In re Denny

51 L.R.A. 722, 59 N.E. 359, 156 Ind. 104, 1901 Ind. LEXIS 28

• Court: Indiana Supreme Court
• Decided: February 1, 1901
• Docket: No. 19,534
• Status: Published

Opinions

Baker, J.

Section 21 of article 1 of the Constitution, in force from November 1, 1851, reads: “Every person of good moral character, being a voter, shall be entitled to admission to practice law in all courts of justice.” At the election in' November, 1900, a proposed amendment, to take the place of the foregoing provision, to the effect that “The General Assembly shall by law prescribe what qualifications shall be necessary for admission to practice law in all courts of justice” was submitted to the electors of the State. On the assumption that the proposed amendment had been adopted, and on the further assumption that it was within the court’s prerogative to prescribe qualifications by rule without waiting for the General Assembly to change the present statutory provisions on.the subject, the Marion Circuit Court established rules. and appointed a board of examiners. Thereafter, the petitioner Mr. Denny applied to be admitted to practice law in the Marion Circuit Court, on the qualifications only that he was a person of good moral character and a voter in Marion county, Indiana. On the trial, the court specially found these facts: Mr. Denny is a person of good moral character and a voter in Marion county, Indiana.. At the general election in Indiana on November 6, 1900, 655,9-65 votes' were, cast for various candidates for the office of Governor of Indiana. At' an election held upon the same day throughout the State of Indiana, pursuant to an act of the General Assembly approved March 6, 1899 (Acts 1899, p. 560), there were cast for the amendment in question 240,031 votes and against it 144,’072 votes. A motion was made for tlie ad-' mission of Mr. Denny to practice law in the Marion Circuit Court, and he declined to submit to an examination as to his qualifications to be admitted as provided by the rules of that court. As a conclusion of law the court stated that Mr. Denny was not entitled to admission; and judgment was entered accordingly. Mr. Denny appeals, and assigns that the conclusion of law is erroneous. The Attorney-General appears --in' support of the judginent. If the proposed amendment has not been adopted, the.conclusion of law and the judgment can not' -be sustained. ■

The Constitution-lays down the only procedure by which án amendmetit' may be adopted: Article 16> §1. -“Any amendment ■ or amendments to this Constitution may be proposed in• either'branch of the General Assembly; and-if the samé shall be agreed to by- a maj ority of -the members elected- to each df the two houses,, such proposed amendment-or amendments shall, -with the yeas and nays thereon, be entered on their journals, and referred to the'General Assembly to be.chosen at the next general election; and if, in the General Assembly- so next chosen, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the dutyof-the'G'eneral Assembly to submit such amendment or amendments to the electors of'the State'; and if a majority of - said electors shall ratify the same, such' amendment or amendments shall become a- part of this Constitution. Section 2. If two 'or more amendments shall be submitted at the same time, they shall be submitted in such manner that-the electors shall vote for or against each of such amendments' separately; and while an amendment or amendments which' shall.havé -been agreed upon by one General Assembly shall be awaiting-'the action-of a'succeeding General Assembly, or of the electors, no additional amendment or amendments' shall be proposed.” ■

The proposed amendment in question and one other received 'the affirmative- votes of a‘ majority of the 'members elected to each house of the General Assemblies'of 1897 and 1899. It thereupon became the duty of the General Asse'm-' bly of 1899 to provide for the submission o:f the proposed amendments to the electors of the State. For this purpose', ' the above mentioned'act was passed, which provides: “That there shall be a -vote taken by the people at the next general election” to be held on November 6, 1900, on the adoption or rejection 'of the proposed amendments;' that the clerks ' of the circuit courts shall cause to be printed twice' as many ballots; 'containing the two amendments, as there were votes cast in their respective counties for Governor at the general election in 1896-; that there shall be printed at the left of each amendment the words “For the amendment” and' “Against the amendment”, and the voter shall make' a cross with a blue pencil 'in the square to the left of' whichever set of words he desires to' vote; that the ballots shall be delivered • to the election' precincts in the same manner ás' ballots for voting for district and county officers are -now delivered, and they shall be delivered to the voters before' entering the election booth in the manner now provided 'by law for delivering the ballots to the voters; that the election board' shall count and return the vote according to the general law governing elections; that after the returns in each county are tabulated, the clerk shall certify to the Secretary of State the total' vote cast for and against each amendment; that after the secretary tabulates the returns from all the counties, he shall certify to the Governor the total -vote for and against- each amendment; that “if it shall appear that a majority of all the votes cast at such election were given in favor of the adoption of either or both of'said proposed constitutional amendments, the Governor 'shall make proclamation, and it or they shall then become párt of the Constitution of the State of Indiana”. ■ .....

The' Governor’s proclamation announced that •'240,031 votes had been oast for, and 144,072 against, the proposed amendment in question, and 311,710 for, and 178,960 against, the other proposed amendment; but did not state whether either had been adopted or rejected.

In our system of government, a written constitution is the highest expression of law. None other emanates^ directly from the sovereign people themselves'. It is the' deliberate and affirmative utterance of the sovereign majority. It seems unnatural to say that the sovereign májority, the authors of the designedly permanent, the fundamental, the organic law, intended that any of its safeguards should be abrogated by a failure to demand the abrogation; that the indifference of the many should be a positive element in effecting an organic change desired by the few; that a judgment abolishing the writ of habeas corpus of the right of trial by jury should be taken by default. On the contrary, one would expect a provision that the charter of our liberties should stand unaltered until the sovereign majority, by affirmative action, expressed their desire for, and effected, a change. And such is the clear letter and spirit of article 16. If a majority of the electors of the State shall ratify a proposed amendment, it shall become a part of the Constitution; otherwise not. There is no room' for construction. The language is too plain to admit of quibbling. “Majority” means “more than half”. “Electors”, with reference to an election, means, according to the lexicographers and universally accepted usage, “persons possessed of the legal qualifications entitling them to vote”. The word “voters”, on the other hand, has two meanings, “persons who perform the act of voting”, and “persons who' have the qualifications entitling them to vote”. Constitutions are drafted with care. The framers of our Contsitution deliberately selected and used the words in the meaning of which there could be no ambiguity.' The sentence, “If more than half of the persons in the State who possess the legal qualifications entitling them to vote shall ratify' the proposed amendment, it shall become' a part of the Con-' stitution”, is a cumbersome equivalent. The idea is clearly and more succinctly expressed in the wording of the Constitution. No other standard for the adoption of proposed constitutional amendments may be set up by this court, becomingly or lawfully, than the one fixed by the Constitution, the affirmative ratification by “a majority of the electors of the State.” So, in any case, the question becomes one, not of constitutional construction, but of evidence.

It is universally held that, in the absence of a provision for registration, the number of persons who possess the qualifications entitling them to vote at a- given election is determined by the election itself. Deaths, minors’ coming of ,age, disfranchisements, removals from the State, or from the county, township, ward, or precinct, within certain limits of time, make the number of- electors a continually variable quantity. But when a person goes to the polls in . his precinct, is passed by the challengers, is accepted by the election officers, and has his name enrolled on the poll lists ..as -having voted, he thereby furnishes proof of the fact that ..he 'isian elector, a person possessed of the legal qualifications entitling him to vote at that election. And- the poll lists furnish evidence of the total number of electors., And . this evidence .is just as definite and certain as that which could be afforded by a registration of the persons entitled to vote. at. that election, for the poll lists themselves form a . registration.

- ,. After, the proposed amendments were approved by the .General Assemblies-of 1891 and 1899, it became the duty of the General Assembly of 1899 to submit them to the electors of the State. It was within the power of that Gen- , eral Assembly to provide for submitting them at a general, or at ,a special, election. The General Assembly enacted . that a vote on the proposed amendment slnmld be taken at the next general election. The trial court found that 240?-031 votes were cast in favor of the adoption of the proposed amendment in question. The trial court probably m'ade the finding from the facts within its judicial knowledge. It was unnecessary for the parties to prove the vote.,. This court takes judicial notice of the returns made to the Secretary of State; and if the trial court .had stated a different number, the. finding would be ignored, because this court is charged, with judicial knowledge of the fact that 240,031 is the correct number. From the same source, and with the same authenticity this .court knows judicially that at the same election 664,09.4 votes were cast for presidential electors, 655„965 votes for Governor, and 493,610. votes on the other proposed amendment. Since we know absolutely that more than .twice 240,031 electors of the State participated in the election, we hold that the proposed amendment in question was rejected.

. It is argued that the proposed amendment was submitted at a- special election, and that therefore this.coirrt can not take judicial knowledge of any. returns except those of the alleged special election. The argument that the election was special is based on §62 of the election law (Acts 1889, p.. 184, §6258 Burns 1894). By that.section the General Assembly of 1889 undertook to say that whenever any constitutional .amendment- is required by law to be submitted to popular yote, the state board of election commissioners shall cause a brief statement of the same to be printed on the state ballots and the words “yes” or “no” under the same, so that the elector may indicate his preference by stamping at the place designated in front of either word. The argument then proceeds: Since the General Assembly of 1899 did not conform to the law of 1889, the act of 1899 submitting the proposed amendments to the electors of the State must be held to be a provision for a special election. In the first, place, it is spmewhat unusual to give an act of one General Assembly the effect of a constitutional restraint upon the action of its successors. In the next place,-the General Assembly of 1889 was not the proper one to take action. There were no constitutional amendments pending, approved by it, to be submitted to the electors of the State. The Constitution points out the steps to be taken. If one General Assembly approves a.proposed amendment, .it is referred to the next General Asserqbly. If that body approves the proposed .amendment, it , thereupon becomes the duty of that body to submit the question to the electors of the State. It is only by virtue of .the Constitution^ command to that body that the proposed amendment m.ay be submitted by a legislative act. Prior to the designated time, there is no constitutional power in any general assembly to speak authoritatively on the subject of the submission of proposed amendments. And finally, the act of 1899 is a clear expression, by the only General Assembly empowered to speak, of the intention to submit the .question • “at the next general election”. On November, 6, .1900, there was but one election in Indiana, and that, was the .“general election” at which the General Assembly of 1899 determined to submit the proposed amendments to the, electors of the State; and every person who voted.at that election .thereby furnished proof that he was an elector of the State.' There was but one voting place in each precinct, but one set of election officers at .each voting place, but one poll list, but one delivery of tickets to each elector, hut one standard of qualifications for all electors' no matter, what they voted upon, but one act of voting by each elector, and , but one recording of the fact that he had voted. , But even if the act.of 1899 were legitimately open to the construction that the proposed amendments were submitted at a special election, the proposed amendment in question has ■ been rejected. Eirst. The fact that 240,031 votes were cqunted for, and 144,072 against, the proposed amendment jn. question, .is not definite proof that only 384,103 persons cast ballots on.the proposition submitted at the, alleged special election. At any election on ,a constitutional amendment, whether general or special, the question is, Has the amendment been ratified by a majority of the electors of the State ? The act of 1899, viewed as a submission at a general election, is deficient in not providing for a return of the total number of electors marked on the poll lists as having voted; and viewed as a submission at a special election on the constitutional amendments only, it is deficient in not providing for a return of the total number of electors whose ballots on the constitutional amendments were deposited in the ballot box. One’s standing as an elector, a person qualified to vote, is not destroyed by the election officers’ decision to throw out his ballot on the ground, real or not, that it is mutilated or bears a distinguishing mark. Second. The two proposed amendments were printed on a single ballot. If the election were special as to them, and if this court could look only to the returns of the alleged special election, how can the court properly shut its eyes to the fact that the 240,031 votes cast for the proposed amendment in question are less than half of the 493,670 votes recorded as having been counted on the other? What ones of the 493,670 are to be held as not being “electors of the State” ?

It is also urged that, because the number of persons in the State who were entitled to vote at the election on November 6, 1900, in excess of the 664,094 persons who were counted as having voted for presidential electors, is a matter of conjecture, it is therefore permissible to indulge in the conjecture that there were no more electors (persons entitled to vote)' on the proposed amendment in question than the 240,031 tha.t were recorded as having voted for, and the 144,072 against, its adoption. The difference is vital. On the conjecture that there were more electors of the State than 664,094, by so much the more has the proposed amendment failed to be ratified by a majority of them.. But it is not necessary to deal in that, or in any other, conjecture to hold that the proposed amendment has been defeated. The absolute judicial knowledge (evidence of the very highest class) that there were at least 664,094 persons entitled to vote on the proposed amendment, proves that the proposed amendment was defeated for a lack of a majority. On the the other hand, to hold that the proposed amendment has been adopted, requires the acceptance of' the conjecture that only -the 'persons who succeeded in having their votes counted for and 'against the proposed amendment were legally qualified to vote on the subject. And this in'the face of the facts that 493,670 votes were counted for and against the other proposed amendment, that 655,965 were counted for candidates for Governor, and that 664,094 were counted for candidates for presidential electors. It is possible to conjecture that there may have been more persons entitled to vote than the definitely known number of 664,094. But how can it be made a matter of conjecture that there were less ?

The Attorney-General invites our consideration of the claim that “a majority of the electors of the State” was not intended to mean “a majority of dll the electors of the State”, because the constitutional convention rejected a substitute inserting “all” before “the electors”, and because the article as adopted requires a proposed amendment to be agreed to by “a majority of all the members elected to each house”. First. The substitute was rejected, not on account of the presence of the word “all”, but because it ran counter to the plan favored by the convention. The substitute was: “No amendment shall be made to the Constitution unless the same shall have been called for and - approved by a majority of all the voters (electors) of the State”. 2 Const. Debates pp. 1938-1942. Second. “A majority of the electors of the State” is as comprehensive as “a majority of all the electors of the State”, just as “a majority of the members elected to each of the two houses”' is as wide-embracing as “a majority of all the members elected to each house”. The one form of expression may be more intensive than the other, but it is not more inclusive. Third. That the convention attached no importance to the presence or absence of the word “all” is shown by the use of “a majority of the members elected to each of the two houses” as'the equivalent of “a majority of all the members elected to each house”, in section 1 of this article 16.

The Attorney-General further contends that section 2 of article 16 shows that only the votes counted for and against the proposed amendment in question should be considered’in determining the number of “the electors of the State”. . Section 2 provides: “If two or more amendments shall be submitted at the same time, they shall be submitted in such manner that the electors shall vote for or against each of such amendments separately.” The controlling idea to be expressed was this: If two or more amendments are to be submitted at the same time, they ought not to be voted upon en masse, but separately, so that each may stand or fall on its own merits. Section 2 directs the submission’ of two or more amendments to be made “in such manner that the electors shall vote for or against each of such amendments separately”; but does not undertake to state the effect of the votes cast on such submission. That effect is expressed in section 1. It is incredible that it was intended that a different effect should follow from the vote “if two or more amendments are submitted at the same time” from that which would follow the submission of one amendment: The only condition under which an amendment “shall become a part of this Constitution” is, that '“a majority of the electors of the State shall ratify the same”. No other terms of adoption are named in any part of the article; arid yet the argument of counsel assumes that the positive declaration in section 1 is destroyed by their inference’that the provision for taking a vote “for” and “against” means that only the votes counted “for” and “against” are to be considered. Counsel’s inference would destroy as’well the direct command in section 1 that a proposed amendment “shall be agreed to by a majority of the members elected to each of the two houses”, since a record of the votes “for” and “against” in each of the two houses is directed to be entered on their journals. But counsel do not claim or even suggest that, under the plain language of the article, a proposed amendment may be agreed to in either house by a majority of those voting “for” and “against” or by any number less than “a majority of the members elected.” When the 'number of members elected to the senate is definitely known, that is the number of which it takes more than half to- act affirmatively upon a proposed amendment. Similarly with the house; it is not a majority of the quorum or those voting “for” or “against”, but it is a majority of the body that is required: And similarly with the electors of the State; when the number of electors is definitely known, that is the number of which it takes more than half to act affirmatively upon a proposed amendment. The standard is made the same in the three bodies. And if the court has the means of knowing judicially the number composing each body, the rule is as easily applied in one body as in another.

The history of the article confirms our recognition of its plain meaning. The original resolution provided for ratification by “a majority of the qualified voters.” A motion was made to instruct the committee on future amendments to substitute the words, “a majority of all the votes cast for and against the same”. The motion, modified so as to require the committee only to consider the advisability of the substitution, was carried. The committee rejected the phrase, “a majority of all the votes cast for and against the same”, and reported the following: “* * * it shall be their duty to submit the same to the people at the next general election, * * * and if a majority of all the electors voting at said election for members of the. house of representatives * * *”. In the convention, the following phraseology was agreed upon: “* * * • submit such amendment or amend mients to the qualified electors' of the State,'and if a majority of said electors shall ratify the same,' * ’ * * .” After the committee on revision and phraseology had excised the word “qualified”, the article stood as was finally approved by the convention and ratified by the people. Const. Journal, pp. 69, 444, 693, 830-833, 837, 841, 842, 971, 975/976; 2 Const. Debates, pp. 1258-1260, 1641, 1913-1918, 1938-1942, 2076. It is noteworthy that the unlimited words “a! majority of the electors of the State”'were adopted after an affirmative rejection, first, by the committee, of the limiting words “a majority of the votes cast for and against, the same”, and secondly, by the convention/of the limiting words “a majority of the electors voting for members of the 'house”. ' To hold in this case that the' proposed amendment has been ratified, it would be necessary to strike out of’ article 16 the words “a majority of the electors of the State” and to substitute therefor “a majority of the votes cast for and against the same”,- — a process just the reverse of that carried out by the framers -of' our organic law. To' hold in this case that the proposed amendment has been defeated, requires only an obedience to the clear letter and spirit of the Constitution, without adding to or taking from' it one jot or tittle. And such obedience is our duty, for the Constitution is as binding upon the judicial department of the State as it is upon the legislative or executive.

The article relating to amendments of the organic law has been before this court but once. In State v. Swift, 69 Ind. 505, the question concerned the adoption of a proposed constitutional amendment, which was submitted 'to the electors of the State at the' élection for township officers in April, 1880. The only vote certified to the Secretary of State.was the'vote on the proposed amendment. The vote' was 169,483 for, and 152,251 against, the proposed amendment. The elections of township officers, in’ the various townships of the State were purely local elections: The re turns thereof are not made to the Secretary of State and do not become a part of the archives of the State. It was held, first, that “it requires at least a majority of all the votes cast at the same election to ratify a constitutional amendment” ; and second, that the proposed amendment had- not been adopted, on the ground that the court judicially knew .that more electors had participated in the township elections than had-voted for and against the proposed amendment; that the court could not' definitely say that a majority of the electors of the State had ratified the proposed amendment, and .therefore it did not affirmatively appear that it was adopted; arid that the court could not definitely say that it had failed to-receive the approval of a majority of the electors of the State, and therefore it had not been rejected, but might be resubmitted. The second proposition was decided incorrectly, for courts will not take judicial notice of the results of local elections. 17 Am. & Eng. Ency. of Law (2nd ed.) 898. The error in the Swift decision, as well as the distinction between that case and one like the present, is pointed out .in the dissenting opinion of Mr. Justice Niblack:. “If the amendment under discu'ssion had been submitted to the electors of the State at, and as a part of, a general .election, and if the returns- of that general election had shown affirmatively that a majority of those .voting at such election had not voted to ratify such amendment, then quite a different question would have been pre-. sented for our consideration. There is good authority- for holding that in such an event the amendment would not have been ratified. People v. Garner, 47 Ill. 246; People v. Wiant, 48 Ill. 263. But no, such element enters into this case, * . * * Township elections are. local and not general in their character, and returns from them are only made to the. clerks of.the respective counties, and are not made a part of the archives of the State, as the returns, of the general elections are. We are therefore unable to take judicial notice of the aggregate number of votes cast at those township elections .on the day the amendments were voted upon. That is a subject, about which we judicially know nothing, and concerning which we can .presume nothing, adverse to the amendment under consideration. * * This is.the essential point of difference between me-and my brethren who speak for the court.”. • ...

In the cage of City of South Bend v. Lewis, 138 Ind. 512, a statute providing for an election on the question of the union of. a city and a town was before the corn’t for construction. It was. very properly held that, by the terms .of the statute, the union was affected if a majority of those in each municipality who voted upon the question voted in favor of the union. The statute required the city council and the town board to agree upon a day on which an election should be held for the people of the city and of the town to vote on the question of union. The day selected was one on which .there was an election of officers in the city, but none in the town. In view of the fact that only a majority of .the votes “given on the question of union” was necessary to an affirmative .decision, it was held that the question as to the number of votes cast in the city for officers was. immaterial. The statute in that case and the constitutional provision in this are essentially different; but the court there recognized. and, as it were, forecast the doctrine that is controlling here. Among other things the court said: “The learned counsel for the appellee seems to rely upon the provision that.a town and a city may be united if a ‘majority of the qualified voters of the town and a majority of the qualified voters of the city’ vote in favor thereof. If this section stood alone, it might be urged that a majority of all the voters are necessary, and the number of votes east at the city election for officers should be taken as additional means for ascertaining the number of legal voters of the city. But the other sections of the act clearly show that such was not the intent of the framers of the act. * * * Where a question is required to be submitted at a certain regular election, and is made to depend upon a majority of the votes cast at ‘such election’, a majority of all the votes cast at the election is meant, and not merely a majority of the votes cast on that particular question.”

The conclusion at which we have arrived is sustained, in our opinion, by the overwhelming weight ,of authority. The following decisions are directly in point: People v. Town of Berkeley, 102 Cal. 298, 36 Pac. 591, 23 L. R. A. 838; People v. Brown, 11 Ill. 478; People v. Garner, 47 Ill. 246; People v. Wiant, 48 Ill. 263; Chestnutwood v. Hood, 68 Ill. 132; Belknap v. City of Louisville, 99 Ky. 474, 36 S. W. 1118, 34 L. R. A. 256; Stebbins v. Judge, 108 Mich. 693, 66 N. W. 594; Bayard v. Klinge, 16 Minn. 249; Everett v. Smith, 22 Minn. 53; Slingerland v. Norton, 59 Minn. 351, 61 N. W. 322; Smith v. Board, etc., 64 Minn. 16, 65 N. W. 950; State v. Powell (Miss.), 27 South. 927, 48 L. R. A. 652; State v. Winkelmeier, 35 Mo. 103; State v. Sutterfield, 54 Mo. 391; State v. Mayor of St. Louis, 73 Mo. 435; State v. Francis, 95 Mo. 44, 8 S. W. 1; State v. McGowan, 138 Mo. 187, 39 S. W. 771; State v. Lancaster Co., 6 Neb. 474; State v. Babcock, 17 Neb. 188, 22 N. W. 372; State v. Bechel, 22 Neb. 158, 34 N. W. 342; State v. Anderson, 26 Neb. 517, 42 N. W. 421; State v. Van Camp, 36 Neb. 91, 54 N. W. 113; Bryan v. City of Lincoln, 50 Neb. 620, 70 N. W. 252, 35 L. R. A. 752; Tecumseh Nat. Bank v. Saunders, 51 Neb. 801, 71 N. W. 779; Enyart v. Trustees, 25 Ohio St. 618; State v. Foraker, 46 Ohio St. 677, 23 N. E. 491, 6 L. R. A. 422. And see Sanford v. Prentice, 28 Wis. 358, on the difference between an elector and a voter.

In People v. Town of Berkeley, the court said of a constitutional provision: “These words” (whenever a majority of the electors voting at a general election shall so determine) “clearly do not indicate that only a majority of the electors voting upon the proposition is necessary, but would seem to imply that a majority of all those voting at the election is required.”

In People v. Brown, the constitution provided: “Whenever a majority of the voters of such county, .at any general election, shall so determine.” The court held: “It does not mean a majority of those voting on the question to be .submitted, but a majority of all the legal voters of the county.” ■' '

In People v. Wiant, the language of the constitution under consideration was “a majority of the voters”. Held, that a majority of the votes cast on the question was insufficient.

In Stebbins v. Judge, the statute forbade the "incurrence of bonded indebtedness “unless the qualified electors of said city, voting in their respective wards, shall have authorized the .issuing of said bonds by. a majority of. their votes cast at any regular election, or at" a special election called for the purpose of voting upon such question.” The vote in question was taken at a regular election. Held, that the decision was determinable by a majority of the votes cast at the election, not by a majority of the votes cast upon- the question.

In Bayard v. Klinge, the words of the constitution under examination were “a majority of such electors”. The court decided that a majority of those voting on the question was not sufficient.

In Slingerland v. Norton and in Smith v. Board, it was held that the whole number voting at an election must be determined from .the poll lists, not from the return of the votes counted as'effective.

The language of the constitution under consideration in State v. Powell was “a majority of the qualified electors voting”. It was held that the proposed constitutional amendment could only be adopted by a majority of those voting at the same time for any purpose. ■ .

In State v. Winkelmeier, the language of the statute was “a majority of the legal voters”. More, .than 13,000 voters participated in the "election. 5,035 favored, and 2,001 opposed, the adoption of the question submitted. The court said: “It is evident that the vote of 5,000 out of 13,000 voters is not the vote of a majority, and, under the. act quoted, no authority was given, the city.” ' '

In State v. Babcock, the constitution provided that “proposed amendments * * * shall be * * * published for three months immediately preceding the next election of senators and representatives, * * *. and if a majority of the electors voting at such election adopt,” etc. Held, that a majority of-those voting on the amendment was insufficient. ■ ■

In State v. Bechel, the constitution provided: “No such general law shall be passed by the legislature, granting th© right to construct and operate a street railroad within any city, town, or incorporated village, without first requiring the consent of a majority of the electors thereof.” The question of having a street railroad was submitted at a general city election, at which, 8,146 voters participated, of who'm 1,650 voted for, and 1,470 against, the railroad. The court said: “It is impossible for us, by any system of logical reasoning, to say that the election held in the city of Omaha on the 3rd day of May, 1887, was other than one election. * * * That being the case, * * * the consent of a majority of the electors was. not given.”

In State v. Foraker, the constitutional provision was that a proposed amendment should be published “for six months preceding the next election for senators and representatives, at which time the same shall be submitted to the electors, * * * and if a majority of the electors voting at such election shall adopt,” etc. Held, that a majority of those voting on the amendment was insufficient.

There are many other cases that' are in harmony with our conclusions, but in which the constitutional or statutory provision under consideration was found, as in our own case of City of South Bend v. Lewis, to condition the adoption of a particular question only upon its receiving a majority of the votes cast for and-against it: Gavin v. City of Atlanta, 86 Ga. 132, 12 S. E. 262; Mayor, etc., v. Wilson, 96 Ga. 251, 23 S. E. 240; Green v. State Board, etc., (Idaho), 47 Pac. 259, 44 Cent. L. J. 383; Holcomb v. Davis, 56 Ill. 413; County Seat of Linn County, 15 Kan. 500; Commissioners v. Winkley, 29 Kan. 36; State v. Echols, 11 Kan. 1, 20 Pac. 523; Fiscal Court v. Trimble (Ky.), 47 S. W. 773, 42 L. R. A. 738; Jones v. Commonwealth (Ky.), 47 S. W. 328; Rush v. Commonwealth (Ky.), 47 S. W. 586; Duperier v. Viator, 35 La. Ann. 957; Citizens, etc., v. Williams, 49 La. Ann. 422, 21 South. 647, 37 L. R. A. 761; Walker v. Oswald, 68 Md. 146, 11 Atl. 711; State v. Cornell (Neb.), 74 N. W. 59, 39 L. R. A. 513; State v. Wurts, 61 N. J. L. 163, 38 Atl. 1099; Bott v. Secretary of State, 62 N. J. L. 107, 40 Atl. 740; People v. Trustees, 70 N. Y. 28; Smith v. Proctor, 130 N. Y. 319, 29 N. E. 312, 14 L. R. A. 403; Southerland v. Goldsboro, 96 N. C. 49, 1 S. E. 760; Duke v. Brown, 96 N. C. 127, 1 S. E. 827; State v. Barnes, 3 N. Dak. 319, 55 N. W. 883; State v. Langlie, 5 N. Dak. 594, 67 N. W. 958, 32 L. R. A. 723; State v. Grace, 20 Ore. 154, 25 Pac. 382; Cocke v. Gooch, 5 Heisk. (Tenn.) 294; Bouldin v. Lockhart, 3 Baxt. (Tenn.) 262; Braden v. Stumph, 16 Lea (Tenn.) 581; Davis v. Brown, 16 W. Va. 716, 31 S. E. 839; Gillespie v. Palmer, 20 Wis. 544; St. Joseph Tp. v. Rogers, 16 Wall. 644, 21 L. Ed. 328; County of Cass v. Johnston, 95 U. S. 360, 24 L. Ed. 416; Douglass v. County of Pike, 101 U. S. 677, 25 L. Ed. 968; Carcoll County v. Smith, 111 U. S. 556, 1 Sup. Ct. 539, 28 L. Ed. 517; Knox Co. v. Ninth Nat. Bank, 147 U. S. 91, 13 Sup. Ct. 267, 37 L. Ed. 93; Armour Bros. Banking Co. v. Board, etc., 11 Fed. 321.

In the great majority of these cases the principles, that control us in our holding in the present case are distinctly recognized. For example: In County Seat of Linn County, 15 Nan. 500, the phrase “a majority of the electors of the county” was considered in connection with the returns of a special election at which the particular question was the only m,alter to be voted upon. Mr. Justice Brewer,' speaking for the court, said: “We do not doubt the restricting power of the constitutional provision; and whenever by any of the ordinary or prescribed means of ascertaining the fact, it appears that a majority of the electors have not consented to the change, no change can be had. * * *” In “cases where two or more questions are submitted at the same election, and more votes are cast upon one question than upon another, * * * the highest number of votes cast upon any one question is clear evidence of the number of voters, which may hot, in view of any such constitutional restriction as above quoted, be disregarded in any contest arising as to the decision of the other questions.”

There may be a few cases that can not be reconciled with the great weight of the decided law, but they probably all belong to the class of which Gillespie v. Palmer, 20 Wis. 544, may be taken as illustrative. In that case, the constitution provided that the legislature might extend the right of suffrage, but that the law should not go into effect until “submitted to a vote of the people at a general election and approved by a majority of all the votes cast at such election”. The court was called upon to decide whether or not' a law extending the right of suffrage to negroes had been ratified. More votes were cast for the law than against it, but it did not receive a majority of all the votes cast at the election on Other matters. The court held that the law had been ratified. In the later case of Sawyer v. Dodge, etc., Ins. Co., 37 Wis. 503, 524, the court sáid of the Gillespie case that it “has been subjected to the criticism that the court decided it in accordance with ‘the logic of the war’ rather than ‘the logic of' the law’ And in Bound v. Wisconsin, etc., R. Co., 45 Wis. 543, 579, Chief Justice Ryan classed Gillespie v. Palmer as being one of several cases “which have long been made a reproach to the court, as judgments proceeding upon policy ratllCT tb.au upon principle.”

. Judgment reversed, with directions to restate the conclusion of law .in consonance with this decision.