State ex rel. Blair v. Brooks

99 P. 874 | Wyo. | 1909

Scott, Justice.

This is a proceeding in mandamus originally instituted in this court by the plaintiff to compel ■ the defendant to isssue a proclamation upon the return and canvass of the vote cast at the regular November, A. D. 1908, election upon the adoption or rejection of a proposed constitutional amendment. To the petition and the writ the defendant has interposed a demurrer upon the ground that they do not state facts sufficient to constitute a cause of action.

The petition is as follows:

“Comes now the above named plaintiff and respectfully represents unto the court and alleges that the said C. E. Blair is a taxpayer and resident of Albany County, and that he is chairman of the Board of County Commissioners of Albany County, duly elected, qualified and acting as such. ■

“That the Ninth State Legislature of the State of Wyoming, by joint resolution, duly proposed a certain amendment to the constitution of the State of Wyoming, said proposed amendment being number three of proposed amendments to the state constitution, to take the place of, and be known as, Section 9, of Article XV to said constitution of Wyoming, being as follows, to-wit:

“ ‘Article XV. Section 9. There shall be a State Board of Equalization composed of the chairmen of the respective Boards of the County Commissioners of the state.’

“That such amendment was duly submitted to a vote of the electors of the State of Wyoming at the general election on the third day of November, 1908. That at such election the total number of votes for the adoption of such resolution was twelve thousand one hundred and sixty; that the number of votes against its adoption was thirteen hundred and sixty-three:

“That thereafter the State Canvassing Board of the State of Wyoming, duly canvassed the votes cast at said election for said amendment, and did declare and find the votes cast thereon as above set out. That thereafter, and on the 5th day of December, 1908, said State Canvassing Board did make and file in the office of the Secretary of State, a certificate signed by the members thereof containing a statement of the votes, so canvassed and the results of such canvass as above set out.

“That Bryant B. Brooks is Governor of the.State of Wyoming, and at all times herein mentioned was such, duly elected, qualified and acting.

“That said Bryant B. Brooks has never issued his proclamation announcing the adoption of such amendment and refuses so to do, falsely alleging that said amendment was not adopted by the people of the State of Wyoming.

“That your plaintiff, C. E. Blair, is entirely without remedy in the premises unless it be afforded by the interposition of the Honorable Court.

“Plaintiff therefore prays that a writ of mandamus may issue against the said defendant, the said Bryant B. Brooks, and that he be commanded to immediately issue his proclamation announcing the adoption of said amendment. And that such other and further orders may be made as justice requires.”

The question presented calls for a construction of Section 1, Article XX of the constitution. That section reads as follows:

“Section 1. Any amendment or amendments to this constitution may be proposed in either branch of the Legislature, and, if the same shall be agreed to by two-thirds of all the members of each of the two houses, voting separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and it shall be the duty of the Legislature to submit such amendment or amendments to the electors of the state at the next general election, and cause the same to be published without delay for at least twelve (12) consecutive weeks, prior to said election, in at least one newspaper of general circulation, published in each county, and if a majority of the electors shall ratify the same, such amendment or amendments shall become a part of this constitution.”

It is contended by the defendant that it appears upon the face of the petition that the required number of votes were not cast upon the proposed amendment as provided by this section and that for that reason the amendment failed of ratification. It appears from the petition that there were 37,561 votes cast at that election and of these 12,160 voted in favor of the adoption of the amendment and 1,363 voted against its adoption, or, 13,523 out of 37,561 who voted at the election voted upon the question.

The provision of the constitution is explicit in its terms. Such proposed amendment can only be ratified by a majority of the electors. It would be anomalous to say in view of the section taken as a whole that it was intended to mean only those who actually voted upon the amendment, or in other words, a majority of some of the electors, excluding others. It requires the proposed amendment to be submitted to the electors of the state, those who are entitled to vote, and it is by a majority of the electors, that is, electors of the state, and not a majority of those actually voting upon the question, that such a proposed amendment is ratified. Any other construction would authorize the counting of all who did not vote on the question as in favor of the adoption, a construction which is not borne out by the language nor is it in harmony with the spirit of the constitution. While it is true that a majority or a plurality of the votes cast elects a candidate for an office, yet, when a voter fails to cast his vote for any candidate for a particular office the preference of the elector has not been legally expressed and there is nothing- to record in favor of or against any such candidate. The word elector is defined in the constitution (Section 2, Article VI) as follows:

“Every citizen of the United States of the-age of twenty-one years and upwards, who has resided in the state or territory one year and in the county wherein such residence is located sixty days next preceding any election, shall be entitled to vote at such election, except as herein otherwise provided.”

There is no room.for doubt as to what the constitutional convention meant when it used the word electors in Section 1 of Article XX. The word according to the definition given it by those who framed the constitution means those who are entitled to vote, and when the constitution says a majority of the electors it means, in the absence of any qualifying phrase, a majority of, those who are entitled to vote. This is made more evident from the fact that the phrase “if ratified by a majority of the electors” follows the provision that the proposed amendment shall be submitted to the electors of the state; and the words “the electors” without other qualification, a majority of whom is required to ratify the amendment, 'clearly means the electors of the state. The language is broader in meaning than a mere majority of the electors who actually vote upon the proposition. Neither residence of the elector nor failure to vote can militate against this proposition. The word elector is generic. It includes not only those who vote but those who are qualified yet fail to- exercise the right of franchise. • To hold otherwise would in effect give to the word electors a narrower and more restricted meaning than that given to it in the constitution.

It is no argument against this reasoning to inquire how the question as to the adoption of a proposed amendment which has been submitted to the electors of the state shall be determined or to point to the difficulty of-determining the number of electors or the possibility of confusion in the absence of any law a's a guide. In the case before us those questions are not involved., The number of electors of the state is not alleged. The number of votes cast is alleged, and taking that as a basis the proposed amendment failed of ratification. There were more than half of the electors voting at the November, 1908, election who failed to indicate their desires or wishes upon the adoption of the proposed amendment. It was the expression -of the elector’s wish upon the question which the law called for — a positive expression in a particular manner and not the absence of such expression which was authorized to be recorded. To ratify is to affirm, and the constitution requires in order to ratify that there be an affirmative expression of a majority of the electors to whom the question is submitted the withholding of which is not sufficient. The proposed amendment was submitted to the electors of the state and it ■required a majority of those electors to ratify it. As it appears that the number of electors who voted at the election and in favor of ratification of the amendment were less than a majority of the electors who voted at the election it follows that the amendment was not ratified. The demurrer should be sustained.

We are aware that the conclusion here reached is not in harmony with some of the decisions. Each decision, however, is based upon the wording of the constitutional provision in the jurisdiction in which the question arose. We observe especially the opposite view expressed in Green v. State Board of Canvassers, (Ida.) 95 Am. St. Rep., 169. In Indiana an amendment to the constitution was required to be submitted to the electors of the state, and to be ratified by a majority of “said” electors, and it was held that a ratification by a majority only of those voting on the amendment was not sufficient. Re. Denny, 51 L. R. A. 722. The case in which that decision was rendered supports the conclusion we have reached. The words “said electors” in the Indiana constitution and “the electors” in our constitution, refer to the preceding words “the electors of the state” to whom the amendment was required to be submitted, and we think mean the same thing, viz: “the electors of the state.” It may be conceded that the cases are in hopeless conflict (Cooley’s Const. Limitations, 6th Ed., 747, note), and that being so we feel that it would not be profitable to enter into any lengthy discussion of these cases or attempt to differentiate between them. We have confined our views to the wording of our constitution, its plain import, and the reasoning and conclusion reached are to our minds the most logical.

The demurrer is sustained.

Potter, C. J., and Beard, J., concur.