In re Todd

• Decision Date: 29 January 1935
• Docket Number: No. 26513.,26513.
• Citation: 208 Ind. 168,193 N.E. 865
• Parties: In re TODD.
• Court: Indiana Supreme Court

208 Ind. 168

193 N.E. 865

In re TODD.

No. 26513.

Supreme Court of Indiana.

Jan. 29, 1935.

Proceedings in the matter of the petition of Lemuel S. Todd for admission to practice of law in Indiana.

Petition dismissed.

Lemuel S. Todd, in pro. per.

TREANOR, Judge.

The General Assembly of 1931 enacted the following: ‘The supreme court of this state shall have exclusive jurisdiction to admit attorneys to practice law in all courts of the state under such rules and regulations as it may prescribe.’ Acts 1931, c. 64, p. 150.

In July, 1931, this court adopted rules regulating admission to the practice of law in Indiana. Under these rules an applicant is required to take an examination to determine his professional fitness. Petitioner, Lemuel S. Todd, insists that under section 21, art. 7, of the Constitution of Indiana, neither the General Assembly nor this court can require of applicants an examination for the purpose of testing professional fitness.

Amici curiae, representing the Indiana State Bar Association, suggest that the petition be dismissed, supporting their suggestion by brief. The position of amici curiae is in substance as follows:

1. The rules of this court, as to their substantive requirements, are valid, being a reasonable means of ascertaining the ‘good moral character’ and residence of the applicant, and consequently do not violate section 21, art 7.

2. Section 21, art. 7, of the Constitution of 1851–52 was stricken from the Constitution by amendment at the general election November 8, 1932.

If section 21 of article 7 of the Constitution of 1851–52 was stricken from the Constitution by amendment at the general election November 8, 1932 (see Acts 1931, c. 157, § 2), there can be no question about the power of this court to make and enforce the rules of which applicant complains. The vote upon the amendment in question was 439,919 for adoption and 236,613 against. Thus a majority of the voters who voted upon the amendment favored its adoption. But the number of voters favoring its adoption was much less than half the number of voters who voted for political candidates at the general election. Consequently to hold that the amendment was adopted it would be necessary to overrule the cases of State v. Swift,¹ In re Denny,² and In re Boswell,³ which have announced the rule that a proposed amendment which is submitted to the electors at a general election fails of adoption unless it is approved by a majority of all the voters who vote at the general election.

When the overruling of previous decisions involves only a question of public interest in no way affecting private interests, the rule of stare decisis does not control.

‘The case of House v. Board, etc., supra [60 Ind. 580, 28 Am. Rep. 657], and cases following, do not involve property rights, nor has the rule which they declare in any sense become a rule of property or a basis for contracts. The overruling of those cases will not produce uncertainty in titles, or introduce doubt and confusion in questions of property or contracts. Under such circumstances, it is the duty of the court to correct its own errors, and the doctrine of stare decisis cannot be successfully invoked to perpetuate them.'⁴ And this is especially true when a constitutional question is involved. Consequently we feel no hesitancy in considering the merits of the constitutional question presented by amici curiae, and we feel freer to re-examine this question in view of the strong dissenting opinions in the cases of State v. Swift and In re Denny.⁵

The procedure which must be followed in order to make a proposed amendment a part of the Constitution is clearly set out in article 16. At two sessions of the General Assembly it must be approved by ‘a majority of all the members elected to each house’; and it must then be submitted ‘to the electors of the state’ and be ratified by ‘a majority of said electors.’ No one has questioned the obvious meaning of ‘a majority of all the members elected to each house,’ but there has not been such unanimity as to the meaning of ‘a majority of said electors.’

The first case to come before this court which involved article 16 was State v. Swift, supra. A proposed amendment had received the approval of a majority of the members elected to each of the two houses of the General Assembly in the sessions of 1877 and 1879 and was submitted to the electors of the state at the spring election of 1880, which was held to elect township officers. The pleadings reveal that the total number of votes cast in the counties for township officers was 380,471; and that the votes cast on the proposed amendment were 169,483 for and 152,251 against. By a three to two decision this court held that the proposed amendment had not been ratified. There is considerable diversity in the reasoning of the judges.

In the personal opinion of Biddle, J., ‘majority of said electors' meant more than one-half of the electors of the state. But he concedes that it is impossible for a court to know the exact number of electors of the state; ‘for the number, on account of deaths and coming of age, is not the same during any twenty-four hours.’ He finally rests upon ‘the practical meaning of the phrase ‘all the electors of the State,’' which he defines as ‘that substantial number who vote at general State elections, and the number of whose votes is officially returned by sworn officers, into the office of the Secretary of State.’ Apparently he would not recognize as the number of electors of the state the total number voting at an election held specially to vote on amendments. And this is clear from the statements in the majority opinion respecting the Wabash and Erie Canal amendment (article 10, § 7, Ind. Const.). This amendment was submitted at a special election in 1873 and was approved by an overwhelming majority of the votes cast at the election, and the Governor proclaimed the amendment adopted in accordance with the provisions of the legislative act under which the submission took place. The submission act made no provision for a determination of the total number of qualified voters of the state; and the returns were made and the result declared on the basis of the votes cast for and against the amendment. The majority opinion in State v. Swift assumes that the Wabash and Erie Canal Amendment had become a part of the Constitution, despite the fact that official records of which this court was required to take judicial notice failed to show that a majority of the qualified voters of the state had voted in favor of the amendment. Since the validity of the Wabash and Erie Canal Amendment was not before this court in the case of State v. Swift, any reference thereto was merely dictum. But it is interesting to note that the opinion in State v. Swift declares that the amendment had become a part of the Constitution as a result of legislative and executive action without regard to whether it had been approved by a majority of the qualified voters of the state. The court's reasoning is indicated by the following: ‘In pursuance of this act, the Governor and Secretary of State declared the returns of the election, and the Governor issued his proclamation, declaring that the proposed amendment had received the requisite constitutional majority in its favor, necessary to its ratification, and had become a part of the constitution of the State, as section 7 of article 10 thereof, which section is now printed by authority in the constitution. The matter, therefore, having been decided and proclaimed, according to law, by the executive department, a co-ordinate branch of the government, has now become res adjudicata.’

This court again declared in Re Denny, supra, that ‘majority of said electors' meant more than half of the qualified electors of the state. The majority opinion assumes that ‘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 then concludes: ‘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 to 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 constitution 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 two 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.'

We readily agree that a majority means more than one-half; but we do not share the absolute conviction that ‘majority of said electors' means more than half of the qualified electors of the state as distinguished from more than half of the qualified electors who vote for and against a proposed amendment. The majority of this court, in both State v. Swift and In re Denny, assume that there is a definite policy against adopting an amendment ...