#### The State of Ohio, ex rel. Sheets, Attorney General, *v.*Laylin, Secretary of State.

*Act providing for manner of submission of constitutional amendments—Longworth ballot act—Passed May 2, ic¡02—Is a valid act—Constitutional law. ■ t .*

The act of the general assembly entitled “An act to provide for the manner of submission of constitutional amendments and other questions to a vote of the people,” passed May 2, 1902 (95 O. L., 352), is a valid act.

(No. 8652

Decided October 6, 1903.)

In Quo Warranto.

The relator sets forth in his petition that, by certain joint resolutions passed by the general assembly of the *2state of Ohio, it was agreed to submit to the electors of the state of Ohio, on the first Tuesday after the first Monday of November, 1903, certain propositions to-amend the constitution of the state of Ohio, which propositions are described in the petition. It is also, alleged that under the act of the general assembly, passed May 2, 1902, entitled “An act to provide for the manner of submission of constitutional amendments and other questions to a vote of the people” (95 O. L., 352), the republican and democratic parties of the state of Ohio, in convention assembled, took action in favor of the adoption of certain of such constitutional amendments, and also against the adoption of certain other constitutional amendments, and certified their action to the secretary of state in the manner provided for certifying nominations for state offices;, and that the defendant, as secretary of state, pursuant to said act, is preparing, and is about to print, such action of said parties, so certified to him, upon the official ballot for use at the election to be held on the first Tuesday after the first Monday of November,, A. D. 1903, as a part of the party ticket of each of said parties; and in all other respects in the preparation of such ballot and the placing of such constitutional amendments thereon, is complying with the requirements of the said act of May 2, 1902; and the relator alleges that the exercise by the defendant of any of the' franchises, privileges, rights or powers sought to be conferred by said act is in contravention of the-constitution of the state of Ohio, and prays that he be-compelled to answer by what warrant or rights he claims to act in the preparation or arrangement of' such ballot in the form aforesaid, and by what warrant or right he is about to have printed upon such ballot the action in favor of or against the adoption *3of such constitutional amendments by the parties aforesaid, and that upon the hearing hereof he be ousted from the rights, franchises and privileges so claimed. The defendant demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action.

*Mr. John M. Sheets,*attorney general, for the relator.

It will be seen that, according to the provisions of this act, a party may not only express its wish in convention assembled as to the men it desires to fill the offices, but it may also express its wish as to the constitutional amendments it desires to be adopted or rejected. In other words, the act in question undertakes to apply the Australian method of voting to constitutional amendments, as well as to candidates for offices to be filled.

The act cannot be considered as an unreasonable infringement on the right of a voter to express his will untrammeled, for if it were, it would necessarily follow that the whole Australian method of voting would be an infringement on the right of suffrage, hence unconstitutional. The application of the Australian method of voting to constitutional amendments makes it easier for the voter to adopt the will of a party as expressed in convention, with reference to the amendments, just as the Australian system of voting makes it easier for the voter to adopt the will of a party expressed in convention with respect to its candidates. Under this system, however, the voter is also given the opportunity to approve the action of his party in part, and disapprove it in part, by voting for some of the candidates nominated, or of the amendments indorsed, and against others.

*4It would seem that the only serious question for consideration by the Court is, does this system make the indifferent voter support a constitutional amendment in favor of which his party has taken action, while the framers of the constitution intended that all indifferent votes should be counted against any proposed amendment. It was no doubt the purpose of the framers of the constitution (article 16, section 1) to provide that since the constitution is the expression of the whole people, it should not be amended unless a majority of those voting at the election should express themselves in favor of the amendment.

In contemplation of law are there any indifferent voters? The voter is presumed, of course, to know the law, and knows that if he does not cast his vote in favor of the amendment, it is counted against it. As the- voter casts his ballot, so he is conclusively presumed to intend to vote. He is conclusively presumed to know and understand what names are on his ballot—what persons and propositions he is voting for or against-.

A number of the eastern states have constitutional provisions to the effect that a majority vote is necessary to elect a person to office; *i. e.,*a plurality vote is not sufficient. If then, in contemplation of law, there is such a thing as an indifferent voter, and if the constitution protects him in his indifference, and protects him against voting for any candidate whose name he does not know to be on the ticket, or toward whom he may have a feeling of total indifference as to whether he is elected or defeated, and if the Australian ballot system causes the ignorant or indifferent voter, to vote for candidates whose names he does not know to be on his ticket, then in all those states requiring a majority-vote to elect a person to office, the Australian ballot *5system could be attacked on constitutional grounds. Yet these states have the Australian ballot system, and so far as I know, it has never been successfully attacked.

Voting on constitutional amendments, and voting for candidates for office, are both elections, the one no more sacred than the other, or more within the protection of the constitution.

*Mr. George B. Okey; Mr. B. M. Ditty*and *Mr. W. A. Taylor,*for the relator.

The “Longworth act” has no application to the five pending propositions to amend the constitution. Two of the joint resolutions submitting propositions to amend the constitution were adopted before the passage of the “Longworth act;” one on the same day and two afterwards. Each joint resolution prescribes the language which shall, in each case, be placed upon the ballot by the elector desiring to vote either for or against the proposition. .

The “Longworth act” provides how constitutional amendments shall be placed upon the regular ballot (section 2); the same section further provides for cases when any political party in state convention has taken action, that: “Said statement shall also be placed on the' official ballot immediately below the names of the candidates for the state officers on the regular ticket of any party or parties,” etc.

Both of these forms are irreconcilably in conflict with those prescribed by the joint resolutions. It is impossible that both can be followed. Take as an illustration the joint resolution submitting the double liability amendment. That proposed amendment was indorsed by the state conventions of both the republican and democratic parties, and will therefore go *6upon the official ballot in accordance with the provisions of the “Longworth act,” if that act is constitutional and applies to the pending propositions. By the provisions of that joint resolution those electors desiring to vote for it must place upon their ballots “For single liability amendment,” while those opposed to it must place upon their ballots the words “Against single liability amendment.” If it is placed upon the ballot in accordance with the provisions of the “Long-worth act,” it will appear on the ballot in three different places, in two different forms, none of which will be in the form prescribed by the joint resolution. First, it will appear in a separate column on the regular ballot. Second, on the regular democratic and republican tickets immediately below the names of candidates for state officers.

The same is true, in a large degree, with respect to all of the other propositions, some of them going on both party tickets, some on one party ticket, and one on none. In order that the “Longworth act” may be held to apply to the pending propositions, the court must hold that it operated to repeal by implication the joint resolutions adopted prior to its enactment, as well as that the joint resolutions passed afterward did not, by implication, repeal it. A joint resolution of the general assembly is as solemn' an act of legislation as a statute. A joint resolution submitting to the people a proposition to amend the organic law must be adopted by the affirmative vote of “three-fifths of the members elected to each house,” while a statute requires but a majority of such votes. The form of the ballot prescribed by each joint resolution might, perhaps, have been left to be provided for by general act, although much might be said upon a proposition to the contrary; or each resolution might have incorporated *7similar provisions contained in the “Longworth act,” if such provisions are constitutional, which we do not at all concede. As it is, neither was done. What rule of construction must be applied to resolve, the situation? It is evident that the provisions of the “Long-worth act” must control, or those of . the joint resolution must prevail, for both cannot be followed. The “Longworth act” is in form general. If constitutional, it will apply, until repealed, to the submission of all future constitutional amendments and other questions to a vote of the people. There is nothing in it, except the fact of its enactment at the same session, to indicate that it had any special or particular reference to any proposition already submitted, or to be submitted, at the same session.

The joint resolutions were special and particular enactments. 2 Bates’ Dig., p. 2160, par. 231, citing Ohio cases; Sedg. on Stat. Law, 123; also *Gregory’s Case,*6 Coke’s Rep., 19b; *Brown*v. *Commissioners,*21 Pa. St., 42; Sutherland on Stat. Const., sec. 157 and 158; *Fosdick*v. *Perrysburg,*14 Ohio St., 473; *Shunk*v. *Bank,*22 Ohio St., 515; *State*v. *Newton,*26 Ohio St., 206; *Knox Co.*v. *McComb,*19 Ohio St., 320; *State*v. *Franklin Co.,*20 Ohio St., 421; *Allen*v. *Russell,*39 Ohio St., 336.

If the “Longworth act” be constitutional its provisions can and will apply to all future propositions to amend the constitution, unless the joint resolutions of submission provide a different form and method. There can be no question but that if any one of the five joint resolutions in question had specifically and unequivocally provided that the ballot upon that proposition should be deposited in a separate ballot box, as many contend that the constitution contemplates and requires, such provision would have been operative *8and binding irrespective of the “Longworth act.” .Is a joint resolution submitting a proposition to amend the constitution, after final adoption, susceptible of amendment or repeal? If so, such action would require a vote equally as great as that required for its adoption, to-wit: “By three-fifths of the members of each house.” If it be claimed that the “LongAvorth act” operated to repeal or amend, by implication, any of the joint resolutions adopted before its enactment, it would seem that no such effect could be given to that act unless adopted by a like vote.

*Mr. Oharles*Kinney, for the respondent.

The submission of a constitutional amendment or question to a vote of the people is an election. (Bouvier & Abbott’s Law Dictionary.) And as “All elections must be by ballot” (article 5, section 2), the constitution enjoins upon the electors the duty of expressing their approval of the proposed amendments through the medium of a ballot. *State ex rel.*v. *Bode et al.,*55 Ohio St., 229. All regulations of election, however, “to be valid, must be reasonable and impartial and calculated to facilitate and secure the, constitutional right of suffrage, and not to subvert, or injuriously or unnecessarily restrain or impede the right.” *Dagget*v. *Hudson,*43 Ohio St., 548. As will ' be seen by the authorities above cited, this-Court-has held that the general assembly has the right to regulate elections, as Avell as to prescribe the form of ballot to be used at all elections. The only question involved, therefore, is whether the form prescribed by the act, whose validity is questioned in this action, is in violation of any specific prohibition of the constitution or interferes with the free exercise of the elect*9ive franchise conferred by article 5, section 1, of theeonstitution.

In 1891 came.the enactment of the Australian system prescribing an official ballot for úse at elections, in voting for candidates for office. Amendments and other questions, however, were still required to be-submitted on separate ballots.

The authority of the legislature to prescribe this-, form of ballot and this method of expressing the-voters’ choice has been upheld by this Court.

The act of May 2,1902, whose validity is questioned' in this action, attempts to furnish to the elector, when-amendments to the constitution or other questions-have been submitted, and have been acted upon by his-party in convention, the same facilities in marking his ballot in expressing his approval of. party measures as it furnished him in expressing his choice of party candidates for office. The act also conforms to that provision of article 16, section 1, which requires the amendments to be so submitted as to enable the elector to vote separately on each amendment, by requiring the negative and affirmative answer to' each amendment to be printed in a separate column on the ballot sheet so that independent electors, or electors affiliating with political parties, but not desiring to support the policy of his party in such matters may vote separately on each amendment, by placing a cross mark opposite the answer he desires to give.

Instead of interfering with the free exercise of the-elective franchise, it facilitates voting, and is calculated to secure a fuller expression of public opinion on the questions submitted, than was possible under the old system, *and is so conceded by the relator.*

That there are careless or indifferent voters is a mere presumption of fact, arising from another fact *10which experience has demonstrated to exist, that many voters at such elections do not vote either for or ¡against the amendments submitted.

The language of the constitution is: “If a majority of the electors voting at such election shall adopt ■such amendment, the same shall become a part of the constitution;” that is to say, in order that their approval may be effective, those favoring the propositions submitted must affirmatively express such approval by casting a ballot in favor thereof; and this ■even is not sufficient unless there be a majority in favor of such adoption.

No such requirement is imposed by the constitution upon those opposing the propositions submitted. They may manifest their objection, either by not voting at ■all or by casting- a ballot against the measure.

The constitution in fact takes no account of the negative vote. If a majority of those voting at the election should vote against the measure proposed, they would fail of course, not because a majority voted ¡against them, but because a majority of the electors voting at such election did not vote to adopt the same. If no votes were cast against it, still the measure would fail if a majority did not vote for it.

It is true that section 18 of the ballot law requires •amendments to be submitted on a separate ballot, and that this section was not specifically repealed. The -act of May 2,1902, therefore, is said to be inconsistent with this provision of the general statute. But in answer to this objection we quote the language of this Court in *Lorain Plank Road*v. *Cotton,*12 Ohio St., 263; *Work*v. *Massie,*6 Ohio, 503; *State ex rel.*v. *Cincinnati,*19 Ohio, 178; *Walker*v. *Cincinnati,*21 Ohio St., 14; *State ex rel.*v. *Smith,*44 Ohio St., 348.

*11*Mr. Wade H. Ellis,*for the respondent.

We contend that the “JLongworth act” is constitutional.

First. It may be considered that the language of the constitution (article 16, section 1) forbids the submission of constitutional amendments in Ohio upon the same ballot with the names of candidates. This is a mistake. The requirement is not that the amendments shall be submitted separately from other questions, but that the amendments shall be so submitted that the elector *may*make a separate choice for or against each. In other words, the requirement of the ■constitution is that amendments must not be submitted so that the elector is *required*to vote either in favor of all, or against all. The possible wrong that was intended to be avoided was the submission to a •single vote of two or more amendments, thus giving to a less desirable amendment the advantage of the ■popularity of another submitted with it. The purpose •of the makers of the constitution was to prevent “rid■ers” in the submission of amendments.

• Second. It may be suggested that this provision of the constitution is intended to deny to an elector the right, by one act, to vote *for*all the amendments or *>against*all the amendments. There is no justification for such a view. The purpose of the constitutional provision must be held to be to facilitate the*exercise -of the electoral function; to *extend*the freedom of the voter rather than to *restrict*it. The constitutional provision was adopted for the benefit of the 'elector, and not to put him at a disadvantage. It is a limitation upon the legislature, and not a limitation upon the elector.

■ Third. It may be suggested that this constitutional *12provision intends that when more than one amendment is submitted at the same time, they shall be so submitted as to *require*the elector to vote on each amendment separately. This is the gist of the whole controversy, if there is any! The constitutional provision declares simply that such amendments shall be so submitted as to *enable*the elector to vote on each amendment separately. The constitutiop does not require either that the elector shall vote separately on each amendment, or that the amendments shall be so submitted as that the elector must, of necessity, vote separately on each. The provision merely declares that the amendments shall be submitted so that the elector may, if he desires, vote separately on each. In other words, the requirement of the constitution is that the legislature must give the elector the chance to vote separately, and not that the legislature must require him to vote separately.

It will thus be seen that by the rules prescribed in this act, the elector is enabled to vote separately on each amendment submitted. If he votes accox’ding to the first, second or fourth of the methods provided,, his choice is separately expressed and recorded by him,, either for or against each of the amendments. If he votes according to the third method, his choice is registered either for or against each of the amendments upon which his party has expressed its judgment or policy, and in accordance therewith; and as to the amendments upon which his party has expressed no jxxdgment or policy, he has declined to vote, and his silence has the effect of a negative vote.

It is not a doubt of the constitutionality of an act that should avail; it is the certainty of its unconstitutionality that alone can condemn it. If the only question that can be raised about this act is a doubt as. to *13its constitutionality, *then*it must be upheld. *Fletcher*v. *Peck,*6 Cranch, 87; *McCormick*v. *Alexander, 2*Ohio, 75; *Lewis*v. *McElvain,*16 Ohio, 347; *Railroad Co.*v. *Clinton Co.,*1 Ohio St., 77; *Telegraph Co.*v. *Mayer,*28 Ohio St., 521; *State*v. *Kendle,*52 Ohio St., 346; *Lehman*v. *McBride,*15 Ohio St., 573; *Mason*v. *State,*58 Ohio St., 30; *Baker*v. *Cincinnati,*11 Ohio St., 534; *State ex rel.*v. *McCann, 21*Ohio St., 198; *Bloom*v. *Xenia,*32 Ohio St., 461; *State*v. *Frame,*39 Ohio St., 399.

Within the legislative power is, of course, the conduct of elections, including the regulation of the character and contents of the ballot.

It may finally be urged as an objection to this act that the legislature makes use of political party organizations in eliciting an expression of the will of the people upon constitutional amendments. I submit that there is nothing either in the letter or the spirit of the supreme law of the state against such a course. Indeed, it seems peculiarly in harmony not only with that instrument, but with the best spirit and ideals of republican institutions. This is a government of majorities, and political progress and reform are best attained by the conflict of party organizations. Public policies and principles, which otherwise might be dissipated as floating theories, become tangible issues and take concrete and practical form in party platforms. If it is wise or expedient that candidates for office should be put forward by the action of political parties, and should receive party indorsement and support, how much more fitting is it that policies and principles should, in this more direct way, receive the sanction and support of party organizations. *Woodworth, In re,*16 N. Y. Supp., 147; *State ex rel. Plimmer v. Poston,*58 Ohio St., 620.

*14Davis, J.

In the constitution of this state there is no limitation upon the legislative power to provide by general laws the manner of submitting to a vote of the people a proposed amendment to the constitution, except that when there is more than one amendment to be submitted they shall be so submitted that the elector shall be enabled to vote separately on each. This does not mean that each amendment must be upon a separate ballot or be deposited in a separate ballot box, nor that each or all of the proposed amendments may not be voted for on ballots on which are the names of candidates for office who are voted for by the elector. It merely requires that the elector shall be “enabled” to record his vote upon each amendment separately if he so desires, that is, that he may vote for one or more and against one or more at the same time if he chooses so to do. If, being so enabled, he chooses not to vote at all upon any or all of the amendments, such failure to vote necessarily operates as a negative vote, because amendments to the constitution must be adopted by a majority of all 'the votes cast at the election. It was not the design or intention of the constitution to put a premium on ignorance or indifferentism at the same time that it is the duty of every citizen to inform himself and to vote upon every matter submitted to a vote of the people. Out of the proposition that a constitution adopted by the people can be amended only by a majority of the people, it naturally follows that of all the people voting at an election when an amendment to the' constitution is submitted^ only those should be counted for the amendment who expressly so vote, and this is the whole scope of article 16, section 1, of the constitution of Ohio.

The act of the general assembly entitled “An act to-*15provide for the maimer of submission of constitutional amendments and other questions to a vote of the people,” passed May 2, 1902 (95 O. L., 352)., enables the elector to vote with or against his party, on each or all of the amendments, -or to vote separately upon each and every proposed amendment, or to not vote at. all if he so desires. So far as we have been able to-discover the act is not in any respect in conflict withi the constitution, and not irreconcilably in conflict with the joint resolutions adopted by the general assembly submitting propositions to amend the constitution. - ■

*Demurrer to petition sustained and■ petition dismissed.*

Burket, O. J., Spear, Price and Crew, JJ., concur.. ■