sioners of election be required to reassemble and perform a duty required of them by law, to wit, the rejection of certain marked ballots which had been counted by them. It was directed to an inferior tribunal commanding them to do an act "which the law enjoined as a duty."

The case being decided adversely to the petitioner in the court below, was appealed to the supreme court.

Campbell, J., delivered the opinion of the court.

This case presents for adjudication three questions, namely:

1. Whether the commissioners of election have the right to reject illegal ballots cast and counted by the inspectors of election and returned to them with the statement of the result at the precincts.

2. Whether the ballots which the commissioners of election for Tunica County refused to reject should have been rejected by them as being illegal, for having on them a device or mark by which one may be known or distinguished from another.

3. Whether the action of the commissioners was final, or whether they may be required by maudamus to meet and act in the matter again, as the court may order.

A negative answer to the first question would have rendered further consideration of the case unnecessary. An affirmative answer to the first and a negative answer to the second question would have rendered the determination of the third unnecessary. Each of these questions was purely local and each required the construction of a State statute. Suppose the court had decided that the commissioners could not reject ballots counted and returned to them by the inspectors; this would have decided the case. Would any one have said such decision was without jurisdiction? If the court had decided that the commissioners could reject illegal ballots returned, but that ballots with printers' dashes on them were not illegal, this would have decided the case. Would any lawyer say such decision was without jurisdiction? It was necessary to decide these questions first before the court was called on to decide the third proposition. If the court had jurisdiction to decide that ballots marked with printers' dashes were not illegal, and thus decide this case, had they not jurisdiction to decide the converse of the proposition ? It would be a novel legal idea that a court had full jurisdiction to decide a question submitted in one way, but if it decided the same question the other way it was obiter or without jurisdiction. The right to determine the case at all carries with it the right to decide either way and upon all points involved.

The court was called on to compel, by mandamus, the election commissioners to make right a wrong they had committed. The first thing to be settled was whether he had done any wrong. If the court had decided that the commissioners did right in counting the marked ballots, that would have ended the case, and it would have been unnecessary to go further.

The court held, however, that the commissioners did do wrong, but that it had no power to make them reassemble and right that wrong.

It might be said the court should have stopped short with this declaration, but it did not. It proceeded to show what was the proper remedy for the wrong. It said the remedy was in a contested election.

That in State cases this contest must be made before State tribunals and in Congressional elections before Congress.

To claim that this election can have no weight in a contested election before Congress because the court said Congress must settle Congressional contests would lead to the conclusion that it could have no weight in a contest before a State tribunal, because it said the State tribunal must settle State contests.

THE MISSISSIPPI DECISION RIGHT ON PRINCIPLE.

The majority of the committee contend that the case of Oglesby vs. Sigman is not sustained by other authority.

The first and leading case on the subject of marked ballots was in Pennsylvania, in The case of The Commonwealth vs. Woelper, 3 S. and R., 29. The opinion was delivered by Chief Justice Tighlman and concurred in fully in separate opinions by Justices Yeates and Gibson, and they all held that the law should be strictly construed as written. The court said:

The tickets in favor of those persons who succeeded in the election had on them the engraving of an eagle. The judge who tried the case charged the jury that these tickets ought not to have been counted. The case is certainly within the words of the law. The tickets had something more than the names on them. But is it within the meaning of the law? I think it is. This engraving might have several ill effects. In the first place, it might be perceived by the inspector, even when folded. This knowledge might possibly influence him in receiving or rejecting the vote. But in the next place, it deprived those persons who did not vote the German ticket of that secrecy which the election by ballot was intended to secure to them. A man who gave in a ticket without an eagle was set down as an anti-German and exposed to the animosity of the party. Another objection is that the symbols of party increase that heat which it is desirable to assuage. We see that at the election some wore eagles on their hats. The case thus falling within the words and practices of this kind leading to inconvenience, I think the court ought not exercise its ingenuity in support of these tickets. Let us at least prevent future altercations at elections by laying down such plain rules for the conduct of inspectors as cannot be mistaken. I am for construing the by-law as it is written, and rejecting all tickets that have anything on them more than the names. This objection strikes at the root of the election, for the evidence is that all the tickets in favor of the defendants were stamped with an eagle. Whatever, therefore, may be the law on other points, it is clear, upon the whole, that the defendants were not duly elected.

The precise same doctrine was held in Oregon. The court says:

Section 30, page 572, of the Code provides that "all ballots used at any election in this State shall be written or printed on a plain white paper without any mark or designation being placed thereon whereby the same may be known or designated." The voter in this instance is conclusively presumed to have had knowledge of this requirement and to have had it in his power to comply with it by using a proper ballot. It was a matter entirely under his own control, and if he chose to disregard the law, he cannot complain if the consequence was that his vote was lost. (The State vs. McKinnon, 8 Oregon, 500.)

This fully sustains the Mississippi decision, even if we admit the distinction taken by the majority report that the voter is only bound to observe so much of the law as he could by the exercise of proper diligence in matter under his control. The California case cited by the majority, though it differs from the case of Perkins vs. Carraway recently decided in Mississippi, as to the spaces between the names on the ticket, sustains Oglesby vs. Sigman as to the marks. The court

say:

There are, however, other requirements of the Code within the power of the elector to control, and these, if willfully disregarded, should cause his ballot to be rejected. He can see, for instance, that his ballot is free from every mark, character, device, or thing that would enable any one to distinguish it by the back, and if, in willful disregard of law, he places a name, number, or other mark on it, he cannot complain if his ballot is rejected and he loses his vote. (Kirk v. Rhoades, 46 Cal., 398.)

The same doctrine was held in Alabama.

Before Hon. Louis Wyeth, Judge of the Fifth Judicial Court.

In this case Charles Plato contests the election of Julius Damus to the office of mayor of the town of Cullman, in the county of Cullman, claiming to have been elected to that office himself by a majority of the votes cast at the election held on the first Monday in April, 1879.

The respondent claims to hold the office under the certificate of election issued by the proper officers under the provisions of the "act of assembly to establish a new charter for the town of Cullman." (Pamphlet Laws of 1879, p. 304, section 9.)

On examining and counting the votes it appears that fifty-four of them were cast for the contestant and twenty-seven for the respondent; of these fifty-four votes given for the contestant, fifty-two had printed on them at the top of the ballot the words "Corporation ticket," and of the twenty-seven votes cast for respondent three had in like manner printed thereon the same words, and the question for me to decide is whether or not those words rendered the ticket on which they were printed illegal ballots, and such as must be rejected.

The act approved February 12, 1879, Pamphlet Laws, pp. 72-3, requires that the ballot must be a plain piece of white paper without any figures, marks, rulings, characters, or embellishments thereon, on which must be written or printed only the names of the persons for whom the elector intends to vote, and must designate the office for which each person so named is intended by him to be chosen, and any ballot otherwise than described is illegal, and must be rejected.

*

*

The law under which the election now being considered was held, in section 4, Pamphlet Laws 1879, p. 305, declares "that the election provided for in this charter shall be regulated by the general State election law."

The judicial officer of the State has nothing to do with the propriety of a statute. If not void by reason of a constitutional inhibition, the judicial duty is limited to their construction and enforcement.

These ballots had more than only the names of the persons for whom the elector intends to vote, or the designation of the office, and must be rejected because illegal. Such is the mandate of law, and so I must declare it.

It is considered, adjudged, and ordered that the election of Julius Damus, as mayor of the town of Cullman, in the county of Cullman, be confirmed, and that the contestant pay the costs of this court.

JUNE 9, 1879.

LOUIS WYETH,

Judge, &c.

Precisely the same doctrine was held by this committee in the case of Yeates vs. Martin, and the opinion on that point prepared by Mr. Field, now on the supreme bench of Massachusetts. It said:

One hundred and eight votes for Mr. Martin were thrown out not counted, because they had on them the words "Republican ticket," at or near the head of the ticket, on the same side as the name of the candidate and office. They were thrown out on the ground that the words "Republican ticket" were a device within the meaning of the laws of North Carolina.

If these words constitute a device within the meaning of the law, the statute is plain that the ballots are void and are not to be counted.

Either way, we think that words prominently printed on a ticket, and intended to designate or describe it, and which have a distinct meaning in themselves, such as, if untrue, might mislead the voter, and whether true or untrue would render the ticket easily distinguishable, must be held to be a device within the meaning of the law (McCrary on Elections, § 401). These votes were rejected by the State authorities, and we think rightfully.

It is a simple question whether this statute is mandatory or merely directory.

McCrary, in American Laws of Elections, section 401, says:

It is quite clear where the statute distinctly declares that ballots having distinguishing marks upon them shall not be received or shall be rejected, it should be construed as mandatory and not merely directory.

The Indiana courts hold their statute mandatory if the marks appear on the back of the ticket. The language of the Mississippi statute shows it was intended to apply to marks on the face as well as the back. After prohibiting marks or devices, it says:

But this shall not prohibit the erasure, correction, or insertion of any name by pencil mark or ink upon the face of the ballot.

This exception as to one kind of marks on the face of the ticket clearly shows that any other marks on the face of the ticket are prohibited. We can see the marks on the contestant's ticket ourselves, and it would be our duty to reject them without any decision from the supreme court of Mississippi. We hold, therefore, that the statute was mandatory, and the decision right in itself. If the court had decided as the majority of the committee now decide, it would have produced the utmost confusion in the State.

A strict construction of the law is always safest and best, and especially of law which refers to political powers, duties, or rights.

When we launch into the broad sea of latitudinous construction we have neither chart nor compass, and the law becomes a dangerous instrument in the hands of those who construe it and who may contract or expand it to suit the demands of those in power.

A contrary decision would have launched every board of election commissioners in the State on a sea of uncertain speculation as to what were and what were not marks within the meaning of the law. Fraud and corruption could be covered under their discretion to determine this question, and the whole election machinery could be converted into a political engine for partisan use. Certainty in law is essential to the preservation of civil rights, and the case of Oglesby vs. Sigman gave certainty to the election laws of Mississippi.

There is no longer any doubt or uncertainty. This alone being a matter of great "public interest" would have justified the district attorney, Oglesby, in suing out his petition for mandamus; and if there were no other ground for it, this alone would sustain the jurisdiction of the court. It was not a case of Lynch vs. Chalmers to settle a Congressional election, but of the district attorney vs. the election commissioners to settle great questions of public interest.

THE EFFECT OF STATE DECISIONS OF STATE STATUTES.

If any rule of law can ever be regarded as settled, certainly the rule that Federal authorities would follow the construction of State statutes by State courts must be regarded as settled by a long line of able and unbroken decisions. The only exceptions made to this rule by the Supreme Court of the United States are where the State courts have made conflicting decisions, as in the case of the city of Dubuque, 1 Wall., 175, or in cases arising under the twenty-fifth section of the judiciary

act.

From the time of the case of Shelby vs. Gray (in 11 Wheaton, 361), through Green vs. Neal (6 Peters, 291), Christy vs. Pritchett (4 Wallace, 201), Tioga Railroad vs. Blossburg Railroad (20 Wallace, 137), down to Elmwood vs. Macey (2 Otto, 289), an unbroken line of decisions will be found.

The court say, in the case of Green vs. Neal:

The decision of this question by the highest tribunal of a State should be considered as final by this court, not because the State tribunal, in such a case, has any power to bind this court, but because a fixed and received construction by a State in ts own court makes it part of the State law.

In the case of the Tioga Railroad Company vs. the Blossburg Railroad, in 20 Wallace, 143, the court uses the following language:

These decisions upon the construction of the statute are binding upon us, whatever we may think of their soundness on general principles.

See Jefferson Branch Bank vs. Skelly (1 Black, 443); Gut rs. The State (9 Wallace, 37); Randall vs. Brigham (7 Wallace, 541); Secomb vs. Railroad Company (23 Wallace, 117); Polk's Lessee us. Wendell (9 Cranch, 98); and Nesmith vs. Sheldon (7 Howard, 818). Numerous other adjudications of that court could be cited to the same effect.

It is now maintained that this doctrine applies only as a rule of property. The only excuse for this new idea to be found in the decisions in the Supreme Court is where the court say they will not follow the last decision of a State court changing the construction of its laws after the first decision has become a rule of property; otherwise the Supreme Court of the United States would follow the new construction given by the State court. To say that the Supreme Court of the United States will only follow a State court "on a rule of property" is a total misconception of the principle announced by the court. But whatever may be the rule in the Supreme Court of the United States, Congress has in every case, without exception, followed this rule, and in the Tennessee cases in the Forty-second Congress, and the Iowa cases in the Fortysixth Congress, extended the rule to following the construction of the State laws given by the governor of a State. The same rule was followed, and on the question of marked ballots, in case of Neff vs. Shanks in the Forty-third Congress, and Yeates vs. Martin in the Forty-sixth Congress. The same rule was followed in Bisbee vs. Hull, and the doctrine broadly laid down as correct in Boynton vs. Loring in the same Congress. We cite the language of the committee in these cases.

CONGRESS FOLLOWS THE STATE DECISIONS.

This rule was first established in the Forty-second Congress in what is called the Tennessee cases, when the report was made by the Hon. G. W. McCrary :

In a report from the Committee on Elections, adopted by this House April 11, 1871, in the matter of the Tennessee election (Digest of Election Cases, compiled by J. M. Smith, p. 1), the committee say:

"It is a well-established and most salutary rule that where the proper authorities of the State government have given a construction to their own constitution or statutes, that construction will be followed by the Federal authorities. This rule is absolutely necessary to the harmonious working of our complex government, State and national, and your committee are not disposed to be the first to depart from it.

This decision was cited with approbation in the Forty-sixth Congress in the Iowa cases, and in the report on these cases, signed by Messrs. Field, Keifer, Calkins, Camp, Weaver, and Overton, they say:

We are not disposed to be the first to depart from it, and we certainly think that such a decision, made in good faith and acquiesced in at the time by the people of the State, and followed by a full and fair election, should not be overthrown or questioned, except for the gravest reasons, founded on an undoubting conviction that it was plainly an error, and that the error had worked some substantial injury. In the same case Mr. Beltzhoover says:

2. The question whether the constitution of the State of Iowa "must be amended in order to effect a change in the election of State officers," it is one which it is the exclusive right of the State to decide. The persons to whom the constitution and laws of Iowa confide this decision have made it, and their determination is a finality, and is conclusive on all parties. The committee have not the right to review the decision.

The case of Curtin vs. Yocum, in the Forty-sixth Congress, turned upon the construction of the constitution of Pennsylvania, and the mi