Ellingham v. Dye

Decision Date05 July 1912
Docket Number22,064
Citation99 N.E. 1,178 Ind. 336
PartiesEllingham, Secretary of State, et al. v. Dye
CourtIndiana Supreme Court

Rehearing Denied October 18, 1912. Appeal to U. S. S.Ct Dismissed December 1, 1913.

From Marion Circuit Court (20,079); Charles Remster, Judge.

Suit by John T. Dye against Lew G. Ellingham, Secretary of State, and others, constituting the State Board of Election Commissioners. From a decree for plaintiff, the defendants appeal.


Thomas M. Honan, James E. McCullough, Stuart, Hammond & Sims Roby & Watson, Stotsenburg & Weathers and Elias D. Salsbury, for appellants.

John T. Dye, Ralph K. Kane and Addison C. Harris, for appellee.

Cox, C. J. Morris and Spencer, JJ., dissent.


Cox, C. J.

The General Assembly at its regular biennial session held in 1911, drafted and incorporated in a bill, what was therein termed a proposed new Constitution, which was a copy of the existing Constitution, with twenty-three amendments, or changes, of its provisions, and it provided, that it should, if adopted, take effect on January 1, 1913. There was no pretense of complying with or proceeding under provisions of the present Constitution for amendment of it. The bill duly passed both branches of the legislative body, with the usual formalities of ordinary legislation, was approved by the Governor March 4, 1911, and published with the acts of the session as chapter 118 (Acts 1911 p. 205). It is therein provided that the proposed organic instrument shall be submitted to all the legal voters of the State at the general election regularly to be held pursuant to law in November, 1912; and to that end it is provided that the state board of election commissioners shall prepare ballots as provided by law, and that all election officers and other officials required by law to perform any duties with reference to general elections shall perform like duties with reference to the submission of the so-called proposed new Constitution.

Certain ministerial duties are devolved upon the Secretary of State and the state board of election commissioners in relation to elections, which must apply to the submission of this proposed organic legislation to the people, if the act in question is a valid exercise of legislative authority. If it is, on the contrary, in violation of the existing Constitution, then they have no duty to perform in relation thereto.

This suit was instituted in the trial court by the appellee, a voter and taxpayer of Marion county, suing for himself as a citizen, elector and taxpayer in the State of Indiana, and also on behalf of and for the benefit of all the other citizens, electors and taxpayers in the State, to enjoin appellant Ellingham, as Secretary of State, and appellants Marshall, Bachelder and Roemler, constituting the state board of election commissioners, from the performance of these duties, on the ground that the General Assembly was without power thus to prepare and submit to the people proposed fundamental law, whether an entire new Constitution or an amendment; that the method of submission provided was in violation of a provision of our State Constitution; and that certain provisions of the proposed organic law are violative of provisions of the act of Virginia conveying to the United States the territory northwest of the Ohio river, the ordinance of 1787, the act of congress of 1816 to enable the people of the Indiana Territory to form a state Constitution and government, and article 4, § 4, of the Federal Constitution, in the matter of guaranties of the principle of proportionate representation and of a republican form of government. After a hearing and argument in that court, memorable in the legal annals of the State, the learned judge of the circuit court sustained the contention of appellee in every respect, and enjoined and restrained appellants as prayed. From that judgment this appeal comes, and the delicate and difficult questions involved are presented to this court for final determination.

The underlying question involved, out of which all the others presented grow, is simply, whether the act printed as Chapter 118 is a valid exercise of legislative power by the General Assembly. On this question appellants contend that the act involves the submission of a new Constitution to the people for adoption or rejection, and that the General Assembly is clothed with power to initiate, draft and submit a new Constitution to the people in such form and manner as to enable them to adopt it as the organic law of the State. This power, it is asserted, is included in the general grant of the legislative power of the government instituted by the existing Constitution, which is made to the General Assembly by article 4, § 1, of that instrument, which provides that "the legislative authority of the State shall be vested in the general assembly."

Appellee, on the contrary, in support of the conclusion of the trial court that the act in question is unconstitutional and void, contends that the power to initiate, frame and submit to the people fundamental law is not legislative power in the sense in which the General Assembly is vested with legislative power by that provision. But the making of fundamental law, being essentially different from ordinary legislation, the power of the General Assembly in relation to it is measured by the special and limited grant of power to it, made by article 16 of the present Constitution to initiate, frame and submit amendments in the mode and manner therein provided; and that this, by necessary implication, withholds the right of the broader and more comprehensive exercise of the power so to participate in fundamental legislation involved in initiating, preparing and submitting a new Constitution. Appellee also contends that the draft embodied in Chapter 118 is not that of a new Constitution, but that it is in substance, truth and fact merely proposed amendments of the existing Constitution, and that therefore it cannot be lawfully submitted to the people for their action, because of noncompliance with the requirements of article 16.

In that remote and despotic period, when the sovereign king chartered rights and liberties to his subjects--the people--all governmental powers were assumed to be his by divine right. In him were combined the legislative, executive and judicial powers of government. He was the lawgiver, interpreter and enforcer. When the powers were executed by agents, the agents were his, and responsible to him alone. On this continent we came to the time when the people, by revolution, took to themselves sovereignty, and in exercising supreme political power chartered governments by written constitutions. These organic instruments declared and guaranteed the rights and liberties of the individual, which had come to the people through centuries of struggle against absolutism in government. The majority was to rule, but under restraints and limitations which preserved to the minority its rights. "By the constitution which they establish, they not only tie up the hands of their official agencies, but their own hands as well; and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to take action in opposition to this fundamental law." Cooley, Const. Lim. (7th ed.) 56. The government so instituted was representative of the creator of it--the people. The agencies and agents for administering it were the people's agents. For greater surety of the maintenance of rights and liberties, and against encroachment and abuse of power, the governmental power inhering in the people was divided, and the three elements of it--the executive, legislative and judicial authority--in so far only as the people deemed it wise, and were willing to surrender or delegate power to agents, were delegated for exercise in the matter of carrying out the details of the purpose of government to three separate and distinct departments or agencies, independent of each other except to the extent that the action of one was made to constitute a restraint to keep the others within proper bounds, and to prevent hasty and improvident action.

Under such a Constitution the General Assembly of our State is clothed with legislative authority in the words of article 4, § 1, quoted above. That the General Assembly is supreme and sovereign in the exercise of the lawmaking power thus conferred upon it, subject only to such limitations as are imposed, expressly or by clear implication, by the State Constitution and the restraints of the Federal Constitution, and the laws and treaties passed and made pursuant to it, has been uniformly declared by an unbroken line of decisions of this court from the beginning of the judicial history of the State to the present time. But this general grant of authority to exercise the legislative element of sovereign power has never been considered to include authority over fundamental legislation. It has always been declared to vest in the legislative department authority to make, alter and repeal laws, as rules of civil conduct pursuant to the Constitution made and ordained by the people themselves and to carry out the details of the government so instituted.

"The legislative power we understand to be the authority, under the Constitution, to make laws, and to alter and repeal them. Laws, in the sense in which the word is here employed, are rules of civil conduct, or statutes, which the legislative will has prescribed." Cooley, Const. Lim. (7th ed.) 131.

The legislative power which the general grant in our Constitution bestows upon the General Assembly, this court has held to be the power to make, alter and repeal laws. State, ex rel., v. Denny (1889), 118 Ind. 382, 387, 21 N.E. 252, 4 L. R. A. 79; City of...

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2 cases
  • Ellingham v. Dye
    • United States
    • Indiana Supreme Court
    • July 5, 1912
  • State ex rel. Pennsylvania R. Co. v. Iroquois Conservancy Dist. Court of Ind.
    • United States
    • Indiana Supreme Court
    • April 20, 1956
    ... ... 228, 229. This rule of construction was followed in Morris v. Powell, 1890, 125 Ind. 281, 292, 25 N.E. 221, 9 L.R.A. 326; Denney v. State ex rel. Basler, 1896, 144 Ind. 503, 512, 42 N.E. 929, 31 L.R.A. 726; Gougar v. Timberlake, 1897, 148 Ind. 38, 48, 46 N.E. 339, 37 L.R.A. 644; Ellingham v. Dye, 1912, 178 Ind. 336, 374, 99 N.E. 1, 29; Board of Election Commissioners v. Knight, 1917, 187 Ind. 108, 114, 115, 117 N.E. 565, 567, 650; Robinson v. Moser, 1931, 203 Ind. 66, 179 N.E. 270; State v. Dearth, 1929, 201 Ind. 1, 12, 164 N.E. 486 ...         If we are to hold the ... ...

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