The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-01-25
SENATOR BUNDY's ARGUMENT.


A Thorough Exposition of the Legal Status
of the Amendments.
Senator Bundy began the discussion of the
constitutional amendments in the Senate
yesterday, his speech being attentively lis
tened to. He confined himself exclusively
to the legal aspects of the question, the prin-
cipal points in his argument being as fol
lows:
Mr.. Presdent-I do not propose to discuss all
the questions which arise upon the subject now
before the Senate, but shall give & few reasons
why the report OF the minority of the judiciary
committee should be cOncurred in. Section l.,
article 16 OF the constitution of Indiana is as
follows amy aniendmenJ to this constitution
may be proposed in either branch of the Gem
eral Assembly; and II the same shall be agreed
to by majority of the members elected to each
of the two houses, such proposed amendment
shall, with the yeas and nays thereon, be entered
on the journal and referred to the next 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 majority or all the members
elected to each house, then it shall be the duty
of the General Assembly to submit such amend
ment or amendments to the election of the State;
and il majority of said electors shall rabify the
same, such amendment or amendments shall be-
come q part of the constitution" IT is conceded
that II the words conferred on their journals"
mean spread at length in their exact words
on the journals. then so much of the direction of
the section above quoted was omitted by the
last General Assembly in its action upon GER
tain joint resolutions proposing amendments to
the constitution of Indiana. 1t is also admitted
that the last General Assembly did not enter
upon the journals words referring said proposed
amendments to this Assembly. I5 is
required by the constitution con-
corning amendments were literally
complied with and followed out by the last GEN
eral Assembly. The controversy, thep, arises
upon the question whether not the omission
above referred to renders it impossible, It.
ter OF law question of constitutional consrruc-
ton, for this Assembly to consider or pass upon
those proposed amendments IL is stated in tine
exhaustive argument of the Senator who intro
duced the resolution upon which the pending re-
ports are made, that at is now well settled and
uniformly accepted that provisions of II consti-
tuition are to be strictly construed" This is not
an absolute rule; II Is subject TO very important
notifications. "All governments are founded
upon surrender OF some natural rights and
impose some restrictions; therefore, in constrtI-
Ing a constitutions OF government framed by
the people for their own benefit and pro-
lection, for the preservation of their rights and
property and liberty when the delegated powers
are not and cannot be used for the benefit of
their rHleFs, but intended solely for the beu-
ett or the people, no presumption arises of an
Intention to use the words of the constitution in
che most restricted sense" POuters Dwarris
on Consultation, on page $50, applies
this rule TO the matter in controversy.
Here is proposition to amend the
constitution, made for the benefit OF the people,
upon which the people must vote, which requires
majority OF the electors TO ratliY, and which Is
absolutely OF no effect until they have ratified
it, Can the language of IA constitution he literally
construed in such case, II by that construction
you prevent the people from an expression of
their Wilt II so, how long would it be in the
power of a clerk of one or the other of the houses
OF the Assembly to defeat the will of the people,
and of their representatives also, by slight error
or omission in entering proposed amendment
on his journal. If entered at all, it must be en-
tered literally and exactly, would be the rule OF
strict construction But it is said that eonstitu-
lions ought not to be eunstrued; that their prOvi
siOns ought to stand exactly as they are written,
and not any construction put upon them as to
their meaning, other than the words used therein
ny strict meaning imply. Judge Cooley, The strict
cOnstructiOnist and able expounder of constitu-
tiOnal law, is cited authority for this doctrine
I DO not deny the AUTHORITY, but call the atten-
tiOn of every lawyer III this chamber who has ex-
amined tina matter TO the fact that in nearly
every State in the Union courts have been and
are now constituting constitutional provision, and
giving TO words aud phrases contained in their
meanings and constructions, which although not
strictly in accordance with their ordinary signIf-
cation, are thought to best subserve and
carry out the spirit of the instrument.
Judge COO,ey makes the following statement:
The object OF construction as applied to a writ
ten constitution is to give effect the intent OF
the people in adopting II. In the case of all
written law IL is the intent OF the law given that
is TO be enforced" How is this intent to be as
certalnedl What better manner of determining
Is there than to take the construction placed
upon ii by the men who made il and of the peO-
PIE themselves who adopted in After the Indi-
ana constitution had been framed by the con-
pie of the State. the convention submitted To the
people an address relating 10 It's various provls-
ions, from which the following is taken:
MODE OF AMENDING THE CONSTITUTION
Amendments to the constitutions may be pro-
posed IN the Senate or House of Representa-
tivcs II passed by majority of all the men,
bers elected to either branch, they arc referred
TO the next regular session of the Le4islature to
be held TWO years thereafter. II passed by them
a second time, they then. at the next general
election, 10 he submitted TO the people; and If
they pass this final ordeal they become part of
the constitution
Ia this way Jnere will always occur a general
election of the members of the Legislature, dur
ing the canvass for which the amendment that
may have been proposed at the previous session
can be brought in issue, and thus nearly three
years must intervene from the time the amend
iaeuB Is first proposed before it can be
finally adopted. debates Of the Indiana
Constitutional convention. vol 9, n. 2.045J
With this construction and explanation, the peo-
pie of the State voted upon anti adopted the cont
stitution. 1t is significant fact that not word
is said abont proposed. amendments being "en-
tered on the journals" Did the people at that
time believe that this was essential Did the
trainers of the constitution for one moment en-
terrain the idea shat TINS mere direction, this
matter of detail WAS absolutely necessary n
40. why was not sOneh hing said about i'll II ia
certainly fair to presume that t was regarded
by them as a matter of form not even necessary
to inentIan, and surely not considered hat its
omission would be vital This clause Is merely
directory.
In the case Of The People vs. Lawrence.
SO Barb, D. 1873. the Justice deciding
the case says: "If any constitutional pro-
visions ought to he considered directory,
the rules by which to ascertain what
are mandatory and what directory muat he those
applied to statues" We come, thee, to inquire
what these rnles of eonstructionf There ia
class of cases which hold that whether a statut @
is directory or NOT ia made 10 depend up0n the
employment or failure to employ negative
words which mpart that an net shallbe dUue in
a particular manner or time. and not otherwise
(Sl Penn. State and authorities there cited. }
Tested by this rule, what should have been the
language of the constitution to render H. man
entered upon the journals, that unless entered
they shall not be valid, or some equivalent mega
tive words or expression making it clear that
the makers of the constitution intended to make
the entry upon the journals absolutely necessary
TO any further consideration of the amendments