The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1880-06-23


tween The number OF electors OF a constituency
and the number cast sufficient 10 elect: but
when applied TO the ratification Of a Constitn.
tioDal amendment, and pushed TO an extreme
officer affects the rights OF no one except the
person elected, To him II grants privilege 10
os I.'S, ior NE PuDlc soou' the exercise
affect the right OF even the person defeated, but
only denies him a privilege which car, not
In such case the Cor fiituti0n requires only the
highest number OF votes TO elect, though II
may may be only plurality OF a very tnconsider-
the whole number But the Iailication Of a
Constitutional amendment affects the rights
OF mlllions OF people who are not electors. and
the Amendments shall be abrogated by the
same power that made IL. In such case the
Constitution requires the majority of all the
electors to ratify the amendment The princi-
pie of plurality, which might ratify consti-
tut1oDal amendment. trrepeaiab.e by legisla.
tive action, binding the rights of two millions
two electors against the vote of one when the
whole number OF votes cast was but three, is
not only unconstitutional, but Is dangerous to
mankind. AS the adoption of a Constitution
Is the considerable act Of an entire people, and
as II binds all departments of the Government
and can not be repealed except by the same
power that made IT, Its adoption should not be
left to the vicissitudes Of meagre plurality of
votes which the accidents OF day might cast
We have thus seen that there is no analogy
between electing an. officer and ratifying n
Constitutional amendment; nor Is there az Y
analogy between the cases cited on behalf of
the appellee, wherein taxes are assessed or
franchises granted by the vote OF the majority
of the electors and the ratification of a Con-
stftutional amendment, In such cases the
taxes assessed and the franchises granted
affect the rights of but few persons, relative to
the whole number OF the people, and are T. m
porary in their nature, while the Publications
OF a Constitutional amendment permanently
affects the entire body polite, aud the COM
parisOn of a vote of the mem bers of q private
corporation which can affect only the corpora
ton and Its property. with the vote of the
Constitution, which effects the rights of eli
the people of the State, does net come TO us
with any force OF an argument,nO throw any
hight that we can see upon the question before
us.
The appcIlees' counsel rely upon the case of
GIllispy VS.. Palmer. (lO Wis, 544.) In that case
He brought his action against the inspectors
OF the election for refusing TO allow him TO
nave his name registered as an elector, aver
ring that in pursuance of the Constitution and
laws, the quest on whether The reghts of suf-
frage should be extended to persons OF African
descent had been submitted to the electors OF
the Suite, and that a majority of the votes cast
upon that question was in favor of such ex
tension, but admitting that such majority was
not majo ity OF all the votes cast at such
election.
A demurrer for want OF facts was sustained
TO the complaint. On appeal to the Supreme
Court the Judgment was reversed. This case
considering, and IL the Constitutions of the
two States were the same upon this point. the
decision would be entitled 10 great respect as
an authority in the present case.
Section 1 of the Constitution of Wisconsin
defines who shall be electors, but does not in
clude persons OF African descent. But there
is a provision that 1.-The Legislature may at
any time extend by law the right % suffrage
to psrSJns not herein enumerated; but no
such law shall be i'm force until the same shall
SnhmiffR6 a a a a
a general election, and approved by major.
ity of all the votes cast at such an election"
Section of article IL of the Constitution Of
Wisconsin prov ding for amendments is ex-
pres sed in almost the same words as secti IN
of article 10 of the Constitution of Indiana
under which the amendments before us were
proposed, differing ia nothing essential ex-
cepJ that, under the Constitution of WiscOn-
lin, amendment may be ratified by a majority
of the electors voting thereon, instead OF by
a majority of the electors of the State.
1t Is plain that the two provisions in the
Constitution OF Wisconsin upon the question
OF extending the right OF suffrage by legiSla-
tive enactment, aud by an amendment to the
Constitution, are in apparent conflict. 1t was,
tbereUpon, the duty of the Supreme Court TO
harmOniz5 the two sections ana give uniiorm-
fty TO the Constitution by construction. The
Court very properly said: 1.-The right of suf-
frage by such an amendment could be given
10 colored persons. Is it probable That the
framing of the Constitution required more
votes To extend the right OF suffrage in one
way than IN another?
This is q sound judicial rendering, and 1t
conducted the Court to the onIy judgment IL
could render without lmpairIng "A COnsiitu
Jional provision. But as the two Constitutions
are fundamentally different as TO the proper
ton of voIes necessary 10 raJify an amend
ment, the decision can not be held as an au-
thority in the present case.
AS the adoption of an amendment TO Con
stltution is of rare occurrence, but lew cases
uIon the question have been pre- S-n ca Tor
judicial decislOn; indeed, We Ia We been abe
10 find only the single case above cited pre-
Senting similar point TO that before Us.
There are many cases upon questions OF levy
ing taxes, granting privileges, establishing
County seats, and electtng officers, wherein
the question OF meiortfies anu pluralit1es are
discussed; but very few upon the ratification
of Constitutions Or CONSTITUTIONAL amend
mentS. We must. therefore, mainly rely
upon the presidents and practices found in
the history of our own State. (The state of
Missouri VS.. Winkleman, IS Mo-, IO3; Bayard
vs.. Kl1nge, l6 Mimi, -: Taylor VS. Taylor, !,
Mimi, lU7; the People VS.. May field, 20 Mimi,
100: the People VS.. Wyant, iS H., 26S
The appeIlees' counsel refer us to the legisla-
tive and executive construction given TO the
act OF January %, 1873, under which section !,
of article 10 OF the Constitution was submitted
to the electors OF the State, in aid of our con-
structiOn of section |, of article 10. The con-
struction of legislative act by the co ordinate
branches OF the Government is entitled to
great respect from this Court: but the act oil
March 10 1879, under which the present amend
ment was submitted 20 the electors, is so dlf-
ferent from the act OF January rs, 1873, that we
can derive but litue aid thereIrom. In the
former act there was hut the single question
of the ratification or rejection OF the amend
ment submitted to the electors; the Governor
and Secretary OF State were authorized to ue
clare the result of the election, and II Is APP
peared ga majority of all the votes cast at said
election was in favor OF the adoption OF said
proposed amendment, - then the Governor was
to proclaim hat "the same was duly ratified
By the people," The Governor did SO proclaim
and no one questioned his de cision. The
question IL thus lar settled. AT the time OF
submitting the present amendment to the
vote of he electors of the State, under the lat
ter act, other questions are also submitted
and the Governor, by the act, had no power u
declare whether the amendment bad been
adopted or rejected. Nor does the latter act
provide any means by which the whole num-
Der of votes cast at that election can be aScer-
tained.
The argument of appellee's counsel. that II g
majority CT all the electors OF thei State was
necessary TO the ratification OF the amend
ment, ii was unnecessary to provide by the
act OF March 10, 1879, for a vote against the
ratification and that, as the law provides fol
negative vote, 1t indicates the intention O
the Legislature that a plura ity of affirmative
votes over the negative votes should be sui
ficient &c ratify the amendments, is answered
by section of article Is of the Constitution
which requires sif two or more amendment
shall be submitted at the same time they
shall be submitted in such manner That The
electors shall vote for or against each o
such amendments separately" Nor DO we
now decide, If the act provided that a plural