presumption is that we adopted it with its construction, yet this principle has no application to a case like this one, where the constitutional provision was in our own previous constitution, so that it cannot be said to have been taken from the constitution of the sister state. While, as this court has said, we are 413 "authorized to consult them (the decisions of the highest courts of other states) as other reported cases to aid us in arriving at correct conclusions," yet we "are not permitted to regard them as authoritative and binding expositions." And this language was used, even where the court was construing a statute of said sister state and the decision was not introduced in evidence: Nelson v. Goree's Admr., 34 Ala. 565. It is the province of the highest court of each state to construe its own constitution: 26 Am. & Eng. Eney. of Law, 2d ed., pp. 175, 176. Even the decisions of the supreme court of the United States are not binding upon this court, unless it be in those matters in which said court has appellate jurisdiction: 26 Am. & Eng. Ency. of Law, 20 ed., pp. 175, 176. This court accords the utmost respect to the decisions of the highest courts of our sister states, but reserves to itself the right to determine whether they are based upon sound reasoning when applied to our own constitution and laws. Especially can we not follow them when our own legislative and judicial history has placed a different construction upon them.

It is true, as suggested by counsel for the petitioner, that our constitution of 1819 did provide that the vote should be by ballot "until the General Assembly shall otherwise direct"; but it is also true that the General Assembly never did "otherwise direct." When the statutes provided for the numbering of the ballots, there is nothing to indicate that the legislature thought it was changing the mode of voting from voting by ballot to any other mode; but, on the contrary, it was always the "ballots" that were numbered, and no legislature or court of the state seems to ever have had the least idea that we had ceased to vote by "ballot" because they were numbered. This clause was left off the section in the constitution of 1868, and we continued to have the same kind of numbered ballot, without any safeguards against the ascertainment of the voter's choice, and so it continued under the constitution of 1875, until 1878, when the law was changed, for reasons which it is not necessary to rehearse.

The provision to the constitution of Texas, in place of sustaining the contention of counsel, that the lawmakers of that state understood that the use of the word 414 "ballot" meant such secrecy as to prohibit its being numbered, rather shows the contrary; for that provision is that "in all elections by the people the vote shall be by ballot, and the legislature shall provide for the numbering of the tickets": Const. Tex., art. 6, sec. 4. Thus the voting by ballot and the requirement that they shall be numbered are coupled together by "and" (and not by "but"), indicating clearly that it was not intended. as a modification of the word "ballot"; but they still vote by ballot without qualification, and it is made the duty of the legislature to provide that the ballot shall be numbered. Judge Cooley says that "a ballot may be defined to be a piece of paper or other suitable material, with the name written or printed upon it of the person to be voted for," and that the "voter is thus enabled to secure and preserve the most complete and inviolable secrecy": Cooley's Constitutional Limitations, 7th ed., p. 910. The use of the word "thus” shows conclusively that it is the voting in the manner described which enables him to secure the secrecy, and, although he does go on to remark on the "spirit" of the provision, etc., yet he is speaking of the duty of the legislature, and not of the constitutionality of the act under the constitution. Nowhere does he declare that an act which does not provide absolutely against all contingencies by which the choice of the voter can be ascertained is violative of the constitutional provision, but, on the contrary, he goes on to discuss devices which are adopted to ascertain how the voter has voted, and says that, while they may not render the election void, they are reprehensible, etc.: Page 912.

The rehearing is denied. The entire court sitting and concurring in overruling the motion for a rehearing.

ANDERSON, J., Concurring. While I concur in the conclusion reached in this cause in affirming the appeal and in denying the application for rehearing, I do so for reasons entirely different from those given in the opinion of Justice Simpson. Regardless of the origin or derivation of the word "ballot," the expression "election by ballot" has been expounded and construed by the various courts of last resort, and with entire unanimity they have declared it meant a secret ballot, and that the 415 essential principle of this man

ner of voting was to protect the secrecy of the ballot, in order to guard and protect the voter against intimidation, secure to him absolute freedom in the exercise of the elective franchise, and reduce to a minimum the incentive to bribe the voter: 3 Am. & Eng. Ency. of Law, 768, and other authorities cited on second page of brief on application for rehearing.

The constitution contemplates, not only that secrecy be preserved at the time of voting, but that it be sacredly guarded for all time, unless the voter himself shall voluntarily divulge it. In Cooley's Constitutional Limitations, fifth edition, page 762, the author says: "The system of ballot voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases, and with what party he pleases, and that no one is to have the right, or be in position, to question his independent action, either then or at any subsequent time. The courts have held that a voter, even in case of a contested election, cannot be compelled to disclose for whom he voted; and for the same reason we think others, who may accidentally, or by trick or artifice, have acquired knowledge on the subject, should not be allowed to testify to such knowledge, or to give any information in the courts upon the subject. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it. His ballot is absolutely privileged, and to allow evidence of its contents, when he has not waived the privilege, is to encourage trickery and fraud, and would, in effect, establish this remarkable anomaly: that while the law, from motives of public policy, establishes the secret ballot, with a view to conceal the elector's action, it at the same time encourages a system of espionage by means of which the veil of secrecy may be penetrated, and the voter's action disclosed to the public." So in McCrary on Elections, section 453, it is said: "The secret ballot is just regarded as an important and valuable safeguard for the protection of the voter, and particularly the humble citizen, against the influence which wealth and station may be supposed to exercise. And it is for this reason that the privacy is held not to be limited to the moment of depositing the ballot, but 416 is sacredly guarded by the law for all time, unless the voter himself shall voluntarily divulge it." In Paine on Elections, section 453, the author states the law as follows: "A constitutional provision that all elections shall be held by ballot guarantees the secrecy of the ballot, and is violated by a statute

requiring the tickets to be numbered to correspond with the voters' numbers on the poll list."

It has been pointedly held in the cases of Brisbin v. Cleary, 26 Minn. 107, 1 N. W. 825, Williams v. Stein, 38 Ind. 89, 10 Am. Rep. 97, and Ritchie v. Richards, 14 Utah, 345, 47 Pac. 670, that a statute requiring the numbering of the ballot and the keeping of corresponding poll lists was violative of the constitution, inasmuch as said statute destroyed the secrecy of the ballot. The writer has been unable to find a single authority to the contrary. On the other hand, the framers of the constitutions of Pennsylvania (1873), of Missouri (1875), and of Colorado (1876), realizing, no doubt, that the numbering of the ballot would be violative of the old constitution, expressly provided that, while elections should be by ballot, the tickets should be numbered. I do not wish to be understood as holding that an act requiring the numbering of the ballot under any and all conditions would be violative of the constitution. The purpose of the constitution is to preserve the secrecy of the ballot, yet a statute might require the numbering of the ballot and at the same time preserve its secrecy, by imposing certain duties upon the election officers, such as destroying the ballots before comparison with the poll list, etc.; and this point was doubtless not considered by the courts when considering the numbering of the ballots, else the respective acts construed may have had no provision for preserving the secrecy, notwithstanding the ballots were to be numbered.

Acts of 1903, page 122, section 10, provides for a numbering of the ballots and the keeping of corresponding poll lists, and the act nowhere provides for a destruction of the ballots or forbids a comparison. How each voter voted can be ascertained by the election managers or commissioners without a violation of law on their part, by a comparison of the ballots with the poll list, and said section 10 is clearly violative of section 179 of the constitution 417 of 1901, in so far as it requires a numbering of the ballot. "The rule is well established, and founded in the highest wisdom. Because, however, a small portion of an act is invalid, it does not necessarily follow that the whole act is void. All that portion of the act which is not repugnant to the constitution is valid. While the numbering of the ballots was improper, still that circumstance should not have the force to avoid the act and overturn the election. The electors were not responsible.

Their ballots were honestly cast, and there has not been sufficient reason shown why they should not have been counted": Ritchie v. Richards, 14 Utah, 345, 47 Pac. 670. The manifest design of the constitution in preserving the secrecy of the ballot is for the protection of the voter, and, while he cannot complain because of the numbering of his ballot, and could doubtless use the courts to enforce his constitutional right to vote secretly, yet, when he casts his vote without protest, the courts will not deprive him of same, simply because the managers, in compliance with an unconstitutional requirement of the act, numbered the ballot. This court, without determining the constitutionality of the general election law in this respect, has held that the section requiring the numbering of the ballot was merely directory, and that a failure to comply therewith on the part of the election officers did not affect the ballots cast which were not numbered, or the result of the election: Montgomery v. Henry, 144 Ala. 629, 39 South. 507, 1 L. R. A., N. S., 656.

There is nothing in the statute invalidating the ballots when honestly cast without having been numbered, or in the constitution invalidating them because they were numbered; and the doing of or leaving undone something merely directory will not affect the result or annul the election, if there is enough left in the act providing for the holding of same with. the unconstitutional portion eliminated. The case of Brisbie (26 Minn. 107, 1 N. W. 825), wherein the statute requiring the numbering of the ballot was construed, was an action on the part of the elector against the election judges for refusing to let 418 him vote without numbering his ballot. The Indiana case of Stein (38 Ind. 89, 10 Am. Rep. 97) was an action by an elector against the election managers for numbering his ballot against his protest. The proceeding in the case at bar is not by an elector, complaining that his ballot was improperly numbered, but by a defendant, under indictment, protesting against being tried at Heflin, the county site, because the election fixing the county site at said point was carried by ballots which were numbered in violation of the constitution. This fact did not render the election void. "A mere irregularity in conducting an election, which deprives no legal voter of his vote and does not change the result, never has been held to invalidate an election. The rules prescribed by the law for conducting an election are designed chiefly to afford an opportunity for the free and fair exercise of the election.