At the general municipal election held in Duluth on the first Tuesday of April, 1915, the contestee, W. H. Smallwood, was a candidate for the office of municipal judge, and was declared elected by the city council. The contestant, John Brown, Jr., is an elector of Duluth, entitled to contest the election. On the hearing of the contest there were findings and judgment for the contestee. The contestant appeals from the judgment.
There are two questions:
(1) Whether the preferential system of voting provided by the , Duluth charter applies to elections of the municipal judge.
(2) Whether the preferential system provided by the Duluth char-' ter is constitutional.
1. It is contended that the municipal judge is a state officer and that for this reason the legislature did not intend his election by the preferential system. It is conceded that the municipal judge is a *494state officer in certain senses of the term. State v. Fleming, 112 Minn. 136, 127 N. W. 473. In the case cited it was so held where there was an attempt to legislate an incumbent, a municipal judge under the general laws, out of office upon a change to a home rule charter. The municipal court is a state court within the meaning of Const. art. 6, § 1, providing that all inferior courts shall be established by the legislature by a two-thirds vote. The state does not pay the municipal judge. He is paid by the city of Duluth. The city furnishes him quarters. He is elected by the electors of the city. Const. art. 6, § 9. His jurisdiction is limited.
The Duluth Home Rule Charter of 1912 undertook to provide an assistant judge and a branch of the court in the territory- known as West Duluth. The municipal court act was a special act. Sp. Laws 1891, p. 595, c. 53. It provided for a municipal judge and a special judge. The home rule charter of 1900 took no notice of the municipal court.
There was a well-founded doubt as to the constitutionality of the charter of 1912, insofar as it attempted to provide a branch court and create the office of assistant judge, or otherwise legislate as to the municipal court. By chapter 102, p. 107, Laws of 1913, approved March 24, 1913, which amended the original municipal court act of 1891, provision was made for a municipal judge, a special municipal judge, and an assistant municipal judge, with a branch of the court at West Duluth. It was provided that at the general municipal election, on the first Tuesday in April, 1913, there should be elected a successor to the then special judge, and at the same time an assistant municipal judge, both of whom should hold office for four years. It was provided that the municipal judge should be elected at the general election on the first Tuesday in April, 1915.
The act of 1913, for one thing, intended to put the constitutionality of the municipal court, and the provision for a branch court -and a new judge, beyond doubt. It intended, further, to do away with annual elections, and make the election of the judges biennal to correspond with the biennial election system of the city. It was enacted March 24, 1913, and the general municipal election, to which it *495referred, was on tbe first Tuesday in April following. We take judicial notice that in April, 1913, a special judge and an assistant municipal judge were elected under tbe preferential system; and tbe legislature, wben it enacted tbe act of March 24, 1913, providing for tbeir election, knew of tbe general municipal election to be beld in tbe following April under tbe preferential system, and knew that there was no law, except that provided by tbe charter, under which an election could be bad. There was no time for a primary under tbe general law prior to tbe election and no method of putting candidates before tbe people, except by tbe preferential system which tbe city bad provided.
We are of tbe opinion that it was tbe intention of tbe legislature that, commencing with 1913, tbe three judges for whom provision was then made should be elected at the general municipal election of Duluth, in tbe manner provided for elections by the charter. Tbe election was a local one, of no particular concern to tbe rest of tbe state, and there was no reason why it should not be conducted by tbe local machinery. There was every reason why it should intend to avoid annual elections, or a primary for tbe judges alone, and afterwards an election either by a separate ballot or by a ballot combined with tbe preferential ballot. Tbe fact that tbe election was of a judge is, in itself, of no significance. If tbe preferential system of voting was constitutional, there is no reason why it should not be applied to tbe judges. There is nothing peculiarly sacred about tbe method of tbeir election and by chapter 102 tbe legislature manifested no intent that a different method of election should be accorded them. If a preferential election was good for commissioners, it was not necessarily bad for judges. We think tbe court was right in bolding that tbe preferential system was intended; and if constitutional tbe apparent result of tbe election is right.
In speaking of the effect of Laws 1913, p. 107, c. 102, we have not overlooked article 6, § 1, of the Constitution, requiring that all inferior courts must be established' by a two-thirds vote, nor have we neglected to notice that chapter 102 was not enacted by such a vote. All objection to tbe lack of such vote is answered by Dablsten v. Anderson, 99 Minn. 340, 109 N. W. 697.
*4962. The next question is whether the preferential system of voting, which provision is made in the Duluth charter, is constitutional. The general scheme of the preferential system is this:
All candidates go upon the official ballot by petition. The ballot provides for first choice, second choice and additional choice, votes. If the result of the first choice is a majority for a candidate, he is elected. If a count of the first choice votes brings no majority, the second choice votes are added to the first choice votes, and if a candidate then has a majority of the first and second choice votes, he is elected. If there is not a majority, the first and second choice votes are added to the additional choice votes, and the candidate having a plurality is elected. Each voter may vote as many additional choice votes as he chooses, less the first and second choice votes; that is, he may vote as many additional choice votes as there are candidates, less two. In this case, there were four candidates, each voter had two additional votes, or a total of four votes. No voter can vote more than one vote for any one candidate. He is not required to vote a second choice or additional choices, The following is the official ballot used at the election:
MUNICIPAL BALLOT.
General Municipal Election, City of Duluth, April 6th, 1915.
Instructions.
To vote for any person mark a (x) in the square in the appropriate column according to your choice at the right of the name voted for.
Vote your first choice in the first column.
Vote your second choice in the second column.
Vote for all other candidates which yoii wish, to support in the third column.
Vote 2 first choices for Commissioners or ballot will be void as to Commissioners.
Don’t vote more than one choice for any candidate as only one choice will count for any candidate.
Any distinguishing mark makes the ballot void.
If you wrongly mark, tear or deface this ballot return it and obtain another from the election officers.
*497
The following tabulation shows the result of the election of municipal judge.
There was no majority of first choice votes. There was no majority of first and second choice votes. There was of course a plurality of first choice, second choice, and additional choice, votes.
The Constitution provides as follows:
“Every male person of the age of twenty-one years or upwards * * * shall be entitled to vote at such election * * * for all officers that now are or hereafter may be, elective by the people.” Const. art. 7, § 1.
*498There is this further provision:
“All elections shall be by ballot, except for such town officers as may be directed by law to be otherwise chosen.” Const, art. 7, § 6.
When the Constitution was framed, and as used in it, the word “vote” meant a choice for a candidate by one constitutionally qualified to exercise a choice. Since then it has meant nothing else. It was never meant that the ballot of one elector, cast for one candidate, could be of greater or less effect than the ballot of another elector cast for another candidate. It was to be of the same effect. It was never thought that with four candidates one elector could vote for the candidate of his choice, and another elector could vote for three candidates against him. The preferential system directly diminishes the right of an elector to give an effective vote for the candidate of his choice. If he votes for him once, his power to help him is exhausted. If he votes for other candidates he may harm his choice, but cannot help him. Another elector may vote for three candidates opposed to him. The mathematical possibilities of the application of the system to different situations are infinite.
Naturally enough we have little direct authority upon the constitutionality of this method of voting. In some states cumulative or restrictive voting is allowed by the Constitution. When the voting is cumulative, and there are sufficient candidates, the voter votes for as many candidates as there are offices to be filled, or votes all his votes for one candidate, or otherwise distributes them. Under the restrictive system he is permitted to vote for only a portion of the candidates to be elected, for instance, for two when there are four offices to be filled. Cases under these systems are of some present value. In Illinois the Constitution provides for cumulative voting. Const. art. 4, § 7. This is a right which the legislature may not interfere with under the Illinois Constitution, and the voter has the constitutional right to cumulate his votes. Rouse v. Thompson, 228 Ill. 522, 81 N. E. 1109; People v. Deneen, 247 Ill. 289, 93 N. E. 437. Attempts have been made to provide for cumulative voting by legislation without direct constitutional authority. An account of one such attempt is given in Maynard v. Board of Canvassers, 84 Mich. 228, 47 N. W. 756, 11 L.R.A. 332. It was held unconstitutional. The court said:
*499“The Constitution is the outgrowth of a desire of the people for a representative form of government. The foundation of such a system of government is, and always has been, unless the people have otherwise signified by their constitution, that every elector entitled to cast his ballot stands upon a complete political equality with every other elector, and that the majority or plurality of votes cast for any person or measure must prevail. * * * It is the constitutional right of every elector, in voting for any person to represent him in the legislature, to express his will by his ballot; and such vote shall be of as much influence or weight in the result, as to any candidate voted for, as the ballot and vote of any other elector. The Constitution does not contemplate, but by implication forbids, any elector to cast more than one vote for any candidate for any office. The prohibition is implied from the system of representative government provided for in that instrument. * * * Giving to the language of the Constitution its ordinary signification, it declares the principle that each elector is entitled to express his choice for Representative, as well as all other officers, which is by his vote, and the manner of expressing such choice is by ballot. When he has expressed his preference in this manner, he has exhausted his privilege; and it is not in the power of the legislature to give to his preference or choice, without conflicting with these provisions of the Constitution, more than a single expression of opinion or choice. * * *”
In State v. Thompson, 21 N. D. 443, 131 N. W. 239, there was involved the cumulative voting for commissioners under a commission form of city government. There was language in the statute easily susceptible of the construction that cumulative voting was intended. The court, with effort, held that the statute did not contemplate cumulative voting. Mr. Justice Fisk dissented, holding that cumulative voting was intended, and that the statute was unconstitutional, adopting the views of the Maynard case, supra. Mr. Justice Spalding, while concurring in the opinion, held that, if the statute provided for cumulative voting, it was unconstitutional. In the course of his opinion he said:
“Our system of government is. based upon the doctrine that the *500majority rules. This does not mean a majority of marks, but a majority of persons possessing the necessary qualifications, and the number of such persons is ascertained by the means of an election.”
In the case at bar it may be noted that the number of persons who voted were 12,313, and the number of cross marks considered on the plurality election were 18,860. It was not a voting of man against man.
In State v. Constantine, 42 Ch. St. 437, 51 Am. Rep. 833, the statute under consideration authorized the election of four members of the police board, but denied to an elector the right to vote for more than two members. This was held unconstitutional. The court said:
“No such thing as ‘minority representation’ or ‘cumulative voting’ was known in the policy of this state at the time of the adoption of this Constitution in 1851. The right of each elector to vote for a candidate for each office to be filled at an election had never been doubted. No effort was made by the framers of the Constitution to modify this right, and we think it was intended to continue and guarantee such right by the provision that each elector ‘shall be entitled to vote at all elections.’ ”
In Opinion to the House of Representatives, 21 R. I. 579, 41 Atl. 1009, a like opinion was given by the justices. The same holding was made in McArdle v. Jersey City, 66 N. J. Law, 590, 49 Atl. 1013, 88 Am. St. 496, and Bowden v. Bedell, 68 N. J. Law, 451, 53 Atl. 198.
Attention is called to some cases involving primary elections where departures from what seemed to be mandates of the Constitution have been upheld. Usually it will be found that the courts upheld them upon the ground that primary elections are not elections within the Constitution. This is likely true of Adams v. Lansdon, 18 Idaho, 483, 110 Pac. 280; and is certainly true of State v. Nichols, 50 Wash. 508, 97 Pac. 728; upon which the Idaho case seems to rest. In referring to these two and other cases, the supreme court of Tennessee, in Ledgerwood v. Pitts, 122 Tenn. 570, 595, 125 S. W. 1036, said that the decisions in such cases were rested upon the prop*501osltion “that such primaries are not in reality elections, but merely nominating devices.”
Our own court has made a distinction between provisions which might not be fatal in primary statutes, which would be fatal in election statutes. In State v. Johnson, 87 Minn. 221, 91 N. W. 604, 840, Mr. Justice Lewis, in referring to a primary election, said:
“If the election of candidates to the position of nominees is an election within the meaning of article 1 of the Constitution, then the primary law, as above construed, is unconstitutional. It would, in certain cases, deprive the voter of his privilege to exercise the elective franchise.”
And in State v. Erickson, 119 Minn. 152, 137 N. W. 385, Chief Justice Start said that “statutory regulations applicable only to a primary election, which might be repugnant to the Constitution if extended to elections, are not necessarily invalid.”
The quotations made from the different cases are not chance expressions. They are indicative of the idea, which permeates all legal thought, that when a voter votes for the candidate of his choice, his vote must be counted one, and it cannot be defeated or its effect lessened, except by the vote of another elector voting for one. A qualified voter has the constitutional right to record one vote for the candidate of his choice, and have it counted one. This right is not infringed by giving the same right to another qualified voter opposed to him. It is infringed if such other voter is permitted to vote for three opposing candidates.
We know of but two cases involving the preferential system. One is State v. Portland, 65 Ore. 273, 133 Pac. 62. The Constitution of Oregon distinctly authorizes such system and it is of course valid. The other is Orpen v. Watson (N. J.) 93 Atl. 853. The court there reached a conclusion directly opposed to our views. We have given it full consideration. It does not accord with our views, and we do not follow it.
Men of serious purpose have given thought to the preferential and other systems of voting, and are of the opinion that the prevailing system of voting by ballot is not effective. Some of the various systems are referred to in the Maynard ease, supra, McCrary, *502Elections, note pp. 158-162; Sixty-third Cong. Sen. Doc. 142, 359; and the libraries are replete with contemporaneous literature treating of the subject. We have no quarrel with them. Our concern is with the constitutionality of the act before us and not with the goodness of other systems or with defects in our own.
We are making no narrow construction of the Constitution. In Elwell v. Comstock, 99 Minn. 261, 109 N. W. 113, 698, 7 L.R.A. (N.S.) 621, 9 Ann. Cas. 270, the constitutionality of a statute authorizing voting by machine instead of by ballot was upheld. Mr. Justice Brown, the present Chief Justice, said:
“Constitutions are not made for existing conditions only, nor in the view that the state of society will not advance or improve, but for future emergencies and conditions, and their terms and provisions are constantly expanded and enlarged by construction to meet the advancing and improving affairs of men.”
There the purpose was to use a machine which answered all the purposes of the Constitution — secrecy and a correct count. It was another method of reaching a correct result. Here the purpose is to adopt a different plan of voting, necessarily affecting what we think to be the clearly granted constitutional rights of the citizen. If the preferential system is adopted, it must be after a eonstituitional sanction by the people.
It is fair to say that the question of the constitutionality of the preferential vote was not suggested to the trial judges; and their attention was asked only to the point first made.
Judgment reversed.