In re Denny

• Decision Date: 01 February 1901
• Docket Number: 19,534
• Citation: 59 N.E. 359,156 Ind. 104
• Parties: In the Matter of the Petition of Denny for Admission to Practice Law
• Court: Indiana Supreme Court

59 N.E. 359

156 Ind. 104

In the Matter of the Petition of Denny for Admission to Practice Law

No. 19,534

Supreme Court of Indiana

February 1, 1901

From the Marion Circuit Court.

Reversed.

W. W Wollen and Evans Wollen, for appellant.

T. E Howard, W. L. Taylor, Attorney-General, Merrill Moores and C C. Hadley, for appellee.

Baker J. Hadley, J. Concurring. Jordan, J., dissents.

OPINION

Baker, J.

Section 21 of article 7 of the Constitution, in force from November 1, 1851, reads: "Every person of good moral character, being a voter, shall be entitled to admission to practice law in all courts of justice." At the election in November, 1900, a proposed amendment, to take the place of the foregoing provision, to the effect that "The General Assembly shall by law prescribe what qualifications shall be necessary for admission to practice law in all courts of justice" was submitted to the electors of the State. On the assumption that the proposed amendment had been adopted, and on the further assumption that it was within the court's prerogative to prescribe qualifications by rule without waiting for the General Assembly to change the present statutory provisions on the subject, the Marion Circuit Court established rules and appointed a board of examiners. Thereafter, the petitioner Mr. Denny applied to be admitted to practice law in the Marion Circuit Court, on the qualifications only that he was a person of good moral character and a voter in Marion county, Indiana. On the trial, the court specially found these facts: Mr. Denny is a person of good moral character and a voter in Marion county, Indiana. At the general election in Indiana on November 6, 1900, 655,965 votes were cast for various candidates for the office of Governor of Indiana. At an election held upon the same day throughout the State of Indiana, pursuant to an act of the General Assembly approved March 6, 1899 (Acts 1899, p. 560), there were cast for the amendment in question 240,031 votes and against it 144,072 votes. A motion was made for the admission of Mr. Denny to practice law in the Marion Circuit Court, and he declined to submit to an examination as to his qualifications to be admitted as provided by the rules of that court. As a conclusion of law the court stated that Mr. Denny was not entitled to admission; and judgment was entered accordingly. Mr. Denny appeals, and assigns that the conclusion of law is erroneous. The Attorney-General appears in support of the judgment. If the proposed amendment has not been adopted, the conclusion of law and the judgment can not be sustained.

The Constitution lays down the only procedure by which an amendment may be adopted: Article 16, § 1. "Any amendment or amendments to this Constitution may be proposed in either branch of the General Assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and referred to the 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 a majority of all the members elected to each house, then it shall be the duty of the General Assembly to submit such amendment or amendments to the electors of the State; and if a majority of said electors shall ratify the same, such amendment or amendments shall become a part of this Constitution. Section 2. If two or more amendments shall be submitted at the same time, they shall be submitted in such manner that the electors shall vote for or against each of such amendments separately; and while an amendment or amendments which shall have been agreed upon by one General Assembly shall be awaiting the action of a succeeding General Assembly, or of the electors, no additional amendment or amendments shall be proposed."

The proposed amendment in question and one other received the affirmative votes of a majority of the members elected to each house of the General Assemblies of 1897 and 1899. It thereupon became the duty of the General Assembly of 1899 to provide for the submission of the proposed amendments to the electors of the State. For this purpose, the above mentioned act was passed, which provides: "That there shall be a vote taken by the people at the next general election" to be held on November 6, 1900, on the adoption or rejection of the proposed amendments; that the clerks of the circuit courts shall cause to be printed twice as many ballots, containing the two amendments, as there were votes cast in their respective counties for Governor at the general election in 1896; that there shall be printed at the left of each amendment the words "For the amendment" and "Against the amendment", and the voter shall make a cross with a blue pencil in the square to the left of whichever set of words he desires to vote; that the ballots shall be delivered to the election precincts in the same manner as ballots for voting for district and county officers are now delivered, and they shall be delivered to the voters before entering the election booth in the manner now provided by law for delivering the ballots to the voters; that the election board shall count and return the vote according to the general law governing elections; that after the returns in each county are tabulated, the clerk shall certify to the Secretary of State the total vote cast for and against each amendment; that after the secretary tabulates the returns from all the counties, he shall certify to the Governor the total vote for and against each amendment; that "if it shall appear that a majority of all the votes cast at such election were given in favor of the adoption of either or both of said proposed constitutional amendments, the Governor shall make proclamation, and it or they shall then become part of the Constitution of the State of Indiana".

The Governor's proclamation announced that 240,031 votes had been cast for, and 144,072 against, the proposed amendment in question, and 314,710 for, and 178,960 against, the other proposed amendment; but did not state whether either had been adopted or rejected.

In our system of government, a written constitution is the highest expression of law. None other emanates directly from the sovereign people themselves. It is the deliberate and affirmative utterance of the sovereign majority. It seems unnatural to say that the sovereign majority, the authors of the designedly permanent, the fundamental, the organic law, intended that any of its safeguards should be abrogated by a failure to demand the abrogation; that the indifference of the many should be a positive element in effecting an organic change desired by the few; that a judgment abolishing the writ of habeas corpus or the right of trial by jury should be taken by default. On the contrary, one would expect a provision that the charter of our liberties should stand unaltered until the sovereign majority, by affirmative action, expressed their desire for, and effected, a change. And such is the clear letter and spirit of article 16. If a majority of the electors of the State shall ratify a proposed amendment, it shall become a part of the Constitution; otherwise not. There is no room for construction. The language is too plain to admit of quibbling. "Majority" means "more than half". "Electors", with reference to an election, means, according to the lexicographers and universally accepted usage, "persons possessed of the legal qualifications entitling them to vote". The word "voters", on the other hand, has two meanings, "persons who perform the act of voting", and "persons who have the qualifications entitling them to vote". Constitutions are drafted with care. The framers of our Contsitution deliberately selected and used the words in the meaning of which there could be no ambiguity. The sentence, "If more than half of the persons in the State who possess the legal qualifications entitling them to vote shall ratify the proposed amendment, it shall become a part of the Constitution", is a cumbersome equivalent. The idea is clearly and more succinctly expressed in the wording of the Constitution. No other standard for the adoption of proposed constitutional amendments may be set up by this court, becomingly or lawfully, than the one fixed by the Constitution, the affirmative ratification by "a majority of the electors of the State." So, in any case, the question becomes one, not of constitutional construction, but of evidence.

It is universally held that, in the absence of a provision for registration, the number of persons who possess the qualifications entitling them to vote at a given election is determined by the election itself. Deaths, minors' coming of age, disfranchisements, removals from the State, or from the county, township, ward, or precinct, within certain limits of time, make the number of electors a continually variable quantity. But when a person goes to the polls in his precinct, is passed by the challengers, is accepted by the election officers, and has his name enrolled on the poll lists as having voted, he thereby furnishes proof of the fact that he is an elector, a person possessed of the legal qualifications entitling him to vote at that election. And the poll lists furnish evidence of the total number of electors. And this evidence is just as definite and certain as that which could be afforded by a registration of the persons entitled to vote at that election, for the poll lists themselves form a registration.

After the proposed amendments were approved by the General Assemblies of 1897 and 1899, it became the duty of the General Assembly of 1899 to submit them to the electors...