179 Ind. 292 | Ind. | 1913
Boswell filed a petition in the lower court to be admitted to practice law in that court. Objections to his admission were made and the matter was submitted to the court for trial. As a result of the trial the court refused to admit the petitioner to practice and this appeal is brought. Since November 1, 1851, §21 of article 7 of the Constitution of this State has provided: “Every person of good moral character being a voter, shall be entitled to admission to practice law in all courts of justice. ’ ’ At the general State election in November, 1910, the following proposed amendment of that provision was placed before the electors of the State for adoption: ‘‘The General Assembly shall, by law, prescribe what qualifications shall be necessary for admission to practice law in all courts of justice.” Acts 1909 p. 501.
It appears from special finding of facts and conclusions of law made and stated by the trial court that the petitioner was possessed of all of the qualifications necessary for admission to practice law under the provision of the Constitution so long in force. The court found that at the election 60,357 votes were cast for the amendment and but 18,494 against it. And it also appears from the conclusions of law stated upon the special finding that the court refused to admit the petitioner solely upon the assumption that the proposed amendment which was submitted to the electors of the State in 1910 had been carried by their votes into the organic law of the State, thus leaving the court free, the General Assembly not having prescribed the qualifications,
The joint resolution by which the General Assembly of 1909 sent the proposed amendment to the people for their action provided, “that the state board of election commissioners be directed to print said amendment upon the official state ballots, to be voted upon at the next general election, as provided by law” (Acts 1909 p. 501). Section 62 of the general election law of 1889 (Acts 1889 p. 184, §6944 Bums 1908), provides: “Whenever any constitutional amendment or other question is required by law to be submitted to popular vote, if all the electors of the State are entitled to vote on such question, the state board of election commissioners shall cause a brief statement of the same to be printed on the State ballots, and the words ‘Yes’ and ‘No’ under the same, so that the elector may indicate his preference by stamping [marking] at the place designated in front of either word * * * . In case an elector shall not indicate his preference by stamping [marking] in front of either word, the ballot as to such question shall be void and shall not be counted.”
In State v. Swift, supra, on page 525, in stating the holding of the court it was said by Biddle, J., who wrote the opinion of the court and who had been a member of the convention which framed the Constitution: “This court holds that it requires at least a majority of all the votes cast at
In the latter expression of this court on the question, the Denny case above cited, which involved the question of the adoption of an amendment identical with this, it was said by Baker, J., on page 108: “In our system of government, a written constitution is the highest expression of law. Non© other emanates directly from the sovereign people themselves. It is the deliberate and affirmative utterance of the sovereign majority. It seems unnatural to say that the sovereign majority, the authors of the designedly permanent, the fundamental, the organic law, intended that any of its safeguards should be abrogated by a failure to demand the abrogation; that the indifference of the many should be a positive element in effecting an organic change desired by the few; that a judgment abolishing the writ of habeas corpus or the right of trial by jury should be taken by default. On the contrary, one would expect a provision that the charter of our liberties should stand unaltered until the sovereign majority, by affirmative action, expressed their desire for, and effected, a change. And such is the clear letter and spirit of article 16. If a majority of the electors of the State shall ratify a proposed amendment, it shall become a part of the Constitution; otherwise not.”
It may be that irreconcilable differences exist between these two cases in other particulars but they do agree in holding that it requires the affirmative vote of the electors of the State to amend the Constitution. To that holding we adhere. It has been considered by this court in the cases
In State v. Swift, supra, it was held by the opinion of the court that the amendment in question had been neither ratified nor rejected and it was said that no reason was apparent why it might not be resubmitted to the electors of the State by the General Assembly “under an amended act such as experience may prove to be sufficient to present the question to the courts, if it ever should arise again.” The General Assembly of 1881 acted upon this suggestion and resubmitted the amendment involved in that ease at a special election (Acts 1881 p. 29).
Note.—Reported in 100 N. E. 833. See, also, under (1) 16 Cyc. 809; (2) 8 Cyc. 723; (3) 8 Cyc. 733. As to matters of common knowledge of which, courts take judicial knowledge, see 124 Am. St. 24. As to the construction of a statutory or constitutional requirement that a proposition be decided by a majority or other proportion of the voters, see 13 Ann. Cas. 416.