The opinion of the Court was delivered by
Williams, J.
At the freemen’s meeting which was held in Rutland, in September, A. D. 1830, the plaintiff offered to the defendant, who was first constable of the town, and presiding officer of said meeting, his vote, on which were legibly printed the [539]*539names of the persons he intended to vote for, as Governor, Lieut. Governor, Treasurer and Councillors, designating the offices intended for the several persons named. The defendant refused to receive said vote because the names of the candidates were printed. The plaintiff complains of this as an injury, for which the defendant is liable to make reparation, and brings this suit to ascertain whether the defendant was justified in refusing to receive his vote on that account. The case requires us to decide whether, under our constitution, printed votes can be received for the several officers who are to be chosen by the freemen at the annual election.
The words of the constitution are, “ The freemen of each town shall, on the day ofthe election for choosing representatives to attend the General Assembly, bring in their votes for Governor, with his name fairly written,” Sec. It then provides that the votes shall be sealed up and transmitted to the General Assembly, to be there counted. The same provision is made.in relation to the votes for Lieut. Governor, Treasurer and Councillors, except that it is not required that the votes for Councillors shall be returned. The statute passed in 1815 requires that the votes of each freeman for the several officers aforesaid, shall be on one ticket or piece of paper, and that the presiding officer, together with the select-men,justices ofthe peace and town clerk,in the presence of the meeting, shall cut apart the votes given lor Governor, Lieut. Governor, Treasurer, and Councillors, and enclose,certify, and seal them up separately, and transmit them as required by the constitution. If we were at liberty to consult the convenience of the voters alone, there is no doubt it would be greatly promoted by permitting the use of printed votes. From the terms, “fairly written” it has been supposed by some, that no other vote could be received, except those where the name of the person voted for was written with pen and ink. And if our decision is to be governed by the practice which probably prevailed at the time the constitution was adopted, and we are to suppose that the framers of that instrument meant to adopt that term as it was then understood in its ordinary acceptation, and intended to exclude every other species of writing, then indeed we must come to the conclusion that all votes must have the name of the person voted for written with pen and ink, and exclude every other species of writing, even that which is now so commonly used, writing with a pencil.
.But I apprehend, in giving a construction to a constitution [540]*540which was to secure the rights and liberties of the citizens, and which was intended to present a frame of government and a mode of election for future generations, as well as for the one then on the stage, we are to regard its spirit, and endeavour to give effect to its provisions, without regarding too strictly the literal meaning of the terms made use of.
In deciding upon written contracts, we are frequently under the necessity of interpreting the language used, by recourse to certain technical'rules of construction, wholly different from what the parties intended. But if, in interpreting the language of a constitution, a strict adherence to technical rules, or adopting terms made use of in their literal or strictly legal sense, would occasion a manifest departure from its spirit and intent, we may then resort to other rules of interpretation, in order to carry its provisions into effect.
In construing the clause of the constitution now under consideration, we ought not so to consider it as to lay the freemen under any unnecessary restraint or embarrassment in the expression of their opinion as to the most suitable person to fill the several public offices for which they may vote. We ought not to believe that it was intended that voting for those officers should always continue in the same particular manner, or that the votes should be of the same materials, or in the same way which was then in use, without any regard to the changes which might take place, or the improvements which might be made. This limited view of the constitution would wholly destroy the statute passed in 1815, under which all our elections are now made. On the other hand, we must not open a door which would lead to anarchy, nor should we give facilities to any measures which would tend to bribery and corruption, or essentially impair the purity of the elective franchise, and which the makers of the constitution would, have guarded against, had it been foreseen.
Keeping in view these principles we may inquire what was intended by the article of the constitution under which this question has arisen ; whethei^it was meant to exclude printed votes, or whether we can infer from any other part that they would have been excluded if the term made use of did not sufficiently express this meaning. I apprehend that all which was intended in this article, was to secure to the freemen the privilege of voting for the several state officers therein named by ballot, as that term is usually and generally understood in this country ; and that while this privilege is secured, the form of the vote or ballot, or the man-[541]*541tier in which the name of the person intended for the office is im-pressedjthereon, is wholly immaterial, if it is fairly and intelligibly expressed, and the manner does not expose the person voting to any improper influence, or those who are to receive and count the vote, to any unnecessary inconvenience or trouble. In different parts of the constitution, and also in the various laws which have been passed to carry the same into, effect, as well as in the practice thereon, it will be found that the terms vote, suffrage, and ballot, have been used as expressing the same meaning. Thus in the 8th section of the constitution, the members of the House of Representatives are to be chosen by ballot. In the election of the Governor, &c., the people are to “ bring in their votes,” and if there is no election by the people, the “ Council and General Assembly, by their joint ballot, are to elect,” &cc. The oath prescribed to the freemen, 21st section, is, “ whenever you give your vote or suffrage.''' Sometimes the term vote is made use of to signify the opinion of the individual, as.-expressed by ballot •, sometimes as exptessed viva voce, and sometimes for the collective opinion of a body of men. Thus in section 14tb, “The votes of the General Assembly shall be printed,” &,c., “ with the yeas and nays, except when the vote shall be taken by ballot, and every member shall have a right to insert the reasons of his vote upon the minutes,” &c. The members of the General Assembly are sworn that “ they will not assent to any bill, vote or resolution,” &c. These are examples of the use of the terms in all their different significations. In relation to them it will be seen that we cannot give any technical definition of, or meaning to, any particular word used in the constitution, and adhere to the same meaning wherever the same word occurs.
In this country, and indeed in every country where offices are-elective, different modes have been adopted for the electors to signify their choice.
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The opinion of the Court was delivered by
Williams, J.
At the freemen’s meeting which was held in Rutland, in September, A. D. 1830, the plaintiff offered to the defendant, who was first constable of the town, and presiding officer of said meeting, his vote, on which were legibly printed the [539]*539names of the persons he intended to vote for, as Governor, Lieut. Governor, Treasurer and Councillors, designating the offices intended for the several persons named. The defendant refused to receive said vote because the names of the candidates were printed. The plaintiff complains of this as an injury, for which the defendant is liable to make reparation, and brings this suit to ascertain whether the defendant was justified in refusing to receive his vote on that account. The case requires us to decide whether, under our constitution, printed votes can be received for the several officers who are to be chosen by the freemen at the annual election.
The words of the constitution are, “ The freemen of each town shall, on the day ofthe election for choosing representatives to attend the General Assembly, bring in their votes for Governor, with his name fairly written,” Sec. It then provides that the votes shall be sealed up and transmitted to the General Assembly, to be there counted. The same provision is made.in relation to the votes for Lieut. Governor, Treasurer and Councillors, except that it is not required that the votes for Councillors shall be returned. The statute passed in 1815 requires that the votes of each freeman for the several officers aforesaid, shall be on one ticket or piece of paper, and that the presiding officer, together with the select-men,justices ofthe peace and town clerk,in the presence of the meeting, shall cut apart the votes given lor Governor, Lieut. Governor, Treasurer, and Councillors, and enclose,certify, and seal them up separately, and transmit them as required by the constitution. If we were at liberty to consult the convenience of the voters alone, there is no doubt it would be greatly promoted by permitting the use of printed votes. From the terms, “fairly written” it has been supposed by some, that no other vote could be received, except those where the name of the person voted for was written with pen and ink. And if our decision is to be governed by the practice which probably prevailed at the time the constitution was adopted, and we are to suppose that the framers of that instrument meant to adopt that term as it was then understood in its ordinary acceptation, and intended to exclude every other species of writing, then indeed we must come to the conclusion that all votes must have the name of the person voted for written with pen and ink, and exclude every other species of writing, even that which is now so commonly used, writing with a pencil.
.But I apprehend, in giving a construction to a constitution [540]*540which was to secure the rights and liberties of the citizens, and which was intended to present a frame of government and a mode of election for future generations, as well as for the one then on the stage, we are to regard its spirit, and endeavour to give effect to its provisions, without regarding too strictly the literal meaning of the terms made use of.
In deciding upon written contracts, we are frequently under the necessity of interpreting the language used, by recourse to certain technical'rules of construction, wholly different from what the parties intended. But if, in interpreting the language of a constitution, a strict adherence to technical rules, or adopting terms made use of in their literal or strictly legal sense, would occasion a manifest departure from its spirit and intent, we may then resort to other rules of interpretation, in order to carry its provisions into effect.
In construing the clause of the constitution now under consideration, we ought not so to consider it as to lay the freemen under any unnecessary restraint or embarrassment in the expression of their opinion as to the most suitable person to fill the several public offices for which they may vote. We ought not to believe that it was intended that voting for those officers should always continue in the same particular manner, or that the votes should be of the same materials, or in the same way which was then in use, without any regard to the changes which might take place, or the improvements which might be made. This limited view of the constitution would wholly destroy the statute passed in 1815, under which all our elections are now made. On the other hand, we must not open a door which would lead to anarchy, nor should we give facilities to any measures which would tend to bribery and corruption, or essentially impair the purity of the elective franchise, and which the makers of the constitution would, have guarded against, had it been foreseen.
Keeping in view these principles we may inquire what was intended by the article of the constitution under which this question has arisen ; whethei^it was meant to exclude printed votes, or whether we can infer from any other part that they would have been excluded if the term made use of did not sufficiently express this meaning. I apprehend that all which was intended in this article, was to secure to the freemen the privilege of voting for the several state officers therein named by ballot, as that term is usually and generally understood in this country ; and that while this privilege is secured, the form of the vote or ballot, or the man-[541]*541tier in which the name of the person intended for the office is im-pressedjthereon, is wholly immaterial, if it is fairly and intelligibly expressed, and the manner does not expose the person voting to any improper influence, or those who are to receive and count the vote, to any unnecessary inconvenience or trouble. In different parts of the constitution, and also in the various laws which have been passed to carry the same into, effect, as well as in the practice thereon, it will be found that the terms vote, suffrage, and ballot, have been used as expressing the same meaning. Thus in the 8th section of the constitution, the members of the House of Representatives are to be chosen by ballot. In the election of the Governor, &c., the people are to “ bring in their votes,” and if there is no election by the people, the “ Council and General Assembly, by their joint ballot, are to elect,” &cc. The oath prescribed to the freemen, 21st section, is, “ whenever you give your vote or suffrage.''' Sometimes the term vote is made use of to signify the opinion of the individual, as.-expressed by ballot •, sometimes as exptessed viva voce, and sometimes for the collective opinion of a body of men. Thus in section 14tb, “The votes of the General Assembly shall be printed,” &,c., “ with the yeas and nays, except when the vote shall be taken by ballot, and every member shall have a right to insert the reasons of his vote upon the minutes,” &c. The members of the General Assembly are sworn that “ they will not assent to any bill, vote or resolution,” &c. These are examples of the use of the terms in all their different significations. In relation to them it will be seen that we cannot give any technical definition of, or meaning to, any particular word used in the constitution, and adhere to the same meaning wherever the same word occurs.
In this country, and indeed in every country where offices are-elective, different modes have been adopted for the electors to signify their choice. The most common modes have been, either by voting viva voce, that is, by the elector openly naming the person he designates for the office, or by ballot, which is depositing in a box provided for that purpose, a paper on which is the name of the person he intends for the office. The principal object of this last mode, is to enable the elector to express his opinion secretly, without being subject to be overawed, or to any ill will or persecution on account of his vote for either of the candidates who may be before the public. The method of voting by tablets, in Rome, was an example of this manner of voting. There-certain officers appointed for that purpose, called, Diribitores, de~ [542]*542livered to every voter as many tablets as there were candidates, one of whose names was written upon every tablet. The vo. ter put into a chest prepared for that purpose which of these tablets he pleased, and they were afterwards taken out and counted. Cicero defines tablets to be little billets, in which the people brought their suffrages.
The clause in the constitution directing the election of the several state officers, was undoubtedly intended to provide that the election should be made by this mode of voting, to (he exclusion of any other. In this mode the freemen can individually express their choice in an easy and convenient manner, without being under the necessity of publicly declaring the object of their choice; their collective voice can be easily ascertained, and the evidence of it transmitted to the place where their votes are to be counted, and the result declared with as little inconvenience as possible.
If this can be effected as readily by the use of printed votes as by any other, and if no rights or privileges of either the freemen, or those who may be candidates for their suffrages, will be thereby infringed, most assuredly those voles ought to be received, if any freeman elects that method of expressing his opinion. And no one can confine a freeman to any particular way of voting by ballot, unless that way is unequivocally declared to be the only one by the law or by the constitution.
The adoption of printed votes is certainly an easy and convenient mode for the people to express their choice, and in one respect is preferable to any other. It will be less liable to mistakes arising from bad writing, misspelling, the omission of initial letters, or additions, to distinguish persons of the same name. It presents no greater facilities to ascertain what ballot the freeman puts into the box, for he may vote as secretly by a printed ballot as by any other. The aggregate can be as readily ascertained, and the votes transmitted to the General Assembly to be counted with no greater inconvenience. We are therefore disposed to say that votes on which the names of the persons voted for are printed, may as well be received as if they were written, according to the spirit and intent of the constitution. '
Nor do we find any thing in the letter of that instrument which requires us to say that the votes should be written as the defendant contends. The definition of the word writing includes printing; it means no more than conveying our ideas to others by letters or characters visible to the eye. It is so used bv all writers [543]*543and generally comprehends printing, engraving, &c. in opposition to the mode of conveying them viva voce.
In all legal writers, and in the statutes which have been enacted in this state and elsewhere, the expression-is made use of in the same general and comprehensive sense.
Several instances of this were mentioned in the argument. A deed is defined to be a writing, signed, &c.; yet it is always said that it may be printed. The statute • says, “ no action shall be maintained on any agreement for the sale of lands,” fee., unless the agreement, &c., be in writing, and signed by the parties. Other contracts, to be legally binding, are required to be in writing.
It would not be contended that, by these statutes, an agreement wholly in print, signed by the parties, would be ineffeeutal. Writs are defined to be precepts in .writing, yet it is notorious that they are printed. In some states, not only the writs, but the names of the clerks or prothonotaries, from whose office they issue, are printed. The instances are numerous in which printing is considered essentially the same as writing.
This same question has lately been agitated in the state of .Massachusetts, in a case between Hensbaw, plaintiff, and Foster and others, defendants, under a constitution where the expression is similar to ours. Chief Justice Parker, in .a very able and elaborate opinion, shows most clearly that the use of printed votes is not contrary to the letter or spirit.of the constitution, but is in strict conformity to both : and he was sustained by the decision of the other members of the Court.
It has been said that the decision oí the Supreme Court of the state of Maine is to the same eflect.
This case was argued at the last term of this Court. The Court had it under consideration. Judge Thompson, who took the papers, and whose sickness and death prevented his giving the opinion of the Court, concurred in the'result to which we have arrived at this time ; and I am authorised by the Chief Justice who heard the argument at the last term, but who is not present at this time, to say, that his opinion was with the plaintiff on this point, that a vote on which the name of the person voted for, is printed, is in conformity with the constitution.
The opinion of the Court on this part of the case is, that the plaintiff had a right to vole for the persons for the several offices of Governor, Lieut. Governor, Treasurer and Councillors, by a vote on which the names of the persons voted for, for those offices respectively, was printed, designating the offices intended for [544]*544the persons voted for; that his vote which was offered ought to have been received and put into the ballot-box ; and that the defendant, as presiding officer of the freemen’s meeting, erred in not receiving the vote which was offered, on account of the names being printed thereon.
Qrmshee, for plaintiff.
ftoyce & Hodges, for defendant,
This, by the agreement of the parties, entitles the plaintiff to a judgement, or to an affirmance of the judgement of the county court.
Lest,however,from the decision,it should be thought that we consider the presiding officer liable in all cases for refusing to receive a legal vote, agreeably to the decision in some one or more of our sister states, we deem it proper to say, that the declaration charges the defendant with having maliciously rejected, or refused to receive the vote of the plaintiff. It is not certain that the facts agreed on present a case of malice on the part of the defendant, but on the contrary it appears to be only an error in judgement on a point which was considered doubtful. Whether in the latter case the defendant would be liable, has not been made a question in the argument, — nor have we been called on to decide in what cases a constable or other officer presiding at a freemen’s meeting, would render himself liable by refusing to receive a legal vote. We are unwilling to have it considered that this question is decided in this case, especially as it has not been urged in argument by either party.
If there has been any mistake or oversight in drawing up the case, or if all the facts are not disclosed which tend to show the rao» lives of the defendant, we should be disposed to listen to an application on his behalf for another trial, in which the jury can determine in relation to his motives. Otherwise, the judgement must be according to the agreement of the parties, that the judgement of the county court be affirmed with costs.