156 Ind. 104 | Ind. | 1901
Lead Opinion
Section 21 of article 1 of the Constitution, in force from November 1, 1851, reads: “Every person of good moral character, being a voter, shall be entitled to admission to practice law in all courts of justice.” At the election in' November, 1900, a proposed amendment, to take the place of the foregoing provision, to the effect that “The General Assembly shall by law prescribe what qualifications shall be necessary for admission to practice law in all courts of justice” was submitted to the electors of the State. On the assumption that the proposed amendment had been adopted, and on the further assumption that it was within the court’s prerogative to prescribe qualifications by rule without waiting for the General Assembly to change the present statutory provisions on.the subject, the Marion Circuit Court established rules. and appointed a board of examiners. Thereafter, the petitioner Mr. Denny applied to be admitted to practice law in the Marion Circuit Court, on the qualifications only that he was a person of good moral character and a voter in Marion county, Indiana. On the trial, the court specially found these facts: Mr. Denny is a person of good moral character and a voter in Marion county, Indiana.. At the general election in Indiana on November 6, 1900, 655,9-65 votes' were, cast for various candidates for the office of Governor of Indiana. At' an election held upon the same day throughout the State of Indiana, pursuant to an act of the General Assembly approved March 6, 1899 (Acts 1899, p. 560), there were cast for the amendment in question 240,031 votes and
The Constitution-lays down the only procedure by which án amendmetit' may be adopted: Article 16> §1. -“Any amendment ■ or amendments to this Constitution may be proposed in• either'branch of the General Assembly; and-if the samé shall be agreed to by- a maj ority of -the members elected- to each df the two houses,, such proposed amendment-or amendments shall, -with the yeas and nays thereon, be entered on their journals, and referred to the'General Assembly to be.chosen at the next general election; and if, in the General Assembly- so next chosen, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the dutyof-the'G'eneral Assembly to submit such amendment or amendments to the electors of'the State'; and if a majority of - said electors shall ratify the same, such' amendment or amendments shall become a- part of this Constitution. Section 2. If two 'or more amendments shall be submitted at the same time, they shall be submitted in such manner that-the electors shall vote for or against each of such amendments' separately; and while an amendment or amendments which' shall.havé -been agreed upon by one General Assembly shall be awaiting-'the action-of a'succeeding General Assembly, or of the electors, no additional amendment or amendments' shall be proposed.” ■
The proposed amendment in question and one other re
The' Governor’s proclamation announced that •'240,031 votes had been oast for, and 144,072 against, the proposed
In our system of government, a written constitution is the highest expression of law. None 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 májority, 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 of 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. There is no room' for construction. The language is too plain to admit of quibbling. “Majority” means “more than half”. “Electors”, with reference to an election, means, according to the lexicographers and universally accepted usage, “persons possessed of the legal qualifications entitling them to vote”. The word “voters”, on the other hand, has two meanings, “persons who perform the act of voting”, and “persons who' have the qualifications entitling them to vote”. Constitutions are drafted with care. The framers of our Contsitution deliberately selected and used the words in the meaning of which there could be no ambiguity.' The sentence, “If more than half of the persons in the State who possess the legal qualifications entitling them to vote shall ratify' the proposed amendment, it shall become' a part of the Con-'
It is universally held that, in the absence of a provision for registration, the number of persons who possess the qualifications entitling them to vote at a- given election is determined by the election itself. Deaths, minors’ coming of ,age, disfranchisements, removals from the State, or from the county, township, ward, or precinct, within certain limits of time, make the number of- electors a continually variable quantity. But when a person goes to the polls in . his precinct, is passed by the challengers, is accepted by the election officers, and has his name enrolled on the poll lists ..as -having voted, he thereby furnishes proof of the fact that ..he 'isian elector, a person possessed of the legal qualifications entitling him to vote at that election. And- the poll lists furnish evidence of the total number of electors., And . this evidence .is just as definite and certain as that which could be afforded by a registration of the persons entitled to vote. at. that election, for the poll lists themselves form a . registration.
- ,. After, the proposed amendments were approved by the .General Assemblies-of 1891 and 1899, it became the duty of the General Assembly of 1899 to submit them to the electors of the State. It was within the power of that Gen- , eral Assembly to provide for submitting them at a general, or at ,a special, election. The General Assembly enacted . that a vote on the proposed amendment slnmld be taken at the next general election. The trial court found that 240?-031 votes were cast in favor of the adoption of the proposed amendment in question. The trial court probably m'ade
. It is argued that the proposed amendment was submitted at a- special election, and that therefore this.coirrt can not take judicial knowledge of any. returns except those of the alleged special election. The argument that the election was special is based on §62 of the election law (Acts 1889, p.. 184, §6258 Burns 1894). By that.section the General Assembly of 1889 undertook to say that whenever any constitutional .amendment- is required by law to be submitted to popular yote, 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” or “no” under the same, so that the elector may indicate his preference by stamping at the place designated in front of either word. The argument then proceeds: Since the General Assembly of 1899 did not conform to the law of 1889, the act of 1899 submitting the proposed amendments to the electors of the State must be held to be a provision for a special election. In the first, place, it is spmewhat unusual to give an act of one General Assembly the effect of a constitutional restraint upon the action of its successors. In the next place,-the General Assembly of 1889 was not the proper one to take action. There were no constitutional amendments pending,
It is also urged that, because the number of persons in the State who were entitled to vote at the election on November 6, 1900, in excess of the 664,094 persons who were counted as having voted for presidential electors, is a matter of conjecture, it is therefore permissible to indulge in the conjecture that there were no more electors (persons entitled to vote)' on the proposed amendment in question than the 240,031 tha.t were recorded as having voted for, and the 144,072 against, its adoption. The difference is vital. On the conjecture that there were more electors of the State than 664,094, by so much the more has the proposed amendment failed to be ratified by a majority of them.. But it is not necessary to deal in that, or in any other, conjecture to hold that the proposed amendment has been defeated. The absolute judicial knowledge (evidence of the very highest class) that there were at least 664,094 persons entitled to vote on the proposed amendment, proves
The Attorney-General invites our consideration of the claim that “a majority of the electors of the State” was not intended to mean “a majority of dll the electors of the State”, because the constitutional convention rejected a substitute inserting “all” before “the electors”, and because the article as adopted requires a proposed amendment to be agreed to by “a majority of all the members elected to each house”. First. The substitute was rejected, not on account of the presence of the word “all”, but because it ran counter to the plan favored by the convention. The substitute was: “No amendment shall be made to the Constitution unless the same shall have been called for and - approved by a majority of all the voters (electors) of the State”. 2 Const. Debates pp. 1938-1942. Second. “A majority of the electors of the State” is as comprehensive as “a majority of all the electors of the State”, just as “a majority of the members elected to each of the two houses”' is as wide-embracing as “a majority of all the members elected to each house”. The one form of expression may be more intensive than the other, but it is not more inclusive. Third. That the convention attached no importance to the presence
The Attorney-General further contends that section 2 of article 16 shows that only the votes counted for and against the proposed amendment in question should be considered’in determining the number of “the electors of the State”. . Section 2 provides: “If two or more amendments shall be submitted at the same time, they shall be submitted in such manner that the electors shall vote for or against each of such amendments separately.” The controlling idea to be expressed was this: If two or more amendments are to be submitted at the same time, they ought not to be voted upon en masse, but separately, so that each may stand or fall on its own merits. Section 2 directs the submission’ of two or more amendments to be made “in such manner that the electors shall vote for or against each of such amendments separately”; but does not undertake to state the effect of the votes cast on such submission. That effect is expressed in section 1. It is incredible that it was intended that a different effect should follow from the vote “if two or more amendments are submitted at the same time” from that which would follow the submission of one amendment: The only condition under which an amendment “shall become a part of this Constitution” is, that '“a majority of the electors of the State shall ratify the same”. No other terms of adoption are named in any part of the article; arid yet the argument of counsel assumes that the positive declaration in section 1 is destroyed by their inference’that the provision for taking a vote “for” and “against” means that only the votes counted “for” and “against” are to be considered. Counsel’s inference would destroy as’well the direct command in section 1 that a proposed amendment “shall be agreed to by a majority of the members elected to each of the two houses”, since a
The history of the article confirms our recognition of its plain meaning. The original resolution provided for ratification by “a majority of the qualified voters.” A motion was made to instruct the committee on future amendments to substitute the words, “a majority of all the votes cast for and against the same”. The motion, modified so as to require the committee only to consider the advisability of the substitution, was carried. The committee rejected the phrase, “a majority of all the votes cast for and against the same”, and reported the following: “* * * it shall be their duty to submit the same to the people at the next general election, * * * and if a majority of all the electors voting at said election for members of the. house of representatives * * *”. In the convention, the following phraseology was agreed upon: “* * * • submit such amendment or amend mients to the qualified electors' of the State,'and if a majority of said electors shall ratify the
The article relating to amendments of the organic law has been before this court but once. In State v. Swift, 69 Ind. 505, the question concerned the adoption of a proposed constitutional amendment, which was submitted 'to the electors of the State at the' élection for township officers in April, 1880. The only vote certified to the Secretary of State.was the'vote on the proposed amendment. The vote' was 169,483 for, and 152,251 against, the proposed amendment. The elections of township officers, in’ the various townships of the State were purely local elections: The re turns thereof are not made to the Secretary of State and do not become a part of the archives of the State. It was held,
In the cage of City of South Bend v. Lewis, 138 Ind. 512, a statute providing for an election on the question of the union of. a city and a town was before the corn’t for construction. It was. very properly held that, by the terms .of the statute, the union was affected if a majority of those in each municipality who voted upon the question voted in favor of the union. The statute required the city council and the town board to agree upon a day on which an election should be held for the people of the city and of the town to vote on the question of union. The day selected was one on which .there was an election of officers in the city, but none in the town. In view of the fact that only a majority of .the votes “given on the question of union” was necessary to an affirmative .decision, it was held that the question as to the number of votes cast in the city for officers was. immaterial. The statute in that case and the constitutional provision in this are essentially different; but the court there recognized. and, as it were, forecast the doctrine that is controlling here. Among other things the court said: “The learned counsel for the appellee seems to rely upon the provision that.a town and a city may be united if a ‘majority of the qualified voters of the town and a majority of the qualified voters of the city’ vote in favor thereof. If this section stood alone, it might be urged that a majority of all the voters are necessary, and the number of votes east at the city election for officers should be taken as additional means for ascertaining the number of legal voters of the city. But the other sections of the act clearly show that such was not the intent of the framers of the act. * * * Where a question is required to be submitted at a certain regular election, and is made to depend upon a majority of the votes cast at ‘such election’, a majority of all the votes cast at the
The conclusion at which we have arrived is sustained, in our opinion, by the overwhelming weight ,of authority. The following decisions are directly in point: People v. Town of Berkeley, 102 Cal. 298, 36 Pac. 591, 23 L. R. A. 838; People v. Brown, 11 Ill. 478; People v. Garner, 47 Ill. 246; People v. Wiant, 48 Ill. 263; Chestnutwood v. Hood, 68 Ill. 132; Belknap v. City of Louisville, 99 Ky. 474, 36 S. W. 1118, 34 L. R. A. 256; Stebbins v. Judge, 108 Mich. 693, 66 N. W. 594; Bayard v. Klinge, 16 Minn. 249; Everett v. Smith, 22 Minn. 53; Slingerland v. Norton, 59 Minn. 351, 61 N. W. 322; Smith v. Board, etc., 64 Minn. 16, 65 N. W. 950; State v. Powell (Miss.), 27 South. 927, 48 L. R. A. 652; State v. Winkelmeier, 35 Mo. 103; State v. Sutterfield, 54 Mo. 391; State v. Mayor of St. Louis, 73 Mo. 435; State v. Francis, 95 Mo. 44, 8 S. W. 1; State v. McGowan, 138 Mo. 187, 39 S. W. 771; State v. Lancaster Co., 6 Neb. 474; State v. Babcock, 17 Neb. 188, 22 N. W. 372; State v. Bechel, 22 Neb. 158, 34 N. W. 342; State v. Anderson, 26 Neb. 517, 42 N. W. 421; State v. Van Camp, 36 Neb. 91, 54 N. W. 113; Bryan v. City of Lincoln, 50 Neb. 620, 70 N. W. 252, 35 L. R. A. 752; Tecumseh Nat. Bank v. Saunders, 51 Neb. 801, 71 N. W. 779; Enyart v. Trustees, 25 Ohio St. 618; State v. Foraker, 46 Ohio St. 677, 23 N. E. 491, 6 L. R. A. 422. And see Sanford v. Prentice, 28 Wis. 358, on the difference between an elector and a voter.
In People v. Town of Berkeley, the court said of a constitutional provision: “These words” (whenever a majority of the electors voting at a general election shall so determine) “clearly do not indicate that only a majority of the electors voting upon the proposition is necessary, but would seem to imply that a majority of all those voting at the election is required.”
In People v. Brown, the constitution provided: “When
In People v. Wiant, the language of the constitution under consideration was “a majority of the voters”. Held, that a majority of the votes cast on the question was insufficient.
In Stebbins v. Judge, the statute forbade the "incurrence of bonded indebtedness “unless the qualified electors of said city, voting in their respective wards, shall have authorized the .issuing of said bonds by. a majority of. their votes cast at any regular election, or at" a special election called for the purpose of voting upon such question.” The vote in question was taken at a regular election. Held, that the decision was determinable by a majority of the votes cast at the election, not by a majority of the votes cast upon- the question.
In Bayard v. Klinge, the words of the constitution under examination were “a majority of such electors”. The court decided that a majority of those voting on the question was not sufficient.
In Slingerland v. Norton and in Smith v. Board, it was held that the whole number voting at an election must be determined from .the poll lists, not from the return of the votes counted as'effective.
The language of the constitution under consideration in State v. Powell was “a majority of the qualified electors voting”. It was held that the proposed constitutional amendment could only be adopted by a majority of those voting at the same time for any purpose. ■ .
In State v. Winkelmeier, the language of the statute was “a majority of the legal voters”. More, .than 13,000 voters participated in the "election. 5,035 favored, and 2,001 opposed, the adoption of the question submitted. The court
In State v. Babcock, the constitution provided that “proposed amendments * * * shall be * * * published for three months immediately preceding the next election of senators and representatives, * * *. and if a majority of the electors voting at such election adopt,” etc. Held, that a majority of-those voting on the amendment was insufficient. ■ ■
In State v. Bechel, the constitution provided: “No such general law shall be passed by the legislature, granting th© right to construct and operate a street railroad within any city, town, or incorporated village, without first requiring the consent of a majority of the electors thereof.” The question of having a street railroad was submitted at a general city election, at which, 8,146 voters participated, of who'm 1,650 voted for, and 1,470 against, the railroad. The court said: “It is impossible for us, by any system of logical reasoning, to say that the election held in the city of Omaha on the 3rd day of May, 1887, was other than one election. * * * That being the case, * * * the consent of a majority of the electors was. not given.”
In State v. Foraker, the constitutional provision was that a proposed amendment should be published “for six months preceding the next election for senators and representatives, at which time the same shall be submitted to the electors, * * * and if a majority of the electors voting at such election shall adopt,” etc. Held, that a majority of those voting on the amendment was insufficient.
There are many other cases that' are in harmony with our conclusions, but in which the constitutional or statutory provision under consideration was found, as in our own case of City of South Bend v. Lewis, to condition the adoption of a particular question only upon its receiving a majority of the votes cast for and-against it: Gavin v. City of
In the great majority of these cases the principles, that control us in our holding in the present case are distinctly recognized. For example: In County Seat of Linn County, 15 Nan. 500, the phrase “a majority of the electors of the county” was considered in connection with the returns of a special election at which the particular question was
There may be a few cases that can not be reconciled with the great weight of the decided law, but they probably all belong to the class of which Gillespie v. Palmer, 20 Wis. 544, may be taken as illustrative. In that case, the constitution provided that the legislature might extend the right of suffrage, but that the law should not go into effect until “submitted to a vote of the people at a general election and approved by a majority of all the votes cast at such election”. The court was called upon to decide whether or not' a law extending the right of suffrage to negroes had been ratified. More votes were cast for the law than against it, but it did not receive a majority of all the votes cast at the election on Other matters. The court held that the law had been ratified. In the later case of Sawyer v. Dodge, etc., Ins. Co., 37 Wis. 503, 524, the court sáid of the Gillespie case that it “has been subjected to the criticism that the court decided it in accordance with ‘the logic of the war’ rather than ‘the logic of' the law’ And in Bound v. Wisconsin, etc., R. Co., 45 Wis. 543, 579, Chief Justice Ryan classed Gillespie v. Palmer as being one of several cases “which have long been made a reproach to the court, as judgments proceeding upon policy ratllCT tb.au upon principle.”
Dissenting Opinion
Dissenting Opinion:
I dissent from both the reasoning and the conclusions in the prevailing opinion in this case for the reas,ons. herein given.
The General Assembly of 1897 proposed two amendments to, the State’s Constitution, one of which was to amend section 2 of article 7, and the other, being the one here involved, proposed to change or amend section 21. of the same article, by substituting or inserting in lieu of that section as originally adopted the following provision: “The General Assembly shall by law prescribe what qualifications shall be necessary for admission to practice law i.n all courts of justice.” These two amendments after being agreed to by the General Assembly of 1897, were by that body referred to the General Assembly of the State to be chosen at the next general election. The amendments mentioned were both considered and agreed ,to by the General Assembly of 1899, and that body in obedience to the requirements of the Constitution passed an act whereby these amendments were submitted to the electors of the State for their ratification or rejection. See Acts 1899, p. 560. Section 1 of this statute provided that a vote should be taken by the people of the State on the adoption or rej ection of. the proposed amendments at the next general election to be held on the first Tuesday after the first Monday in November, 1900, und further provided that the clerks of circuit courts throughout the State should cause ballots to
On November 30,1900, the Governor of the State in pursuance of section two of the above statute issued a proclamation whereby he announced and proclaimed the whole number of votes cast for and against each of-said amendments at the election at which they had been submitted for
The .provisions of sections 1 and 2 .of article 16 of our Constitution which relate to the method of proposing and adopting an amendment or amendments thereto are as follows-: Sec, 1. “Any amendment or amendments to this Constitution may be proposed in either branch of the 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, with the yeas and nays thereon, be entered on their journals, and referred to the General Assembly to be chosen at the next general election; and if, in the next General Assembly so next chosen,, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the General Assembly to submit such amendment or amendments to the electors of the State; and if a majority of said electors shall ratify the same, .such amendment or amendments shall become a part of this Constitution.” Sec. 2. “If two or more amendments shall be submitted at the same time, they shall.be submitted in such manner that the electors shall vote for or against each of such amendments separately; * * *»
The solution of the question presented depends upon the interpretation to be given to the following clause in section 1 of-article 16, “and if a majority■ of said electors shall ratify the same” etc. (Our italics.) The contention of counsel for appellant is that the amendment in controversy can be held to be ratified only upon receiving a majority of all the votes cast at the general election held on'the same day upon .which. a vote, as provided by the statute, was taken on ratifying or rejecting said amendment. This is
In the case of State v. Babcock, 17 Neb. 188, 22 N. W. 372, it appears that a proposed amendment to the constitution, under the above provision, was submitted- at the general election held in that state in November, 1884, for the election of a governor, senators, and representatives. While the amendment in question received a majority of the total vote cast- at such* election for and against its adoption, still it did not receive a majority of the total vote cast at said election for senators-and representatives.. A majority of the court-in that case held that inasmuch as under the plain provisions of the constitution the amendment was required to be submitted to the electors of the state for their approval or rejection at the next election of senators and representatives, and was also further required to receive- a vote in favor of its adoption equal to a majority of all-who voted at said election for senators and representatives, in order to secure its adoption, and as such a result had not been: attained in respect to the amendment in controversy, therefore, it-had not been adopted as required by the constitution. -The holding of the same court iu the appeal of Tecumseh Nat. Bank v. Saunders, 51 Neb. 801, 71 N. W. 779, which involved an amendment to the constitution, is to the same effect. It is held, however, in this latter case that the vote- cast throughout the state for senators and representatives is not to be accepted as the sole criterion. That
The provisions of the constitution of Ohio and Nebraska in regard to the adoption of proposed amendments are virtually alike, except the period of publication prior to the submission of the amendments to the electors, under the constitution of Ohio, is fixed at six instead of three months “preceding the next election for senators and representatives, at which time the same shall be submitted to the electors, for their approval or rejection; and if a majority of the electors, voting at such election shall adopt such amendment it shall become a part of the constitution.” Consequently, in the case of State v. Foraker, 46 Ohio St. 677, 23 N. E. 491, 6 L. R. A. 422, the supreme court of that, state, under this provision of its constitution, held that before an amendment could be considered as adopted it must receive a majority of the votes of all electors voting at the election for senators and representatives at which election the amendment was required .to be submitted.
In the case of State v. Powell (Miss.), 27 South. 927, 48 L. R. A. 652, the constitution of Mississippi, as held by the supreme court in that appeal, seems to have contained the following provision in respect to the adoption of constitutional amendments: “If it shall appear that a majority of the qualified electors voting for members of the legislature shall-have voted for the proposed amendments”,
It'is certainly evident that these decisions of Nebraska, Ohio and Mississippi courts involved constitutional provisions so unlike or different from the one contained in the Constitution óf this State that they virtually afford no aid in arriving' at a correct interpretation of the clause or provision in controversy. The case of State v. Swift, 69 Ind. 505, maybe said fully to sustain the contention of counsel for appellant,1 and the reasoning and conclusion of the majority opinión herein.' That' case, however, was decided by a bare majority of this court as then constituted,’ judges Niblack and Scott dissenting.' The amendments therein involved were by an act of the legislature submitted to a vote of the electors at an 'election held on the first Monday in April, 1880, that day being the one upon which an election was held throughout the State for choosing township officers. The' election in "respect to the ameñdments involved was the only one which required a state canvass of the votes cast, and' they, ás it appears, received a favorable majority'of over' 17,000 of the total vote cast at said election upon the question of their ratification and' rejection. Notwithstanding this fact, however, the court held, in effect, that the amendments had not been ratified because it did not affirmatively appear that the majority so received by them was equal'to a majority of all the votes cast at said election for other purposes. It was also further affirmed by the court that the act óf the legislature whereby the amendments in 'dispute -were submitted to the electors was defective in not providing for a count of the aggregate number of votes cast at the said April election at which the proposed amendments were submitted, Judges Niblack and
The supreme court of Nebraska in State v. Babcock, 17 Neb. 188, 22 N. W. 372, criticizes the Swift case and expressly disapproves the reasoning by which the final conclu-' sion therein was reached. The doctrine enunciated in the Swift'case under the facts therein is certainly incompatible with the later holding of this court in City of South Bend v. Lewis, 138 Ind. 512. It will be readily observed that the Constitution of this State is silent in’ reference to the particular election at which the amendments shall -be submitted -by the legislature to the electors for their ratification or rejection. It is equally silent in regard to what shall be the criterion or standard by which the required majority shall be measured. It would, therefore, reasonably appear' that our Constitution does not profess to control such matters, but has left them to the sound discretion of the legislature. In State v. Babcock, supra, relied upon by appellant, the court in respect to the constitutional requirements of that state said: “The submission must be' at an election when senators and representatives are to be elected, and a majority of those voting at such election are required to vote in favor of the proposition to adopt the same. In the absence of a statute- or constitutional provision requiring a majority of all the votes cast to be in favor of a proposition, there is no doubt that a majority voting upon that question would be sufficient. In such case, no doubt, the failure of a party to vote upon the question may be considered as tacit assent to the will of the majority of those voting thereon; but such á rule cannot apply where a majority of the electors of the state voting at the election are required to vote in favor of a proposition to secure its adoption.”
In determining the question at issue in the case at bar
■ McCrary on Elections.(4th ed.), §208, states the rule as follows ■ “Where a statute requires a question to be decided or an officer to be chosen by the votes of ‘a majority of the voters of a county,’ this does not require that a majority of all persons in the county entitled to vote shall actually vote affirmatively, but only that the result shall be decided by .the majority of the votes cast, provided always that there is a fair election and an equal opportunity for all to participate.'- In such a case the only proper test of the number of persons entitled to vote is the result of the election as determined by the ballot-box, and the courts will not- go outside , of that to inquire whether there were other persons entitled to vote who did not do so. The Voters of the countyh-referred to by all such statutes are necessarily the voters who vote at the election, since the result in each -case must be determined by a count of the ballots cast and not by an inquiry as to- the number not cast. This doctrine is well settled by the authorities.”
Section 1 of article 14 of the constitution of Minnesota relating to proposed amendments thereto provides: “If it shall appear in a manner to -be provided by law, that a majority of the voters present and voting shall have ratified such-alterations or^ amendments, the same shall be valid to nil intents and purposes, as a part of this constitution.” / In the case of Dayton v. City of St. Paul, 22 Minn. 400, it appears that a proposed amendment had been submitted .under the above provision to the voters of that state-at a .general state election held for governor and other officials. The question presented in that appeal was as to whether, under the said provision of (he constitution, a majority -of the votes cast for and against an amendment would suffice .to secure its adoption,, or, in the event it was submitted at a general election, when a vote was to be taken for the election of state officers or the adoption of other propositions,
The constitution of the state of Idaho in relation to proposed amendments requires that they shall be-submitted' “to the electors of the state at the next general election, and, if' a majority of the electors shall ratify the same, such amendment or amendments shall become a part of 'this constitution. , If two or more amendments are proposed, they shall be submitted in such manner that the electors shall vote for or against each of them separately.” In Green v. State Board, etc. (Idaho), 47 Pac. 259, an amendment to extend the right of suffrage to women was submitted for ratification at á general election. It received 12,126 votes in favor of its ratification, while 6,282 were adverse. It further appears that there were some 10,000 or more electors who voted for state officers at said election who did not vote upon the said'.amendment. In construing the provision of the constitution quoted, the supreme court of Idaho held that a majority of the electors who voted for and against the adoption of the' amendment was sufficient, within the meaning of that provision, to secure' the" ratification of the amendment, although the same was not a majority of the electors who voted at said election for state officials. In that case it is said: “Experience has shown that it is almost,'if not qfiite, an impossibility to secure an expression from every elector upon any question, and, above all, upon a question óf an amendment of the constitution; and it is equally difficult to ascertain the actual number of electors at any given time.' * * * While it is true that some 10,000 or more electors would seem to have been entirely indifferent upon the question of the adoption of this and the other amendments, still all were — must have been — fully advised as to the importance of the.questions submitted, and should their indifference be taken as conclusive of their opposition to the amendments ? • Upon what rule' of honesty or righteousness
An act of congress approved February 22, 1899, known as the “Enabling Act” under which North and' South Dakota, Montana, and Washington became states, directed the people in the. territory of what is now the state of North Dakota to elect delegates to- a convention to formulate a constitution to be submitted to the qualified electors for their adoption, and provided for the submission at the same time of separate articles or ordinances and required the adoption of the latter by a “majority of the legal votes cast.” Article twenty of the proposed constitution, relating to prohibition of intoxicating liquors, was separately submitted. At the same election state officers were elected, and the ar
Article 6, section 1, of the constitution of Wisconsin, after declaring who are qualified electors of that state, contains the following proviso: “Provided, that the legislature may at any time, extend by law the right of suffrage to
The constitution of New Jersey provides in respect to the submission of proposed amendments to a vote of the people as follows: “If the people at a special election to be held for that purpose only, shall approve and ratify such amendment or amendments, or any of them, by a majority of the electors qualified to vote for members of the legislature voting thereon, such amendment or amendments so approved and ratified shall become part of the constitution.” At a special election held in 1897, proposed amendments to the constitution of that state were submitted and received 70,443 votes in their favor while 69,642 votes were adverse. It appears that 961 votes cast at this election were rejected upon various grounds.' The question of their approval upon the part of the people at said election was presented to the supreme court and also to the court of errors and appeals of New Jersey in Bott v. Secretary of State, 62 N. J. L. 107, 40 Atl. 740; Bott v. Wurts, 63 N. J. L. 289, 43 Atl. 744, 881, 45 L. R. A. 251. It was contended that the amendments had not been adopted because they had not received “the vote of a majority of the electors qualified
The cases, pro and con, to which I have referred upon the question in issue may be said to be, in the main at least, all in which constitutional amendments were involved. We are cited, however, in addition to decisions upon the adoption of constitutional amendments, to numerous other cases wherein constitutional or statutory provisions in regard to the submission to the voters of certain localities proposi
The third classification in the South Bend case, to the
The constitution of California forbids .any county to incur any indebtedness to a certain extent “without the, assent of two-thirds of the qualified electors thereof, voting at an election to b,e held for that purpose.” In the appeal of Howland v. Board of Supervisors, supra, a proposition.had. been submitted at a general election to the electors ,of a county in regard to incurring certain indebtedness. At said general election 6,500 votes were cast in the county,, but only 3;880 of said voters voted in favor of incurring, the indebtedness, while 1,006 voted against it. .The court in the latter case held that two-thirds of the qualified electors, of the county had by their votes assented thereto within, the meaning of the constitution. The court in that appeal said: “If there had been no general election held at the same time this bond election was held,' there would be no question but that two-thirds of the qualified electors of the county voting assented thereto, and the fact that the county, by its board of supervisors, embraced the privilege extended to it by. the legislature, by the act of 1891, and held the election upon the day and at the same place as the general election, we think wholly immaterial. * * * The election was called by proclamation of the board of supervisors- of San Joaquin county, for a single, definite purpose, and ex necessitate, was a special election, and the votes cast for and against the issuance of bonds were all the votes cast at that election ”
In the case of Board, etc., v. Winkley, 29 Kan. 36, a law of that state providing for bounties to be given by counties to encourage the growing of hedges was involved. The proposition to award such bounties was directed by the statute to be submitted to the people of the county at an election to be held at the same time provided for holding general elections for the election of county officers. It was provided “If a majority of the voters are for the bounty” then the law was to be in full force and effect. I quote from the opinion in that case: “Within the terms of the statute, we think the bounty proposition is to be declared adopted or rejected, according as it receives or fails to receive a majority of the votes cast for or against it. The votes cast for the township officers at the election of April, 1873, are not to be considered upon the bounty proposition. The electors of Marion county were invited by the proclamation of the county commissioners to vote for or against the bounty. A majority of the votes cast upon that particular proposition were for the bounty. This result having been obtained, it was the duty of the county commissioners of the county to declare the act to encourage the growing of hedges to be in full force and effect in that county. The electors who were present at the polls at the called election, and, while voting for township officers, did not vote upon
The constitution of Missouri forbids the legislature from authorizing “Any county, city, or town to become a stockholder in • or loan it's credit to any' company, etc., unless two-thirds 'of the qualified-electors of such county, city, or town at a regular of special election to be held therein shall assent thereto.” Under' an act of the legislature of that state, known as the “Township Aid Act,” a certain township of Cass county voted by a two-thirds vote to issue township bonds to a railroad company, which were accordingly issued. Ih an action against Cass county as trustee of the township to recover interest over’d’ue'upon one of the bonds the question was ráised that, although more than two-thirds voted at the election, twó-thirds of the qualified voters of the township did not vote in favor of issuing the bonds. The case' ultimately reached the Supreme Court of the United States. County of Cass v. Johnston, 95 U. S. 360. That court, after citing and reviewing many authorities relating to the general subject, announced its conclusion as follows: “Tliis' wé understand to be the established rule as to the effect o'f elections, in the absence of any statutory regulation to the contrary. All qualified voters who absent themselves from an election duly called are presumed to assent to the expressed' will of the majority of'those voting, unléss the law providing'for the election otherwise declares. Any other rule wquld be productive of the greatest inconvenience, and ought not to be adopted, unless the legislative will to that effect is clearly expressed.”
A statute of the state" of Maryland authorizing the sale of spiritous liquor's provided that on the day of the regular or general election in 1886 the voters of Washington county of that state “shall determine, by ballot whether or not the provisions of this act shall/go into effect in said county. Those.favoring the act will cast their ballots with the words
In the case of Smith v. Proctor, 130 N. Y. 319, 29 N. E. 312, 14 L. R. A. 403, the question arose under a statute in respect to the issuing of bonds by a school district when authorized by “a majority of all the inhabitants of any school district entitled to vote”, to be ascertained by the ayes and noes of “such inhabitants attending at any annual, special or adjourned school district meeting.” At an adjourned meeting of the inhabitants of the district in question 115 entitled to vote were present. The resolution in dispute in that case received at this meeting for its adoption thirty-four votes, while thirty-three were cast against it, only sixty-seven of the 115 having voted upon the question. The insistence in that appeal was that the resolution had not received a majority of all the inhabitants entitled to vote who attended the meeting. The court, however, held that the resolution had been adopted pursuant to the provisions of the statute, and announced in its opinion that those who had not voted at all could not be considered as voting no on the proposition “because they did not vote no and so to record them would falsify the record.”
In May v. Bermel, 20 N. Y. App. Div. 53, 46 N. Y. Supp. 622, the question arose upon the adoption of a proposition by the voters of the town of Newtown to issue certain bonds. The statute involved in that case provided that “a vote of the majority of the electors of any such town or towns voting at an annual town meeting or special town
mon law.” The rule of the common law as declared' by Lord Mansfield in Oldknow v. Wainright, 2 Burr. 1017, 1021, and by Lord Denman in Gosling v. Velvey, 7 Ad. & El. (N. S.) 406, 456, is to the effect that whenever electors are present and do not vote at all they virtually acquiesce in the election made by those who do. That a vote by a majority of a meeting means a majority of those who chose to
In this latter case, a township tax levied under the statute in aid of a railroad company was in issue. It is there said: “When a majority of those voting on the question have determined in favor of the burden,, it is taken as the voice of the whole community;. and not only those who do not or who cap npt vote upon the proposition1, but even those who vote against it, are equally held bound by the result.”
In the case of Lamb v. Cain, supra, the:rule.is forcibly asserted. The question presented, in thát appeal .related to the amendment of the constitution of an ecclesiastical society. The constitution of the latter provided “there shall be no alteration of the foregoing constitution unless by. request of two-thirds of the whole society.” An amended constitution was submitted for approval to the votes of the organization, the membership of which at the •time was 204,517. The total number of. votes cast upon the various alterations proposed to be made in the constitution was 54,369, the same being far,less than two-thirds of the members constituting said society. It was contended before this court 'in that case that the vote cast did not amount to a request to alter the constitution by two-thirds of the whole society as required. It was held in that appeal- that the organic law could not be changed in any other mode than that prescribed by the instrument itself. Coffey, J., speaking for the court said: “The question is fairly presented
In the case of Schlichter v. Keiter, 156 Pa. St. 119, 27 Atl. 45, 22 L. R. A. 161, the same question arose in respect to the alteration or change in the constitution of an organization known as The Church of the United Brethren in Christ. The provision of the constitution of this church or society was substantially the same as the provision involved in Lamb v. Cain, 129 Ind. 486. The supreme court of Pennsylvania held that a majority of the whole number of persons voting was sufficient to adopt the new constitution therein involved. That it must be assumed that those who did not vote were either favorable or indifferent to the proposed change. The court said in the course of its opinion: “In all elections the non-voting must be counted as willing to be bound by the action of the majority of those who vote. Any' other rule would lead to interminable trouble. * * * A majority consists of more than one-half of those who vote at a' given election, not of those who might have voted, but did not vote.” The same question virtually was before the supreme court of Illinois in Kuns v. Robertson, 154 Ill. 394, 40 N. E. 343, and the rule asserted in Lamb v. Cain, supra, and in Schlichter v. Keiter, supra, was approved and followed. There are many other cases cited of like import of those hereinbefore reviewed, but I do not deem it essential
The contention, among others, of the Attorney-General is that the clause of the Constitution under consideration comes within both the third and fourth classification made by this court in City of South Bend v. Lewis, 138 Ind. 512, and hence, only a majority of the votes cast upon each separate amendment is necessary to secure its adoption. In Bishop v. State, 149 Ind. 223, 230, 63 Am. St. 279, 39 L. R. A. 278, it is said: “It is a rule generally asserted that words or terms used in a constitution which is dependent upon a ratification by the people must be interpreted in a sense most obvious to the common understanding at the time of its adoption, in the belief that such was the sense or meaning designed.” The intention or meaning of the people who- adopted our Constitution is to be sought in the instrument itself and the apparent meaning of words or language employed is tó be taken as expressing such meaning except in cases where that assumption would lead to absurdity, ambiguity or contradiction. Black, Int. of Laws, p. 15.
Tested by the rule, what may be said to be the meaning of the clause immediately following the declaration that “It shall be the duty of the legislature to submit such amendment, or amendments, to the qualified electors of the State,” namely, “if a majority of said electors shall ratify the same,” can this clause be interpreted to mean a majority of those voting for and against a proposed amendment, or must it be considered as extending beyond this criterion and providing some other or different standard or mode for ascertaining what is “a majority of said electors” ? As an aid in the search for the meaning or intent thereof I am referred to the debates of the convention which framed the Constitution. While these can have no controlling effect upon the interpretation of that instrument, still they may b.e said to be of importance where they tend to support a
It is a fundamental principle under our government as the authorities assert, which must have been understood by the framers and ratifiers of. our Constitution, that a.majority of those who exercise, the right of suffrage shall control in its affairs. It must be further presumed that they also knew and understood that the usual and ordinary mode of ascertaining or evidencing such majority is by giving all legally entitled to vote on a proposition an opportunity to do so, and then counting such persons as choose to exercise the right of suffrage by casting an affirmative and negative vote
Mr. Cushing in his Manual of Parliamentary Law in paragraphs 117 and 120, in speaking in relation to the law of elections, says: “The term majority, that is, the greater.
The method which I have indicated must in reason be the one which the Constitution contemplates shall be adopted or provided by the legislature in submitting proposed amendments for ratification, and the test by which the majority nqcessary for ratification shall be determined is to consider alone the majority of the combined or aggregate vote cast for and against the ratification of each amendment. In this view I am supported- by §2 of article 16 which requires that the amendment or amendments shall be submitted in such a manner that the electors shall vote for or against each amendment separately. This provision would seem to be a positive- command that the electors exercising the right to vote thereon shall vote for or against each of them separately and distinct from the others. Why was this required if the whole number of the electors was not to be tested by the combined affirmative and negative vote cast separately on each amendment, but, as contended, must be ascertained by the highest number of votes cast at the same time upon some other proposition ? This method for determining the whole number of the electors of the State is virtually conceded in State v. Swift, 69 Ind. 505, on page 526 of the opinion, where it is said: “The opinion, therefore, of this court is, that it requires a majority of the electors of the
It must be assumed that the election officers faithfully discharged their duties in compliance with the statute under which the amendments were submitted, and also in compliance with the provisions of the general election law which were to govern the election in question so far as applicable.- By the express provisions of the act, every elector present at the general election, upon entering the election room, and before entering the booth to prepare his ballots for voting, was supplied by the election officers with one of these official ballots for voting separately upon each amendment submitted. After indicating his choice upon the ballot-, as the law directed, or after attempting to do so, or after declining to express any choice whatever, we may assume that upon leaving the booth each elector handed the ballot so furnished to him, whether properly marked or not, to the election inspector, who deposited the same in the proper ballot-box. For by the provisions of the general election law it is declared to be unlawful
The extreme views and conclusions announced in the prevailing opinion of the court, in respect to the interpretation to be placed upon the particular clause of the Constitution, are, in my opinion, not in harmony with its meaning, neither are they justified by the canons which control the construction of constitutional law. The decision is to be regretted, as it will materially hinder, or render it an ex
Concurrence Opinion
concurring. I rest my concurrence in the result .upon the fact that the amendment involved in.this appeal did not receive a majority of the votes cast upon the subject of the amendments, and cast for and against amendment number one. ...