Green v. State Board of Canvassers

• Decision Date: 24 December 1896
• Citation: 47 P. 259,5 Idaho 130
• Parties: GREEN v. STATE BOARD OF CANVASSERS
• Court: Idaho Supreme Court

47 P. 259

5 Idaho 130

GREEN v. STATE BOARD OF CANVASSERS

Supreme Court of Idaho

December 24, 1896

AMENDING CONSTITUTION-SECTION 1, ARTICLE 20, CONSTRUED.-Under the provisions of section 1, article 20, of the constitution of Idaho, providing for the amendment of the constitution, where a majority of the electors voting upon that question vote in favor of the amendment, the same is ratified, although the votes thus cast are not a majority of the votes cast at the general election for state officers.

(Syllabus by the court.)

Original proceeding in supreme court by writ of review.

Hawley & Puckett, W. E. Borah and Miles W. Tate, for Plaintiff.

Under provisions of the constitution an amendment will carry when it is properly submitted to the people, and a majority of those voting upon the question cast their ballots in its favor, regardless of the number of voters voting upon other questions. (City of South Bend v. Lewis, 138 Ind 535, 37 N.E. 986.) Judge Cooley, in his work on Constitutional Limitations, sixth edition, note 1, page 747 cites a large number of authorities bearing upon the questions involved, and frankly says it is impossible to harmonize the cases. (Walker v. Oswald, 68 Md. 146 11 A. 711; Dayton v. City of St. Paul, 22 Minn. 400.) The constitution of Minnesota, section 2, article 14, provides, as does section 3 of article 20 of our constitution, that, in the matter of voting for a constitutional convention, a majority of all the voters voting at the election is required. (Taylor v. Taylor, 10 Minn. 181; State v. McBride, 4 Mo. 303, 29 Am. Dec. 636.) The supreme court of the United States in St. Joseph Township v. Rogers, 16 Wall. 644, construed the effect of the phrase "a majority of the legal voters of a township" as referring only to the majority of the legal voters voting at an election, and not a majority of all the voters. (County of Cass v. Johnston, 95 U.S. 360; Carroll v. Smith, 111 U.S. 556, 4 S.Ct. 539; State ex rel. Larabee v. Barnes, 3 N. Dak. 319, 55 N.W. 883; People v. Clute, 50 N.Y. 461, 10 Am. Rep. 508; Board v. Winkley, 29 Kan. 36; Armor Bros. v. Commissioners, 41 F. 321; Metcalfe v. City of Seattle, 1 Wash. 308, 25 P. 1010; Constitutional Provisions Amendments, 24 Kan. 700; Gillespie v. Palmer, 20 Wis. 544; Sanford v. Prentice, 28 Wis. 358; Louisville R. R. v. County Court, 1 Sneed, 637-692, 62 Am. Dec. 424; State v. Mayor etc., 37 Mo. 270; State v. Satterfield, 54 Mo. 391; McCrary on Elections, secs. 87, 173; Angell and Ames on Corporations, secs. 499, 500; State v. Echols, 41 Kan. 1, 20 P. 523; Southworth v. Palmrya etc., 2 Mich. 287; Pacific Imp. Co. v. City etc., 74 F. 528; Endlich on Interpretation of Statutes, sec. 388, note B, p. 543; State v. Babcock, 17 Neb. 188, 22 N.W. 372.) It is fair to assume that both the legislature and the constitutional convention would, if it was their intention to require a majority of all the electors in the state, or all that registered, or all that voted, to vote in favor of the proposed amendment, to have outlined some method of determining the actual number of such electors. (Carroll County v. Smith, 111 U.S. 564, 565, 4 S.Ct. 539.)

George M. Parsons, Attorney General, and Johnson & Johnson, for Defendants.

Indiana has an identical provision with ours in her constitution regarding amendments. (Ind. Const., art. 16, sec. 1.) In construing it that court declares that there can be no amendment by a plurality. (State v. Swift, 69 Ind. 505.) A distinction will be observed in our constitution, as well as that of Indiana, between voting to ratify an amendment to the constitution and voting to elect an officer--a plurality vote will elect an officer, but a majority vote is required in case of amendment. (Compare sec. 2, art. 4, and sec. 1, art. 20.) An examination of our constitution may be profitable. Compare the words used in section 1, of article 20, "if a majority of the electors shall ratify the same," and the words used in section 3 of the same article, "a majority of all the electors voting at said election." The wording of the last section creates a limitation in requiring only a majority of those actually voting at the election, while in the first section the constitution directs that the question of the adoption of the amendment shall be submitted to the "electors of the state," and that a majority of them shall vote in favor of the proposed amendment before it is ratified and made a part of our fundamental law. The authorities, even those cited by counsel on the other side, will show that courts, in construing constitutional or statutory provisions that prescribed that a majority of the electors of a county, a township or a district should vote upon a given proposition in order to carry it, have only compelled the harsh lines of the law to yield to judicial construction to the extent that it would be presumed by the courts that all the electors had discharged their duty by casting their votes, and, as said by Justice Clifford (16 Wall. 664), that fact "would necessarily be determined by a count of the ballots." (People v. Warfield, 20 Ill. 163; People v. Gardner, 47 Ill. 246; People v. Wiant, 48 Ill. 263; Louisville etc. R. R. v. Davidson Co., 1 Sneed, 692, 62 Am. Dec. 424; Cass Co. v. Johnston 95 U.S. 360; City of South Bend v. Lewis, 138 Ind. 512, 37 N.E. 986; State v. Brassfield, 67 Mo. 331, 340; Hawkins v. Carroll Co., 50 Miss. 735, 736; Cocke v. Gooch, 5 Heisk. 294, 310; Fort Worth v. Davis, 57 Tex. 225, 234.) Indifference is not the test; an active and expressed approval is necessary. (Duke v. Brown, 96 N.C. 127, 131, 1 S.E. 873; Bayard v. Klinge, 16 Minn. 249; Taylor v. Taylor, 10 Minn. 81; Everitt v. Smith, 22 Minn. 53; People v. Wiant, 48 Ill. 263, 266; Chestnutwood v. Hood, 68 Ill. 132.) The construction for which we contend is clearly sustained by the cases of State v. Winklemeier, 35 Mo. 103; State v. Sutterfield, 54 Mo. 391; State v. Brassfield, 67 Mo. 331; State v. Mayor, 73 Mo. 435, 437; Hawkins v. Carroll Co., 50 Miss. 735; Norment v. City of Charlotte, 85 N.C. 387; Duke v. Brown, 96 N.C. 127, 1 S.E. 873; Sutherland v. Goldsborough, 96 N.C. 49, 1 S.E. 760; Cocke v. Goosh, 5 Heisk. 294; Braden v. Stumph, 16 Lea, 581; Hoagland v. Labaw, 32 N. J. L. 269; People v. Trustees, 70 N.Y. 28; State v. Lancaster Co., 6 Neb. 474; State v. Babcock, 17 Neb. 188, 22 N.W. 375; State v. Anderson, 26 Neb. 517, 42 N.W. 422; Wilson v. Florence, 39 S.C. 397, 17 S.E. 835; Stebbins v. Judge Superior Court, 108 Mich. 693, 66 N.W. 594; People v. Berkeley, 102 Cal. 298, 36 P. 591. In State v. Langlie, 5 S. Dak. 594, 67 N.W. 959, the supreme court of North Dakota says: "It is to be observed that when the law-making power of a state has desired to make the highest vote at the same election the standard, it has said so in unambiguous terms, as by requiring that there shall be a majority, etc." (Enyart v. Trustees, 25 Ohio St. 618; State v. Roper, 46 Neb. 729, 61 N.W. 753.) A majority of the electors voting is required under section 1, article 20. It is a constitutional provision that must be regarded. (State v. Babcock, 17 Neb. 188, 22 N.W. 375; State v. Anderson, 26 Neb. 517, 42 N.W. 422; People v. Brown, 11 Ill. 480; People v. Wiant, 48 Ill. 266; Everett v. Smith, 22 Minn. 53.)

HUSTON J. Sullivan, J., MORGAN, C. J., concurring.

OPINION

HUSTON, J.

The constitution of the state of Idaho contains the following provisions in regard to amendments of that instrument:

"Article 20.

"Amendments.

"Section 1. Any amendment or amendments to this constitution may be proposed in either branch of the legislature, and if the same shall be agreed to by two-thirds of all the members of each of the two houses, voting separately, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals; and it shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at the next general election, and cause the same to be published without delay for at least six consecutive weeks, prior to said election, in not less than one newspaper of general circulation published in each county; and if a majority of the electors shall ratify the same, such amendment or amendments shall become a part of this constitution.

"Sec. 2. If two or more amendments are proposed, they shall be submitted in such manner that the electors shall vote for or against each of them separately.

"Sec. 3. Whenever two-thirds of the members elected to each branch of the legislature shall deem it necessary to call a convention to revise or amend this constitution, they shall recommend to the electors to vote at the next general election for or against a convention; and if a majority of all the electors voting at said election shall have voted for a convention, the legislature shall, at the next session, provide by law for calling the same; and such convention shall consist of a number of members not less than double the number of the most numerous branch of the legislature.

"Sec. 4. Any constitution adopted by such convention shall have no validity until it has been submitted to, and adopted by, the people."

The legislative assembly of the state of Idaho at its third session, submitted to the people, under said constitutional provisions, the following amendment of the constitution "Shall section 2 of article 6 of the constitution of the state of Idaho be so amended as to extend to women the equal right of suffrage?" The vote as returned by the canvassing board upon said question was as follows: "For proposed amendment extending to women the equal right of suffrage: For, twelve thousand one hundred and twenty-six; against, six thousand two hundred and eighty-two." And upon this return said board declares said ame...