62 N.J.L. 107 | N.J. | 1898
Lead Opinion
The opinion of the court was delivered by
The constitutional provision under which the proposed amendments were submitted to the people is article 9, which is as follows: “Any specific amendment or amendments to the constitution may be proposed in the senate or general assembly, and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, with the yeas and nays taken thereon, and referred to the legislature then next to be chosen, and shall be published for three months previous to making such choice in at least one newspaper of each county ^ if any be published therein; and if in the legislature next chosen as aforesaid such proposed amendment or amendments, or any of them,
K In every government organized under a constitutional form of government the initial steps for a change in the constitution are with the legislative department of the government in which is vested the sovereign power of the people in that respect. I do not refer to a constitution which is the product of revolution, such as that adopted July 2d, 1776. The convention or congress which in its broadest sense made that constitution was assembled without sanction of law. It was composed of delegates who had been elected at the instance of a committee of citizens appointed by the continental congress^ Having procured the arrest of the colonial governor (Franklin), his removal from this state and his imprisonment in the State of Connecticut^this body proceeded to frame and adopt a constitution, which was not submitted to the people for ratification and had no other sanction or authority than the concurrence of the convention thus constituted. Nevertheless, from the time that instrument was promulgated until 1844, it was the fundamental instrument of government of this state, submitted to by the legislative, executive and judi
/The constitution of 1776 made no provision for an amendment of that constitution. During the latter years of its supremacy a new constitution was earnestly advocated; but no one supposed that it was competent for the people to inaugurate measures for the adoption of another constitution without legislative action. Mr. Justice Cooley says: “The will of the people to this end can only be expressed in the legitimate modes by which such a body politic can act, and which must either be prescribed by the constitution whose revision or amendment is sought or by an act of the legislative department of the state, which alone would be authorized to'speak for the people upon this subject, and to point out a mode for the expression of their will in the absence of any provision for amendment or revision- contained in the constitution.” Cooley Const. Lim. 40. By an áct of the legislature, passed February 23d, 1844, entitled “An act to provide for the election of delegates to a convention to prepare a constitution for the government of this state, and for submitting the same to the people thereof for ratification or rejection,” it was enacted that an election should be held for delegates to a convention to frame a constitution; that the said election should be conducted and held by the officers who held the last annual election, except where new officers were elected. It provided for the number of delegates, for the manner of voting and canvassing the result of the election and a certificate of the. result. It provided also that when the convention should have agreed upon a constitution it should cause the same to be engrossed, signed by the president and secretary, and delivered to the governor of the state, and filed in the office of the secretary of state. By section 9 it was enacted that, for the purpose of ascertaining the sense of the people as to adoption or rejection of the constitution agreed upon by the said convention, an election should be held in the several counties of this state. Section 1, in its proviso, prescribed the qualifications of voters for the election of delegates, and every person
The constitution above referred to was adopted by the convention June 29th, 1844, and approved by the people at an .election held in August, and the statement of the result of the election by the board of state canvassers was filed in the secretary of state’s office August 29th, 1844./The proclamation of the governor, which is the only legal and competent cvidence\that the constitution ever took effect, was made the same day. > It certified, under his privy seal, that the constitution had been adopted by the majority of the votes of the. people and that it would take effect and go into operation on the 2d day of September then next. It is the constitution now in force except as subsequently amended, and contains the provision for amendments above set out. Pursuant to
The constitutional provisions now in question were submitted to the people by the legislature of 1897. Article 9 prescribes the conditions under which the legislature is authorized to submit proposed amendments to the people. The concurrence of two legislatures in the specific amendments by a majority of the members elected in each house is the condition upon which the legislature is authorized to submit proposed amendments to the people at an election. It is conceded that the proceedings in the two legislatures of 1896 and 1897 were, in all respects, in compliance with the constitutional'prescription. The jurisdiction of the legislature of 1897 to provide for the submission of these amendments to
The contention is that the act of 1897 is in itself unconstitutional. The reason under which this argument was presented is in these words: “Because the act of May 25th, 1897, under which said election was held, was unconstitutional and void, being contrary to the provisions of article 9 of the state constitution.” This reason is defective in form, at least, in that it fails to specify with precision in what respect the act conflicts with the constitutional provision. But, waiving that objection, the argument of counsel under this head will be considered. It is founded on the proviso to article 9, “ that if more than one amendment be submitted, they shall be submitted in such manner and form that the people may vote for or against each amendment separately
The argument is that this form of submission is unconstitutional with respect to such qualified voters as desire to remain neutral as to some one of the amendments submitted and to vote affirmatively for others; that the legislature may say how the qualified voter shall vote for or against, each amendment upon which he desires to vote, but it cannot attach to the doing of it any compulsion to act upon any other amendment. Counsel’s argument is presented in his bi'ief in these words: “ It will be seen that the law compelled every voter who desired to vote for or against any proposed amendment to also vote for or against the two other propositions. The constitution does not empower the legislature to attach any such condition to the casting of a vote for or against a proposed amendment. The statute cannot say to the voter ‘You shall not vote for or against any amendment unless you vote for or against all.’ An honest citizen may frankly say ‘I do not know whether the amendment is an improvement, and I cannot vote intelligently.’ He may ask to be excused. He may say ‘This amendment affects me in a degree greater than it does my fellow-citizens, and while I desire its adoption, I do not wish to vote for it.’ * * * Can the legislature say to this citizen ‘ You cannot exercise your intelligent judgment on the proposition you have studied and understand unless you give a guess upon all the others ? ’ ”
The precedents in this state, from the time of the act of 1844, under which the constitution of 1844 was adopted, to the present time, are in conformity with the present act in this respect. As already observed, the act of 1844 created a constituency for the election of delegates to the convention and for submission to the people with qualifications different from
The precedents of amendments submitted to the people, under article 9 of the constitution, are more nearly to the point. The act of 1875, under which twenty-seven specific amendments were submitted to the'people, in its third section provided “ that at such election each voter may present a ballot on which shall be written or printed, or partly written or partly printed, in the form following, namely, for all propositions on this ballot which are not canceled with ink or pencil, and against all which are so canceled.” Section 4 provides that each of said ballots shall be counted as a vote cast for each proposition thereon not canceled with ink or pencil, and against each proposition so canceled; and the secretary of state, by section 12, was required to prepare and have printed ballots in the form provided by the act. The form of the ballot which voters were required to use was identical with the form prescribed by the act of 1897. An inspection of the several amendments submitted in 1875 will disclose the fact that many of them provided for constitutional powers and limitations diverse in their nature, with respect to some of which the intelligent voter might scruple, although he had studied and approved of others. This is conspicuously the case with paragraph 11, which prohibited private, local or special laws in certain formulated cases. In these instances the qualified voter, if he was in favor of some of the particulars embraced in the paragraph and was opposed or indifferent as to others, could not vote for those that he approved and refrain from voting on those that he opposed or with
In 1890 two separate amendments were submitted to a popular vote by the act of June 19th, 1890. Pamph. L., p. 483. The mode in which the proposed amendments were submitted to the people was prescribed by section 3, and is identical in form with section 3 of the act of 1897, and section 4, which provided for the counting of the votes, is also identical with section 4 of the act of 1897. If the argument of counsel has substance sufficient to overthrow the act of 1897, it must be equally efficacious with respect to the act of 1844, and also to the act of 1875, and the constitutional amendments which are a prominent feature of our present constitution never acquired the force of fundamental law. It would be no answer to such a conclusion that the amendments of 1875 were adopted by a large majority of votes, for if the submission was in a form interdicted by the constitution the statute which gave life and substance to the popular vote would violate the constitution and be void. For the same reason the amendment submitted at the election under the act of 1897, which received the approval of a majority of over seven thousand, would fall. The ballot, prescribed by the legislature in this instance conforms literally to the constitutional requirement, and, if there be any obscurity or uncertainty in its construction, usage and immemorial practice, commencing with the form in which the constitution of 1844 was submitted, and more especially in the manner in which the amendments of 1875 and 1890 were submitted, would fix the interpretation of this constitutional provision. The constitutional amendments of 1875 have been uniformly recognized by the legislative, executive and judicial departments of the government, and also by the people of this state, as a. valid exercise of the power of amendment in conformity with a procedure such as is prescribed by the act of 1897. The antecedent precedents on this subject have given a construction to the proviso in article 9, with respect to the submission
The constitutional provision in itself gave no consideration for the qualified voter who, for any reason, was indifferent or non-committal with respect to proposed amendments. The approval and ratification of any amendment devolved upon the majority of electors who should vote for or against it. Power to submit proposed amendments to the people was committed to the legislature in such manner as it might prescribe, with the limitation only that if more than one amendment be submitted at the same time they should be submitted in such manner and form as that the people might vote for or against each amendment “ separately and distinctly.” The ballot adopted in this instance by the legislature and approved by the executive is such in form as is directed by the constitution. Being within the competency of the legislature, it is not competent for the judiciary to set aside the result of an election certified and approved as prescribed by the act, on the assumption that some other form of voting would be preferable or even fairer.
The remaining reasons for reversal relate to the action of the board of state canvassers in determining the result of the election and declaring that the amendment in question was adopted.
The county boards of election complied with the statute in making their statements of the result of the election in the several counties on the basis of the statements of the result of the elections in the several election districts or precincts, certified and returned by the boards of registry and election, and the board of state canvassers also complied with the statute in making their statement of the result of the election throughout the state from the statements of the several county boards which had been filed in the secretary of state’s office. The tabulation contained in the statement of the board of state canvassers of the number of names on the poll-books, the number of ballots rejected and the number of votes given for and against each of the proposed amendments is in exact
It is admitted by counsel that over one hundred and fifty thousand voters were registered in the various election districts of the state at the registration made under the act of 1897 for the special election. It appears by the tabulated statement of the board of state canvassers that the number of names on the poll-books of persons who voted at the election was one hundred and forty-one thousand six hundred and seventy-two. The number of votes given for the amendment in question was seventy thousand four hundred and forty-three. If the determination of the result is made on the basis of a comparison of the votes cast for this amendment with the qualified voters in the state or with the number of voters whose names appear on the poll-books, the amendment did not receive a majority. But, by the constitutional provision under consideration, though the proposed amendment is required to be submitted to the people of the state, the approval and ratification of an amendment depend upon the majority of electors who are not only qualified to vote but do vote thereon at such election. The case relied on by the prosecutors on this subject (State v. Swift, 69 Ind. 505) was decided upon a constitutional provision entirely different from ours. The constitutional provision then under consideration provided for the submission of any proposed amendment “to the electors of the state, and if a majority of such electors shall ratify the same it shall become part of the constitution.” The court held that, inasmuch as the adoption of the constitution required a majority of all the electors, a constitutional amendment which received a majority of the votes cast for and against it, but less than a majority of all the electors who voted at the election, was neither ratified nor rejected. By our constitution the canvass of the vote is made on the basis, not of the electors qualified to vote or of the electors who voted at the election, but of the electors who voted for or against the proposed amendment.
Decisions of which the cases cited are types have no relevancy to the construction of our constitution. The constitutional provision does not require a majority of the voters who are admitted as such at the election and.who in fact exercise or attempt to exercise the elective franchise. The certificate of the number of votes received by the several election boards is presumptive evidence -that the persons by whom they were cast were qualified voters.’ But that concession does not dispose of this question. The constitution requires that the approval and ratification of any amendment shall be by a majority of electors who are not only qualified to vote, but who did actually vote upon such amendment — that is, qualified voters whose ballots were entitled by law to be counted in declaring the result of the election either for or against the amendment. Though á qualified voter succeeds in getting his name on the poll-list and a ballot in the ballot-box, he is not a voter voting on the amendments unless his ballot is such as is prescribed by law and conforms to the general law regulating elections. The act contains no provision for the certificate and return of the ballots that were rejected, nor
The power of the legislature to adopt reasonable regulations for the conduct of elections is undoubted. Among the regulations adopted for conducting elections from the earliest period of voting by ballot are those which provide for the manner in which qualified voters shall exercise the elective franchise. Such regulations are necessary to secure fairness and honesty in elections. When the constitution provided for submitting amendments to the people at an election, it must be taken that it was contemplated an election held in conformity with regulations adopted in the act submitting the amendments or by the general laws of the state, and that by electors qualified to vote and voting thereon was meant qualified voters who exercised the elective franchise in such a manner as entitled their ballots to be counted and canvassed in ascertaining the result of the election. The several acts under which constitutional amendments have heretofore been submitted to the people are illustrations of this principle. They provide the form of the ballot that shall be voted and counted as a vote for or against an amendment, and that the manner of voting and the procedure of the election officers should in all respects conform to the requirements of the general law respecting elections except as modified by the act.
We find no imperfections in this act on constitutional grounds, nor in the proceedings of the board of state canvassers, and for that reason the writ of certiorari should be dismissed.
The writ should be dismissed.
Concurrence Opinion
(concurring). I agree with the decision of the court in this case. I concur in the reasons for that decision given in the opinion of Mr. Justice Depue. I do not agree that the decision the court has made is one that is beyond the cognizance of the judicial department. I dissent from the proposition that the legislature can place a question of this sort beyond the reach of the judiciary.
