'(Dissenting.) In Chamberlain v. Hedger, 12 S. D. 135, 80 N. W. 178, all the probative facts alleged in this complaint were before the court, and it was squarely held to be the legal duty of respondents not only to canvass all votes returned for appellant at this election, but to issue a certificate in accordance with the result ascertained. If the power lies within the legislature of a state to deprive qualified electors of the right to freely express their choice as to whom they will designate governmental authority, then the sovereignty of the nation no longer resides in the people of the nation, and this court idly trifled with a serious matter when it said, concerning the identical facts now before us, that, “If the canvass had been made, and the certificate of election issued, plaintiff would have been clothed with a prima facie right to the office; and this was a substantial right, of which he should not have been deprived by the failure of defendants to perform their official duties.” In Parmly v. Healy, 7 S. D. 401, 64 N. W. 186, no constitutional question being even mooted, we could do no less than say, in effect, that the statute prohibited the writing of a name on a ticket, and provided punishment for the dismantled freeman who placed it there. The constitution guarantees to every qualified elector “the free exercise of the right of suffrage”; and, while the legislature cannot limit him to names printed on the official ballot, this court, by fallacious reasoning, has now taken away this right to vote for the person of his choice. Quoting from our constitution the provision that “elections shall be free and equal, and no1 power civil or military shall at any time interfere to prevent the free exercise of the right of suffrage,” the writer of the majority opinion pro*229ceeds to elucidate by saying that “there can be no inequality, and every voter shall have the same right as every other voter, namely, the right of appearing at an election and voting in the manner prescribed by law.” Until all men are viewed in exactly the same light, and the preference of one becomes the preference of all, it will be neither plausible nor reasonable to say that the right of suffrage can be freely, equally, and independently exercised under a statute which merely gives to qualified electors an option to vote for persons whose names are printed on the official ballot, or not to vote at all; and such is not, and under our system of government can never be the law. It is manifestly absurd to hold that the elector, who is thus deprived of his privilege of choosing a public servant, stands on equal footing with those who find upon the official ballot the name of every candidate for whom they choose to vote. It is the constitutional prerogative of every qualified elector, who has complied with all preliminary statutory regulations as to registration, etc., to'vote for whomsoever he may choose; and statutes which deprive him of such right have been, so far as my research extends, invaribly held for naught in every jurisdiction with the exception of this. Daggett v. Hudson, 43 Ohio St. 548, 3 N. E. 538, 54 Am. St. Rep. 832; Maynard v. Board of Canvassers, 84 Mich. 228, 47 N. W. 756, 11 L. R. A. 332; Monroe v. Collins, 17 Ohio St. 665; Eaton v. Brown, 96 Cal. 371, 31 Pac. 250, 17 L. R. A. 697, 31 Am. St. Rep. 225. The case of Com. v. Reeder, 171 Pa. 505, 33 Atl. 67, 33 L. R. A. 141, upon which the opinion of my associates appears to be based, is clearly not in point. The question there was whether, under a constitution providing for the election of judges “by the qualified electors of the district over which they are to preside,” the legislature may “enact that no voter shall cast his ballot for more than a certain number less than the whole *230number of judgeships to be filled.” Unlike our statute, it is further provided that the ballot to be used shall “contain as many spaces as there are persons to be voted for by each voter for said office;” thus expressly authorizing the writing of names thereon. Moreover, there was an able dissenting opinion by Mr. Justice Williams ,' and, directly at variance with the majority opinion in Pennsylvania, it was held unanimously in Ohio that even such statutes are unconstitutional. State v. Constantine, 42 Ohio St. 437, 51 Am Rep. 833.
Identically the same feature of the Australian ballot system as perverted by legislative enactment was recently, with other less important questions, before the supreme court of Florida in such a manner that a determination of the exact point was vitally essential to the decision, and the court say: “The distinguishing theory of the ballot system is that every voter shall be permitted to vote for whom he pleases, and that no one else shall be in a position to know for whom he has voted, unless the voter shall, of his o\yn free will, inform him. There is no doubt in our minds about the right of the legislature to prescribe an official ballot, and to prohibit the use of any other; and the provisions of the act in reference to printing the names of candidates regularly nominated by a convention, mass meeting, or primary election, or who run as independents, are valid. But the legislature cannot, in our judgment, restrict an elector to voting for some one of the candidates whose names have been printed upon the official ballot. He must be left free to vote for whom he pleases, and the constitution has guaranteed to him this right. If the legislature can restrict the voter to some candidate whose name is printed on the official ballot, then-it may prescribe such regulations for getting the names of candidates on the ballot as will completely destroy the liberty of choice. * * * *231We have considered the cases cited on this point, and recognize fully the rule that every presumption is in favor of the constitutionality of the law, and that it will require a very clear case to justify a court in striking it down on the ground of unconstitutionality. It is also true that, where an act is fairly susceptible of two constructions, one of which conflicts, while the other is in harmony, with the constitution, that construction which supports will be preferred to that which destroys the law. * * * It was entirely competent for the legislature to prescribe the regulations here referred to, and, if there were no others on the subject of casting the ballot, we think the voter, although confined to the use of the official ballot, could put upon it the name of any person in lieu of the name of the candidate printed thereon, and such a ballot would be legal. There is in the provisions here referred to no denial, express or implied, of his right to do so, 'and under the decisions cited we think he would have such right. But in another portion of the same section of the act, in providing for the entrance of the voter into the polling place, and the receipt by him of an official ballot, it is enacted that ‘he shall go to one of the voting shelves, tables or compartments, and there privately cross or check-mark across the dash, or short line in front of the name of the candidate of his choice for each office to be filled, which cross or check-mark shall constitute his vote.’ The requirement is that he shall check the name of the candidate of his choice. The candidate here referred to cannot fairly or naturally mean any other than some candidate whose name had gotten on the ballot in the manner provided in the act. This is the only fair and reasonable construction to be put upon the clause mentioned, and its effect is to restrict the voter to a choice of candidates printed on the ballot, which we have said cannot be done. That phase of the act, then, which restricts the voter to checking *232the name of some candidate on the official ballot, is in conflict with the constitutional provision in reference to voting by ballot.” State v. Dillon (Fla.), 14 South. 383, 22 L. R. A. 124. In Sanner v. Patton, 155 Ill. 553, 40 N. E. 290, that, court, while holding that names written, on the official ballot should be counted by the canvassers, goes- further, and characterizes such voting as legally authorized by statute. Consonant with our opinion, based upon the statute under consideration, it was there contended, in support of the judgment appealed from, that the name of a person for whom the voter desires to cast a ballot could not be written upon the official ballot, and in reversing such judgment the following language is very properly employed: “It is also said that ample provision has been made in the act whereby candidates may be nominated, and thus be entitled to have their names placed on the ticket, and that it is the intention of the act that no vote should be cast for a person who was not nominated. If such was the intention, why did not the legislature say so, and why did it say directly the contrary? What, it may be asked, is there so sacred in the nomination of a candidate for office by a political caucus that a voter should be compelled to vote for a nominee of the caucus, or else be deprived of the elective franchise? Under section 1, art. 7, of our constitution, every male citizen of the United States above the age of twenty-one years, who has resided in the state one year, in the county ninety days, and in the election district thirty days next preceding any election, is entitled to vote at such election. To exercise this right there is one exception, and but one, so far as we have been able to find; and that is found in section 7 of the same article, which declares that the general assembly shall pass laws excluding from the rights of suffrage persons convicted of infamous crimes. Adopting the well-known maxim or rule of construction that the expression of *233one thing is to be regarded as the exclusion of another, the legislature does not possess the power to take away from a resident cit- • izen the right of suffrage unless he has been convicted of'an infamous crime. Nor can the legislature do indirectly what they cannot do directly; and yet/ if the constructipn contended for by appellee be the correct one, the voter is deprived of the constitutional right of suffrage. He is deprived of the right of exercising his own choice, and when this right is taken away there is nothing left worthy of the name of the right of suffrage; the boasted free ballot becomes a delusion.” To the same effect are the following cases: People v. Shaw (N. Y. App.), 31 N. E. 512, 16 L. R. A. 606; Bowers v. Smith ( Mo. Sup.), 17 S. W. 761. At page 587, 10 Am. & Eng. Enc. Law (2d Ed.), the author of the article on “Elections”, in discussing the different provisions of the Australian ballot system as adopted in many of the states, says; “Thus they are not unconstitutional because they provide for legal nominations and require them to be made in a certain way in order to entitle a candidate to have his name printed on the official ballot, provided the voter is allowed by writing on the ballot to vote for others than those nominated, if he sees fit. But, as the constitutions guaranty to voters the right to vote for whom they please, a law restricting the right to vote to those candidates whose names appear on the official ballot is to that extent unconstitutional.” That eminent author, Judge McCrary, who, as a member of the house of representatives, was for many years chairman of the committee of elections, thus announces the universal doctrine: “The statutes of most of the states expressly permit the voter to cast his ballot for the person of his choice for office, whether the name of the person he desires to vote for appears upon the printed ballot or not. Statutes which deny the voter this privilege are in conflict with the constitutional *234provision guarantying the right of suffrage' to every citizen possessing the requisite qualifications, and are void. Legislatures may provide for the printing of an official ballot, and prohibit the use of any other, but they cannot restrict the elector in his choice of candidates, nor prohibit him from voting for any other than those whose names appear on the official ballot.” McCrary, Elect. § 700. I am confident that the proposition will be taken for granted that the limitation of the voter to names printed on the official ballot deprives him of that secrecy and independence secured by the statute as originally adopted, and that the present amendatory system is unconstitutional in so far as it deprives him of the right to vote for the candidate of his choice.
The order sustaining the demurrer ought to be reversed.