The following opinion was filed October 27, 1914:

This case seems clearly to be within the. field within which this court has held that the original jurisdiction should be exercised. The election of a senator to represent the state in the highest legislative body in our scheme of government is certainly a matter publici juris in which every citizen is vitally interested. It is of the highest importance that the man declared elected to this office should be legally elected; that there should be no flaw in his title which might by possibility deprive him of his seat in the senate. If his title were to depend upon a slight majority of votes cast in violation of law it is easy to see that he might be denied his seat and the state might thus for a time lose its dxie share in the councils of the federal government. If the contention of the state be right, this action is an action to prevent a threatened wrong tb the whole people, and hence upon familiar principles will be entertained originally by this court. Income Tax Cases, 148 Wis. 456, 134 N. W. 673, 135 N. W. 164.

We pass the question whether a vote registered upon a voting machine satisfies the constitutional requirement that “all *390votes shall be given by ballot” (Const, art. Ill, sec. 3), primarily because we find it unnecessary to decide that question in this case, but, secondarily, because it has not been argued and because we deem it too important and doubtful a question to be passed upon hurriedly, or in the absence of that help which able counsel, after thorough preparation, should be able to give the court.

It is admitted here by all parties, and we see no reason to believe that the admission is improvident, that there can be no vote cast for second choice for any office upon the voting machines now in operation in the city of Milwaukee and that it would require an entire rebuilding of the machines, if not the construction of new machines, to accomplish the purpose. The principal mechanical difficulty seems to be that the machine is purposely so built that when a vote is cast for one candidate for an office it locks and renders impossible the casting of a vote by the same elector for any other person for that office.

Sub. 2 of sec. 94w — 1, Stats., provides that the names of all nominees for United States senator shall be printed on the ballot provided for in sub. 1 of sec. 38, Stats, (which is the general ballot covering both state and county officers arranged in party columns, so that by a single cross the voter can vote the entire party ticket), so that each elector may designate on the ballot the name of his first choice and of his second choice for that office, and that the ballot shall be marked in the manner prescribed in sub. 8 of sec. 11 — 12, relating to primary ballots. This last named subsection provides for two columns after the candidates’ names, in the first of which the voter makes a mark indicating his first choice for an office and in the second his second choice.

It is very clear, therefore, that the legislature has here industriously provided that the names of the candidates for United States senator be printed on the general ballot and that every voter be given the opportunity upon that general ballot to indicate his first and second choice for the office.

*391Now assuming for tbe purposes of the case only that the arranging of the names upon a voting machine and the moving of the levers by the voter constitutes a constitutional ballot, how can it be said that the names of the candidates for senator have been “printed” on that ballot or are on it at all when those names are only contained upon a separate slip of paper placed by the voter in a ballot bos ? It will not do to say that no harm is done, or that the substantial result is the same. The legislature has made known its will in an act devoted to this special subject; that will is plain and unmistakable and there is no excuse for misunderstanding or disobeying it.

There is another statutory requirement which seems fatal to the use of the present voting machines at any election at which a second-choice candidate may be voted for.

Sec. 44 — 3, Stats., which is a part of the law providing for the use of voting machines, provides that no voting machine shall be approved by the election commission unless it be constructed so as to “afford every elector a reasonable opportunity to vote for any person for any office or for or against any proposition for whom, or for or against which he is by law entitled to vote and enable him to do this in secrecy; and it must be so constructed as to preclude an elector from voting for any candidate for the same office or upon any question more than once, and from voting for any person for any office for whom he is not by law entitled to vote.”

Under the senatorial election law a voter is entitled to vote for one man as his first choice and for another man as his second choice for the office of senator, and the machines in use in Milwaukee are not so constructed as to afford him an opportunity to' do so.

The demurrers to the returns must be sustained and judgment ordered directing that the alternative writ be made peremptory without costs.

By the Gourt.- — It is so ordered.