State ex rel. McClurg v. Powell

77 Miss. 543 | Miss. | 1900

Whitfteud, 0. J.,

delivered the opinion of tlie court.

Three questions are presented for solution.

First, i§ the question whether the proposition submitted to. the voters for adoption as part of the constitution be one amendment or more than one amendment, a judicial question? and, likewise, is the question whether such proposition received the majority prescribed by the constitution as essential to its valid adoption, a judicial question?

Second, if these questions are judicial questions, was the proposition one amendment, or two or more amendments, and as necessarily involved herein, was the proposition submitted in the way the constitution imperatively requires it to be submitted ?

Third, was the proposition adopted by the majority of qualified electors prescribed by the constitution as essential to the adoption of an amendment thereto?

As to the first proposition, we are clear that both questions are judicial questions. T^iis is placed beyond cavil, as the settled doctrine of this state, by Green v. Weller, 32 Miss., and Sproule v. Frederick, 69 Miss., 898. The same response is given by an overwhelming weight of authority from other states. In the 6th vol. of Am. & Eng. Ene. L., at page 908, second edition, it is said:

“The courts have full puwer to declare that an amendment to the constitution has not been properly adopted even though it has been so declared by the political department of the state,” and for,this statement the following authorities are cited: Collier v. Fruison, 24 Ala., 100; State v. Swift, 69 Ind., 505; Koehler v. Hill, 60 Iowa, 543; State v. Young, 29 Minn., 574; Secombe v. Kittleson, 29 Minn., 555; State v. McBride, 4 Mo., 505; State v. Timme, 54 Wis., 318; Jameson’s Const. Conventions, 4th edition, 617. We have carefully examined each of these authorities, and they clearly and fully support the statement of the text, the case from Missouri being especially emphatic, as is also the case from Alabama. In this last case, the court says;

“We entertain no doubt, that, to change the constitution in any other mode than by a convention, every requisition demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment. The constitution is the supreme and paramount law. The mode by which amendments are to be made under it are clearly defined. It has been said that certain acts are to be done, certain requisitions are to be observed, before a change can be effected. But to what purpose are those acts required or these requisitions en-j oined, if the legislature, or any other department of the government, can dispense with them?' To do so would be to violate the instrument which they are sworn to support; and every principle of public law and sound constitutional policy requires the court to pronounce against every amendment which is shown not to have been made in accordance with the rules prescribed by the fundamental law.’' .

The learned editors of L. B. A., in the note to Miller v. Johnson, vol. 15, page 524, expressly say “that the question of lawful adoption of an amendment to the constitution is a judicial question.”

Judge Handy and Chief Justice Smith clearly treat the question as a judicial question in Green v. Weller, and language could hardly be clearer or stronger in support of this view, than is that of Chief Justice Smith in that case. All that is said in Ex parte Wren, 63 Miss., page 512, on this subject is pure dictum, the question not being before the court. The true view is that the constitution, the organic law of the land, is paramount and supreme over governor, legislature and courts. When it prescribes the exact method in which an amendment shall be submitted, and defines positively the majority necessary to its adoption, these are constitutional directions mandatory upon all departments of the government and without strict compliance with which no amendment can be validly adopted. Whether an amendment lias been validly submitted or validly adopted depends upon tlie fact of compliance or noncompliance with the constitutional directions as to how such amendments shall be submitted and adopted; and whether such compliance. has, in fact, been had, must, in the nature of the case, be a judicial question. It may be, that, •where the constitution creates a special tribunal and confides to that tribunal the exclusive power to canvass the votes and declare the result and mate the amendment part of the constitution as a result of such declaration, by a proclamation, or otherwise prescribed method fixed for such tribunal by the constitution, then the action of such special tribunal would be final and conclusive whether its action be judicial or not. This is so because it was competent for the sovereign people, speaking through their constitution, so to provide. Such provision was made in Maryland and Maine, and the three cases cited from those states rest expressly upon the fact that the constitution did so establish such special constitutional tribunal clothed with exclusive power in the premises.

In Bennett’s case, 54 Am. Dec., 602 (32 Me., 508), it was made the exclusive duty of-the governor and council to open and compare votes returned, and the effort was, the governor and counsel declining to do so, to compel them, by mandamus, so to do. So in Miles v. Badford, 22 Md., 170, it appears at page 183 that the 8th section of the act under review required the returns of the votes on the adoption or rejection of a constitution to be made to the governor, and it ivas made his duty to count the vote and ascertain the result, and by his proclamation to the people of the state, finally declare the fact whether the constitution had been adopted or not. In this case also the effort was .made, by mandamus, to control the discretion of the executive, as .is seen from the opinion in chief at page 185 and from the concurring opinion of Bartol, J., at page 186. In both of these cases, the court, of course, held that it was not competent for the court by mandamus to compel the executive to act, or to direct him in what mode his discretion should be exercised, in the matter intrusted exclusively to him. It is to be noted that Bartol, J., in the last ease cited, thought the action of the governor, under that particular statute oven, was subject to review.

So in Worman v. Haggan, 78 Maryland, at page 164, it is shown that it was made the duty of the governor to make publication of the bills which propose amendments to the constitution, and the votes cast for and against the amendments were to be returned to him; and it was then provided that, if it should appear to him, the governor, that a majority had voted in favor of the amendment, ho should, by his proclamation, declare that the amendment had been adopted by the people, and it was expressly provided that thenceforth it should become a part of the constitution. It is perfectly obvious that the provisions of the Maine and Maryland constitutions are wholly unlike sec. 273 of the constitution of 1890. Those constitutions did create the governor and council in one and the governor in the other, a special tribunal to count the vote, canvass the returns, declare the result, and, upon its appearing to such tribunal that a majority did vote for the amendment, so to declare by a proclamation to the people.

Another case referred to is State v. Barnes, 3 N. D., page 323. But it is manifest from reading pages 323-4 (bottom of one and top of other), that section 8 of the enabling act there required a separate vote on the amendments to the constitution, and that the facts as to that vote should be shown to the president of the United States, with a statement of the votes for and against the constitution and each specific proposition so separately submitted, and that the president from these data was required to determine whether or not the constitution was republican in form, and whether or not the requirements of the enabling act had been complied with; and, if so, he was further required to issue his proclamation admitting the state as a state into the union. Here, again, the matter was confined to the president, the act conferring upon him exclusive power in the premises.

Counsel mistakes the case of State v. Swift, 69 Inch, as can be seein from page 513 of the report. lie says that the court did not go into the question, but held that the governor having issued his proclamation, the matter was res adjudicata. What the .court- said was res adjudicata, at page 513, was the action of the governor and secretary of state under an act of the general assembly of 1S73, not the matter then before the court, into which last matter the court did examine, treating it as a judicial question manifestly.

Our constitutional provisions create no special tribunal to determine whether amendments have been validly submitted or validly adopted. It is not said that “if it appear” to the legislature, upon which erroneous assumption is builded the argument counter to our view. Plainly and manifestly the language, “if it shall appear,” means simply, if it should be made manifest, or evident; if it should be the fact that, etc.; but whether it is a fact is a judicial question determinable by the courts.

The case of Luther v. Borden, 7 How. (U. S.), 1, so much relied upon by counsel, Avas a case of two opposing goArernments, each claiming to be laA\Tful, and it Avas said in that case that if a state court should come to the conclusion that the government under Avhich it acted had been put aside and displaced by an opposing gOArernment, it Avould cease to be a court, and be in-eajoable of pronouncing a judicial decision upon the question. Here there is no question of opposing government, or as to AAdiether this court exists so as to be able to pronounce a judgment, and the case of Luther v. Borden is of no aid in the solution of this case on its facts. Ree note, page 524, Arol. 15, L. R. A.

The constitution can be amended in but tAvo Avays — by the people assembled in a constitutional eonAmntion, or by obserA--ing the constitutional method marked out in section 273 of the constitution .of 1890. When the latter mode of amending the constitution is sought to be followed, the conditions upon which alone the amendment can become a part of the constitution are precisely described in said section 273. It is the mandate of the constitution itself, the paramount and supreme law of the land, that such amendment cannot become part of the constitution unless two facts existed: First, unless such amendment or amendments should be submitted in the mode pointed out; second, unless such amendment or amendments should be adopted by the majority prescribed. These two conditions are facts which must exist, in truth and in reality, and not simply be declared to exist by the legislature, whether they do exist or not. The legislature is not giren the power, as a special tribunal, to count’the votes, canvass the returns, declare the result, and make the amendment part of the constitution by proclamation. All that it does, all that it can do, is, in the first instance, to propose the amendment, or amendments, to the people for their vote in the way the constitution directs. It is for the people, and the people alone, to say, by the majority prescribed in the constitution, whether they adopt or reject the proposed amendment or amendments. Amendments which are adopted owe their vitality to the action of the people primarily, that action to be had in accordance with the method prescribed in section 273. The legislature simply proposes an amendment in the first instance, and that is absolutely all that that legislature has to do with the matter. The people then act, and the next succeeding legislature — not the next session of the' legislature proposing the amendment — is authorized to insert the amendment as a part of the constitution, if the former legislature shall have validly submitted it, and the people have validly adopted it. The legislature, in what it has to do, acts ministerially as the agent of the people, through the provisions of section 273, in first proposing, and after-wards inserting, the amendment; but the people cannot vote effectually upon an amendment unless it shall have been submitted in the mode pointed out, and tlie vital things are the existence of the facts named — submission in conformity with section 273 and adoption by the majority therein prescribed— upon which facts or conditions the vitality of the amendment itself, its right legally to be written and inserted into the constitution, depends.

The best considered case we have seen on this subject is State v. Wurts (N. J.), reported in 45 L. R. A., p. 251. Speaking of the proposition that the question here is not a judicial question, the court say: ‘‘That such a proposition is not true, seems to be indicated by the whole history of jurisprudence in this country.” The court then review's numerous decisions, all of which have been cited in the argument here, properly distinguishing Worman v. Haggan. 78 Md., 152, s.c. 21 L. R. A., 716.

■The court says with great force: “If a legislative enactment which may be repealed in a year, or an executive act which affects only a single individual, cannot be allowed to stand, if it contravenes the constitution, a fortiori a change in the fundamental law, which is much more permanent and affects the whole community, should not be permitted to take place, in violation of constitutional mandates.”

Chief Justice Reasloy put the pith of the whole matter in one sentence, saying, in State v. Rogers, 56 N. J. L., 480, 619: “When the inquiry is whether the legislature, or any other body or officer, has violated the regulations of the constitution, it is entirely plain that the decision of that subject must rest exclusively with the judicial department of the government.” This is the wdiole of it, resulting from the supremacy of the constitution as the paramount law of the land — supreme over all departments of the government.

As to the second proposition. We are satisfied that the proposition submitted to the voters contained at least four separate amendments. The sections proposed to be repealed, to wit, sections 145, 149, 151, 153 and 153, relate to separate matters. Section 115 deals alone with the supreme court, as does said section 149. Section 153 deals with the judges of the circuit courts and of the chancery courts. Section 151 deals with the method of -filling vacancies in the supreme court. Section 152 deals with circuit and chancery districts. It will thus be seen that the sections of the constitution of 1890 sought to be repealed treat separately of the supreme court and supreme court judges and of the judges of the circuit and chancery courts. Section 177, relating to vacancies in the office of circuit judges or chancellors and the method of filling them where the vacancy occurs during the recess of the senate, was wholly overlooked by the proposed amendments. It might well be that many voters might have been willing to vote for the election of circuit judges and chancellors who would be unwilling to vote for the election of supreme judges; and that many voters might have been willing to vote for the election of all judges, and yet wholly unwilling to vote for party nominations by districts, of judges to be voted for over the whole state. Whether an amendment is one or many clearly must depend upon the nature of the subject-matter covered by the amendment. If the propositions are separate, one in no manner dependent upon the other, so that a voter may intelligently vote for one and against the other, one being able to stand alone, disconnected wholly from the others, then such amendments are many and not one, are severable and not a unit, are complete each in itself and not each a part of an interdependent scheme: and such, manifestly, are the amendments in this case. A voter might have chosen to vote for the election of circuit judges and not for the election of chancellors; and one may have chosen to vote for the election of both circuit judges and chancellors, and yet, not for the election of supreme judges; one might have been willing to vote for the election of all judges, and yet not willing to sanction, by his vote, a scheme for party nomination by districts, for judges to be voted for by electors of the entire state, such as proposed in these amendments. And an elector might have exercised bis choice between these four amendments, voting for one or more and against one or more, and one amendment as to the election of circuit judges or chancellors or supreme judges, might have been adopted and the others rejected, and our constitutional scheme remained perfectly symmetrical and harmonious. And so the people could have adopted the amendments providing for the election of all judges, and rejected the scheme propounded for party nominations by districts, and such, action would have been perfectly intelligent, and these three amendments could have been written into the constitution without the other, which is not essential to any one of the three amendments. The argument is wholly fallacious which seeks to save this method of submission, by saying that all of the amendments relate to the judicial department of the government. If that argument were correct, then the mere fact that amendments, no matter how many, and no matter how absolutely independent each of the other, relating to the legislative department, could all be submitted as one; and so as to the judicial department, and so as to the executive department. Whether amendments are one or many must be solved by their inherent nature, by the consideration whether they are separate and independent each of the other so as that each can stand alone without the other, leaving the constitutional scheme symmetrical, harmonious and independent on the subject; and not upon the mere blanketing of a name, such as “amendments relating to the judicial department” or “amendments relating to the executive department” or “to the legislative department.” Nothing could save these amendments unless it be that the fact that they relate to the same general, broad subject of the judicial department could save them, and this is utterly in the face of reason and principle.

Three cases are cited by counsel as showing the oneness of this alleged amendment — State v. Timme, 54 Wis., 318; State v. Herriet, 10 So. Dak, 120; State v. Morris, 43 La. Ann., 590.

Tn the Wisconsin case, at page 33fi, the court says: “In order to constitute more than one amendment, the proposition submitted .must relate to more than one subject, and have at least two distinct and separate purposes not dependent upon or connected with each other. Tested hv this rule, the propositions submitted to the electors contained but one amendment. The purpose there, as stated, was to change from annual to biennia] sessions of the legislature; and, incidental and dependent upon this, was the proposition to change the tenure of office of members of the assembly from one to two years, and to change the composition of the members. The court said: “If they must be submitted separately, why must they? Certainly they should either both lie defeated or both adopted. Why, then, should the people be permitted or compelled to vote upon each separately V’ This conclusion shows that that court itself would have held, where the amendments were'not such that all would have to be defeated or all adopted, that they were separate amendments; but it is further to be noticed, in that case, that great stress was laid upon the fact that all the departments of government had for a long period of time construed the question of the adoption of such amendments as the court construed it in that case. Here, there has been no such uniform action of the departments of government.

In the South Dakota case it is perfectly manifest that the proposed amendment was hut one amendment. It abolished certain trustees of the university, and established one board of control for all educational institutions of the state supported by state taxation; it was clearly a single proposition, which stood or fell as an entirety, and yet, even in that case, the supreme court hesitated before declaring it one amendment.

In the Louisiana case the proposition was to charter a lottery, upon its paying, as consideration for being chartered, to various charitable institutions, named sums of money. There were a great many incidental provisions and regulations auxiliary to tbe great controlling scheme, to wit, the establishment of a lottery, all of which were manifestly only auxiliary and ad juratory of the proposition of the establishment of a lottery. The decision is manifestly correct — the whole scheme stood or fell together, and was manifestly one in design and purpose. These authorities, therefore, are of no value in the determination of the Question whether the proposition here submitted to our voters embraced one amendment or more than one amendment.

The question whether, there being several amendments, they ■were submitted so that the voters could vote separately on each, was fundamentally vital. Says the supreme court of California, Oakland v. Hilton, 69 Cal., 489: “When a mode is.thus established and ordained, it must be followed. The people of a state may impose a limit upon their own power, and when this is done by the constitution, it must be regarded as much a portion of the paramount law, and as obligatory on the whole people, as any other portion of the whole constitution. If we do not so hold, we would sanction revolution and violence, and place lawlessness on a level with latv. The majority of the people, according to law, having adopted the constitution with a mode of amendment in it, we must regard it as a solemn declaration to the minority in the state, as binding as a compact with such minority, that the majority, however large or overwhelming, will never exercise its irresistible power, its vis major, to change the law of its organization as a government in any other way. We hold it to be sound law that a constitution adopted as was the present constitution of the state of California, is not lawfully changed by the vote of every elector in the state, unless in the mode provided in it. The majority in favor of the change may be so irresistible, in its physical power, as to command the forced acquiescence or unwilling consent of an inconsiderable minority; but nevertheless a change of the constitution so brought about, contrary to its provisions, would be lawless, revolutionary, and unconstitutional; and it would be the duty of this court, in obedience to the oath wluch its members have taken, so to declare it, in favor of any litigant who should invoke its judgment, in the course of regular procedure, though the sole litigant invoking its aid and power should constitute the nonconsenting minority. If they did not so declare, the organic law would not afford that protection and refuge which it was intended to afford.” See, also, what is said in this case at pages 502-3.

The necessity for greater deliberation and strictness of procedure in respect to the adoption of constitutional amendments than that which applies to the passage of acts of the legislature, is pointed out, with great clearness, in State v. Foraker, 46 Ohio St. Rep.

See, also, what is said by Justice Brewer in the prohibitory amendment, cases, 2-4 Nan., at page 712. Judge Brewer very strongly says, speaking of the part that the legislature plays when the constitutional requirements have not been obeyed: ‘‘It lacks the sanction of law, is a disregard of constitutional methods and limitations, and should be taken as a request for a change rather than as a change itself. But notwithstanding this, legislative action is simply a determination to submit- the qrrestion to popular decision. It is in no sense final. No number of legislatures, and no amount of legislative action, can change the fundamental law. This was made by the people, who alone can change it. The action of the legislature in respect |éo constitutional change is something like the action-of a committee of the legislature in respect to the disposition of a legislative bill. It presents it, recommends, but it does not decide. It is the legislative action which is considered in determining whether the law has been constitutionally passed, and it is the popular action which is to be principally considered in determining whether a constitutional amendment has been adopted.”

We therefore hold, and so declare, that there were at least four amendments submitted to the people in this proposition, and that for that reason the amendments were not submitted in accordance with section 273 of the constitution, and, notwithstanding the action of the legislature in inserting them in the constitution, are null and void, and form no part of said constitution.

On the third proposition we are satisfied that the majority required by section 273 of the constitution of 1890 for the adoption of a constitutional amendment, must be a majority of all the electors voting at the election, not simply all voting on the adoption or rejection of the constitutional amendments submitted. A consideration of the history of section 273 in our constitution demonstrates this beyond all controversy. In the constitution of 1S17, found in Hutchinson’s code, page 35, this provision reads, as to this point: “If it shall appear that a majority of the citizens of the state voting for representatives, have voted for a convention,” etc. In the constitution of 18*32, Hutchinson’s code, page 51, as to this point, the section reads: “Public notice thereof shall then be given by the secretary of state at least six months preceding the next general election, at which the qualified electors shall vote directly for or against such change, alteration or amendment; and if it shall appear that a majority of the qualified electors voting for members of the legislature, shall have voted for the proposed change, alteration or amendment, then it shall be inserted by the neixt succeeding legislature as a -part of this constitution, and not otherwise.” Note the language, “and not otherwise.”

The constitution of I860, code of 1871, 667, art. 13, as to this point reads: “If it shall appear that a majority of the qualified electors voting for members of the legislature shall have voted for the proposed amendments,” etc.

The constitution of 1890, section 273, reads: “Whenever two-thirds of each house of the legislature shall deem a change, alteration or amendment necessary to this constitution, such proposed change, alteration or amendment shall be read and passed by a two-thirds vote of each house, respectively, on each day, for three successive days; public notice shall then be given by the secretary of state at least three months preceding an election, at which the qualified electors shall vote directly for or against such change, alteration or amendment; and if more than one amendment shall be submitted at one time, they shall be submitted in such manner and form that the people may vote for or against each amendment separately; and if it shall appear that a majority of the qualified electors voting shall have voted for the proposed change, alteration or amendment, then it shall be inserted by the next succeeding legislature, as a part of this constitution, and not otherwise.

It will bo noticed that the constitution of 3.590 omits after the word voting the words ‘‘for members of the legislature;” and the enrolled section of the constitution, in the secretary of state’s office, shows that there should be a comma after the word “voting” in section 278 as it now stands. The significant fact thus stands out, like a mountain in the landscape, that for the whole period of time from 1817 to 1890, the constitution of the state having been four times changed during such period, a period of seven tv-three years of state history, the people 'of this state, speaking through their sovereign instrument, the constitution, liad uniformly declared that no majority of electors less than a majority of those voting for members of the legislature (which election would bring out, it was presumed, the largest number of electors'), should avail to change the organic law of the land. That law reaches with' its protection every one in the state. Unlike an act of the legislature, which may or may not be general, its effectiveness is universal, its potency reaches in its power the territorial limits of the whole state and protects all rights of life, liberty and property thereunder. This charter of our liberties, this ark of the covenant, Idle people for seVenty-three years had said should not be touched lightly or carelessly changed. That law expressly provided that such change could be effected only by a vote of a majority of all votes for members of the legislature. , TIow did this clause “for members of the legislature” come to be dropped? It was dropped simply and only because sessions of the legislature were then, and thereafter to be, quadrennial. In view of this fact, the framers of the constitution wisely foresaw that if one legislature had to propose an amendment and the succeeding legislature, had to insert it, that if a constitutional amendment could only be submitted when members of the legislature were to be voted for, there would result a positive inhibition of an election on the question of adopting a constitutional amendment except at intervals of at least every four years; and it might very likely occur that a period of eight years might intervene between the submission of an amendment and its insertion in the constitution. That so long a period of time should be allowed to stand in the way of a demand for a change in the constitution made exigent by some great public necessity, was wholly unreasonable. It might be that a constitutional amendment ought to be submitted at a special election, held for that purpose only. The public necessity might be such that, not waiting for a special election, such amendment should be submitted at some regular election for state officers, or at a congressional election. The time for holding an election on the question of adopting a constitutional amendment was not vital. The majority by which the public policy of the state had always declared such amendments could alone be adopted was vital. Time could be fixed to suit the convenience of the voters. The great, fundamental condition, the requisite majority, was to remain essentially unaltered. It would be imputing to the wise framers of the constitution of IS 90 the greatest folly to suppose that they meant to reverse the policy of this state for seventy odd years, as to the majority necessary to adopt a constitutional amendment, when the real purpose of the omission of the words “for members of the leg-is! ature” lies on the very surface of the investigation, and was manifestly, as stated, the result alone of the fact that the election of members of the legislature -was made quadrennial. If an election should be held to determine alone whether the constitution should be amended or not, a majority of -the electors voting would, in such case, necessarily be a majority of those voting for or against the adoption of the amendment. Clearly, therefore, this consideration in nowise affects the soundness of our holding that, whether the vote on a constitutional amendment occurs on a day when state officers are also voted for, there must be a majority of all the electors voting that day for anything, to make the adoption of the amendment valid, as is expressly held in Stebbins v. Judge, 108 Mich., 698.

The court said: “We see nothing absurd in the legislature providing that at a special election a majority of the votes should control, while at a general election a majority of all the votes cast at the election should control. There might have been in the legislative mind the very best of reasons for such provisions.”

Nothing is gained by referring to the words “an election at which the qualified electors shall vote directly for or against such amendment.” The very same words, “'directly for or against such amendment/' occur in the same provision in the constitutions of 1869 and 1832. Nor do the words “an election” mean, as alleged, a special election. If that construction were correct, then every constitutional amendment would, necessarily, have to be submitted at some special election called for that purpose alone; yet for seventy odd years the policy of the state had been exactly the reverse. That policy of tlie state was never to submit a constitutional amendment except at an election for members of the legislature, for the reason that, at such elections for members of the legislature, the fullest possible vote would be polled.

The constitution framers of 1817, 1832, and 1869 correctly thought that the best way to secure a full vote was not by submitting an abstract proposition for a .change in the organic law at a special election, but at an election when friends, or others in whom voters might be interested, as candidates for the legislature, should be chosen. This was an eminently wise and com-ipon sense view founded on good reason. “An election” simply means any election, whether it be a special election, or a regular election for state officers, or a congressional election. Electors voted “directly for or against an amendment” under the constitutions of 1832 and 18fi9. Also the dropping of the words “the next general” before the word “election” from section 273 of the constitution, and the substituting for these words “an election” was made necessary solely because of the fact that elections of members of the legislature were made quadrennial. Prior to the constitution of 1890, the electors would vote at an election, “directly for or against,” and it then required-a majority of the qualified electors voting for members of the legislature, at that general election, to adopt the amendment. Now qualified voters at an election, special or general, at which they vote, vote directly for or against “such amendment,” but it requires a majority of all the qualified electors voting at that election, whether special or general, no matter for what officers or for what things or propositions they may vote. The number to be ascertained — so as to find what a majority of that number was — is the number of all the qualified electors who vote at the election, who vote at that election no matter for what they vote, keeping up the uniform policy of this provision of the constitution. This constitution provides that not simply a majority of the qualified electors voting for members of the legislature should be required, but that a majority of all the qualified electors voting that day, at that election, special or gener'al, should be required. This might require a larger number of voters to adopt a constitutional amendment than would constitute a majority of the electors voting for members of the legislature. It cannot require less than such a majority. So that it is perfectly obvious, that the policy of this state through all the days of statehood was under tbe constitution of 1890 not only maintained but absolutely strengthened. It is not enough now that a majority of electors voting for legislators shall vote for the amendment. The adoption of such an amendment requires a majority of all the qualified electors voting for any purpose whatever. This construction preserves the policy the state manifested by these provisions in three constitutions by universal' usage before and since the war, and conserves the great principle which imperatively demands that the great organic law of the state, its constitution, supreme and. paramount over every interest, shall never be altered or changed, except upon the maturest judgment, and by a majority sufficient to warrant the conviction that the change has met the approval of intelligent freemen.

Such is the view deduced from a history of this section, the public policy of the state as declared by this section in its various forms, in the different constitutions, from 1817 to 1890, and from the construction of the several clauses of sec. 273 itself. It may be added that this would be entirely sufficient to dispose of the case, since it is admitted that these amendments did not'receive a majority of all the qualified electors voting at the election. Little aid can be gathered from the decisions of other states construing their particular clauses in their constitutions providing for amendments to their constitutions, little aid, that is, of direct authority, since a decision from another state would only be persuasive authority, even where it was rendered in construction of a clause or clauses in its constitution identical with like clause or clauses of our constitution. But the overwhelming weight of authority adopts our view on this proposition also. In the case of prohibitory amendments, 24 Kan., 707, the clause is, “If a majority of electors voting on said amendments,” etc. Of course there was no room for doubt on that sort of a clause, that only a “majority of electors voting on said amendments” was required. There are many cases of propositions to remove courthouses and change county sites, to get franchises, and to vote bonds, etc., as to which there have been many conflicting decisions. Such decisions are of very little value in the solution of this question. ■

State v. Langlie, 5 N. Dak., 504, wa.s a county site case; State v. Grace. 20 Oregon, 161, was another county site case. It is to be remarked that both of these cases quote Gillespie v. Palmer, 20 Wis., 573, a case thoroughly repudiated by many courts and of no authority. See specially the criticism of this case in Stebbin's case, 108 Mich., 695, in which it is shown that it has been overruled in Wisconsin (45 Wis., 279) Chief Justice Ryan characterizing it as “a reproach, and a judgment proceeding upon policy rather than upon principle.”

The case of State v. Barnes, 3 N. Dak., 319, goes upon the fact that the vote upon the constitutional amendment was by the provision of law therein controlling, made a wholly separate and special election,.though occurring on the same day with an election for officers. Being made a special election, of course a majority of electors voting -on the question of adopting the constitution would control.

The case of Marion County v. Winkley, 29 Kan., 40, is purely a local case about a hedge bounty submitted to the people of a county. The distinction between a local election and this sort of a state election on the adoption of a constitution, is too obvious for comment.

Our view as to the majority required for the valid adoption of a constitutional amendment is directly and clearly supported by the following cases: State v. Foraker, 46 Ohio, 692; State v. McGowen, 138 Mo., 193; State v. Swift, 69 Ind., 505; Bank v. Saunders, 51 Neb., 801; Bayard v. Klinge, 16 Minn., 252; Stebbins v. Case, 108 Mich., 693, and many others in briefs of counsel.

In the Nebraska case it was held that it required a majority of the highest aggregate number of votes cast, whether for an officer or for an mendment.

In State v. Swift, 69 Ind., 520, the distinction was pointed out between, the reasons for requiring a different majority to elect an officer and to adopt a constitutional amendment, a distinction which the framers of the constitution of 1890 evidently had in mind when they provided, as they have done, that the majority now required to amend the constitution must be a majority of all the qualified electors voting, whether such majority be equal to, or larger than, a majority of the qualified electors voting for members of the legislature. All the statements to' be found in different decisions touching the doctrine that electors absenting themselves from an election and those present and not voting for some candidate for. every office, or on every proposition submitted, are held to assent to the action of those who do not vote, are not applicable to a case like this, which is governed by a constitutional standard as to the majority necessary, expressly defined itself, that being, as stated, that the required majority shall be a majority of all the qualified electors voting at the election, for any purpose, or for any officer, as held in Stebbins’ case, 108 Mich., 699. Manifestly ■ when the constitution itself, in section 273, expressly declares that no amendment shall be adopted, except where it shall be a fact that it received, at the election, a majority of all qualified electors voting, we have a positive rule prescribed, and a fixed standard set up, and nothing short of strict compliance with the rule, or of a majority measuring up to that standard, will avail to change the organic law. There is one other important consideration, and that is, that the members of the constitutional convention of 1890 used language with the greatest precision when talking about the majority required to accomplish different ends. In section 259 it is provided: “No county seat shall be removed, unless such removal be authorized by two-thirds of the electors of the county voting therefor; but when the proposed removal shall be towards the center of the county, it may be made when a majority of the electors participating in the election shall vote therefor.” Section 260 provides: “No new county shall be formed unless a majority of the qualified electors voting in each part of the county,” etc. Section 101 provides: “The seat of government of the state shall be at the city of Jackson, and shall not be removed, or relocated, without the assent of a majority of the electors of the state.” It is perfectly idle to contend', in the face of all these different provisions of sections 359, 360, 101 and 273, that the members of the constitutional convention of 1890, very many of them the ablest lawyers in this or any other state, did not carefully use, with exact precision, words apt to convey the different and distinct meanings they had in view, in the adoption of these different provisions. See the forcible reasoning of the supreme court of Missouri, in State v. McGowen, 138 Mo., 193, along this line. There are other authorities which we have not thought it necessary to cite at length. There was but one election. It is a complete fallacy to argue that, because the constitutional amendments were submitted and voted on at a general election, the election was separate, and that there were two in number. There was but one election, held at the same time and place, though officers were voted for, and these amendments were voted for and against. The ballot used was a single ballot, on which was printed, along with the names of the candidates, the amendments, with directions to vote for or against them in one body.

In the ease of Bank v. Saunders, 51 Nebraska, 802, it is shown that votes were deposited for and against the amendments, in boxes used in receiving ballots thus cast, all over the state: that these votes were canvassed separately, and that the whole number of votes so cast was 122,000, of which 83,000 were for and 37,000 against, speaking in round numbers, but 217,000 votes were cast for governor, and the contention was (see page 803) that it was a separate election as to the amendments. But the court held that there was but one election. That was a far stronger case for the idea that it was a separate election, than this one. Here there was no separate deposit of ballots touching the amendments, in separate boxes, and no separate canvass of such ballots. The whole conduct of the election shows it to have been one election.

One final observation : We are not embarrassed in this case, as some of the courts whose decisions we have discussed were embarrassed, In the fact that a construction different from ours has been uniformly acted upon for a long period of time by all the departments of government and that rights have grown up under such different constructions. The governor of this state, foreseeing the evil effects to come from long delay, and the confusion which would he introduced by waiting for years, it might be, until the validity of these amendments should bo otherwise presented, wisely determined to have this question setllcd now, in advance, finally and authoritatively, by this, the court of last resort in this state. This action saves the people of this state the very great embarrassments which would certainly have attended a delay of the settlement of this much-vexed question. This court recognizes the importance of the co-ordinate legislative department of the government. It has the highest regard for the legislature as a co-ordinate branch of the government, and for its members individually. It is one of the very ablest legislative bodies that has ever assembled in this eapitol. We do not seek a jurisdiction not imposed upon us by the constitution. We could not, if we would, escape the exercise of that jurisdiction which the constitution has imposed upon us. In the particular instance in which we are now acting, our duty to know what the constitution of this state is, and, in accordance with our oaths, to support and maintain it in its integrity, imposes on us a most difficult and embarrassing duty, one which we have not sought, but one which, like' all others, must be discharged when the hour comes. The action of the court below is in accordance with the views we have announced. It declared, and we now declare, that for the reasons that the said amendments were not submitted to the voters in the state in accordance with the provisions of section 273 of the constitution of 1890, and because these amendments were not adopted at said election by a majority of all tlie qualified electors voting at said election, as required by said section 273, tbe said amendments are null and void, 'and form no part of tbe constitution, and that all tbe sections of tbe constitution which they sought, to repeal, remain in full force and effect.

Affirmed. ■

Case Details

Case Name: State ex rel. McClurg v. Powell

Court Name: Mississippi Supreme Court

Date Published: Mar 15, 1900

Citation: 77 Miss. 543

Court Abbreviation: Miss.