(dissenting in part).
I dissent from the second proposition stated in the opinion.
The constitutional question is, does this system of preferential voting violate the constitutional guaranty of a right “to vote” at an election “for all officers * * * elective by the people?” Const. art. 7, § 1. The question is a new one in this state. It was not considered in Farrell v. Hicken, 125 Minn. 407, 147 N. W. 815.
This charter was drafted by a commission appointed pursuant to the provisions of the Constitution and statutes of the state, and *503was adopted by the people of Duluth. It is legislation and as legislation it is to be- enforced unless its unconstitutionality appears beyond a reasonable doubt. Curryer v. Merrill, 25 Minn. 1, 33 Am. Rep. 451; Lommen v. Minneapolis Gaslight Co. 65 Minn. 196, 208; 68 N. W. 53, 33 L.R.A. 437, 60 Am. St. 450. The membership of the commission embraced lawyers of recognized ability. This court has entertained three election contests prior to this one, all of them arising out of the first election under this charter. Farrell v. Hicken, 125 Minn. 407, 147 N. W. 815; McEwen v. Prince, 125 Minn. 417, 147 N. W. 275; Silberstein v. Prince, 127 Minn. 411, 149 N. W. 653. All were conducted with ability. In one case McEwen and Prince, and in another Silberstein and Prince, contended for the office of mayor. In both cases Prince was solemnly declared elected. None of these men had a majority or even a plurality of first choice votes. If the majority opinion in this case is right none of them had a semblance of a right to the office. They were all “fighting windmills.” In the McEwen case another candidate, Fay, with the highest number of first choice votes, .presented in the trial court the claims sustained by the majority opinion in this case. The decision was against the contention, and Fay timidly submitted and did not follow the other contestants to this court. In Farrell v. Hicken, too, this contention was presented in .the trial court. Here also if sustained its application would have been decisive against the contestee. It was not sustained in the trial court and it was abandoned by the able counsel for contestant on appeal to this court. In this case I have looked in vain through the record as made in the trial court for any suggestion that there was any constitutional question in the case. Of course no one of these facts, nor all of them together, are decisive of the constitutionality of this legislation, but this train of circumstances, of nisi prius decisions deliberately acquiesced in, and of positions deliberately taken by able lawyers, should cause this court to exercise much caution before holding that these positions all voluntarily abandoned were . safe beyond a reasonable doubt. No voter of Duluth has ever complained of restriction of his right to vote or of any advantage, real or-supposed, of any other voter. The only complaint has come from those *504who claim the right to be voted for in a particular way. This is not decisive, but it is significant. Neither is there anything decisive in the fact that if this decision is right Duluth has, all the time since this charter went into effect, lived its municipal existence under a de facto mayor, and, for part of the time at least, under de facto councilmen. Yet these conditions, generally acquiesced in for more than two years, are entitled to some thought in coming to a conclusion upon the crucial question in the case, the constitutionality of this election law.
Many reasons might be given why this legislation should not have been passed by the people of Duluth. With its wisdom we are not concerned. The only question is whether this community had the constitutional right to adopt this plan of election. The authorities elsewhere are few, but they are in favor of the constitutionality of this law.
Orpen v. Watson, (N. J. Sup.) 93 Atl. 853, is directly in point.
Adams v. Lansdon, 18 Idaho, 483, 110 Pac. 280, presented a similar situation, except that the case involved a primary election. Had the court been of the opinion that the provisions of the Con-situation of that state as to elections do not apply to primary elections, it might have disposed of the ease on that ground. It did not do so. Perhaps it entertained the same opinion as some other courts (Spier v. Baker, 120 Cal. 370, 52 Pac. 659, 41 L.R.A. 196; The People v. Election Commrs. 221 Ill. 9, 77 N. E. 321, 5 Ann. Cas. 562), that the constitutional provisions as to elections do apply to primary elections. At any rate it so treated the case. The court recited the contention made that the second choice feature was violative of the provision of the Constitution which forbids any power, civil or military, to “interfere with or prevent- the free and lawful exercise of the right of suffrage” in that it would “interfere with or prevent the free and lawful exercise of the right of such voter.” And it holds that the enactment of the second choice feature was “a reasonable exercise of the power of the legislature” to make regulations in regard to the conduct of elections and the exercise of the right of suffrage, and that it did not unreasonably interfere with the freedom of the elector in exercising that right.
*505State v. Nichols, 50 Wash. 508, 527, 528, 97 Pac. 728, 733, also involved a primary election. In one part of the opinion it is said that the constitutional provision as to qualification of voters does not apply to primary elections, but in discussing the second choice provisions of the statute no such distinction is drawn. The court, pages 527, 528, says:
“The principal argument against the second choice provision is that it interferes with the freedom of election guaranteed by the Constitution and compels the elector to vote for a person other than the candidate of his choice. This contention is untenable. The elector has the utmost freedom of choice in casting his first choice ballot, though his choice will not avail him unless at least forty per centum of his party agree with him. It was entirely competent for the legislature to provide that a candidate receiving less than forty per centum of his party vote should not be deemed its nominee, and with such a provision in the law it was incumbent on the legislature to provide some other method of nomination whenever a candidate failed to receive the required vote at the primary.”
Statutory provisions giving voters the option to cumulate their votes upon less than the whole number of candidates to be elected have been held valid under constitutional provisions similar to our own. People v. Nelson, 133 Ill. 565, 596, 27 N. E. 217. This case distinguishes cases like State v. Constantine, 42 Oh. St. 437, 51 Am. Rep. 833, decided under a statute denying the right to vote for as many candidates as there- are persons to be elected. The Illinois Constitution permits cumulative voting for legislative officers, but there is not in the Constitution of Illinois any provision authorizing cumulative voting in elections of the kind considered in the case cited. The Pennsylvania court sustained a statute limiting the right to vote for six candidates where seven were to be elected, and declined to follow State v. Constantine. The same question was raised under a statute in New York. In one case it was said, the question is “a very grave and interesting one.” People v. Kenney, 96 N. Y. 294, and in another case it was said to be a question “about which there is room for difference and debate.” People v. Crissey, 91 N. Y. 616. We need not go so far as the Illinois and Pennsyl*506vania courts have gone. For purposes of this case it may be conceded that no voter can give more than one vote for any candidate. The legislation before us does not do this.
The guaranty of the Constitution of this state that every male person a citizen of the United States “shall be entitled to vote” at an election “for all officers * * * elective by the people,” had at the time of its adoption only one meaning. At the time the Constitution was adopted there was restricted suffrage in many states. In some there were racial disqualifications, and in others property and educational qualifications. My opinion is that the framers had in mind only the matter of defining what persons should be entitled to vote. The debaters in both constitutional conventions make this clear. They intended to guarantee to the persons named in the Constitution the right to vote, and the same right, to vote as every other elector. Methods of voting never entered their minds, and ¡¡'they never supposed they were prohibiting any method of election which did not deny equality of right among voters. The provision should be so construed as to give effect to their purpose. Whatever Duluth charter does do, it does not-infringe on the right to vote. Every citizen has the same right as every other citizen. The thought running through all the decisions is that the right to vote is a political privilege which the legislature may regulate to any extent not prohibited by the state or Federal Constitution. “Whether such regulation be reasonable or unreasonable is for the determination of the Legislature, and not for the courts, so long as such regulation does not become destruction.” Common Council v. Rush, 82 Mich. 532, 46 N. W. 951, 10 L.R.A. 171. As said by Elkin, J., in Winston v. Moore, 244 Pa. St. 447:
“In a general way it may be said that elections are free and equal within the meaning of the Constitution when they are public and open to all qualified electors alike; when every voter has the same right as any other voter; when each voter under the law has the right to cast his ballot and have it honestly counted; when the regulation of the right to exercise the franchise does not deny the franchise itself, or make it so difficult as to amount to a denial; and when no constitutional right of the qualified elector is subverted or denied. him.”
*507Under our system of government, where every voter has a right to run for office, and where the number of candidates is often large, it is not practicable or wise to settle the right to office by a single ballot of first choice votes and to give a certificate of election to the candidate receiving the highest number of first choice votes. Even the highest may sometimes receive but a small fraction of the total vote. The common method of elimination is now by means of a primary election. The people of Duluth proposed to dispense with the machinery of an extra primary election and to accomplish the same result by permitting an expression of second and additional choice votes all at once. Without r'egard to the merits of their plan, it appears to me that the plan was within their constitutional power to adopt. No voter has a constitutional right to say that his candidate shall be declared elected without a majority of first choice votes, and, if such candidate receives less, the voter who supports him has no constitutional right to say that the election shall be void and no further expression of the electorate shall be received. In my opinion the voters of Duluth did not, by the adoption of their charter, infringe upon their “own” right “to vote.”
On August 27, 1915, the following opinion was filed:
Per Curiam.
The contestee petitions for a rehearing. The city of Duluth, though not a party, asks for a rehearing, to the end, we take it, that it may appear as a friend of the court and file a brief or make an argument if a rehearing is granted. We treat its petition as one proper to be considered.
It is not suggested that there has been a failure to bring any fact to the attention of the court; nor that there are other pertinent authorities which might be cited; nor that arguments which might have been made were omitted; nor that anything new hearing upon the case is at hand. Indeed, the claim is that the court went wrong upon a plain proposition involving no difficulty; or, to put it in the language of one of the petitions, “If one will put the proposition up to good lawyers, * * * who have examined into the question, *508five out of six will say that the statute does not violate the Constitution.” With the viewpoint of the petitioners in mind, we have reexamined the one question here important, viz., the constitutionality of the preferential system of voting used in the election of the municipal judge.
In reaching our decision we proceeded studiously and with deliberation, and conformably to the settled policy of this court in favor of a liberal construction of the Constitution. It is serious to declare a piece of legislation unconstitutional. It is a matter for deliberate consideration when it is seriously asserted that a piece of legislation impairs the constitutional right of suffrage of a citizen. We reached the conclusion that a system of voting, giving the voter the right to vote for the candidate of his first choice, and against the first choice of another voter, and, in addition, by a manipulation of second and additional choice votes, vote for different candidates all against the first choice of such other voter to a number of times limited only by the number of candidates, was contrary to the intent of the Constitution; and that it was none the less so because such other voter was permitted to engage in a like manipulation of second and additional choice votes. Our further examination confirms us in our view. The decision is sound; and we do right in upholding the right of the citizen to cast a vote for the candidate of his choice unimpaired by second or additional choice votes cast by other voters.
Since nothing has been overlooked and there is nothing new to be presented and upon a re-examination we are confident of the correctness of our decision, a rehearing should not be granted. We respect the opinions of others, those who framed the charter and those who have thought upon it, but our own judgment, reached after much labor and deliberation, and with the aid of the arguments of able counsel, must determine the decision as in other cases; and the fact, evident when the opinion was written, and made prominently plain in both petitions, that the decision is unpopular, had no consideration when the decision was reached and receives none upon the petitions for a rehearing.
Perhaps all has been said that need be; but it is claimed that con*509fusion has come because of the decision, and, if so, we should help in its elimination so far as we properly can; and it is proper enough to remark upon some of the grounds urged for a rehearing for they are properly before us.
The petition says:
“Necessarily untold litigation will arise over salaries of officers, title to office, and the effect of official acts. Claims are already made by different parties for the same salary and the city knows not who] to make payment to. As to the status, of the city government, and the powers and rights of its officials opinions among lawyers even are almost as divergent as the number' of lawyers at the bar. The credit of the city is liable to be seriously affected by this decision. * * * The result is that bankers are already expressing the fear that the obligations of the city created since the adoption of the present charter are invalid.”
It is further suggested that certificates of indebtedness issued by the city and assessments for public improvements will be affected. It is suggested that one or more commissioners, holding under the 1913 election, are without title under the late decision; that the acts of the commissioners may be held invalid; that the right to hold office may still be involved in judicial investigation; and that the city may be involved in litigation for salaries of officers claiming to have been elected though they never entered office.
We assume that these suggestions are seriously made. They are easily answered. The decision does not invite, nor require, nor permit, the city to disavow its obligations. The credit of the city is not affected. The time for contest of the results of the 1913 election has gone. It is hard to imagine a case where a court would give one searching office a remedy by quo warranto. The acts of the commissioners holding and exercising office are valid. Public improvements or assessments for them are in no wise affected. The government of the city is not gone. Its commission form of government is still with it. No calamity has befallen the city. The commissioners holding office under the 1913 election are just as truly commissioners as if they had been elected under another system of voting. There is no reason for confusion. There may be litigation. *510Anyone may commence a lawsuit. But all these grounds suggested in support of the petitions for a rehearing are without merit and tend only to suggest a fanciful basis for fruitless litigation.
Complaint is made that the opinion fails to advise the city of the various complications which may arise in the future. We do not see them. We do not know that there will be any or why there should' be. The only question brought to us was whether the eontestee was elected municipal judge and it arose upon a contest instituted by an elector and not by a candidate for the office. We can decide no questions not involved in the broad question stated. The appeal was from the judgment adjudging the eontestee elected. The judgment was reversed. The law fixes the effect of a reversal.
Petitions for rehearing denied.