Opinion.

Section 21, of the Constitution of Virginia, and of Article IX and Article X of the Amendments of the Constitution of the United States; and

"11. Because said act is in violation of other constitutional rights of the citizens, taxpayers and electors, not specially mentioned herein."

Accompanying the petition is a brief filed by counsel for petitioners, in which the many interesting questions of law arising upon the record are thoroughly discussed. We feel, therefore, that upon the part of the petitioners, at least, we are in possession of all the means of information which would be accessible to us were the appeal allowed and the case set down for argument. We feel, too, that the questions presented are of the utmost interest to every citizen of the State. We are upon the eve of an election in which many important offices are to be filled, and it is much to be desired that all uncertainty as to the law under which these elections are to be conducted should be removed, and it is therefore a matter of congratulation that the plaintiffs have, in presenting their case to us, thrown sufficient light upon it to enable us to dispose of it without delay and with entire confidence.

Our conception of the law and the duties imposed by it upon the various instrumentalities which it creates will be better understood if presented as a whole, than by the discussion of its separate and independent features.

It will not be disputed—

First, That the right of suffrage is derived from the Constitution of the State, and to it we look for the qualification of voters and the limitations and restrictions upon the right of voting; in other words, to ascertain who may, or may not,

vote.

Second, That the legislature cannot prescribe any qualification in addition to those found in the Constitution, and any attempt to do so openly or covertly, directly or indirectly, is void.

Opinion.

Third, That there is no educational qualification prescribed by our Constitution, and a person otherwise qualified to vote, no matter how ignorant he may be, is entitled to vote.

Fourth, That the sole function of the legislature, with respect to the exercise of the right of suffrage, is to provide the mode in which those entitled to vote may do so and have their votes counted, and to guard against improper, illegal or fraudulent voting.

Fifth, That to this end the legislature may adopt and enforce reasonable rules and regulations to secure the one and prevent the other.

Sixth, But, if, under cover of a law to regulate voting, a provision is introduced into the law, which virtually establishes a test of the qualification of the voter, additional to those prescribed in the Constitution, such provision of the law transcends the power of the legislature and is null and void.

No

Applying these propositions to the law under consideration, we find that the general scheme of the law is to secure the independence of the voter by secluding him within an isolated booth, surrounded by a neutral zone, within which none may enter save those charged with conducting the election. one is allowed within forty feet of the ballot-box, save the officers charged with such duties, and, in case of a challenge of a voter, the challengers and challenged and the witnesses, all of whom may appear before the judges; when the challenge shall have been decided, only the elector is permitted to remain. The object is to relieve the voter from every influence inimical to a free and deliberate exercise of the right of suffrage, to free him from all solicitation and annoyance, and to leave him a perfectly free agent to vote as to him seems best. These provisions seem to be not only reasonable, but well adapted to secure the end in view, so far as the voter is concerned who is able to prepare his own ballot. He goes to the judges, he receives an official ballot printed by authority

Opinion.

of the State, upon which is to be found every office to be filled and every candidate for that office, whose name has been filed in accordance with the requirement of the law, and he retires to a booth where he is curtained off and secluded from all the world. No eye can see him and no ear can hear him; no evil agency can approach him; and, with these environments, he prepares his ballot, folds and delivers it to the judge, who, in his presence, places it in the ballot-box.

It

With the ignorant voter, however, the case is different. is obvious that one who, either from physical or intellectual blindness, is unable to read, is wholly incapable of voting by ballot without assistance from some quarter. The law recognizes this and seeks to provide for it. The Electoral Board of the county is, by the fifteenth section, required to appoint a special constable, "who shall be an honest and discreet person of said precinct and be able to read and write, and who shall be a conservator of the peace, and shall be especially charged with enforcing the provisions of this act, having all the powers of a constable." He is required to take an oath faithfully to perfom his duties, and for a corrupt violation thereof is punishable by a fine of not less than $500 and imprisonment for not less than one, nor more than twelve months, in jail. The act provides, in the fifteenth section, that "at the request of any elector in the voting booth, who may be physically or educationally unable to vote, the said special constable may render him assistance by reading the names and offices on the ballot, and pointing out to him the name or names he may wish to strike out, or otherwise aid him in preparing his ballot. In case said elector be blind, said special constable shall prepare said ballot for said elector in accordance with the instructions of said elector." "

There is much in the petition for appeal, and in the argument presented with it, in which we cannot concur, while there is much we heartily approve and commend.

Opinion.

It cannot be denied that very great power is placed in the hands of this special constable; that a great trust is reposed in him, and that wherever confidence is given it is liable to be abused. We do not think, however, that all the elaborate provisions of the act in question are but artful expedients contrived for the purpose of deluding, entrapping, and defrauding the ignorant voters of this Commonwealth.

The Electoral Boards of the county are chosen by the direct vote of the legislature upon joint ballot, just as are the judges and many other important officers of the State. They, in turn, select the officers charged with the registration of voters and the conduct of elections. Among the latter, as we have seen, are the special constables. They are bound by their oaths of office to select none but good and discreet men, and those men are, in turn, sworn faithfully to discharge the delicate and responsible duties committed to them. Not only do they come under the sanction of an oath, but severe penalties are denounced against them for a violation of their duties; and, in addition to the liability incurred by the express terms of the act, they would doubtless be responsible for damages to any elector with respect to whom they had failed in the performance of their duty.

Let us examine somewhat more in detail the duties of [such] a constable. He is an officer charged with the duty to the public of the gravest and most delicate nature, a duty in performance of which the Commonwealth, and not alone the individual voter, who seeks his assistance in the preparation of his ballot, is vitally interested; for nothing more nearly concerns the Commonwealth than that each of her citizens shall cast an intelligent ballot, which, when cast, shall be honestly counted. Under such circumstances, we may declare with confidence that the word "may," as used in the fifteenth section of this statute, is always construed as mandatory, and not as merely permissive or directory. Without doubt the

Opinion.

primary meaning of "may" is permissive or directory, while the primary meaning of "shall" is mandatory or imperative; yet courts, in order to accomplish what to them appears to be the leading purpose of the legislature, have never hesitated in a proper case to hold "may" to be mandatory and "shall" to be merely directory. These rules of construction are too elementary and well established to need any citation of authority in support of them. Nothing is better established than that where a power or duty is conferred upon an official by the use of the word "may," and the public are concerned in the due performance of that duty, the word "may" will be deemed to be mandatory, and the officer can be compelled to perform it. Such being the case, it is the duty of the special constable to render to him who is blind, or unable by defective education to read, every assistance asked for and required by the elector to aid him in preparing his ballot.

The vote by ballot ex vi termini implies a secret ballot. The secrecy of the ballot is a right which inheres in the voter and of which he cannot against his will be lawfully deprived. It must be, however, in some degree subordinate to the right to vote by ballot, of which it is but a part; and the main object, which is the right to vote, must not be defeated by a too rigid observance of the incidental right, which is that of secrecy. A blind man, or a man unable to read, must, in the nature of things, so far compromise the secrecy of his ballot as to invoke and obtain the aid of others in the preparation of his ballot; but as it would be a violation of confidence, were he to seek of a friend assistance on such an occasion, for that friend to betray the secret and disclose the vote, so it is a violation not only of confidence but of official duty for the constable to lift the vail of the secrecy which should be impenetrable, and violate the confidence which the law requires the voter to repose in him. The oath of office of the constable binds him to the performance of the duties imposed upon him,