People v. Stevenson

117 N.E. 747, 281 Ill. 17

• Court: Illinois Supreme Court
• Decided: October 23, 1917
• Docket: No. 11469
• Status: Published

Opinions

Mr. Justice Farmer

delivered the opinion of the court:

The legislature of Illinois at its 1915 session adopted a resolution submitting to the people of the State the question of the adoption of a proposed amendment to the constitution, to be known as section 14 of article 9. The proposed amendment was as follows:

“From and after the date when this section shall bé in force the powers of the General Assembly over the subject matter of the taxation of personal property shall be as complete and unrestricted as they would be if sections one (1), three (3), nine (9) and ten (10) of this article of the constitution did not exist: Provided, however, that any tax levied upon personal property must be uniform as to persons and property of the same class within the jurisdiction of the body imposing the same, and all exemptions from taxation shall be by general law, and shall be revocable by the General Assembly at any time.”

No question is raised as to the procedure in submitting the proposed amendment to the people to be voted upon. This was done at the general election of November 7, 1916, at which time a Governor, Lieutenant-Governor, Secretary of State, Auditor, Treasurer, Attorney General, Superintendent of Public Instruction, presidential electors, members of Congress and members of the General Assembly were voted upon. The ballots were cast, canvassed and returns made according to law. Subsequently, within the time prescribed, the then Secretary of State, Auditor of Public Accounts and State Treasurer, in the presence of the Governor, in their capacity as the State canvassing board, canvassed the returns, including the votes for and against the proposed amendment. The board of canvassers on December 9, 1916, in the presence of the Governor, made a written declaration of the result of the vote as to the adoption of said proposed amendment, which was signed by the said three State officers and certified to by the Governor. Said certificate, so far as here involved, is as follows:

“We, the undersigned State officers of the State of Illinois, do hereby certify that we have on the 24th day of November, A. D. 1916, and between that date and this gth day of December, A. D. igi6, in the presence of the Governor, carefully canvassed the votes given at the above named election for and against the adoption of the proposed amendment to the constitution of the State of Illinois recited above, and find that the highest legislative vote cast at said election was 1,269,331; that the total number cast for the adoption of said amendment was 656,2g8; that the total number of votes cast against said amendment was 295,782; that a majority of all the votes cast at said election for members of the General Assembly was cast in favor of the adoption of said amendment to the constitution, and we hereby declare, in conformity to the law, that the amendment aforesaid is adopted and .henceforth becomes a part of the constitution of the State of Illinois.”

Due proclamation was made by the Governor that the amendment had been adopted and had become a part of the constitution, which was published as required by law. The total vote cast for the adoption of the proposed amendment exceeded one-half of the.highest vote for members of the General Assembly. It did not equal one-half of the number on the poll-list, nor the vote for presidential electors, nor that for Governor, but exceeded one-half the vote cast for any other State officer and for members of the General Assembly.

At the January term of the circuit court of Sangamon county the State’s attorney of that county, on behalf of the People of the State of Illinois, filed a petition for certiorari, making the officers comprising the State canvassing board parties defendant. The writ was ordered issued and a return to the same made by defendants January 6, 1917, to which was attached a sheet on which the vote was shown and the result compiled, and containing the certificate of the canvassing board which we have before set out. The terms of office of said parties defendant having expired, their successors were substituted as defendants. The return to the writ showed 1,343,381 male electors voted at sáid election; that 656,298 voted for the proposed amendment and 295,782 against it.' The highest vote for members of the General Assembly (hereafter designated highest legislative vote) was 1,269,331. This highest legislative vote was arrived at by taking the aggregate vote in each county for members of the house of representatives and dividing it by three. The aggregate vote for State senator in each county where candidates for State senator were voted for was ascertained, and if the vote for senator exceeded one-third the number of votes for members of the house of representatives in such county the vote for senator Avas taken; if it did not exceed one-third the number of votes for members of the house of representatives the latter was taken as the highest legislative vote for that count}'-. An aggregate of the highest legislative vote in all the counties thus obtained was found to be as above stated, 1,269,331. It appearing that the total number of votes cast for the adoption of the amendment was a majority of the legislative vote thus arrived at, said amendment was declared adopted. The trial court reviewed the action of the canvassing board and its finding that the proposed amendment was adopted, found for petitioner and quashed the record and return of such board. The judgment of the circuit court, entered April 16, 1917, recites defendants to the writ had jurisdiction to canvass the vote and determine and announce the result, but “that the method pursued by said board of canvassers for determining whether said amendment to the constitution had been duly adopted was not in pursuance of their jurisdiction and that their conclusion thereon was not reached in thei due and proper exercise of their jurisdiction.” The court quashed, annulled and set aside the proceedings set forth in defendants’ return to the writ of certiorari as being without authority of law. From that judgment this appeal is taken.

The question to be determined is whether, under article 14 of the constitution of 1870, the test or criterion for the- adoption of a constitutional amendment is a majority of the total number of electors voting at the election or a majority of the electors voting for members of the General Assembly.

The constitution of 1818 (article 7)» contained no provision for submitting to the people the question of the adoption of an amendment. Under that constitution, when two-thirds of the General Assembly thought it necessary to alter or amend that instrument they could recommend “to the electors, at the next election of members to the General Assembly, to vote for or against a convention,” and if “a majority of all the citizens of the State, voting for representatives,” voted for a convention, the General Assembh'- was required, at its next session, to call a convention. Section i of article 12 of the constitution of 1848 provided that when two-thirds of all the members elected to each branch of the General Assembly thought it necessary to amend or alter that instrument, they should recommend to the electors, “at the next election of members of the General Assembly,” to vote on the question, and if “a majority of all the electors of the State voting for representatives” voted for a convention one should be called. Section 2 authorized the submission by the General Assembly of amendments to the constitution. When the General Assembly, by a two-thirds vote of the members elect in each house, proposed an amendment it was referred to the next regular session of that body, and if it received the vote of a majority of all the members elect in each branch it was required to be submitted to the people “at the next general election,” and if a majority “of all the electors voting at such election for members of the house of representatives” voted for the amendment it became a part of the constitution.

It will be seen that the proposition for calling a convention under the constitutions of 18x8 and 1848 was required to be submitted to the electors at the next election of members of the General Assembly, and if a majority “voting for representatives” voted for the convention one should be called. As to amendments to the constitution of 1848, after they had received the approval of two General Assemblies they were required to be submitted for adoption or rejection at the next general election in such manner as might be prescribed by law, “and if a majority of all the electors voting at such election for members of the house of representatives” voted for an amendment it became a part of the constitution. In language too plain to admit of dispute, both constitutions made the vote for members of the house of representatives the test for determining whether a constitutional convention should be called or whether an amendment had been adopted at an "election .where that question was submitted to be voted upon.

Under section i of article 14 of the constitution of 1870 the question of calling a convention to alter or amend that instrument is required to be submitted “to the electors at the next general election,” and “if a majority voting at the election” vote for a convention the General Assembly is required to provide for the convention. The vote for members of the house of representatives as the test for determining whether the proposition for calling a convention had carried was no longer to govern but instead “a majority voting at the election” was made the test. Section 2 of said article 14 provides for the submission of constitutional amendments and is the provision here under consideration. It requires amendments to be submitted “to the electors of this State * * * at the next election of members of the General Assembly, in such manner as may be prescribed by law, * * * and if a majority of the electors voting at said election shall vote for the proposed amendments” they shall become a part of the constitution. The election designated as the time when amendments shall be submitted to the electors for adoption or rejection is the next election of members of the General Assembly, which is the same election designated by the constitutions of 1818 and 1848 for submission of a proposition for calling a constitutional convention, but instead of making a majority of the electors voting for representatives the test for determining whether a convention should be called or whether an amendment had been adopted, as was the requirement of the constitutions of 1818 and 1848, the constitution of 1870 makes the test “a majority of the electors voting at said election.” The language seems plain and unambiguous that amendments shall be submitted to" be voted upon at an election when members of the General Assembly are to be elected, and a majority of the electors voting at said election,—not "a majority voting for members of the General Assembly at said election,—is required to adopt the amendments. To give the language used that meaning does not require resort to interpolating in the section language not found there, for the purpose of giving effect to a supposed intention not expressed in the constitution. The members of the constitutional-convention knew that at the election for membérs of the General Assembly various other officers were voted upon, and could not have intended, by making a majority “of the electors voting at said election” necessary to adopt an amendment, that a majority of those voting for members of the General Assembly was meant to be the test. To give the language used that construction would be to disregard the ordinary meaning it conveys to the mind of one reading it and substitute an intention supposed to have been in the minds of the members of the constitutional convention but which they failed to express in the language used.

Counsel for appellants refer to the debates in the constitutional convention when section 2 was being considered as being of some help in determining the intent and meaning of the language used. The majority of the committee on future amendments reported sections x and 2 of article 14 to the committee of the whole in substantially the same language they appear in the constitution. There were two minority reports and there was a lengthy debate, but the question here involved was not raised or referred to. The questions of difference discussed related principally to the difference in the majority and minority reports of proposed section 1 as to the requirements of the oath to be taken by members of a constitutional convention, if one should be called, the number of members and their pay. There was some debate on the last clause of section 2, that no amendment to more than one article of the constitution should be submitted at the same session nor to the same article oftener than once in four years. Section 2 as reported in both minority reports provided for the submission of an amendment “at the next general election,” and required a majority of all the electors voting at the election to adopt it. We have been unable to find the difference in this respect in the language of section 2 as reposed by the majority and the minority was referred to in the debates. For aught that appears from the discussions, the members of the convention understood that in this respect both proposed sections made the same vote the test or criterion in the adoption of constitutional amendments. We find nothing in the debates which lends support to the construction appellants contend for.

“The constitution does not derive its force from the convention which framed but from the people who ratified it, and the intent to be arrived at is that of the people.” (City of Beardstown v. City of Virginia, 76 Ill. 34.) It seems to us that the people who read and voted on the adoption of the constitution would not have understood it to mean that an election at which a constitutional amendment was voted on, whether it was adopted or rejected, was to be determined by the vote of those, only, who voted for members of the General Assembly. A more reasonable understanding, requiring no construction or conjecture, would seem to be that the amendment must receive a majority of the votes cast at the election. Constitutions, as well as statutes, should be read and understood according to the most natural and obvious import of the language used, without resort to subtle and forced construction for the purpose of limiting or extending their operation. (City of Beardstown v. City of Virginia, supra.) It is conceded decisions of other States construing their constitutions are of little value, as the courts of each State construe their own constitutions. Both parties cite' the same decisions of the Supreme Courts of Ohio and Nebraska and also cite some decisions of courts of other States, but we do not consider any of them directly in point even if we felt at liberty to follow decisions in other States in construing our own constitution. The intention to which force is given in construing constitutional provisions is that which is embodied and expressed in the language of the provisions. As a constitution is dependent upon adoption by the people, the language used will be understood in the sense most obvious to the common understanding. The language and words of a constitution., unless they be technical words and phrases, will be given effect according to their usual and ordinary signification, and courts will not disregard the plain and ordinary meaning of the words used, to search for some other conjectural intention. 6 R. C. L. 52; Law v. People, 87 Ill. 385; Hills v. City of Chicago, 60 id. 86.

The record, contains a table of the votes cast for senator in each county forming a district or part of a district in which a senator was elected; also the aggregate vote for representatives, which aggregate is divided by three to ascertain the number of electors voting for representatives. The table shows that with few exceptions there were more electors voted for senator than voted for representatives. In some counties the vote for senator exceeded that for representatives nearly one-half. It is obvious that the vote for members of the General Assembly is not a reliable test for determining the number of electors voting at the election.

It is not disputed that the number of electors voting at an election means the number of votes cast, and if we were to indulge in conjecture as to the reason for changing the test from a majority of those voting for representatives to a majority of those voting at said election, it might be found in the fact that the number of those voting at the election could be more easily and nearly accurately determined by taking the highest vote cast at the election as the test than by taking the number of those voting for members of the General Assembly. Under the previous constitutions there was no cumulative system of voting for members of the house of representatives, but as the number to be elected varied in different districts or territory, according to population, it can readily be seen that there might easily be a wide discrepancy between the number of votes cast at the election and the number of votes cast for representatives. So, too, under the provision for minority representation, (which was, it is true, submitted as an alternative but nevertheless submitted for adoption or rejection,) which authorizes cumulative voting for representatives, it is obvious the total number of votes cast at the election could not be arrived at with accuracy by making the vote for members of the General Assembly the test.

In the absence of judicial construction, contemporaneous and long continued construction by the legislative and executive departments has always been treated by the courts as worthy of consideration where there is ambiguity or doubt. (Stuart v. Laird, 1 Cranch, 299; Nye v. Foreman, 213 Ill. 285.) Section 2 of article 14 is not self-executing, and provides for the submission of constitutional amendments for adoption or rejection to the electors “in such manner as may be prescribed by law.” In 1877 the legislature enacted chapter Ja, entitled “An act to provide the manner of proposing amendments to the constitution, and submitting the same to the electors of this State.” (Hurd’s Stat. 1916, p. 55.) The act contains eight sections. The first section provides that a constitutional amendment proposed by a two-thirds vote of all the members of the General Assembly elected to both houses, in the manner provided by section 2 of article 14 of the constitution, “shall be submitted to the electors of this State for adoption or rejection in the manner hereinafter provided.” Section 2 provides for the publication of the amendment by the Secretary of State three months before the election of members of the General Assembly, with notice that the amendment will be submitted “to the electors of this State for adoption or rejection.” Section 3 provides for notice to be given by the county clerks that at the election the proposed amendment “will be submitted to the electors of this State for adoption or rejection.” Section 4 relates to the form of the ballot. Section 5 provides for the canvass, and return of the ballots. Section 6 requires county clerks, when they make abstracts of “the votes cast at such elections for officers,” to also make abstracts of “the votes cast for and against” the proposed amendment, and send them by mail to the Secretary of State. Section 7 requires the Secretary of State, Auditor, Treasurer and Attorney General, or any two of them, in the presence of the Governer, to canvass the votes for and against said amendment or amendments, and if it appears that a “majority of the electors voting at said election” have voted for the proposed amendment said board of canvassers shall declare it adopted, but if it appears that “a majority of the votes polled” are against the proposed amendment it shall be null and void. Section 8 provides that “whenever any amendments to the constitution shall have been proposed to and adopted by the electors of this State in the manner provided by this act” the same shall be enrolled and numbered in the order of time in which they were adopted and be preserved by the Secretary of State. Throughout that act the test recognized is not a majority of the electors voting for members of the General Assembly but is a majority of the electors voting at said election.

Nowhere in the act is the vote for members of the General Assembly mentioned as a basis or test for determining whether an amendment is adopted, but the question of its adoption or rejection is required to be submitted to the electors of this State. Section 6 requires abstracts of the votes for officers as well as for and against the amendment to be made and transmitted to the Secretary of State, and section 7 expressly, says “if it appears that a majority of the electors voting at said election” have voted for the amendment it is adopted. There is nothing in the act to afford any basis for construing it to indicate the legislature understood the constitution to make the legislative vote the test. As we understand the act from the language used to express the intention of the legislative body, it was the purpose to require “a majority of the electors voting at said election” to adopt a constitutional amendment. That is what the act says, and we must suppose the General Assembly understood that to be the requirement of the constitution.

Again, there have been seven amendments adopted to the present constitution, the first in 1878 and the last in 1908. In determining the result of the vote on each proposed amendment the canvassing board and the Governor took the highest vote cast at the elections without reference or regard to the vote for members of the General Assembly. In the vote on the first proposed amendment the canvassing board took the vote for the office of clerk of the Supreme Court, that being the highest vote cast at the 1878 election. It is true, as appellants say, that the question of what particular vote was required to be taken to determine whether an amendment was adopted apparently was not raised, and the result would not have been different whether the highest vote cast at the election or the vote cast for members of the General Assembly was adopted as the test, still in each of the seven instances whether the amendment received a majority of the highest vote cast for any officer at the election was made the test. We must assume that, although there was no controversy raised about it, the executive department of the government interpreted the constitution to require the affirmative vote of a majority of the electors voting at the election to adopt an amendment. Courts are not bound by contemporaneous, practical, legislative and executive construction, no matter how long continued, when there is no ambiguity and such.construction is contrary to the unambiguous language of the constitution, but the construction given section 2 of article 14 by the legislative and executive departments, we think, is not contrary to the intent and meaning of the language of said section. If we were to consider the language of said section ambiguous and its meaning doubtful we would be inclined to adopt the construction of the other departments of the State government, for in such cases their construction has almost the force of judicial exposition. People v. Loewenthal, 93 Ill. 191; Nye v. Foreman, supra.

Appellants call our attention to the proposed $60,000,-000 bond issue for good roads soon to be submitted to the electors in this State for adoption or rejection. This question is to be submitted under and by authority of section 18 of article 4 of the constitution, which reads: “And no other debt * * * shall be contracted, unless the law authorizing the same shall, at a general election, have been submitted to the people, and have received a majority of the votes cast for- members of the General Assembly at such election.” This section expressly makes a majority of the votes cast for members of the General Assembly the test of adoption and is entirely different from the language of section 2 of article 14 which we are here called upon to construe. There can be no doubt the vote for members of the General Assembly could have been made the test or criterion by section 2, but to our minds the language used does not import that it was so intended. We have seen (section 18 of article 4) that where the framers of our constitution intended to make the vote for members of the General Assembly the test they knew how to express that intention in language so clear and explicit that it could not be misunderstood.

We conclude that section 2 of article 14 requires for the adoption of a proposed amendment to the constitution a majority of the votes of all the electors voting at an election at which members of the General Assembly are elected, and not, as contended by appellants, a majority of the votes, cast for members of the General Assembly. The latter construction -would be reading into the section something that is not there in express words, nor, do we think, by implication. The change in verbiage or phraseology of section 2 of article 12 of the constitution of 1848 and section 2 of article 14 of the present constitution is presumed to have been intentional, made advisably and for a purpose. .

For the reasons stated, the judgment of the circuit court quashing the record of the board of canvassers and setting aside the proceedings of said board, and finding that said board’s conclusion “was not reached in the due and proper exercise of their jurisdiction,” is affirmed.

Judgment affirmed.