken while the matter was under discussion in the *130Sibley Convention, and which seems to have been acquiesced in, was that this provision required not only a “majority of all the electors who vote, hut of all the electors of the county.”
If it be admitted that a fair and natural interpretation of this part of the constitution would render it inoperative, I should much rather rest on this conclusion than to attempt to make it operative by a forced construction, or by the interpolation of words which were not inserted by its framers, and which would seem to have been left out by design. The only effect of the adoption of my view in this case would be to render county seats immoveable, which would be a light misfortune compared with the damage done to the constitution by a latitudinarian construction. If the practical immoveability of county seats be oppressive, the constitution can be amended.
But I am unable to perceive that even in my view of the matter, as above exjxressod, the part of the constitution under examination would necessarily be inoperative. It is probably quite true that at the time when the constitution was adopted no way was provided for ascertaining officially the number of legal voters. But that matter was for all purposes under the control of the Legislature. ' It was in their power to establish by express legislation a reasonable rule of evidence on the subject. I think there is no difficulty now. For it is made the sworn duty of the judges of election to make out a list of electors, and this'list is subject to revision and correction ^down to the hour when the polls are opened. Under the familiar rule by which a public officer is presumed to have done His duty, these lists, made as they are for the very purpose of ascertaining who is entitled, to vote, and that too by authority of law, would be at least prima facie evidence of the number of voters. And even without any such evidence as the lists furnish, it is clearly possible and practicable to ascertain the number of voters in a given county, though the attempt may be attended with much labor and inconvenience. And it will be found that in some other eases our Legislature have enacted laws which are based upon the practicability and necessity of ascertaining the actual number of voters within a given district, and *131that too without the opportunity of ascertaining this number by the holding of an election or by a reference to poll lists. Laws 1862, chap. 67, p. 137; Id., chap. 68, sec. 1, p. 138.
It is true that there are abundant authorities which give great latitude to judicial interpretation. Many of these are cited in the majority opinion in this case. Many of them are commented on by Mr. Sedgwick, in his work on Constitutional and Statutory Law, and the general condemnation which he passes upon them is supported with great force of argument. See chap. 7, Sedg. on Con. and Stat. Law.
And I conclude by quoting on this point a few sentences from the opinion delivered by that distinguished jurist, Mr. Justice Bronson, in Oakley vs. Aspinwall, 3 Com., 547. “My rule has over been,” he says, “ to follow the fundamental law as it is written, regardless of consequences. • If the law does not work well the people can amend it, and inconveniences can be borne long enough to await that process. But if the Legislature or the Courts undertake to cure defects by forced and unnatural constructions, they inflict a wound upon the constitution which nothing can heal. One step taken by the Legislature or the Judiciary in enlarging the powers of government, opens the door for another, which will be sure to follow; and so the process goes on until all respect for the fundamental law is lost, and the powers of the government are just what those in authority please to call them.”