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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." An act of the General Assembly, proposing certain amendments and submitting them to the people, at an election when certain officers were to be chosen, provided that any qualified elector at the time he votes for officers or at such election, if he does not vote for any officers, may vote for or against any amendment," and "that if a majority of the electors shall then ratify any of said amendments, the same shall be a part of the Constitution." There was no means provided by the act by which the whole number of votes cast at the election could be ascertained. Held, that the Constitution requires at least a majority of all the votes cast at the same election to ratify a constitutional amendment; that the act in question was defective in not providing for a count of the aggregate number of votes cast throughout the State on the day of election; that there was no source from which the court could ascertain whether the amendment received a majority of the votes cast at the election; that it must be presumed that other votes were cast at the election than those for or against the amendment, and that the Constitution must remain as it was before the amendment, until it shall affirmatively appear that the amendment was ratified. And as it does not thus affirmatively appear, the court hold that the amendment was not ratified by a constitutional majority. The court hold that the Constitution requires a majority of the electors of the State to ratify an amendment to it, but that the whole number of votes cast at the election at which the amendment is submitted may be taken as the number of electors in the State.
PPEAL from a decision sustaining as valid certain amendments to the Constitution of Indiana submitted to the vote of the people of that State by an act of the Legislature, passed March 18, 1879. The opinion discloses sufficient facts.
BIDDLE, J. The State presents two questions for our consideration: 1. Was the proposed amendment, according to the facts stated in the reply to the special answer, ratified by a majority of the electors of the State, and did it thereby become a part of the Constitution, and if such proposed amendment was so ratified, was James V. Kelso a legal voter of the precinct named in the indictment at the time he presented his ballot to the appellee and offered to vote?
A doubt is suggested in limine by the counsel for appellant, as to whether the general question of this ratification of the constitutional amendments is properly presented by the record. They insist that proof or admitted facts in the individual case as to the whole amount of votes cast at the election of April 5, 1880, and the number cast for and against the amendments, does not present the general question, but that our decision therefore would bind only the parties to this suit, and would not become matter of public law upon the ratification of the amendments. But we do not feel embarrassed by this question. The courts take notice of the public census taken by authority of law, in the archives of the State, and of the number of votes cast at a general State election upon all questions of public affairs that affect the State. From those sources we must know all the facts necessary to the decision of the question whether the amendment is constitutionally ratified or not. In our opinion the questions discussed by the counsel of the respective parties are properly in the record and before us.
By the first section of the act of Congress of April 19, 1816, the inhabitants of the Territory of Indiana were authorized to form for themselves a Constitution and State government, which State when formed should be admitted into the Union upon the same footing with the original States.
The second section defines the boundaries of States. Section third provides the qualification of electors and authorizes them to choose representatives to form
a convention, defines the number allowed to each county, and fixes the time of holding the election on the second Monday of May, 1816. The fourth section is in the following words:
"Sec. 4. And be it further enacted, that the members of the convention thus duly elected be and they are hereby authorized to meet at the seat of government of the said Territory on the second Monday of June next, which convention when met shall first determine, by a majority of the whole number elected, whether it be or be not expedient at that time to form a Constitution and State government for the people within the said Territory; and if it be determined to be expedient, the convention shall be and hereby is authorized to form a Constitution and State government, or if it be deemed more expedient the said convention shall provide by ordinance for electing representatives to form a Constitution or form a government, which said representatives shall be chosen in such manner and in such proportion and shall meet at such time and place as shall be prescribed by the said ordinance, and shall there form for the people of said Territory a Constitution and State government; provided, that the same when formed shall be republican and not repugnant to the articles of the ordinance of the thirteenth of July, one thousand seven hundred and eighty-seven, which are declared to be irrevocable between the original States and the people of the Territory north-west of the River Ohio; excepting so much of the said articles as relates to boundaries of the States therein to be found." R. S. 1813, p. 33. Under this act the members of the convention were elected on the second Monday of May, 1816, met in convention at Corydon on the second Monday of June, 1816, and proceeded at once to form the Constitution by the authority of Congress, without an ordinance of the Territory. The Constitution was completed on the 29th day of June, 1816, unanimously adopted by the members of the convention and signed by all except one member from Clarke county and one from Warrick county. The Constitution went into effect upon its adoption by the members of the convention which formed it, and the first session of the General Assembly held by its authority met at Corydon on the first Monday in November, 1816. The Constitution of 1816 remained in force without further amendment until the first day of November, 1851.
An act was passed January 15, 1849, to provide “for taking the sense of the qualified voters of the State on the calling of a convention to alter, amend or revise the Constitution of this State." At an election held under the authority of this act "a large majority of all the votes given at said election was in favor of holding said convention." The Legislature was unwilling even to call the convention without first obtaining the authority from a majority of all the voters of the State. On the 18th day of January, 1850, the Legislature passed "An act to provide for the call of a convention of the people of the State of Indiana to revise, amend or alter the Constitution of said State." Acts 1851, 29. By authority of this act delegates were elected who assembled in convention at the capital, in the city of Indianapolis, on the first Monday in October, 1850, and completed the labor of forming the present Constitution on the 10th day of February, 1857. By the thirteenth clause of the schedule to this Constitution it was provided that when it was submitted to the electors for their approval or disapproval, the article in relation to negroes and mulattoes should be submitted as a distinct proposition, "and if a majority of the votes cast be in favor of said article then the same shall form a part of this Constitution; otherwise it shall be void and form no part thereof."
On the 14th day of February, 1851, an act was passed amending the act of January, 1850, providing that a vote of the people should be taken on the first Monday
in August thereafter on the adoption or rejection of the Constitution, and said separate article, the fourth section of which amendatory act provides that: "If it shall appear that a majority of all the votes polled at such election were given in favor of the adoption of said Constitution, it shall then become the Constitution of the State of Indiana from the first day of November, 1851; but if it shall appear that a majority of all the votes polled for or against the adoption of said Constitution and said separate article were given against the adoption of said Constitution, then the same shall be and remain inoperative and void." Acts 1857, 3.
Section 1, article 16, of the Constitution, by the authority of which the amendment in question was proposed by the General Assembly for ratification by the electors of the State, is in the following words: " 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 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."
The first amendment proposed and ratified under this article of the Constitution was section 7 of article 10, in reference to the Wabash and Erie canal. By the act of the General Assembly of January 28, 1872 (Act 1873, p. 83), the governor and secretary of State were required to examine the election returns and declare the result of the election; "and if it shall appear from said examination that a majority of all the votes cast at said election were in favor of the adoption of said proposed amendments, then and thereupon the said amendments shall be and become a part and parcel of the Constitution of the State of Indiana, and the governor of this State shall, as soon as practicable, issue his proclamation embodying the said amendment therein, and declaring and proclaiming the same has been duly ratified by the people, and is therefore a part of the Constitution of the State."
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.
By the first section of the act of March 10, 1879, it is declared that each of said proposed amendments shall be submitted to the electors of the State at the election to be holden on the first Monday of April, 1880, for their adoption or rejection. Section third provides that: "Any qualified elector at the time he votes for officers, or at such election, if he does not vote for any officer, may vote for or against any amendment, by depositing one of said ballots in the ballot-box." The same section also provides that, if a majority of the electors shall then ratify any of said amendments, the same shall be a part of the Constitution; but no elector shall vote more than once, and if he votes for
any officer shall, at the same time, vote on such amendments. Acts 1879, p. 25.
The above statement shows that by the act of Congress it required "a majority of the whole number elected" of the members of the convention to decide upon the expediency of adopting the Constitution of 1816; and that by the act of the Indiana Legislature it required "a majority of the votes polled at such election" to adopt the Constitution of 1851. It also appears that it required "a majority of all the votes cast" to ratify article 13 of the Constitution of 1851, which was submitted to the electors as a separate proposition; and that it required a majority of the members elected to each of the two houses of the General Assembly at two successive regular sessions to propose an amendment or amendments to the Constitution, and when so proposed "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 ratify the same such amendment or amendments shall become a part of this Constitution." And by section 25 of article 4 of this Constitution, it requires "a majority of all the members elected to each house" to pass a bill or resolutiou.
We can find no authority, either in the Constitution of 1816, or in the Constitution of 1851, or in the legislative acts upon the subject, by which a Constitution or any of its separate articles, or any amendment thereto, could be adopted or ratified by a plurality of the votes of the electors, or by one less number than a majority of the whole number cast at that election. If there were any doubts of the construction, upon its face, of the section under which the amendment before us was proposed, they would disappear upon the examination of the debates in the convention which formed the Constitution. The proposition was first introduced substantially in the words in which it ultimately passed. After receiving some discussion and several amendments it was referred to the committee "On Future Amendments to the Constitution." This committee reported as follows: "That whenever twothirds of all the members elected to each branch of the General Assembly shall think it necessary to call a convention to alter or amend this Constitution they shall recommend to the electors at the next election of members of the General Assembly to vote for or against a convention, and if it shall appear that a majority of all the electors of the State voting for representatives have voted for a convention, the General Assembly shall at their next session call a convention for the purpose of revising, altering or amending this Constitution." A second section was then offered authorizing two-thirds of the members of the two houses of the General Assembly to propose amendments to the Constitution, and when thus proposed to submit them "to the people at the next general election for their adoption or rejection in such manner as may be prescribed by law; and if a majority of all the electors voting at said election for members of the House of Representatives shall vote for such amendment or amendments, the same shall become part of the Constitution."
Mr. Owen, of Posey, prepared a substitute in almost the exact words in which it now stands in the Constitution. This substitute was fully discussed by leading members of the convention, and accepted by a large majority. It was then put upon its passage, carried and referred to the committee on revision. This committee changed the phraseology of the section slightly by substituting the words "General Assembly" for the word "Senate" and "House of Representatives," and the word "electors" in one instance instead of the words "qualified voters;" and it was then adopted as it now stands, as a part of the Consti
tution of 1851. 2 Const. Debates, 1,258, 1,860, 1,918, 1,938, 1,940.
This examination of the Constitutional Debates shows the affirmative sense of the convention to have been that amendments to the Constitution could be adopted only by the majority of electors of the State. The proceedings also show us that a contrary proposition was ultimately rejected. The section, as first introduced by Read, of Clark, required "a majority of the qualified voters to adopt an amendment to the Constitution." Stevenson moved to amend the section by inserting the words, "a majority of all the votes cast for and against the same.' This amendment was accepted, and in that form the section was referred to the committee and reported to the convention, as we have seen, without the Stevenson amendment. Mr. Owen's amendment, still without the Stevenson amendment, as we have also seen, was substituted for the section reported by the committee, and became a part of the Constitution. 2 Const. Debates, 1,258-1,260.
We may thus ascertain the expressed intention of the framer of the Constitution. Affirmatively, that it should require a majority of all the electors of the State to adopt an amendment to the Constitution; and also their expressed intention. Negatively, that "a majority of all the votes cast for or against the same," unless such majority was a majority of all the electors, should not be sufficient to ratify an amendment. The act of the Legislature by which the amendment under consideration was submitted to the electors of the State for their ratification or rejection, in this respect followed the Constitution and affirms the same principle. The title of the act is: "An act providing for the submission to the electors of the State of Indiana for ratification, the constitutional amendments proposed," etc., and it declared that “if a majority of the electors should thus ratify any of said amendments, the same shall be a part of the Constitution."
A distinction will be observed in the Constitution as well as in the acts of the Legislature, between voting to adopt the Constitution, or to ratify an amendment to the Constitution, and voting to elect officers. The Constitution requires a majority of all the votes to ratify an amendment, but to elect an officer it requires only the highest number of votes, or a plurality. Sections 4 and 5 of article 5 of the Constitution, providing for the election of governor and lieutenant-governor, declare that in voting for governor the electors shall designate for whom they vote as governor and for whom as lieutenant-governor, * * * and the per
son respectively having the highest number of votes for governor shall be elected. This difference in language between the highest number of votes and the majority of all the votes is not a mere accident of composition; the words are used advisedly. So the Legislature, doubtless, can provide by law for the ratification of a constitutional amendment by a plurality of votes where there is no constitutional prohibition.
Section 3 of article 7 of the Constitution, providing for the election of supreme judges, declares that "one of said judges shall be elected from each district, and reside therein; but said judge shall be elected by the electors of the State at large." In this provision in reference to the election of an officer, the word "majority" of the electors is not used as it is in the section in reference to the ratification of an amendment to the Constitution. We must suppose that the framers of the Constitution meant just what, in plain words, they said; and that the people who ratified their labors understood them in the same sense.
In the fifteenth clause of the schedule of the Constitution, authorizing a new county to be created out of the territory contiguous to the counties of Perry and Spencer, it is provided that, "if a majority of all the votes given at said election shall be in favor of the or
ganization of said new county, it shall be the duty of the General Assembly to organize the same." In the Constitution, and throughout the legislation of the State, we believe without exception, whenever a majority of all the votes is required to carry a measure it is so stated in substantial words; and when a plurality of votes is sufficient to elect an officer it is declared that whoever shall receive the highest number of votes shall be elected, or that the electors shall elect the officer, without stating that it shall require a majority of the electors to make a choice. The people of a State may form an original constitution or abrogate an old one and form a new one at any time, without any political restriction except the Constitution of the United States; but if they undertake to add an amendment, by the authority of legislation, to a constitution already in existence, they can do it only by the method pointed out by the Constitution to which the amendment is to be added. The power to amend a constitution by legislative action does not confer the power to legislate on any other subject contrary to its prohibitions. Collins & Frierson, 24 Ala. 100.
With these constitutional provisions and legislative enactments before us, forming a line of precedents running from and since the foundation of the State, to hold that a plurality, or majority of a part instead of all the electors could ratify an amendment to the Constitution -a far more important act than the proposal of the amendment, or the passage of a bill which is repealable - would be a departure from the line of safe reasoning and logical sequence, and contrary to the Constitution and laws.
The principle of plurality, contended for by the counsel for the appellee, frequently develops sufficiently glaring disproportions between the number of electors of a constituency and the number of votes cast sufficient to elect; but when applied to the ratification of a constitutional amendment, and pushed to an extreme, it runs into absurdity. The election of an officer affects the right of no one except the person elected. To him it grants a privilege to be exercised for the public good, the exercise of which is a public necessity. It does not affect the right of even the person defeated, but only denies him a privilege which cannot be granted except by an election. In such case the Constitution requires only the highest number of votes to elect, though it may only be a plurality of a very inconsiderable number of the electors in proportion to the whole number. But the ratification of a constitutional amendment affects the rights of millions of people who are not electors and cannot vote, and for an indefinite time, until the amendment shall be abrogated by the same power that made it. In such case the Constitution requires the majority of all the electors to ratify the amendment. The principle of plurality, which might ratify a constitutional amendment, irrepealable by legislative action, binding the rights of two millions of people for an indefinite period, by the vote of two electors against a vote of one when the whole number of votes cast was but three, is not only unconstitutional, but is dangerous to human rights and repugnant to the sense of mankind. As the adoption of a Constitution is the considerate act of an entire people, and as it binds all departments of the government and cannot be repealed except by the same power that made it, its adoption should not be left to the vicissitudes of a meager plurality of votes which the accidents of a day might cast one way or another.
We have seen that there is no analogy between electing an officer and ratifying a constitutional amendment; nor is there any analogy between the cases cited on behalf of the appellee, wherein taxes are assessed and granted by the vote of the majority of the electors and the ratification of a constitutional amendment. such cases the taxes assessed and the franchises granted
affect the rights of but few persons relative to the whole number of the people, and are temporary in their nature, while the ratification of a constitutional amendment permanently affects the entire body politic, and the comparison of the votes of the members of a private corporation which can affect only the corporation and its property, with the vote of the electors of a State upon an amendment to the Constitution which affects the rights of all the people of the State, does not come to us with any force of an argument, nor throw any light that we can see upon the question before us.
The appellant's counsel rely upon the case of Gillispy v. Palmer, 20 Wis. 514. In that case the plaintiff was a person of African descent. He brought his action against the inspectors of the election for refusing to allow him to have his name registered as an elector, averring that in pursuance of the Constitution and laws, the question whether the rights of suffrage should be extended to persons of African descent had been submitted to the electors of the State, and that a majority of the votes cast upon that question was in favor of such extension, but admitting that such majority was not a majority of all the votes cast at such election.
A demurrer for want of facts was sustained to the complaint. On appeal to the Supreme Court the judgment was reversed. This case presents a question similar to the one which we are considering, and if the Constitution of the two States were the same upon this point, the decision would be entitled to great respect as an authority in the present case.
Section 1 of the Constitution of Wisconsin defines who shall be electors, but does not include persons of African descent. But there is a provision "that the Legislature may at any time extend by law the right of suffrage to persons not herein enumerated; but no such law shall be in force until the same shall have been submitted to a vote of the people at a general election and approved by a majority of all the votes cast at such an election.
Section 1 of article 12 of the Constitution of Wisconsin, providing for amendments, is expressed in almost the same words as section 1 of article 16 of the Constitution of Indiana, under which amendments before us were proposed, differing in nothing essential except that under the Constitution of Wisconsin amendments may be ratified by a majority of the electors voting thereon, instead of a majority of the electors of the State.
It is plain that the two provisions in the Constitution of Wisconsin upon the question of extending the right of suffrage by a legislative enactment and by an amendment to the Constitution are in apparent conflict. It was thereupon the duty of the Supreme Court to harmonize the two sections and give uniformity to the Constitution by construction. The court very properly said: "The right of suffrage by such an amendment could be given to colored persons. It is probable that the framing of the Constitution required more votes to extend the right of suffrage in one way than in another. More votes to approve the act of the legislation conferring the right when so approved than to make and approve any and all amendments to the Constitution, including that conferring suffrage upon colored persons? We see no reason for such a conclusion."
This is a sound judicial rendering and it conducted the court to the only judgment it could render without impairing a constitutional provision. But as the two Constitutions are fundamentally different as to the proportion of votes necessary to ratify an amendment, the decision cannot be held as an authority in the present case.
As the adoption of an amendment to a constitution is of rare occurrence, but few cases upon the question
have been presented for judicial decision; indeed, we have been able to find only the single case above cited presenting (a similar point to that before us. There are many cases upon questions of levying taxes, granting privileges, establishing county seats, and electing officers, wherein the question of majorities and pluralities are discussed; but very few upon the ratification of constitutions or constitutional amendments. We must therefore mainly rely upon the precedents and practices found in the history of our own State. State v. Winkleman, 35 Mo. 103; Bayard v. Klinge, 16 Minn. 49; Taylor v. Taylor, 10 id. 107; People v. Mayfield, 20 id. 160; People v. Wayant, 58 III. 263.
The appellee's counsel refer us to the legislative and executive construction given to the act of January 28, 1873, under which section 7 of article 10 of the Constitution was submitted to the electors of the State, in aid of our construction of section 1 of article 16. The construction of a legislative act by the co-ordinate branches of the government is entitled to great respect from this court; but the act of March 10, 1879, under which the present amendment was submitted to the electors, is so different from the act of January 28, 1873, that we can derive but little aid therefrom. In the former act there was but the single question of the ratification or rejection of the amendment submitted to the electors; the governor and secretary of State were authorized to declare the result of the election, and if it appeared "a majority of all the votes cast at said election was in favor of the adoption of said proposed amendment," then the governor was to proclaim that "the same was duly ratified by the people." The governor did so proclaim, and no one questioned his decision. The question is thus far settled. At the time of submitting the present amendment to the vote of the electors of the State, under the latter act, other questions are also submitted, and the governor, by the act, had no power to declare whether the amendment had been adopted or rejected. Nor does the latter act provide any means by which the whole number of votes cast at that election can be ascertained.
The argument of the appellee's counsel, that if a majority of all the electors of the State was necessary to the ratification of the amendment, it was unnecessary to provide by the act of March 18, 1879, for a vote against the ratification; and that as the law provides for a negative vote, it indicates the intention of the Legislature that a plurality of affirmative votes over the negative votes should be sufficient to ratify the amendments, is answered by section 2 of article 26 of the Constitution, which requires "if two or more amendments shall be submitted at the same time, they shall be submitted in such a manner that the electors shall vote for or against each of such amendments separately." Nor do we now decide if the act provided that a plurality vote in favor of the amendment should be sufficient to ratify it, that it would have been valid against section 1, article 10, of the Constitution, which proclaims that if a majority of the electors of the State shall ratify the amendment it shall become a part of the Constitution.
The counsel for appellee have reminded us of the momentous nature of the question we are considering, and suggested the disastrous consequences which, as it appears to them, must follow to the social, municipal and political interests of the State if our decision should be adverse to their client. We are not impressed with the force of this argument to a court. Courts know nothing of policy or expediency. It is their duty to understand the Constitution and the laws, and uphold them by their decisions. Nor do we see any danger of disaster in the discharge of a plain duty. History and experience prove that disasters follow a disregard of Constitution and laws, and that peace, liberty and prosperity are secured by obedience to them. As the Constitution is the foundation of
government, and the bulwark which protects the governed in all human interests, and as its ratification is the most solemn political act of a people in making changes therein of amendments thereto, which are irrepealable by legislative action, the letter and spirit of the Constitution and the laws must be complied with, or the amendment so proposed cannot be regarded as a part of the original instrument.
The great advantage, as is supposed, that will arise to the people from the ratification of the amendment is also urged upon us as an argument. Of advantages or disadvantages it is not our province to judge. The question for us to decide is: Has the amendment been ratified or not? The people of the State of Indiana do not desire advantages obtained at the expense of the Constitution; and no considerable advantage could compensate them for a breach of the fundamental law of the State. They would pay dearly, indeed, for the advantage of an immediate decision of this court that the amendment was ratified if it had to be made in violation of the Constitution and the law.
This court holds that it requires at least a majority of all the votes cast at the same election to ratify a constitutional amendment. We also hold that as the act of March 10, 1879, is defective in not providing for the count of the aggregate number of votes cast throughout the State on the day of the election, or in not providing some means to find out the whole number of votes cast, by which it might be learned what proportion the number cast in favor of the raiification bore to the whole number, there is no source from which this court can ascertain whether the amendment received a majority of all the votes cast at the election or not. As the amendment was submitted upon the day of the general spring elections throughout the State, and as there were, by law, officers to elect at the same time in the various counties, it must be presumed that other votes than those for or against the amendment were cast at the same time. From the peculiar ballots used in voting upon the amendment, many electors may have voted "no" or "yes" upon the question of the amendment, which votes would not be counted; such, also, would be counted in estimating the whole number of electors voting. It is also held that the Constitution must remain as it was before the amendment was submitted, until it shall affirmatively appear that the amendment is ratified. As it does not thus affirmatively appear, we must hold that the amendment is not ratified by a constitutional majority. The opinion, therefore, of this court is that it requires a majority of the electors of the State to ratify an amendment to the Constitution; but that the whole number of votes cast at the election at which the amendment is submitted may be taken as the number of electors in the State.
The writer of this opinion, speaking for himself only, holds that it requires the votes of a majority of the electors of the State to ratify a constitutional amendment. He thinks that this is not only the plain meaning of the words used in section 1 of article 10 of the Constitution, but that it was also the manifest intention of the framers of the Constitution, as ascertained by the proceedings of the convention. He also holds that the number of electors of a State is a public fact, which the courts must ascertain, without averment or proof, whenever it is necessary to the decision of a cause. For this purpose a court may look to the archives of the State, to the official returns of general State elections, to the legislative action, and the proclamation of the executive. He does not mean that a court must know the exact number of electors of the State to a unit. This is impossible, for the number, on account of death and coming of age, is not the same during any twenty-four hours, and what is impossible to do is not required to be done. The practical meaning of the phrase "all the electors of the State," is 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. This number need not necessarily include electors who are sick, absent from the State, or prevented from going to the polls. The construction must be such as has a sensible application to the affairs of men, rather than one of abstract number or theory. The history of a State, the number of inhabitants, and its official statistics, are public facts, known to all persons, and never need be averred or proved in judicial proceedings.
He also holds that if the whole number of votes cast at a given election should be less than the whole number of the State, thus interpreted, the latter number being the constitutional guide, would govern, the former having only the authority of legislative action, for the number cast might bear a very inconsiderable proportion to the whole number of electors in the State. In the opinion of this court the consequence, spoken of in the argument, of this decision, can at most be but a temporary inconvenience. We perceive no irregularity in the proposal of the amendment for ratification. It has simply not been ratified, and not been rejected. The vote upon it was ineffectual for want of the constitutional majority. We see no reason why the General Assembly may not submit the amendment to the electors of the State, under an amended act, such as experience may prove to be sufficient to present the question to the courts if it ever should arise again.
The court below erred. We sustain the appeal at the costs of the appellee.
Niblack and Scott, JJ., dissent.
INJUNCTION OF PUBLICATIONS INJURIOUS TO TRADE-JURISDICTION.
NEW YORK SUPREME COURT JUNE, 1880.
CROFT et al. v. RICHARDSON ET AL. Defendant, who had letters patent for a carpet exhibitor," issued circulars setting forth that plaintiffs, who also held letters patent for a carpet exhibitor, "or other irresponsible parties," professed to have "a new carpet exhibitor, intending to make considerable profit before legal proceedings put a stop to their nefarious efforts," and that plaintiffs had no right "to make, sell or lease any carpet exhibitors," and threatening legal proceedings against any one "purchasing, leasing or using such exhibitor." It appeared that no suit for infringement of patent had been commenced, and it did not appear that defendant intended to commence any. Held, that a State court had jurisdiction to enjoin defendant from issuing the circulars, and that there was sufficient shown to authorize an injunction.
MOTION for injunction made at Chambers to re
strain defendants from publishing and distributing two certain circulars. Sufficient facts appear in the opinion.
A. Bell Malcomson, Jr., for plaintiffs.
POTTER, J. This is a motion for an injunction to restrain the defendants from publishing and distributing two certain circulars set forth in the complaint.
It appears from the complaint and the motion papers that Peterson, one of the plaintiffs and associated in business with plaintiff Croft, procured in 1879 letters patent for a carpet exhibitor, and that defendant Richardson procured letters patent for a carpet exhibitor in 1875, and that the other defendants are his agents or licensees in connection with his patent.
The defendants are charged with publishing and distributing circulars containing libellous matter in respect to the plaintiff's character and business in manu