Gambar halaman


submit such amendment or amendments to the electors a convention, defines the number allowed to each of the State, and if a majority of said electors shall county, and fixes the time of holding the election on ratify the same, such amendment or amendments shall

the second Monday of May, 1816. The fourth section become a part of this Constitution.” An act of the

is in the following words: General Assembly, proposing certain amendments and submitting them to the people, at an election when cer

"Sec. 4. And be it further enacted, that the memtain officers were to be chosen, provided that “any

bers of the convention thus duly elected be and they qualified elector at the time he votes for officers or at are hereby authorized to meet at the seat of governsuch election, if he does not vote for any officers, may ment of the said Territory on the second Monday of vote for or against any amendment,” and “that if a Juue next, which convention when met shall first demajority of the electors shall then ratify any of said termine, by a majority of the whole number elected, amendments, the same shall be a part of the Constitu- whether it be or be not expedient at that time to form tion.” There was no means provided by the act by

a Constitution and State government for the people which the whole number of votes cast at the election could be ascertained. Held, that the Constitution re

within the said Territory; and if it be determined to quires at least a majority of all the votes cast at the

be expedient, the convention shall be aud hereby is same election to ratify a constitutional amendment;

authorized to form a Constitution and State governthat the act in question was defective in not providing ment, or if it be deemed more expedient the said confor a count of the aggregate number of votes cast vention shall provide by ordinance for electing reprethroughout the State on the day of election ; that there sentatives to form a Constitution or form a government, was no source from which the court could ascertain

which said representatives shall be chosen in such whether the amendment received a majority of the

manner and in such proportion and shall meet at such votes cast at the election; that it must be presumed that other votes were cast at the election than those for

time and place as shall be prescribed by the said ordior against the amendment, and that the Constitution nance, and shall there form for the people of said Termust remain as it was before the amendment, until it ritory a Constitution and State government; provided, shall affirmatively appear that the amendment was rati. that the same when formed shall be republican and fied. And as it does not thus affirmatively appear, the not repugnant to the articles of the ordinance of the court hold that the amendment was not ratified by a

thirteenth of July, one thousand seven hundred and constitutional majority. The court hold that the Con

eighty-seven, which are declared to be irrevocable bestitution requires a majority of the electors of the State to ratify an amendment to it, but that the whole num

tween the original States and the people of the Terriber of votes cast at the election at which the amend

tory north-west of the River Ohio; excepting so much ment is submitted may be taken as the number of of the said articles as relates to boundaries of the electors in the State.

States therein to be found.” R. S. 1813, p. 33. Under

this act the members of the convention were elected PPEAL from a decision sustaining as valid certain

on the second Monday of May, 1816, met in convention amendments to the Constitution of Indiana sub

at Corydon on the second Monday of June, 1816, and mitted to the vote of the people of that State by an

proceeded at once to form the Constitution by the act of the Legislature, passed March 18, 1879. The

authority of Congress, without an ordiuance of the opinion discloses sufficient facts.

Territory. The Constitution was completed on the 29th BIDDLE, J. The State presents two questions for day of June, 1816, unanimously adopted by the memour consideration: 1. Was the proposed amendment, bers of the convention and signed by all except one according to the facts stated in the reply to the special member from Clarke county and one from Warrick answer, ratified by a majority of the electors of the county. The Constitution went into effect upon its State, and did it thereby become a part of the Consti- adoption by the members of the convention which tution, and if such proposed amendment was so rati. formed it, aud the first session of the General Assemfied, was James V. Kelso a legal voter of the precinct bly held by its authority met at Corydon on the first named in the indictment at the time he presented his Monday in November, 1816. The Constitution of 1816 ballot to the appellee and offered to vote?

remained in force without further amendment until A doubt is suggested in limine by the counsel for the first day of November, 1851. appellant, as to whether the general question of this An act was passed January 15, 1849, to provide “for ratification of the constitutional amendments is prop- taking the sense of the qualified voters of the State erly presented by the record. They insist that proof on the calling of a convention to alter, amend or revise or admitted facts in the individual case as to the whole the Constitution of this State.” At an election held amount of votes cast at the election of April 5, 1880, under the authority of this act “a large majority of all and the number cast for and against the amendments, the votes given at said election was in favor of holding does not present the general question, but that our said convention.” The Legislature was unwilling eren decision therefore would bind only the parties to this to call the convention without first obtaining the au. suit, and would not become matter of public law upon thority from a majority of all the voters of the State. the ratification of the amendments. But we do not On the 18th day of January, 1850, the Legislature feel embarrassed by this question. The courts take passed “An act to provide for the call of a convention notice of the public census taken by authority of law, of the people of the State of Indiana to revise, amend in the archives of the State, and of the number of or alter the Constitution of said State." Acts 1851, 29. votes cast at a general State election upon all questions By authority of this act delegates were elected who of public affairs that affect the State. From those assembled in convention at the capital, in the city of sources we must know all the facts necessary to the Indianapolis, on the first Monday in October, 1850, and decision of the question whether the amendment is completed the labor of forming the present Constitution coustitutionally ratified or not. In our opinion the on the 10th day of February, 1857. By the thirteenth questions discussed by the counsel of the respective clause of the schedule to this Constitution it was proparties are properly in the record and before us.

vided that when it was submitted to the electors for By the first section of the act of Congress of April their approval or disapproval, the article in relation to 19, 1816, the inhabitants of the Territory of Indiana negroes and mulattoes should be submitted as a diswere authorized to form for themselves a Constitution tinct proposition, “and if a majority of the votes cast and State governinent, which State when formed be in favor of said article then the same shall form a should be admitted into the Union upon the same part of this Constitution; otherwise it shall be void footing with the original States.

and form no part thereof.' The second section defines the boundaries of States. On the 14th day of February, 1851, an act was passed

Section third provides the qualification of electors | amending the act of January, 1850, providing that a and authorizes them to choose representatives to form vote of the people should be taken on the first Monday


in August thereafter on the adoption or rejection of any officer shall, at the same time, vote on such the Constitution, and said separate article, the fourth amendments. Acts 1879, p. 25. section of which amendatory act provides that: “If it The above statement shows that by the act of Conshall appear that a majority of all the votes polled at gress it required “a majority of the whole number such election were giveu in favor of the adoption of elected” of the members of the convention to decide said Constitution, it shall then become the Constitu- upon the expediency of adopting the Constitution of tion of the State of Indiana from the first day of No- 1816; and that by the act of the Indiana Legislature it vember, 1851; but if it shall appear that a majority of required “a majority of the votes polled at such elecall the votes polled for or against the adoption of said tion ” to adopt the Constitution of 1851. It also apConstitution and said separate article were given pears that it required “a majority of all the votes against the adoption of said Constitution, then the cast” to ratify article 13 of the Constitution of 1851, same shall be and remain inoperative and void.” Acts which was submitted to the electors as a separate 1857, 3.

proposition; and that it required “a majority of the Section 1, article 16, of the Constitution, by the au- members elected to each of the two houses of the thority of which the amendment in question was pro- General Assembly at two successive regular sessions to posed by the General Assembly for ratification by the propose an amendment or amendments to the Consti. electors of the State, is in the following words: Any tution, and when so proposed “it shall be the duty of amendment or amendments to this Constitution may tho General Assembly to submit such amendment or be proposed in either branch of the General Assembly, amendments to tho electors of the State, and if a and if the same shall be agreed to by a majority of the majority of said electors ratify the same such amendmembers elected to each of the two houses, such pro- ment or amendments shall become a part of this Conposed amendment or amendments shall, with the yeas stitution." And by section 25 of article 4 of this and nays thereon, be entered on their journals, and re- Constitution, it requires "a majority of all the memferred to the General Assembly to be chosen at the bers elected to each house” to pass a bill or resolunext general election; and if, in the General Assembly tiou. 80 next chosen such amendment or amendments We can find no authority, either in the Constitution sball be agreed to by a majority of all the members of 1816, or in the Constitution of 1851, or in the legiselected to each house, then it shall be the duty of the lative acts upon the subject, by which a Constitution General Assembly to submit such amendment or or any of its separate articles, or any amendment amendments to the electors of the State; and if a thereto, could be adopted or ratified by a plurality of majority of said electors shall ratify the same, such the votes of the electors, or by one less number than a amendment or amendments shall become a part of this majority of the whole number cast at that election, Constitution."

If there were any doubts of the construction, upon its The first amendment proposed and ratified under face, of the section under which the amendment bethis article of the Constitution was section 7 of article fore us was proposed, they would disappear upon the 10, in reference to the Wabash and Erie canal. By the examination of the debates in the convention which act of the General Assembly of January 28, 1872 (Act formed the Constitution. The proposition was first 1873, p. 83), the governor and secretary of State were introduced substantially in the words in which it ultirequired to examine the electiov returns and declare mately passed. After receiving somo discussion and the result of the election; "and if it shall appear from several amendments it was referred to the committee said examination that a majority of all the votes “On Future Amendments to the Constitution." This cast at said election were in favor of the adoption of committee reported as follows: “That whenever twosaid proposed amendments, then and thereupon the thirds of all the members elected to each branch of said amendments shall be and become a part and par- the General Assembly shall think it necessary to call a cel of the Constitution of the State of Indiana, and convention to alter or ameud this Constitution they the governor of this State shall, as soon as practicable, shall recommend to the electors at the next election of issue bis proclamation embodying the said amendment members of the General Assembly to vote for or therein, and declaring and proclaiming the same has against a convention, and if it shall appear that a been duly ratified by the people, and is therefore a majority of all the electors of the State voting for reppart of the Constitution of the State.”

resentatives have voted for a convention, the General In pursuance of this act the governor and secretary Assembly shall at their next session call a convention of State declared the returns of the election, and the for the purpose of revising, altering or amending this governor issued his proclamation declaring that the Constitution." A second section was then offered proposed amendment had received the requisite con- authorizing two-thirds of the members of the two stitutional majority in its favor, necessary to its rati

houses of the General Assembly to propose amendfication, and had become a part of the Constitution of

ments to the Constitution, and when thus proposed to the State, as section 7 of article 10 thereof, which sec- submit them “to the people at the next general election is now printed by authority in the Constitution. tion for their adoption or rejection in such manner as The matter, therefore, having been decided and pro- may be prescribed by law; and if a majority of all the claimed according to law by the executive department, electors voting at said election for members of the a co-ordinate branch of the government, has now House of Representatives shall vote for such amendbecome res adjudicata.

ment or amendments, the same shall become part of By the first section of the act of March 10, 1879, it is the Constitution." declared that each of said proposed amendments shall Mr. Owen, of Posey, prepared a substitute in almost be submitted to the electors of the State at the elec- the exact words in which it now stands in the Contion to be holden on the first Monday of April, 1880, stitution. This substitute was fully discussed by leadfor their adoption or rejection. Section third provides ing members of the convention, and accepted by a that: “ Any qualified elector at the time he votes for large majority. It was then put upon its passage, carofficers, or at such election, if he does not vote for any ried and referred to the committee on revision. This officer, may vote for or against any amendment, by committee changed the phraseology of the section depositing one of said ballots in the ballot-box.” The slightly by substituting the words “General Assemsame section also provides that, if a majority of the bly" for the word “Senate” and “House of Repreelectors shall then ratify any of said amendments, sentatives," and the word “electors” in one instance the same shall be a part of the Constitution; but no instead of the words “qualified voters;" and it was elector shall vote more than once, and if he votes for then adopted as it now stands, as a part of the Constitution of 1851. 2 Coust. Debates, 1,258, 1,860, 1,918, ganization of said new county, it shall be the duty of 1,938, 1,910.

the General Assembly to organize the same." In the This examination of the Constitutional Debates shows Constitution, and throughout the legislation of the the aflirmative sense of the convention to have been State, we believe without exception, whenever a majorthat amendments to the Constitution could be adopted ity of all the votes is required to carry a measure it is only by the majority of electors of the State. The so stated in substantial words; and when a plurality proceedings also show us a contrary proposition of votes is sufficient to elect an officer it is declared was ultimately rejected. The section, as first intro- that whoever shall receive the highest number of votes duced by Read, of Clark, required “a majority of the shall be elected, or that the electors shall elect the qualified voters to adopt an amendment to the Consti- officer, without stating that it sball require a majority tution." Steveuson moved to amend the section by of the electors to make a choice. The people of a State inserting the words, “a majority of all the votes cast may form an original constitution or abrogate an old for and against the same." This amendment was one and form a new one at any time, without any accepted, and in that form the section was referred to political restriction except the Constitution of the the committee and reported to the convention, as we United States; but if they undertake to add an amend. have seen, without the Stevenson amendment. Mr. ment, by the authority of legislation, to a constitution Owen's amendment, still without the Stevenson amend already in existence, they can do it only by the method ment, as we have also seen, was substituted for the pointed out by the Constitution to which the amendsection reported by the committee, and became a part ment is to be added. The power to amend a constituof the Constitution. 2 Const. Debates, 1,258-1,260. tiou by legislative action does not confer the power to

We may thus ascertain the expressed intention of legislate on any other subject contrary to its prohithe framer of the Constitution. Affirmatively, that it bitions. Collins & Frierson, 24 Ala. 100. should require a majority of all the electors of the With these constitutional provisions and legislative State to adopt an amendment to the Constitution; enactments before us, forming a line of precedents runand also their expressed intention. Negatively, that ning from and since the foundation of the State, to hold “a majority of all the votes cast for or against the that a plurality, or majority of a part instead of all the same," unless such majority was a majority of all the electors could ratify an amendment to the Constitution electors, should not be sufficient to ratify an amend- - a far more important act than the proposal of the ment. The act of the Legislature by which the amendment, or the passage of a bill which is repealable amendment under cousideration was submitted to would be a departure from the line of safe reasoning the electors of the State for their ratification or rejec- and logical sequence, and contrary to the Coustitution tion, in this respect followed the Constitution and and laws. aflirms the same principle. The title of the act is: The principle of plurality, contended for by the " An act providing for the submission to the electors counsel for the appellee, frequently develops sufiof the State of Indiana for ratification, tho constitu- ciently glaring disproportions between the number of tional amendments proposed,” etc., and it declared electors of a constituency and the number of votes cast that "if a majority of the electors should thus ratify sufficient to elect; but when applied to the ratification any of said amendments, the same shall be a part of of a constitutional amendment, and pushed to an exthe Constitution."

treme, it runs into absurdity. The election of an A distinction will be observed in the Constitution as officer affects the right of no one except the person well as in the acts of the Legislature, between voting elected. To him it grants a privilege to be exercised to adopt the Constitution, or to ratify an amendment for the public good, the exercise of which is a public to the Constitution, and voting to elect officers. The necessity. It does not affect the right of even the perConstitution requires a majority of all the votes to son defeated, but only denies him a privilege which ratify an amendment, but to elect an oflicer it requires cannot be granted except by an election. In such case only the highest number of votes, or a plurality. Sec- the Constitution requires only the highest number of tions 4 and 5 of article 5 of the Constitution, providing votes to elect, though it may only be a plurality of a for the election of governor and lieutenant-governor, very inconsiderable number of the electors in propordeclare that in voting for governor the electors shall tion to the whole number. But the ratification of a designate for whom they vote as governor and for constitutional amendment affects the rights of millions whom as lieutenant-governor, *

* * and the per

of people who are not electors and cannot vote, and son respectively having the highest number of votes for for an indefinite time, until the amendment shall be governor shall be elected. This difference in language abrogated by the same power that made it. In such between the highest number of votes and the majority case the Constitution requires the majority of all the of all the votes is not a mere accident of composition; electors to ratify the amendment. The principle of the words are used advisedly. So the Legislature, plurality, which might ratify a constitutional amend. doubtless, can provide by law for the ratification of a ment, irrepealable by legislative action, binding the constitutional amendment by a plurality of votes rights of two millions of people for an indefinite period, where there is no constitutional prohibition.

by the vote of two electors against a vote of one when Section 3 of article 7 of the Constitution, providing the whole number of votes cast was but three, is not for the election of supreme judges, declares that “one only unconstitutional, but is dangerous to human of said judges shall be elected from each district, and rights and repugnant to the sense of mankind. As the reside therein; but said judge shall be elected by the adoption of a Constitution is the considerate act of an electors of the State at large." In this provision in entire people, and as it binds all departments of tho reference to the election of an officer, the word “major- government and cannot be repealed except by the ity” of the electors is not used as it is in tho section in same power that made it, its adoption should not be reference to the ratification of an amendment to the left to the vicissitudes of a meager plurality of votes Constitution. We must suppose that the framers of which the accidents of a day might cast one way or the Constitution meant just what, in plain words, another. they said; and that she people who ratified their labors We have seen that there is no analogy between electunderstood them in the same sense.

ing an officer and ratifying a constitutional amendIn the fifteenth clause of the schedule of the Consti- ment; nor is there any analogy between the cases cited tution, authorizing a new county to be created out of on behalf of the appellee, wherein taxes are assessed and the territory contiguous to the counties of Perry and granted by the vote of the majority of the electors and Spencer, it is provided that, “if a majority of all the the ratification of constitutional amendment. In votes given at said election shall be in favor of the or- such cases the taxes assessed and the franchises granted

affect the rights of but few persons relative to the have been presented for judicial decision; indeed, we whole number of the people, and are temporary in have been able to find only the single case above cited their nature, while the ratification of a constitutional presenting (a similar point to that before us. There amendment permanently affects the entire body politic, are many cases upon questions of levying taxes, grantand the comparison of the votes of the members of a ing privileges, establishing county seats, and electing prirate corporation which can affect only the officers, wherein the question of majorities and pluralcorporation and its property, with the vote of ities are discussed; but very few upon the ratification the electors of a State upon an amendment to the Con- of constitutions or constitutional amendments. We stitution which affects the rights of all the people of must therefore mainly rely upon the precedents and the State, does not come to us with any force of an practices found in the history of our own State. State argument, nor throw any light that we can see upon v. Winkleman, 35 Mo. 103; Bayard v. Klinge, 16 Minn. the question before us.

49; Taylor v. Taylor, 10 id. 107; People v. Mayfield, 20 The appellant's counsel rely upon the case of Gillispy id. 160; People v. Wayant, 58 III. 263. v. Palmer, 20 Wis. 514. In that case the plaintiff was a The appellee's counsel refer us to the legislative and person of African descent. He brought his action executive construction given to the act of January 28, against the inspectors of the election for refusing to 1873, under which section 7 of article 10 of the Constiallow him to have his name registered as an elector, tution was submitted to the electors of the State, in arerring that in pursuance of the Constitution and aid of our construction of section 1 of article 16. The laws, the question whether the rights of suffrage should construction of a legislative act by the co-ordinate be extended to persons of African descent had been branches of the government is entitled to great respect submitted to the electors of the State, and that a ma- from this court; but the act of March 10, 1879, under jority of the votes cast upon that question was in favor which the present amendment was submitted to the of such extension, but admitting that such majority electors, is so different from the act of January 28, was not a majority of all the votes cast at such elec- 1873, that we can derive but little aid therefrom. In tion.

the former act there was but the single question of the A demurrer for want of facts was sustained to the ratification or rejection of the amendment submitted complaint. On appeal to the Supreme Court the to the electors; the governor and secretary of State judgment was reversed. This case presents a question were authorized to declare the result of the election, similar to the one which we are considering, and if the and if it appeared “a majority of all the votes cast at Constitution of the two States were the same upon

said election was in favor of the adoption of said prothis point, the decision would be entitled to great re- posed amendment," then the governor was to prospect as an authority in the present case.

claim that “the same was duly ratified by the people." Section 1 of the Constitution of Wisconsin defines The governor did so proclaim, and no one questioned who shall be electors, but does not include persons of his decision. The question is thus far settled. At the African descent. But there is a provision “that the time of submitting the present amendment to the vote Legislature may at any time extend by law the right of of the electors of the State, under the latter act, other suffrage to persons not herein enumerated; but no questions are also submitted, and the governor, by the such law shall be in force until the same shall have act, had no power to declare whether the amendinent been submitted to a vote of the people at a general had been adopted or rejected. Nor does the latter act election and approved by a majority of all the votes provide any means by which the whole number of cast at such an election.

votes cast at that election can be ascertained. Section 1 of article 12 of the Constitution of Wis- The argument of the appellee's counsel, that if a maconsin, providing for amendments, is expressed in jority of all the electors of the State was necessary to almost the same words as section 1 of article 16 of the the ratification of the amendment, it was unnecessary Constitutiou of Indiana, under which amendments to provide by the act of March 18, 1879, for a vote before us were proposed, differing in nothing essential against the ratification; and that as the law provides except that under the Constitution of Wisconsin for a negative vote, it indicates the iutention of the amendments may be ratified by a majority of the Legislature that a plurality of affirmative votes over electors voting thereon, instead of a majority of the the negative votes should be sufficient to ratify the electors of the State.

amendments, is answered by section 2 of article 26 of It is plain that the two provisions in the Constitu- the Constitution, which requires “if two or more tion of Wisconsin upon the question of extending the amendments shall be submitted at the same time, they right of suffrage by a legislative enactment and by an shall be submitted in such a manner that the electors amendment to the Constitution are in apparent con- shall vote for or against each of such amendments flict. It was thereupon the duty of the Supreme Court separately." Nor do we now decide if the act provided to harmonize the two sections and give uniformity to that a plurality vote in favor of the amendment should the Constitution by construction. The court very be sufficient to ratify it, that it would have been valid properly said: “The right of suffrage by such an against section 1, article 10, of the Constitution, which amendment could be given to colored persons. It is proclaims that if a majority of the electors of the State probable that the framing of the Constitution required shall ratify the amendment it shall become a part of more votes to extend the right of suffrage in one way the Constitution. than in another. More votes to approve the act of the The counsel for appellee have reminded us of the legislation conferring the right when so approved than momentous nature of the question we are considering, to make and approve any and all amendments to the and suggested the disastrous consequences which, as it Constitution, including that conferring suffrage upon appears to them, must follow to the social, municipal colored persons? We see no reason for such a conclu- and political interests of the State if our decision sion."

should be adverse to their client. We are not imThis is a sound judicial rendering and it con- pressed with the force of this argument to a court. ducted the court to the only judgment it could Courts know nothing of policy or expediency. It is render without impairing a constitutional provision. their duty to understand the Constitution and the But as the two Constitutions are fundamentally differ-laws, and uphold them by their decisions. Nor do we ent as to the proportion of votes necessary to ratify an see any danger of disaster in the discharge of a plain amendment, the decision cannot be held as an author- duty. History and experience prove that disasters folity in the present case.

low a disregard of Constitution and laws, and that As the adoption of an amendment to a constitution peace, liberty and prosperity are secured by obedience is of rare occurrence, but few cases upon the question to them. As the Constitution is the foundation of government, and the bulwark which protects the gov- substantial number who vote at general State elections, erned in all human interests, and as its ratification is and the number of whose votes is officially returned the most solemn political act of a people in making by sworn officers into the office of the secretary of changes therein of amendments thereto, which are State. This number need not necessarily include irrepealable by legislative action, the letter and spirit electors who are sick, absent from the State, or preof the Constitution and the laws must be complied vented from going to the polls. The construction with, or the amendment so proposed cannot be re- must be such as has a sensible application to the affairs garded as a part of the original instrument.

of men, rather than one of abstract number or theory. The great advantage, as is supposed, that will arise The history of a State, the number of inhabitants, and to the people from the ratification of the amendment its official statistics, are public facts, known to all peris also urged upon us as an argument. Of advantages sons, and never need be averred or proved in judicial or disadvantages it is not our province to judge. The proceedings. question for us to decide is: Has the amendment been He also holds that if the whole number of votes cast ratified or not? The people of the State of Indiana do at a given election should be less than the whole numnot desire advantages obtained at the expense of the ber of the State, thus interpreted, the latter number Constitution; and no considerable advantage could being the constitutional guide, would govern, the compensate them for a breach of the fundamental law former having only the authority of legislative action, of the State. They would pay dearly, indeed, for the for the number cast might bear a very inconsiderable advantage of an immediate decision of this court that proportion to the whole number of electors in the the ameudment was ratified if it had to be made in State. In the opinion of this court the consequence, violation of the Constitution and the law.

spoken of in the argument, of this decision, can at most This court holds that it requires at least a majority be but a temporary inconvenience. We perceive no of all the votes cast at the same election to ratify a irregularity in the proposal of the amendment for raticonstitutional amendment. We also hold that as the fication. It has simply not been ratified, and not been act of March 10, 1879, is defective in not providiug for rejected. The vote upon it was ineffectual for want the count of the aggregate number of votes cast of the constitutional majority. We see no reason why throughout the State on the day of the election, or in the General Assembly may not submit the amendment not providing some means to find out the whole num- to the electors of the State, under an amended act, ber of votes cast, by which it might be learned what such as experience may prove to be sufficient to preproportion the number cast in favor of the raiification sent the question to the courts if it ever should arise bore to the whole number, there is no source from again. which this court can ascertain whether the amend- The court below erred. We sustain the appeal at the ment received a majority of all the votes cast at the costs of the appellee. election or not. As the amendment was submitted Niblack and Scott, JJ., dissent. upon the day of the general spring elections throughout the State, and as there were, by law, officers to

INJUNCTION OF PUBLICATIONS INJURIOUS elect at the same time in the various counties, it must

TO TRADE- JURISDICTION. be presumed that other votes than those for or against the ameudment were cast at the same time. From the peculiar ballots used in voting upon the amendment,

NEW YORK SUPREME COURT JUNE, 1880. many electors may have voted “no or “yes” upon the question of the amendment, which votes would

CROFT et al. v. RICHARDSON ET AL. not be counted ; such, also, would be counted in esti- Defendant, who had letters patent for a “carpet exhibitor," mating the whole number of electors voting. It is also issued circulars setting forth that plaintiffs, who also held that the Constitution must remain as it was before held letters patent for a carpet exhibitor, “or other irthe amendment was submitted, until it shall affirma

responsible parties," professed to have "a new carpet tively appear that the amendment is ratified. As it

exhibitor, intending to make considerable profit before does not thus atfirmatively appear, we must hold that

legal proceedings put a stop to their nefarious efforts,"

and that plaintiffs had no right "to make, sell or lease the amendment is not ratified by a constitutional

any carpet exhibitors," and threatening legal proceedmajority. The opinion, therefore, of this court is that

ings against any one * purchasing, leasing or using such it requires a majority of the electors of the State to exhibitor.” It appeared that no suit for infringement ratify an amendment to the Constitution; but that the of patent had been commenced, and it did not appear whole number of votes cast at the election at which that defendant intended to commence any. Held, that the amendment is submitted may be taken as the num

a State court had jurisdiction to enjoin defendant from ber of electors in the State.

issuing the circulars, and that there was sufficient

shown to authorize an injunction. 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 amend

strain defendants from publishing and distributing ment. He thinks that this is not only the plain mean- two certain circulars. Sufficient facts appear in the ing of the words used in section 1 of article 10 of the

opinion. Constitution, but that it was also the manifest intention of the framers of the Constitution, as ascertained

A. Bell Malcomson, Jr., for plaintiffs. by the proceedings of the convention. He also holds

George Gifford, for defendants. that the number of electors of a State is a public fact, POTTER, J. This is a motion for an injunction to which the courts must ascertain, without averment or restrain the defendants from publishing and distributproof, whenever it is necessary to the decision of a ing two certain circulars set forth in the complaint.

For this purpose a court may look to the It appears from the complaint and the motion papers archives of the State, to the official returns of general that Peterson, one of the plaintiffs and associated in State elections, to the legislative action, and the pro- business with plaintiff Croft, procured in 1879 letters clamation of the executive. He does not mean that a patent for a carpet exhibitor, and that defendant court must know the exact number of electors of the Richardson procured letters patent for a carpet exhibState to a unit. This is impossible, for the number, on itor in 1875, and that the other defendauts are his account of death and coming of age, is not the same agents or licensees in connection with his patent. during any twenty-four hours, and what is impossible The defendants are charged with publishing and disto do is not required to be done. The practical mean- tributing circulars coutaining libellous matter in reing of the phrase “all the electors of the State,” is that spect to the plaintiff's character and business in mana


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