Bott v. Secretary of State

40 A. 740, 62 N.J.L. 107, 33 Vroom 107, 1898 N.J. Sup. Ct. LEXIS 79

• Court: Supreme Court of New Jersey
• Decided: June 13, 1898
• Status: Published

Opinions

The opinion of the court was delivered by

Depue, J.

The constitutional provision under which the proposed amendments were submitted to the people is article 9, which is as follows: “Any specific amendment or amendments to the constitution may be proposed in the senate or 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 be entered on their journals, with the yeas and nays taken thereon, and referred to the legislature then next to be chosen, and shall be published for three months previous to making such choice in at least one newspaper of each county ^ if any be published therein; and if in the legislature next chosen as aforesaid such proposed amendment or amendments, or any of them, shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the legislature to submit such proposed amendment or amendments, or such of them as may have been agreed to as aforesaid by the two legislatures, to the people, in such manner and at such time, at least four months after the adjournment of the legislature, as the legislature shall prescribe; and 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 párt of the constitution; provided, that if more than one amendment be' submitted, they shall be submitted in such manner and form that the people may vote for or against each amendment separately and distinctly; but no amendment or amendments shall be submitted to the people by the legislature oftener than once in five years.”

K In every government organized under a constitutional form of government the initial steps for a change in the constitution are with the legislative department of the government in which is vested the sovereign power of the people in that respect. I do not refer to a constitution which is the product of revolution, such as that adopted July 2d, 1776. The convention or congress which in its broadest sense made that constitution was assembled without sanction of law. It was composed of delegates who had been elected at the instance of a committee of citizens appointed by the continental congress^ Having procured the arrest of the colonial governor (Franklin), his removal from this state and his imprisonment in the State of Connecticut^this body proceeded to frame and adopt a constitution, which was not submitted to the people for ratification and had no other sanction or authority than the concurrence of the convention thus constituted. Nevertheless, from the time that instrument was promulgated until 1844, it was the fundamental instrument of government of this state, submitted to by the legislative, executive and judieial departments of the government, and also by the people of this state, as having the force of a constitution. •'

/The constitution of 1776 made no provision for an amendment of that constitution. During the latter years of its supremacy a new constitution was earnestly advocated; but no one supposed that it was competent for the people to inaugurate measures for the adoption of another constitution without legislative action. Mr. Justice Cooley says: “The will of the people to this end can only be expressed in the legitimate modes by which such a body politic can act, and which must either be prescribed by the constitution whose revision or amendment is sought or by an act of the legislative department of the state, which alone would be authorized to'speak for the people upon this subject, and to point out a mode for the expression of their will in the absence of any provision for amendment or revision- contained in the constitution.” Cooley Const. Lim. 40. By an áct of the legislature, passed February 23d, 1844, entitled “An act to provide for the election of delegates to a convention to prepare a constitution for the government of this state, and for submitting the same to the people thereof for ratification or rejection,” it was enacted that an election should be held for delegates to a convention to frame a constitution; that the said election should be conducted and held by the officers who held the last annual election, except where new officers were elected. It provided for the number of delegates, for the manner of voting and canvassing the result of the election and a certificate of the. result. It provided also that when the convention should have agreed upon a constitution it should cause the same to be engrossed, signed by the president and secretary, and delivered to the governor of the state, and filed in the office of the secretary of state. By section 9 it was enacted that, for the purpose of ascertaining the sense of the people as to adoption or rejection of the constitution agreed upon by the said convention, an election should be held in the several counties of this state. Section 1, in its proviso, prescribed the qualifications of voters for the election of delegates, and every person qualified to vote for delegates to the convention was authorized to vote at the election for the adoption or rejection of the ■constitution. By section 11 it was provided that the voting at such election should be by ballot; that the ballot of those persons voting for the adoption of the said constitution should contain the word “ Constitution/’ and those against its adoption the words “ No Constitution/’ and in case a majority of all the votes cast should be given in favor of the constitution so submitted it should become and be declared the constitution of this state. By section 12 the election officers were required to make out duplicate returns thereof substantially in the form provided by the act of 1897, one of which should be deposited in the clerk’s office-and the other transmitted to the governor. By section 13 it was made the duty of the governor to lay the returns of the election before a privy council to be by him summoned for that purpose, and, after casting up the whole number of votes given in the state at such election, the governor and privy council were required to proceed to determine whether a majority of the votes were in favor of or against the adoption of the constitution, and if the governor and privy council should determine that a majority of the votes were cast in favor of the constitution, the governor should issue a proclamation declaring that the constitution had been adopted by a majority of the votes.

The constitution above referred to was adopted by the convention June 29th, 1844, and approved by the people at an .election held in August, and the statement of the result of the election by the board of state canvassers was filed in the secretary of state’s office August 29th, 1844./The proclamation of the governor, which is the only legal and competent cvidence\that the constitution ever took effect, was made the same day. > It certified, under his privy seal, that the constitution had been adopted by the majority of the votes of the. people and that it would take effect and go into operation on the 2d day of September then next. It is the constitution now in force except as subsequently amended, and contains the provision for amendments above set out. Pursuant to the power of amendment prescribed by article 9, amendments to the constitution have, under legislative authority, been submitted to the people on two previous occasions — in 1875 (Pamph. L., p. 72) and in 1890 (Pamph. L., p. 483). The act of 1844, under which the present constitution was submitted, illustrates the action of the legislative department of the government with respect to proceedings for the formation of a constitution. It provided for the election of delegates to the convention by a constituency having other qualifications than those prescribed by the constitution of 1776, which was then in force. The property qualification contained in that constitution was eliminated, and in place of a residence within the county for one year preceding the last election, the act of 1844 conferred the right of suffrage upon citizens who resided within the state for one year and in the county for five .months nest preceding said election, and at the election, for the purpose of ascertaining the sense of the people as to the adoption or rejection of the constitution, every person qualified to vote for delegates to the convention was entitled to vote. The procedure adopted by the legislature for the submission of the constitution of 1844 and the amendments of 1875 and 1890 to the people at an election, the conduct of the election, the form of the ballots to be voted and the mode of canvassing and declaring the result, was, in every material respect, the same as that prescribed by the act of 1897.

The constitutional provisions now in question were submitted to the people by the legislature of 1897. Article 9 prescribes the conditions under which the legislature is authorized to submit proposed amendments to the people. The concurrence of two legislatures in the specific amendments by a majority of the members elected in each house is the condition upon which the legislature is authorized to submit proposed amendments to the people at an election. It is conceded that the proceedings in the two legislatures of 1896 and 1897 were, in all respects, in compliance with the constitutional'prescription. The jurisdiction of the legislature of 1897 to provide for the submission of these amendments to the people was complete. Consequently, cases cited by counsel such as Koehler v. Hill, 60 Iowa 543; 14 N. W. Rep. 738; 15 Id. 609, do not apply to this case. The constitution of Iowa, under which that decision was made, authorized the submission of an amendment to the people when the same was agreed to by two legislatures. The constitutional amendment as agreed to by the last legislature was different from that approved by its predecessor. The amendment related to the prohibition of the sale of liquor. The resolution adopted by the first legislature read as follows: “No person shall manufacture for sale or keep for sale as a beverage or to be used any intoxicating liquor,” &c. The resolution as adopted by the succeeding .general assembly did not contain the words “ or to be used.” The Supreme Court held that the constitutional amendment proposed was invalid for the reason that the adoption of a proposed amendment by two legislatures was jurisdictional. No question of that kind arises in this case. The argument of counsel proceeds on the assumption that everything was done that authorized the legislature of 1897 to submit the proposed amendments to the people. The contention is with respect to the validity of the act of 1897 in other respects and the regularity of the proceedings of the board of state canvassers in canvassing and declaring the result of the election.

The contention is that the act of 1897 is in itself unconstitutional. The reason under which this argument was presented is in these words: “Because the act of May 25th, 1897, under which said election was held, was unconstitutional and void, being contrary to the provisions of article 9 of the state constitution.” This reason is defective in form, at least, in that it fails to specify with precision in what respect the act conflicts with the constitutional provision. But, waiving that objection, the argument of counsel under this head will be considered. It is founded on the proviso to article 9, “ that if more than one amendment be submitted, they shall be submitted in such manner and form that the people may vote for or against each amendment separately and distinctly.” The ballot prescribed by the act is in the form following: “ Eor all propositions on this ballot which are not canceled with ink or pencil, and against all which are so canceled.” The form of the ballot prepared by the secretary of state, and annexed to the state of the case, conforms to the statute. The ballot is such in form that the voter may vote for or against each amendment separately and distinctly.

The argument is that this form of submission is unconstitutional with respect to such qualified voters as desire to remain neutral as to some one of the amendments submitted and to vote affirmatively for others; that the legislature may say how the qualified voter shall vote for or against, each amendment upon which he desires to vote, but it cannot attach to the doing of it any compulsion to act upon any other amendment. Counsel’s argument is presented in his bi'ief in these words: “ It will be seen that the law compelled every voter who desired to vote for or against any proposed amendment to also vote for or against the two other propositions. The constitution does not empower the legislature to attach any such condition to the casting of a vote for or against a proposed amendment. The statute cannot say to the voter ‘You shall not vote for or against any amendment unless you vote for or against all.’ An honest citizen may frankly say ‘I do not know whether the amendment is an improvement, and I cannot vote intelligently.’ He may ask to be excused. He may say ‘This amendment affects me in a degree greater than it does my fellow-citizens, and while I desire its adoption, I do not wish to vote for it.’ * * * Can the legislature say to this citizen ‘ You cannot exercise your intelligent judgment on the proposition you have studied and understand unless you give a guess upon all the others ? ’ ”

The precedents in this state, from the time of the act of 1844, under which the constitution of 1844 was adopted, to the present time, are in conformity with the present act in this respect. As already observed, the act of 1844 created a constituency for the election of delegates to the convention and for submission to the people with qualifications different from those prescribed by the constitution then in force, and declared that voting at such election should be by ballot, and that the ballots of those voting for the adoption of said constitution should contain the word “ Constitution,” and those against its adoption the words “No Constitution.” No provision whatever was made for the conscientious voter who favored some of the provisions contained in the constitution and opposed others. By the fiat of the legislature such a voter was coerced into adopting or rejecting the constitution as a whole.

The precedents of amendments submitted to the people, under article 9 of the constitution, are more nearly to the point. The act of 1875, under which twenty-seven specific amendments were submitted to the'people, in its third section provided “ that at such election each voter may present a ballot on which shall be written or printed, or partly written or partly printed, in the form following, namely, for all propositions on this ballot which are not canceled with ink or pencil, and against all which are so canceled.” Section 4 provides that each of said ballots shall be counted as a vote cast for each proposition thereon not canceled with ink or pencil, and against each proposition so canceled; and the secretary of state, by section 12, was required to prepare and have printed ballots in the form provided by the act. The form of the ballot which voters were required to use was identical with the form prescribed by the act of 1897. An inspection of the several amendments submitted in 1875 will disclose the fact that many of them provided for constitutional powers and limitations diverse in their nature, with respect to some of which the intelligent voter might scruple, although he had studied and approved of others. This is conspicuously the case with paragraph 11, which prohibited private, local or special laws in certain formulated cases. In these instances the qualified voter, if he was in favor of some of the particulars embraced in the paragraph and was opposed or indifferent as to others, could not vote for those that he approved and refrain from voting on those that he opposed or with respect to which he was indifferent, without voting for or against all that were enumerated in the paragraph as submitted by the legislature.

In 1890 two separate amendments were submitted to a popular vote by the act of June 19th, 1890. Pamph. L., p. 483. The mode in which the proposed amendments were submitted to the people was prescribed by section 3, and is identical in form with section 3 of the act of 1897, and section 4, which provided for the counting of the votes, is also identical with section 4 of the act of 1897. If the argument of counsel has substance sufficient to overthrow the act of 1897, it must be equally efficacious with respect to the act of 1844, and also to the act of 1875, and the constitutional amendments which are a prominent feature of our present constitution never acquired the force of fundamental law. It would be no answer to such a conclusion that the amendments of 1875 were adopted by a large majority of votes, for if the submission was in a form interdicted by the constitution the statute which gave life and substance to the popular vote would violate the constitution and be void. For the same reason the amendment submitted at the election under the act of 1897, which received the approval of a majority of over seven thousand, would fall. The ballot, prescribed by the legislature in this instance conforms literally to the constitutional requirement, and, if there be any obscurity or uncertainty in its construction, usage and immemorial practice, commencing with the form in which the constitution of 1844 was submitted, and more especially in the manner in which the amendments of 1875 and 1890 were submitted, would fix the interpretation of this constitutional provision. The constitutional amendments of 1875 have been uniformly recognized by the legislative, executive and judicial departments of the government, and also by the people of this state, as a. valid exercise of the power of amendment in conformity with a procedure such as is prescribed by the act of 1897. The antecedent precedents on this subject have given a construction to the proviso in article 9, with respect to the submission of several amendments, of such force as not at this time to be shaken. State v. Wrightson, 27 Vroom 126, 206; Kenny v. Hudspeth, 30 Id. 504, 533.

The constitutional provision in itself gave no consideration for the qualified voter who, for any reason, was indifferent or non-committal with respect to proposed amendments. The approval and ratification of any amendment devolved upon the majority of electors who should vote for or against it. Power to submit proposed amendments to the people was committed to the legislature in such manner as it might prescribe, with the limitation only that if more than one amendment be submitted at the same time they should be submitted in such manner and form as that the people might vote for or against each amendment “ separately and distinctly.” The ballot adopted in this instance by the legislature and approved by the executive is such in form as is directed by the constitution. Being within the competency of the legislature, it is not competent for the judiciary to set aside the result of an election certified and approved as prescribed by the act, on the assumption that some other form of voting would be preferable or even fairer.

The remaining reasons for reversal relate to the action of the board of state canvassers in determining the result of the election and declaring that the amendment in question was adopted.

The county boards of election complied with the statute in making their statements of the result of the election in the several counties on the basis of the statements of the result of the elections in the several election districts or precincts, certified and returned by the boards of registry and election, and the board of state canvassers also complied with the statute in making their statement of the result of the election throughout the state from the statements of the several county boards which had been filed in the secretary of state’s office. The tabulation contained in the statement of the board of state canvassers of the number of names on the poll-books, the number of ballots rejected and the number of votes given for and against each of the proposed amendments is in exact compliance with the act. The argument of counsel is therefore directed to the result as determined and declared by the board, viz., that the amendment in question was adopted.

It is admitted by counsel that over one hundred and fifty thousand voters were registered in the various election districts of the state at the registration made under the act of 1897 for the special election. It appears by the tabulated statement of the board of state canvassers that the number of names on the poll-books of persons who voted at the election was one hundred and forty-one thousand six hundred and seventy-two. The number of votes given for the amendment in question was seventy thousand four hundred and forty-three. If the determination of the result is made on the basis of a comparison of the votes cast for this amendment with the qualified voters in the state or with the number of voters whose names appear on the poll-books, the amendment did not receive a majority. But, by the constitutional provision under consideration, though the proposed amendment is required to be submitted to the people of the state, the approval and ratification of an amendment depend upon the majority of electors who are not only qualified to vote but do vote thereon at such election. The case relied on by the prosecutors on this subject (State v. Swift, 69 Ind. 505) was decided upon a constitutional provision entirely different from ours. The constitutional provision then under consideration provided for the submission of any proposed amendment “to the electors of the state, and if a majority of such electors shall ratify the same it shall become part of the constitution.” The court held that, inasmuch as the adoption of the constitution required a majority of all the electors, a constitutional amendment which received a majority of the votes cast for and against it, but less than a majority of all the electors who voted at the election, was neither ratified nor rejected. By our constitution the canvass of the vote is made on the basis, not of the electors qualified to vote or of the electors who voted at the election, but of the electors who voted for or against the proposed amendment.

To sustain the contention that, in the determination of the board of state canvassers, the number of names on the poll-books, which included the votes given for and against each proposed amendment, as well as the number of ballots rejected, should be considered in ascertaining the majority, Slingerland v. Norton, 61 N. W. Rep. 322, and Smith v. Board of Commissioners of Renville County, 65 Id. 956, were cited. Those decisions were made upon a statute submitting to an election the question of the removal of county seats, which provided that “ if fifty-five per cent, of the votes cast at such election shall be in favor of changing the county seat to the place named” the change shall be made. The court, on a construction of the words “votes cast,” held that the majority was to be ascertained from all the ballots that were cast at the election, although some of the ballots could not be deciphered or counted either for or against the proposed change of the county seat.

Decisions of which the cases cited are types have no relevancy to the construction of our constitution. The constitutional provision does not require a majority of the voters who are admitted as such at the election and.who in fact exercise or attempt to exercise the elective franchise. The certificate of the number of votes received by the several election boards is presumptive evidence -that the persons by whom they were cast were qualified voters.’ But that concession does not dispose of this question. The constitution requires that the approval and ratification of any amendment shall be by a majority of electors who are not only qualified to vote, but who did actually vote upon such amendment — that is, qualified voters whose ballots were entitled by law to be counted in declaring the result of the election either for or against the amendment. Though á qualified voter succeeds in getting his name on the poll-list and a ballot in the ballot-box, he is not a voter voting on the amendments unless his ballot is such as is prescribed by law and conforms to the general law regulating elections. The act contains no provision for the certificate and return of the ballots that were rejected, nor does it provide for an inquiry either before the county boards of election or before the board of state canvassers with respect to the grounds upon which votes have been rejected, •nor are either of these boards empowered to embody in their official action any results other than such as are exhibited by the official statements produced before them. The ballots returned as rejected must be taken to have been properly rejected, and consequently are to be excluded from the computation of the votes cast for or against the amendments. Such ballots were simply nullities.

The power of the legislature to adopt reasonable regulations for the conduct of elections is undoubted. Among the regulations adopted for conducting elections from the earliest period of voting by ballot are those which provide for the manner in which qualified voters shall exercise the elective franchise. Such regulations are necessary to secure fairness and honesty in elections. When the constitution provided for submitting amendments to the people at an election, it must be taken that it was contemplated an election held in conformity with regulations adopted in the act submitting the amendments or by the general laws of the state, and that by electors qualified to vote and voting thereon was meant qualified voters who exercised the elective franchise in such a manner as entitled their ballots to be counted and canvassed in ascertaining the result of the election. The several acts under which constitutional amendments have heretofore been submitted to the people are illustrations of this principle. They provide the form of the ballot that shall be voted and counted as a vote for or against an amendment, and that the manner of voting and the procedure of the election officers should in all respects conform to the requirements of the general law respecting elections except as modified by the act.

We find no imperfections in this act on constitutional grounds, nor in the proceedings of the board of state canvassers, and for that reason the writ of certiorari should be dismissed.

But if we had found infirmities in the aet on other than constitutional grounds, or in the proceedings of the board, the same result would follow. ■ The constitution prescribes no method for ascertaining or recording the result of the election. That duty is entrusted to the legislature, the representatives of the sovereignty of the people, to provide the means for determining the result of the election and furnishing the evidence that amendments submitted to the people have become part of the constitution as a memorial for all time. The legislature constituted the board of state canvassers the tribunal by which the result of the election should be ascertained, and vested in it the jurisdiction to determine whether any amendment or amendments proposed had been adopted, and gave to the certificate of the board such force and effect that upon filing the same the amendment or amendments so certified to have been adopted should be and become part of the constitution. In order that the certificate of the board of state canvassers should have the sanction of the executive department of the government, and the result so certified be publicly proclaimed, the legislature made it the duty of the governor to issue a proclamation declaring which of the proposed amendments had been adopted by the people. The concurrence of the board of state canvassers and the executive department of the government, in their respective official functions, places the subject beyond the cognizance of the judicial department of the government. The cases to that effect are cited by Mr. Justice Van Syckel in his opinion upon the application for this writ. Bott v. Secretary of State, 32 Vroom 163. It is unnecessary to reproduce these citations. It is sufficient for us to say that after the decision and determination of the board of state canvassers and the proclamation of the governor the matter has passed beyond the reach of the judiciary. If the decision of the' state board should be set aside by our judgment the proclamation of the executive would still remain.

The writ should be dismissed.