Erwin, C. J.
Appellant, as plaintiff below, brought this suit for himself and also all electors and all the taxpayers of the State against appellee Jackson, the sheriff of Marion county, the board of commissioners of the county of Marion, the judge of the Marion Circuit Court, and all the clerks of the circuit courts in all the counties of the State to have chapter 2, page 5, Acts 1917, entitled “An act -to provide for the election of delegates to a convention to revise the constitution of the state,” etc., and so much of chapter 31, page 73, Acts 1917, entitled “An act granting women the right to vote for presidential electors and certain other officers, and to vote in certain elections,” as grants to women the right and privilege of voting for delegates to a constitutional convention and on the ratification of a new constitution, and each of them severally, considered, held and declared null and void, and asked an injunction against each of the officers, their successors in office, their deputies, assistants, clerks, subordinates and official agents, prohibiting them from doing any act [535]*535or thing required to be done by said acts, or as therein described or as provided in the general election laws of the State invoked under and by virtue of said acts, and from taking any steps to provide and prepare for, hold, conduct or carry on said proposed election of delegates who shall constitute a convention for the purpose of revising the Constitution of the State of Indiana.
The complaint is in one paragraph and alleges in substance that chapter 2, page 5, Acts 1917, is null and void because the general assembly had no legislative or other power to decide and determine that there should be called and held in this State a constitutional convention to revise the present Constitution or to frame and submit to the people of this State a new constitution to supersede the present Constitution of the State that the .general assembly at its 1913 session (Acts 1913, ch. 304, p. 812) submitted to the electors of the State at the general election of 1914 the question of calling a constitutional convention and that the electors of the State, by a vote of 338,947 to 235,140, said that they did not desire a convention called and thereby declined to authorize the legislature to call a constitutional convention,, and that since said election of 1914 there has been no poll taken nor any election held to determine the question as to whether the people of the State would authorize the general assembly to pass an act calling a constitutional convention to revise, alter or amend' the present Constitution or to frame a new one to be submitted to the electors of the State for ratification, nor at any other time since the adoption of the Constitution of 1851 has the general assembly of the State been authorized by the electors of the State to call a constitutional convention or to pass an act providing for the calling of the same, and that in passing said act (Acts 1917, ch. 2, p. 5) said general assembly acted wholly without having submitted prior thereto [536]*536to the qualified electors of the State the question of whether a constitutional convention should be called. It is further averred that the title of the act does not express all the matters and subjects embraced in the' act. It is further averred that chapter 31, page 73, of the Acts of 1917, authorizing women to vote for delegates and to ratify the constitution, is void as being in conflict with §2, Art. 2, of the present 'Constitution, and that as women are not within the class of electors as defined by that section of the present Constitution, the legislature had no power to confer on them the right to vote.
To this complaint all of the defendants filed a joint answer in general denial. The cause was submitted to the court and on proper request special findings of facts were made by the court and conclusions of law stated thereon. The conclusions of law are to the effect: first, that chapter 2, page 5, of the acts of 1917 is not void and that plaintiff, appellant, is not entitled to an injunction in so far as its provisions are concerned; and secondly, that the act granting women the right to vote, etc., is void, and as to that part appellant was entitled to have injunctive relief. Judgment was entered accordingly.
Appellant assigns errors on the first proposition and appellees assign cross-errors on the second proposition, but in view of the conclusion we have reached it will not be necessary for us to discuss the questions presented by the cross-errors.
1. In the beginning we are confronted with the contention on the part of appellees that this court has no jurisdiction to determine the questions in issue here. In the case of Ellingham v. Dye (1912), 178 Ind. 336, 99 N. E. 1, Ann. Cas. 1915 C 200, 231 U. S. 205, 58 L. Ed. 206, this court, after reviewing many decisions as to the power of the courts to determine [537]*537similar questions, sums up the whole matter* on page 391, as follows: “Whether legislative action is void for want of power in that body, or because the constitutional forms’ or conditions have not been followed or have been violated (our italics), may become a judicial ■question, and upon the courts the inevasible duty to determine it falls. And so the power resides in the courts, and they have, with practical uniformity, exercised the authority to determine the validity of proposal, submission or ratification of change in the organic law. Such is the rule in this State,” — citing more than forty decisions of this and other states.
2. Appellees further contend that appellant has not made out a case entitling him to equitable relief. The trial court found that the officers of the State who were intrusted with the execution of the law were about to expend more than $500,000 under the law, in carrying out its provisions; indeed, it was suggested, in the course of the oral argument, that the necessary expenditures would amount to more than $2,-000,000. This court, in the case of Ellingham v. Dye, supra, involving the submission to the people of a constitution prepared by the legislature, answered this same question contrary to the contention of appellees. See pages 413 and 414 of that opinion.
Briefly stated, the principal questions presented for our consideration are: Has the general assembly authority to call a convention to revise the Constitution of the State or to make a new one without first submitting the matter to the voters of the State and receiving an affirmative answer? and, Has the legislature the authority to call a constitutional convention against the will of the people as expressed by the vote of 1914 on that question?
Very able and exhaustive briefs have been filed by both parties to this appeal and clear-cut propositions [538]*538are presented in each. As was suggested by a learned and able attorney for appellees, this, in a measure, is a pioneer question in this State, without many precedents on which to rely.
That the people of the State have a right to create a new constitution is conceded by all parties, the only difference of opinion being as to the manner of bringing about that result.
Free access — add to your briefcase to read the full text and ask questions with AI
Erwin, C. J.
Appellant, as plaintiff below, brought this suit for himself and also all electors and all the taxpayers of the State against appellee Jackson, the sheriff of Marion county, the board of commissioners of the county of Marion, the judge of the Marion Circuit Court, and all the clerks of the circuit courts in all the counties of the State to have chapter 2, page 5, Acts 1917, entitled “An act -to provide for the election of delegates to a convention to revise the constitution of the state,” etc., and so much of chapter 31, page 73, Acts 1917, entitled “An act granting women the right to vote for presidential electors and certain other officers, and to vote in certain elections,” as grants to women the right and privilege of voting for delegates to a constitutional convention and on the ratification of a new constitution, and each of them severally, considered, held and declared null and void, and asked an injunction against each of the officers, their successors in office, their deputies, assistants, clerks, subordinates and official agents, prohibiting them from doing any act [535]*535or thing required to be done by said acts, or as therein described or as provided in the general election laws of the State invoked under and by virtue of said acts, and from taking any steps to provide and prepare for, hold, conduct or carry on said proposed election of delegates who shall constitute a convention for the purpose of revising the Constitution of the State of Indiana.
The complaint is in one paragraph and alleges in substance that chapter 2, page 5, Acts 1917, is null and void because the general assembly had no legislative or other power to decide and determine that there should be called and held in this State a constitutional convention to revise the present Constitution or to frame and submit to the people of this State a new constitution to supersede the present Constitution of the State that the .general assembly at its 1913 session (Acts 1913, ch. 304, p. 812) submitted to the electors of the State at the general election of 1914 the question of calling a constitutional convention and that the electors of the State, by a vote of 338,947 to 235,140, said that they did not desire a convention called and thereby declined to authorize the legislature to call a constitutional convention,, and that since said election of 1914 there has been no poll taken nor any election held to determine the question as to whether the people of the State would authorize the general assembly to pass an act calling a constitutional convention to revise, alter or amend' the present Constitution or to frame a new one to be submitted to the electors of the State for ratification, nor at any other time since the adoption of the Constitution of 1851 has the general assembly of the State been authorized by the electors of the State to call a constitutional convention or to pass an act providing for the calling of the same, and that in passing said act (Acts 1917, ch. 2, p. 5) said general assembly acted wholly without having submitted prior thereto [536]*536to the qualified electors of the State the question of whether a constitutional convention should be called. It is further averred that the title of the act does not express all the matters and subjects embraced in the' act. It is further averred that chapter 31, page 73, of the Acts of 1917, authorizing women to vote for delegates and to ratify the constitution, is void as being in conflict with §2, Art. 2, of the present 'Constitution, and that as women are not within the class of electors as defined by that section of the present Constitution, the legislature had no power to confer on them the right to vote.
To this complaint all of the defendants filed a joint answer in general denial. The cause was submitted to the court and on proper request special findings of facts were made by the court and conclusions of law stated thereon. The conclusions of law are to the effect: first, that chapter 2, page 5, of the acts of 1917 is not void and that plaintiff, appellant, is not entitled to an injunction in so far as its provisions are concerned; and secondly, that the act granting women the right to vote, etc., is void, and as to that part appellant was entitled to have injunctive relief. Judgment was entered accordingly.
Appellant assigns errors on the first proposition and appellees assign cross-errors on the second proposition, but in view of the conclusion we have reached it will not be necessary for us to discuss the questions presented by the cross-errors.
1. In the beginning we are confronted with the contention on the part of appellees that this court has no jurisdiction to determine the questions in issue here. In the case of Ellingham v. Dye (1912), 178 Ind. 336, 99 N. E. 1, Ann. Cas. 1915 C 200, 231 U. S. 205, 58 L. Ed. 206, this court, after reviewing many decisions as to the power of the courts to determine [537]*537similar questions, sums up the whole matter* on page 391, as follows: “Whether legislative action is void for want of power in that body, or because the constitutional forms’ or conditions have not been followed or have been violated (our italics), may become a judicial ■question, and upon the courts the inevasible duty to determine it falls. And so the power resides in the courts, and they have, with practical uniformity, exercised the authority to determine the validity of proposal, submission or ratification of change in the organic law. Such is the rule in this State,” — citing more than forty decisions of this and other states.
2. Appellees further contend that appellant has not made out a case entitling him to equitable relief. The trial court found that the officers of the State who were intrusted with the execution of the law were about to expend more than $500,000 under the law, in carrying out its provisions; indeed, it was suggested, in the course of the oral argument, that the necessary expenditures would amount to more than $2,-000,000. This court, in the case of Ellingham v. Dye, supra, involving the submission to the people of a constitution prepared by the legislature, answered this same question contrary to the contention of appellees. See pages 413 and 414 of that opinion.
Briefly stated, the principal questions presented for our consideration are: Has the general assembly authority to call a convention to revise the Constitution of the State or to make a new one without first submitting the matter to the voters of the State and receiving an affirmative answer? and, Has the legislature the authority to call a constitutional convention against the will of the people as expressed by the vote of 1914 on that question?
Very able and exhaustive briefs have been filed by both parties to this appeal and clear-cut propositions [538]*538are presented in each. As was suggested by a learned and able attorney for appellees, this, in a measure, is a pioneer question in this State, without many precedents on which to rely.
That the people of the State have a right to create a new constitution is conceded by all parties, the only difference of opinion being as to the manner of bringing about that result. It is contended by appellants that the legislature has.no right to take the initiative in calling a constitutional convention but can act only after being properly directed by the people of the State in some form of a request or by having the question submitted to them; while appellees contend that the legislature has the right, without any suggestion from the people, to pass a bill or resolution providing for the calling of such convention.
3. If the passage of such a bill is within the purview of the Constitution governing ordinary legislation, there would be no question but that the general assembly might, without any suggestions, proceed to the enactment of such legislation, for the reason that within the field of legislation as fixed by §1, Art. 4, of the present Constitution, the legislature is supreme and its actions are' circumscribed only by the terms of the State or federal Constitution. Ellingham v. Dye, supra. The almost universal holdings of the courts are to the effect that the duties which may be performed by the general assembly in relation to the change or making of. a constitution are not governed by the general rule of authority as set out in §1, Art. 4, supra. Ellingham v. Dye, supra, 344.
4. [539]*5395. [538]*538The legislature has no inherent rights. Its powers are derived from the Constitution, and hence, where some action of the legislative body which action' is outside of the particular field fixed by the Constitution and is not strictly legislative within the [539]*539meaning of §1, Art. 4, supra, is sought to be justified, a warrant for the same must be found somewhere— if not in the Constituion, then directly from the people, who, by the terms of §1, Art. 1, of the Bill of Rights, have retained the right to amend or change their form of government. The right of the people in this regard is supreme, subject, however, to the condition that no new form of a constitution can be established on the ruins of the old without some action on the part of the representatives of the old, indicating their acquiescence therein; and, the general assembly being the closest representative of the old, its approval must be obtained by some affirmative act. This is the only orderly way that could be conceived. The question then arises, How may these — the people and the legislature — get together on this proposition? If no positive rule is provided by the fundamental law of the State, then, if a custom has prevailed for a sufficient length of years so that it is said to be fully established, that rule of custom must prevail.
6. It seems to be an almost universal custom in all the states of the Union, where the constitution itself does not provide for the calling of a constitutional convention, to ascertain first the will of the people and procure from them a commission to call such a convention, before the legislature proceeds to do so. The people being the repository of the right to alter or reform its government, its will and wishes must be consulted before the legislature can proceed to call a convention. 6 R. C. L. §17, p. 27; Hoar, Constitutional Conventions 68 (1917).
We find our own State, under the custom that has prevailed in other states, submitting to the people the question as to whether a convention should be called in the year 1915. (Acts 1913, ch. 304, p. 812.) The court trying this cause has found that on the submis[540]*540sion of this question to the people at the regular election in 1914, 338,947 votes were cast against calling and holding the convention and only 235,140 votes were cast favoring it, out of a total vote of nearly 650,000, there being a clear majority against it of more than 103,000. If ever an emphatic protest has been registered against any proposition, it was in this instance. The court further found that this election was the last expression of the people of the State on the question of. calling a constitutional convention. It cannot consistently be claimed that the legislature of 1917 had any commission from the people to call a constitutional convention as provided for in chapter 2, page 5, of the Acts of 1917. Under the - old Constitution of the State, adopted in 1816, it was provided that the question of calling a constitutional convention should be submitted to the people every twelve years. This was held to be imperative every twelve years but not to prevent its submission at any period of less than twelve years. In 1849 the question was submitted to the people, who, through their will as expressed in an election of that year, commissioned the legislature to call a constitutional convention, which resulted in our present Constitution.
We have not been furnished with the citation of any case, nor have we been able to find one, in which the legislature has disregarded the latest expression of the people in that regard. The trial court finds that the election of 1914, under the act of 1913, is the only time since the adoption of the Constitution of 1851 that the question has been submitted to the people. We are of the opinion that the will of the people as expressed in the election of 1914 is- as binding on the general assembly as a positive provision of the Constitution could be, and hence the action of the legislature in calling a constitutional convention as provided for in chap[541]*541ter 2, page 5, of the acts of 1917, is null and void, being in conflict with §1 of the Bill of Rights and taking from the people the right to say when they desire a change in their fundamental law.
It is therefore ordered and adjudged that the judgment of the lower court denying injunction be reversed with directions to restate its first, third, fourth and fifth conclusions of law in conformity with this opinion. So-ordered without costs.
Spencer, Harvey, Meyers, JJ., concur.
Lairy, J., does not vote for the reason that he has not been able to advise himself sufficiently at this time. He desires the right to express his views later.