Omaha daily bee., 1896-12-14
FATE OF THE AMENDMENTS
Deep Interest Taken in the Recent Vote
Concerning the Constitution,
PoPULlSTS HOPE TO SAVE THEIR JUDGES
Busy Looking for LoophoIcs In tho
Maxwell Decision as to what
Constitutes u Majority Ac-
corIinG to Law.

LINCOLN, Dec lS-(Spccial)-Ila any
! of the constitutional amendments submitted
! to the voters at the last election carried? II
so, which ones? VIII the two Judges ON tho
| populist ticket attempt to take their seats
upon the bench Of the supreme court? These
are some of the questions which are being
aoked about the state house and to which
no entirely satisfactory answers have yet
been given.
There seems to be widespread impression
that the incoming populist administration viii
endeavor in some way to declare that ono
or more of the amendments have carried
and to seat the new populist judges under
the first amendment, which Increases the
number of supreme court judges from three
TO five. Just how this will be done is prob
lcmatcal. The total number If votes cast
at the last election was 2SO,T95, while the
amendment which received the greatest vote
received only S4.579. Since the decision rem
dered by Chief Justice Maxwell in 1885 in
the case of the State against Bobcock 1t has
always been supposed that the amendment
in order to be carried must secure ma
jorty of the total vote cast at the election
in the state. The constitutional provision
bearing on this subject reads:
Either branch of the legislature may pro-
pose amendments to this constitution, and II
the same be agreed to by three-htths or
tho members elected to each house such
proposed amendments shall be entered on
the journals with the yeas and nays, and
published at least once each week IN at least
one newspaper in each county where n news
paper is published for three months imne-
diately preceding the next election OF sena-
tors and representatives,, at which election
the same shall be submitted to the electors
for approval or rejection, and If majority
Of the electors voting at such election adopt
such amendments the sume shall become Il
part of this constitution. When more than
one amendment is submitted at the same
cIeoiion they shall be so submitted as to
enable the electors to vote on each amend
ment separately
WHAT Is THE TOTAL VOTE?
The point upon which there Is Disagreement
is Just what vote should be taken to repre-
sent the total vote in the state. In the de-
cision referred to above Judge Maxwell said:
"In the absence of a state or constitutional
provision requiring a majority OF all the
votes cast to be in favor OF the proposition
there is no doubt that n majority voting
upon that question would be sufficient In
such case the failure of a party to vote upon
the question may be considered as tacit as
sent to the will of the majority OF those Vot-
ing thereon; but such rule cannot apply
where a majority of the electors of the state
voting at the election are required to vote
In favor of proposition to secure Its adop-
tion. In such case the votes in the aiilrma-
tive must exceed one-half of the total OF the
votes cast for senators and representatives.
We hold therefore that the amendment not
having received the approval Of majority
OF the electors voting at the election at
which it was submitted was not adopted.
This decision was concurred In by Judge
Recs. but dissented from by Chief Justice
Cobb who expressed the opinion that the So
called legislative amendment then under con-
sideraton was adopted by sufficient ma
jority and had become part OF the constltu-
ton. In this case, however, there was
stipulation as to the number OF votes which
had been cast for governor and other state
officers and also as to the number of votes
cast for senators and representatives. The
question is, How can the number of votes
cast for senators and representatives be as
certained? 1t is an utter impossibility to as
certain exactly the number of votes cast
for the members of the lower house or the
upper house and combination OF the two
would be more worthless than either.
While il is admitted on all hands that
none of the amendments received a majority
Of the total number of ballots cast at the
election. viz $50, 1876. il was at first con-
tended that they might possibly have had .
majority of these cast sJr representatives. and
senator's To carry the amendments on this
theory 1t would have to be shown that the
vote on senator's and representatives, was
less by $4,000 than the total vote cast
Douglas county member, whose curiosity was
aroused by this run or took the trouble to
compute the vote for his county and found
that while the total vote in Douglas county
was % 435 the average vote on the legisa-
tive ticket was % 05S or only 2,377 lees.
The difference is, therefore, only about
per cent, while to fall short 10000 votes
throughout the state, II would have had to be
over 30 per cent. II is believed, therefore.
that even this ray of hope has been given up
by the populist candidates Tor judges, and
their friends.
ANOTHER WAY TO FIGURE.
According % a story which Is now common
here, the latest proposition is to have the
legislature declare that the amendments
were submitted at a separate election from
the election of state officers and Legislators,
and that the majority required is really a
majority of the total number OF ballots cast
upon constitutional amendments. That Is to
say, the majority should be n majority of the
number of ballots marked ana inserted in
the separate ballot box used for the election
on the proposed constitutional amendments.
If this we're done, the total number would be
l22 475. and the requisite majority necessary
in order TO carry an amendment would be
81 23S.
Taking this as the test and applying II to
the vote on the different amendments il
would show that the amendments that carried
we're as follows: The amendment enarging
the supreme court by adding two additional
judges, by vote Of 81 $40; the amendment
authorizing the legislature to provide for
hve-siXths verdict in jury trials, by yote
Of 1858; the amendment relating to officers
OF the executive department and providing
for an elective railroad commission, consist
ing OF three members, by a vote OF 67,0l5;
the amendment relating to the Investment OF
permanent educational funds Of the state by
vote of 7S4i7; the amendment prescribing
the manner in which votes shall be cast, and
intended to admit of the use of voting ma
chimes, by vote of G2,3O3.
ION the other hand, the amendments
which failed to receive the requisite ma
jority under this ruling would be: Tho
amendment authorizing the legislature to in
crease the compensation OF the supreme and
district court Judges; the amendment au-
thorlzing the legislature to increase the SAL
aries of state officers; the amendment au-
thorizing the legislature to create inferior
courts of appeal; the amendment authOrlz-
ing the legislature TO increase the number
OF supreme and district court Judges; tho
amendment authorizing the legislature to
create new state Offices the amendment re-
lating to the merging Of the government OF
cities OF the metropolitan class with tho
government OF the counties in which they
are located, and the amendment relating to
TO works Of Internal Improvement
and manufactures.
Whatever plan the legislature may pursue
on this subject. the question Is expected to
come up for review before the supreme court
In case any attempt Is made TO declare any
Of the amendments carried As tho amend
ment receiving the highest vote is the one
which relates to the constitution of the SUI