AFTERNOON SESSION.
ADDITIONAL CLERKS.
Mr. HEFRON, from the Committee of Free Conference on the bil [S. 158] authorizing appointment of Clerks for the Committee on Revision of Laws, reported a unanimous agreement on a recommendation that the House recede from its amendment to the Senate bill, and that a substitute be adopted authorizing the Board of Revisions to appoint two Clerks, who, when not employed by the Board, shall assist in the engrossment of bills, under direction of the Chief Clerks of either Branch.
Mr. VIEHE indicated it as the general opinion that the codification of laws will be embraced in one book, no larger than the second volume the statutes.
Mr. SPANN saw no reason for the two additional Clerks proposed in this amendment; the understanding with many members being that this bill was originally introduced to obtain pay for for the Clerk long ago employed by the Committee on Revision.
Mr. COMSTOCK thought the Board could get along without these Clerks, though the work would be delayed. The Revision Committee say they are needed, and he hoped the Conference Committee report would be concurred in.
Mr. LANGDON understood that the present clerical force finishes the work of the Board as fast as needed. As the work is unchanged since the introduction of the bill, there was no necessity for this increase of clerks. If the occasion arises for one or a dozen additional clerks they would be undoubtedly authorized.
Mr. HENRY saw in the bill no directory power to the Board of Commission to employ the two clerks unless they are needed. His understanding was that two additional clerks have serving since about the time this bill was introduced, and that accounts for the work being kept up.
The report was concurred in.
NEW PROPOSITIONS.
The following described bills were introduced, page: 125[View Page 125] read the first time and referred to appropriate Committees:
By Mr. MENZIES, for Committee on Revision of laws, [S. 239]: Concerning the Superintendent. [May appoint five legal Commissioners to aid the Court, with same pay].
Mr. VIEHE, for Committee on Revision [S. 240]: Concerning Grand and Petit Jury. [Circuit Court to appoint two Jury Commissioners, of opposite political parties, to draw jurymen.
CONSTITUTIONAL CONVENTION.
Mr. GRUBBS called up the special order, being the consideration of Mr. Brown's bill [S. 3] to provide for calling a Constitutional Convention, and the report of a Senate Committee on the bill [H. R. 16] to provide for re submission of certain Constitutional Amendments, recommending the substitution therefor of the bill [S. 60] to provide for re-submission of the same amendments.
Mr. BROWN was conscious he could not be able to say what he desired in support of his measure for a Convention to change the organic law of the State. This is a matter of highest importance and gravest concern, and ought to receive the most careful consideration of every member. Did he believe such a body could set aside the present and Constitution, and present one divorced from the great principles of self-government contained in the present, he should not favor a bill providing for a Constitutional Convention.
There is no provision in the Constitution of 1816 on the subject of a future ratification of amendments or change of the Constitution, and it seems to me the wisdom of the early men of Indiana manifested itself in a high degree when they decreed that the popular will should be heard every twelfth year as to whether they would have a change or not.
Article 8, Section 1, of the Constitution of 1816 reads: "Every twelfth year after this Constitution shall have taken effect, at the general election held for Governor there shall be a poll opened, in which tie qualified electors of the state shall express, by vote, whether they are in favor of calling a Convention or not; and if there should be a majority of all the votes given at such election in favor of a Convention, the Governor shall inform the next General Assembly thereof, whose duty it shall be to provide by law for the election of the members to the Convention, number thereof, and the time and place of their meeting; which law shall not be passed, unless agreed to by a majority of all the Members elected to bother branches of the General Assembly; and which Convention, when met, shall have it in their power to revise, amend, or change the Constitution."
Thirty years have passed since our present Constitution was made, and the voice of the people of the State of Indiana has not been heard upon the subject as to whether they desire the present Constitution to remain longer. Has the time not come when the electors of the State should be heard upon the subject whether the present Constitution meets the present demands of the State or not?
If the people did not vote for a Convention, still it had to meet the favor of the Legislature for the Constitution said: "And if there should be a majority of all votes given at such election in favor of a Convention, the Governor shall inform the next General Assembly there of, whose duty it shall be to provide by law for the election of the members to the Convention, the number thereof, and the time and place of their meeting, which shall not be passed unless agreed to by a majority of all the members elected to both branches of the General Assembly." The Constitution of 1816 provided for its amendment only by a Convention. The Legislature had nothing to do with amending it. The Legislature simply provided for the calling of a Convention and the jurisdiction of the Conventiou was to "revise, amend, or change the Constitution." The Constitution proposed to limit the power and jurisdiction of the Convention. The Constitution said: "And which Convention, when met, shall have it in their to revise, amend, or change the Constitution."
I call the attention of Senators to this important question for the purpose of showing that notwithstanding the Constitution of 1816 made no provision for a new Constitution, but simply provided for its own ratification or amendment , notwithstanding that, the Convention called for the purposes of revision and amendment only made an entirely new Constitution in 1851, and it was ratified by the people. While an attempt to amend a Constitution is controlled by an existing Constitution, the right to make a Constitution is above the Constitution, and can be exercised by the people at any time and in any case.
The General Assembly of 1849, the pursuant to a provision of the Constitution of 1816, provided by law for the holding of an election to take the sense of the people as to whether they desired any change of their Constitution. The question propounded to the electors at the election was: "Are you in favor of a Convention to amend the Constitution?' The election was affirmative; therefore the people said they were in favor of having a Convention, and the Legislature, in obedience to the mandate of the people, called a Convention; and thus the Convention of 1851 was called for the purpose of amending the Constitution of 1816, and sat under the authority of the Constitution of 1816, which gave it power only to "revise, amend or change the Constitution" of 1816. The Convention made a new Constitution, notwithstanding the inhibition contained in the Constitution of 1816. Instead of being bound by mere revisory power, it overthrew the old Constitution entirely and made a new one in itself. Our present Constitution contains no provision for calling a Convention to make a new Constitution. It nowhere contemplates that a new Constitution shall ever be made. It only provides for its amendment.
I have said what I have in reference to the history of making and remaking the organic laws of the State to show that when the people desire to make new Constitutions they make them without any existing clause in reference thereto in the Constitution. The Legislature has full power to make the call, as if whole people had met in Convention for that purpose. Our present Constitution, like that of 1816, makes no provision for its substitution or for a new Constitution. The reason why no such provision was made is that in every Government, State or Nation, whether republican or monarchial, the people have the right to overthrow existing Government and establish a new one whenever they desire. "The powers of the Government are divided into three separate departments-the legislative, the executive, including the administrative and judicial; and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided. Thus it is that each co-ordinate branch of the Government is complete, and unlimited jurisdiction attaches to the concerns coming within that branch. The Legislature of the State upon the subject of legislation is absolute, unlimited and can not be restrained in any legislative act. To provide by an act for the calling of a Constitutional Convention is as clearly within legislative power, or within the legislative department of action, as any proposition can be. I will take it as conceded that the right is vested in the Legislative Department of the State Government to provide for calling a Constitutional Convention, beyond all controversy.
The present Constitution was adopted nearly thirty ears ago. Our population at that time was less than 1,000,000. It now nearly 2,000,000; and other advancements have been made in the page: 126[View Page 126] same proportion. At that time there was not 100 miles of railroads in the State; to-day we have thousands of miles, and the increase in this interest is on of the greatest demands before us for a new Constitution. It stands admitted that our present Constitution is inadequate for the present condition of public affairs; the great masses of the people, irrespective of party say so, and a majority of the people at the last election, if they made any expression at all, so said. I refer to the vote upon the amendments proposed to the Constitution, that were submitted to a vote of the people. The prosperity and advancement of the State has outlived this organic law. I know there are men in both, parties who oppose a Constitutional Convention. Democrats say it will not do to call a Constitutional Convention, because the Republicans will elect a majority of its members; and Republicans say it will not do to call a Convention because the Democrats will elect a majority of its members. I rise and thank God in my feebleness I am able to rise above such controversies as that. The man in a Constitutional Convention who would swerve his action or conduct in favor of one political party or another is not worthy a seat in such a body, and would disgrace the constituency he represents. [Applause.] If I supposed that a call for a Constitutional Convention would bring together a set of men that would make the body a cesspool of party and party politics, I would stand by the old Constitution until there was a prospect for a more enlightened public sentiment.
It is said the present Constitution will supply all present wants, with the amendments now pending. Let us see. If there are such amendments now pending, I am for their ratification and for no Convention; but if there are amendments pending, and if their ratification will not supply present wants, I am for a Convention. Let us see: This amendment, numbered 1, after fixing certain qualifications for voting, provides that the voter "shall have resided in the Township sixty days, and in the Ward or Precinct thirty days immediately preceding said election." I confess that is a good proposition. I believe the law of Indiana is wrong that requires no period of residence in a Precinct as a preceding condition to the right to vote. I think, as has been said by men of all parties, that it opens a wide door to dishonest persons who seek to cast a vote, not having a right to. I am sorry we have lived under a Constitution so long that has not made it incumbent upon the Legislature to require reasonable residence as a precedent condition to the exercise of the right of the elective franchise. Some period of residence ought to be fixed. But it contains another provision, viz: "If he shall have been duly registered according to law." If this amendment is passed, no person can vote unless duly registered. Amendment No. 3, in speaking of what the Legislature shall do, says: "And shall also provide for the registration of all persons entitled to vote." What kind of a registry law? It ought tobe left to the discretion of the Legislature, but it is not. It is incomplete, and thus it is, if this amendment is adopted, no person can vote unless registered, and it makes it the absolute duty incumbent upon the Legislature to pass a registry law. It does not leave it a matter discretionary with the Legislature, and when member of that body holds up his hand and takes his oath that he will obey the Constitution, if such an amendment were passed, he swears that he will vote for a law registry law. A registry law must be passed, whether it be such an one as pleases the people or not, lest the Constitution will be disobeyed by the Legislature. The Constitution furnishes no advice or instruction as to the scope or character of a registry law. It seems to me this amendment is wrong, not because it prescribes a period of residence, but because it takes away from the people's representatives the choice as to whether it is better that we have a registry law or not. Conditions change, society changes, and while to-day it might be better to have a registry law, a few years hence it might not be; but as the case stands I believe there is no necessity and never will be or a registry law. It is said that a registry law will protect the purity of the ballot-box. I deny it; and the history of elections bear out the ruth of the statement that the greatest frauds and crimes have been perpetrated where a registry law has been in full an complete force. It is a bad instrument in the hands of dishonest men to defeat the will of th people at the ballot-box. The best way is to reduce the number of voters per Precinct. Make the voting Precinct so small that the leaders of the respective parties can ascertain who are and who are not lawful residents of the Precinct. Then the vote can be counted out without requiring the Board to sit up all night when honest men go to sleep and the dishonest ones stay awake to perpetrate wrong.
Amendment Nos. 2 and 4 conform to the Constitution of the United States upon the subject suffrage.
Amendment No. 3 provides that "all general elections shall be held on the first Tuesday after the first Monday in November, but Township elections may be held at such times as may provided by law. Provided that the General Assembly may provide by law for the election of all Judges of Courts of general and appellate jurisdiction by an election to be held for such officers only, at which time no other officers shall be voted for," and shall also provide for the registration of all persons entitled to vote. The defense that is made for that amendment is it will do away with the October elections, and save the people $100,000 every other year by having the October and November elections held the same day. If that amendment will do that, it can properly be argued in its favor, and is a matter worthy of consideration. But that amendment makes provision for holding other elections at other and different times. It divorces elections for the judiciary entirely from the elections for other officers, and therefore it will be left for Legislative expression whether this proposed economy will really be economy or not.
No. 5 grades, fees and salaries according to population and necessary service required. Amendment No. 5 is well enough, I would approve that proposition. Great abuses are growing and have been growing for a long time in the charging of fees by County as well as other officials. A system of construction has grown up in the discharge of official duties that is monstrous, and deserves that the knife of the Legislature should be laid at its throat at once.
No. 6 gives the General Assembly power establish Courts other than the Supreme and Circuit Courts. Well enough.
No. 9 limits political or municipal corporations ever becoming liable to an amount in the aggregate exceeding 2 per centum on the value of taxable property within the corporation, except in cases of war, etc.
These are the only changes proposed by these amendments, and the question is, do they supply all the wants, or do they furnish all the relief the people need from the great and pending necessity of a change in the organic law?
Let me recapitulate:
Nos. 1 and 3 fix a period of residence for voting and provide for a registry law.
No. 3 also provides that general elections shall be held in November, except, etc.
No. 5. General Assembly may establish Courts other than the Supreme and Circuit Courts.
No. 9 limits the taxing power of corporations to 2 per centum upen the property.
These are the only reforms. Are these the only reforms needed? I shall not stop now to discuss whether they are or not. The question I ask the Senate to consider is: Can these amend- page: 127[View Page 127] ments be submitted to the people by this Legislature for their ratification? In other words: Are these amendments pending, or are they not?
The Constitution provides, Article 16, Section 1, page 56. I think the terms of this article and section of the Constitution were complied with respecting these amendments. First, these amendments were proposed by the Legislature of 1877. They were then submitted to the Legislature of 1879. That body was composed entirely of a new House of Representatives, and one-half of the Senate were also new members, and these amendments passed that body, having received a Constitutional majority of each House. They passed two Legislatures, and were voted upon by the people, the General Assembly in obedience to the Constitution having submitted them to the voice of the constitutional voters. Does the Constitution say anything more can be done? The Constitution says when this is done, after these amendments have been ratified by a majority of said electors, such amendment or amendments shall become part and parcel of the Constitution. What is the logical sequence? If they fail of ratification then they fail to become part and parcel of the Constitution. The Constitution makes no provision for their disposition in case of their failure. It is well known that these amendments have been declared to have failed by reason of a decision on of the Supreme Court. I concede it was first supposed by the great body of the people that these amendments had been adopted aud become part and parcel of the Constitution, but a case went up to the Supreme Court, and out of that decision a question has arisen whether this Legislature can re-submit these amendments. The case was this; Swift was indicted because he as an Inspector of Elections refused to receive the vote of one Kelso, because Kelso, according to the provisions of Amendment No. 1 was not entitled to vote. The question was, had that amendment been adopted ? If it had, Swift was innocent. If it had not, he was guilty.
The Supreme Court has decided that these amendments were not adopted. I hear that some persons say that the constitutional amendments voted upon last April can be resubmitted to the people. The Constitution has made no provision by which any human power can vitalize and breathe new breath of life into any constitutional amendments that have been lost. I shall not stop to argue that the Supreme Court has jurisdiction of the question; that is conceded here and everywhere. When you attempt to amend the Constitution you must follow strictly not only the letter but the spirit of the Constitution. The point has been ably stated and completely sustained by the decision of the Supreme Court in this very case. Amendatory processes must be pursued according to the restriction that the Constitution has provided upon that subject. If I am in doubt about this question, I am also in doubt with a very able and distinguished lawyer of the State of Indiana, and a man for whose abilities I have a most profound regard and the greatest respect. On the 20th day of August last, General Harrison, the Senator elect, and elected by the favor of representatives of the real Republican party of Indiana-made a speech at Terre Haute, which was said to open the campaign for his party, and devoted almost exclusively to a history of these amendments and to the subject of amending the Constitution of Indiana, and in that speech General Harrison said, and I think very truly and correctly said:
"The Supreme Court and Mr. Hendricks have both attempted to soothe the disappointment of the people by suggesting that we may do this work over again. Judge Biddle suggests that the amendments might be re-submitted under a law to be enacted by the next Legislature. I do not think so. The amendments have been once submitted to the people, and have been voted upon. If they have not been adopted they have been rejected; and if they have been rejected the movement must be started de novo, and the proposed amendments pass through two successive Legislatures before they can be brought to the vote of the people."
These are the words of a great lawyer, who has stated the proposition with absolute clearness and unerring judgment, and has pointed out the only certain and lawful way of giving these amendments life again.
I have not been able to discuss a this question of the right of the Legislature to resubmit these amendments a I would like to, but I hope Senators will consider well before they make up their judgment in taking the important step of defeating the desires of the people and the demands for a change in the organic law, and take the uncertainty of the chances of resubmitting the amendments.
But suppose the amendments referred to should be adopted, will they supply the wants and necessities of the occasion? I think they will not.
One matter of great embarrassment that would arise is, that officers elected pursuant to elections provided for in the amendments would remain out of office two years after their election.
That may seem not to be a matter of great concern, but it seems to me the sooner a man is put to work after calling him to an official position the better.
There is another thing which seems to me to be a very great and ought to be a controlling reason why a Constitutional Convention should be held instead of attempting to patch up the present Constitution by the process of amendments. When our present Constitution was adopted there was not 100 miles of finished railroads in Indiana. Now the railroad interest is paramount to any business enterprise. The present Constitution places no limitation upon corporations of any kind, character or description. To-day it is left entirely to legislative discretion as to what at shall be the powers and rights and privileges of foreign corporations in order to avail themselves of Indiana prosperity or to entitle them to transact business within the limits of the State. There is no power, except that feeble power lodged in the uncertainty of legislative conduct, that prevents foreign corporations from uniting all the railroad interests of the State in one corporation and operating it by a single head. Such a vast power as that is not only dangerous, but subversive of the public good and the right of foreign corporations to exercise this great power over Indiana's privileges and Indiana's industries, in my judgment, ought not to be left hanging upon the slender thread of legislative pleasure. The people ought to provide by placing it in the Constitution that such unlimited consolidation should have no lodgment in Indiana.
There is nothing that forbids foreign corporations from buying up and holding against resident citizens, all the unoccupied land of the State, except legislative law. For one, I believe that the homesteads of Indiana people ought to be safely secured by a provision in the State Constitution, and not left to the uncertainty of the Legislature, for fear the Representatives of the people may, at some time decide that the State of Indiana shall be made an asylum fox foreign corporations who may come here to eat and sap up the labor of Indiana people. The power has become so great that I am afraid to trust myself much less the rest of you. [Laughter].
There are some other questions that the Legislature of Indiana, sooner or later, will have to meet, and they may just as well be met now as at any other time. We hear it knocking at our doors, and have heard for some years, that there should be a radical change in reference to the management of the liquor business in the State of Indiana.
As Members of the Legislature, we can not and ought not to put off the responsibility of meeting page: 128[View Page 128] hat question any longer. If it were not for the fact that it is a doubtful question whether these amendments are pending or not, there would to-day be upon the files of the Senate a proposition to submit to a vote of the people a proposition by way of amendment to the Constitution to exclude from the limits of the State the right to deal in spirituous liquors as a beverage. In my judgment, the question is of such high importance and of such imperative necessity that the great body holding that view have a right to be heard in a Constitutional Convention as to whether the people of the State of Indiana are with them or are not with them.
And I want to ask my Republican brothers on what ground they stand upon this question? They are in honor bound to stand by and with the temperance people. During the last campaign we were told that Governor Porter was par excellence a temperance man-the embodiment of temperance and morality-and he and his party owe his election to the 30,000 temperance voters of Indiana. A temperance journal published an article, which was published throughout the State, declaring Franklin Landers was a drunkard,and his administration would be anti-temperance. I believed it false then, and I know it is false now, yet the Republican party, patting these people on the back, told them: "Your interest will be safe in the election of Porter and the success of the Republican ticket," and now I want to know whether the Republican party will vote down a proposition made by a Democrat to give these people a tribunal when a hearing is worth something. You may baffle them by telling them these amendments are now pending, but by and by they will find out they are being misled.
There is another question we can not avoid much longer--indeed it is upon us now, and it is a question of more importance, perhaps, than we are inclined to think; and that is the question as to the right to vote. There is now a bill upon the files of the Senate to allow the women of the State to vote for Presidential Electors. You can not evade voting for that bill by saying it is unconstitutional, because it is not. The Legislature of the State is above the Constitution of Indiana upon the subject of the appointment of Presidential Electors. The Constitution of the United States is paramount law upon that subject, and no Constitution of any State can limit or abridge the right and power of any other State Legislature concerning Presidential Electors. That was one of the most troublesome questions that came before the Convention that made the Constitution of the United States. It was proposed that the be elected by the people; that was objected to. It was proposed that they be appointed by the Governors of the several States; that was objected to. It was proposed that they be appointed by te judiciary; that was objected to.
And finally this proposition as agreed upon.
Article 2, Section 1, Constitution of the United States, says: "The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years; and together with the Vice President, chosen for the same term, be elected as follows: Each State shall appoint, in such manner as the Legislature thereof may direct, a number of Electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress"
The Constitution of the United States places no other limit upon the will of the Legislature when it proceeds to discharge the important duty of the appointing Presidential Electors. The State may say that men of fifty years and upward only may vote for Presidential Electors.
The State may say that women only may make appointments, or that minors only may make them. It resides within the Legislature's will and judgment alone how these appointments shall be made. Therefore, when you refuse to vote for the bill now pending to confer upon women in the State, of twenty-one years and upward the right to participate in the appointment of Presidential Electors, you do so because you believe they ought not to, and not because you believe there is anything in the fundamental law that prevents them from doing it.
We have been told by the Republican party that it is the party par excellence of morality- the party of high moral cultivation and a great intellectual accomplishment. [Laughter.] Of course: we all know if there is any class of citizens in the tate of Indiana that more than all others have attained a high state of perfection in refinement, culture, morality, religion and all that goes to make up goodness and greatness, it is the women of the State.
Are the Republicans afraid for them to vote for fear that us rough, untutored, unrefined and uneducated Democrats would capture them? [Laughter.] And now if the ladies of this State are intellectual enough and sufficiently well versed in the history of the country to participate in the making of a President, may they not vote for a Township Trustee or a Constable as well? This is a question the responsibility of deciding by the Legislature can not be postponed much longer. I am in favor of a Convention which shall submit the question distinctly to the voting population of Indiana as to whether or not women shall or shall not be permitted to vote in this State; and I for one, say that I have no objection to their voting. I lived in a Western Territory once where they enjoyed the right of suffrage, and I saw women vote. I saw the good influence it had upon election day. It was worth more than an army of policemen. It was a peaceable, orderly, quiet and well-behaved election; and if you will allow Democratic and Republican ladies vote, if us Democrats don't behave ourselves on election days, their presence will be a source of great pacification to say the least.
I have, in my feeble condition, referred to some of the reasons which induced me to present for the consideration of the General Assembly this bill, proposing to call a Constitutional Convention and thank the Senate for its patience in bearing with me while speaksng at such a great disadvantage.
Mr. GRUBBS contended that a Constitutional Convention is not demanded by the people; it is not demanded by any defects of our present Constitution, not more easily remedied, nor is it demanded by any great evils, which can not be borne until we can remedy them by the process of amendment prescribe by the Constitution itself, which provides a careful and practicable method of making our Constitution conform to the progress of our State. Then a Constitutional Convention is too expensive, following so soon after our hard times, when the people are demanding economy. Constitutional Conventions are dangerous experiments. We live in a radical age, and if a radical organic law should be framed it would be defeated by the people, and we would have all the expense for nothing.
Referring to the bill before the Senate [H. R. 16] for a re-submission of the Constitutional Amendments to the people, he insis ed it is clearly within the power, and it is the duty of this General Assembly to re-submit the amendments for ratification or rejection. He contended that an amendment once submitted and voted for in one form of law can not be again submitted. the power of the Legislature and the people, having been exercised, is exhausted, and the amendment is either ratified or rejected. It ratified, it becomes a part of the organic law; if rejected, it is dead forevermore, and can be neither again submitted or voted for constitutionally.
He also contended that an amendment can not be either ratified or rejected by a submission or a page: 129[View Page 129] vote not in one form of law. Such a submission and such a vote would be a nullity, like the decision of a Court without jurisdiction, the only effect would be to leave the matter just where it was. It would not be a constitutional or legal submission, and the vote of the Electors would be valueless; it would operate neither to ratify nor reject.
Now, what is the status of these amendments? They have been proposed to and agreed to by two successive General Assemblies. An attempted submission to the electors was made, under which the people showed their approbation of them. But the Supreme Court have held, substantially, that they were not ratified. They also held that they were not rejected. They have held that the law under which they were attempted to be submitted provided no means by which the Court was enabled to determine whether or not a majority of the Electors had voted for them; that it gave no basis for a decision on that point. A Court could not, under that law and the election amendment, say whether the amendments had been ratified or rejected. Such a vote, they held, decided nothing--was a nullity, and leaves the amendments unimpaired.
Mr. CHAPMAN said:
I shall vote for the bill now pending, but shall do so with a considerable degree of reluctance. I shall so vote because I am fully impressed with importance of incorporating into the Constitution the features covered by the amendments--if it has not already been done by the legal ratification of such amendments. I believe the substantial welfare of the people of this State will be greatly promoted by the amendments and by such legislation as they authorize. They open the way to greater purity in elections by surrounding the ballot-box with needed safeguards and the enforcement of a great saving to the people in the way of retrenchment in the expense of administering public affairs. It was a public misfortune--a calamity--when the Supreme Court decided or raised a doubt as to whether the amendments had been ratified by the electors of the State. I will, therefore, lay aside my doubts as to the propriety of this measure of re-submission, although they are grave ones and such as I thought for a time I would not lay aside, and will trust that the fears I have entertained as to its becoming a bad precedent will never be realized.
I can not however, Mr. President, in justice to myself, refrain from stating some of the reasons fr such reluctance. I do not do so for the purpose, or in the expectation, of impressing the correctness of my views on the Senate, but as an explanation of the condition of mind in which I find myself. I am, then, Mr. President, reluctant in my support of the measure for re-submission for the following, among other reasons:
- First Item
- Because the amendments were legally submitted to the electors of the State by the General Assembly of 1879, under the act of March 10, 1879, so that ratification or rejection followed as a necessary result.
- Second Item
- Because at the election which took place on the 5th of April, 1880, under said act of the General Assembly, each one of said amendments was ratified by a majority of the electors of the State.
- Third Item
- Because the fact of such ratification has been proclaimed by the political power of the Government--i. e., by the Governor-pursuant to the direction of the General Assembly, and based upon the evidence prescribed by the General Assembly, which proclamation is conclusive proof of such fact binding upon every Department of the Government.
- Fourth Item
- Because the decision of the Supreme Court--with two Judges dissenting--in the case of the State vs. Swift, by Indiana, 505, only assumes to decide that one of the amendments was not ratified; and in making such a decision the Supreme Court usurped jurisdiction, and its judgment is void.
- Fifth Item
- Because the passage of an act for re-submission seems to give legislative indorsement to the judicial usurpation, and to the following decision of a majority of the Bench, and thereby to approve what, if it should become a precedent for judicial rulings, is fraught with great danger to republican institutions.
The first proposition which I maintain, is that the amendments were legally submitted by the General Assembly of 1879, and that their ratification or rejection followed therefrom as a necessary result. That they were legally submitted to the electors, is admitted by the Supreme Court in the case referred to. In the majority opinion it is said, 'We perceive no irregularity in the pro-proposal of the amendments for ratification." There being no irregularity in the proposal or submission, and the amendments having been voted upon under such submission by the electors, they either received enough votes to ratify them or they did not receive enough and were thereby rejected. And this is true, no matter what standard is adopted for the purpose of testing whether the affirmative vote was a legal majority or not. If they were ratified they thereby became a part of the Constitution which the Supreme Court, and the Judges thereof, are bound to uphold and support. If they were not ratified, they were thereby killed beyond the power of resurrection.
The second proposition which I maintain is that each of the amendments was ratified by a legal majority of the electors of the State.
There is no doubt that a proposed amendment to the Constitution must be submitted to the electors of the State, and that a majority of the electors must ratify the same before it becomes part of the Constitution, for the Constitution says so. But who are the electors of the State as regards any such submission, and how shall the majority be ascertained? When any proposition is submitted to the electors of the State, whether it be a proposed amendment to the Constitution or the filling of an office, those persons who, having the qualifications of a voter, choose or elect to vote upon such proposition are the electors of the State as regards such proposition. Those persons who, having the qualifications of a voter, do not choose or elect to vote are not electors so far as regards that proposition.
The only available and proper test as to the electors of the State, or the persons entitled to vote, is the result of an election as shown by the ballot-box; provided always, it is a fair election, with an equal opportunity for all to participate. This is the rule laid down by McCrary in his American Law of Elections, Section 183. The Supreme Court of the United States, in the case of County of Cass vs. Johnston (5 Otto, 360), says: "All qualified voters who absent themselves from an election duty called are presumed to assent to the expressed will of the majority of those voting, unless the law providing for the election otherwise declares. Any other rule would be productive of the greatest inconvenience and ought not be adopted, unless the legislative will to that effect is clearly expressed." There is not such will expressed in the section of the Constitution upon the subject of amendments, and the inconvenience which must always result from such a rule is boldly presented in the matter we now have under review.
The majority of the Supreme Bench, in its search for some other a standard than the number of votes cast, by which determine the question whether a majority ratified the amendment under consideration in the case of the State vs. Swift, seem to have been at a loss to find one to which the three Judges constituting the majority would give unqualified approval. The Judge who wrote the opinion, speaking for himself only, held that it requires a majority of the electors of the State-meaning by such expression all persons qualified to vote--to ratify a proposed amendment. The three held--as the opinion of the Court--that "it required at least a majority of all page: 130[View Page 130] the votes cast at the same election," showing, by this expression used, that they entertained doubt whether the standard should that stated, or something different and larger. Now, I submit, that a standard fact by which other facts are to be gauged or measured, must be exactly ascertainable, and a fact which can not be ascertained with exactness can not be ascertained with exactness can not be made a standard. This will prove that the standard adopted by Judge Biddle for as certaining whether a majority has ratified an amendment or not, is not and can be no standard, for he admits it is impossible to determine how many persons qualified to vote are in the State on any given day. When it is remembered in this connection, that under our system of Government a majority of one is just as potent to adopt a measure requiring a majority as a majority of 1,000 with as complete and full right to be ascertained and recognized, it will be apparent that Judge Biddle's conclusion fallacious.
The statement that it requires a majority of all "the votes cast at the same election," in order to ratify amendment, is true enough, if the term election is restricted to its correct meaning. Much of confusion which has arisen seems to have grown out of taking the word election to mean the election day, or the election occasion. The Supreme Court, in the opinion I have referred to, goes so far in this direction as to designate the election upon the proposition to amend the Constitution and the election for Township officers as "the same election," only because they took place on the same day, at the same places, and the votes were received and recorded by the same officers. This is a clear mistake. Upon each proposition submitted on any election day the voters make an election, or choice, and the election as to each proposition is separate an distinct from each other proposition. Seven proposed amendment to the Constitution were submitted to the voters on the fifth day of April, 1880, and as to each one of those amendments there was an election by the voters as to whether it should be ratified or not. Just as when, at a general election, there are several persons named as candidates for the office of Governor, and several persons as candidates for the office of Lieutenant Governor, and the voters elect which one they severally choose shall be Governor, and which one they severally choose shall be Lieutenant Governor. There is one election for Governor, and another election for Lieutenant Governor. Each standing distinct from the other and in way dependent upon it.
Keeping this distinction in view, the rule which a the majority of the Supreme Bench hesitatingly laid down is correct. When at the election as to whether the proposed amendment No. 1 should become a part of the Constitution, there were cast 164,479 for, and 152,368 against such proposition, it was ratified, because it received a majority of 17,116 of all the votes cast at that election--of all the persons in the State having the qualifications of voters who were electors at that election.
No clearer demonstration Mr. President, could be furnished of the unsoundness of the conclusion reached by the majority of the Supreme Bench than that which the opinion itself presents. That conclusion is grounded upon violent presumptions of fact against the validity of the election, which are the voluntary product of the judicial imagination. They say it must be presumed that "other votes were cast" on the election day "than those for or against the amendment," meaning thereby that voters voted who did not vote for or against that amendment. They had no evidence of this fact, nor evidence from which such fact could be inferred. The same is true of their presumption that some votes were cast both "yes" and "no," and were not, therefore counted. Being forced in limine to admit in effect that the defendant in a criminal suit can not,by his admissions,determine substantially the question of the ratification or rejection of a Constitutional Amendment they say. (Read from page 509, 69 Ind.) But the Supreme Court of the United States in treating of the same question says (7 Howard, p. 9): This illustrates, and I think, the difference between mental processes of a Court solicitous only to reach a right judgement, and one determined to reach a predetermined judgment.
The third and fourth propositions which I have stated are to the effect that the political power of the Government has proclaimed the amendments adopted, which is conclusive proof of such fact binding upon all Courts, and that is therefore the decision of the Supreme Court in the State vs. Swift is void a to the question of a ratification.
The political power of he Government is vested in the legislative and in the executive departments. Of these departments of the legislative is superior to the executive, because it stands nearest to and more closely represents the people from whom all governmental power springs. and who are the creators of Constitution and Government.
The act of 1879, at Section 5, provides as follows, viz: [Reads.]
The proclamation provided for is the declaration of the political power, both the legislative and executive departments. It may be said properly to be the proclamation of the legislative department through the Executive Department. The proclamation provided for in the statute is as emphatically an announcement of the ratification or rejection of an amendment as if it should announce in terms that an amendment was ratified or rejected . Where a proposition submitted to the voters involves only an affirmative and a negative vote, the announcement of the vote makes known with absolute certainty whether it is carried or defeated. To supplement such an announcement with the statement that the proposition has been carried or defeated, would be to state a self-evident fact. I think, therefore, Mr. President, that the political power of the Government has proclaimed the amendments to have been adopted.
If, however any more precise proclamation of the result of the submission is needed, it is for the political power of the State Government to make such proclamation. This General Assembly, Mr. President might, and should, in my opinion instead of re-submitting the amendments,and thereby accepting and approving the fallacious decision of a Court which had no jurisdiction of the question decided, and there accepting a precedent which may be fraught with more evil than any of us may imagine, proclaim by joint resolution or otherwise that the amendments have been adopted. Then this General Assembly should go forward and enact the necessary legislation to make the amendments effective. I am not a prophet, Mr. President, but I would hazard the prediction that if such a course was pursued the work would not be lost, and neither would the fear of some that, in such case, the election of last October would fall to the ground ever be realized. No one can justly say It is too late to make such a proclamation, unless he indorses the decision of the Supreme Court that it requires at least a majority of the persons who may vote on the election day for any and all propositions which may chance to be submitted to the voters on that day, if not, indeed, a majority of all persons in the State on such day who might have voted if they only would in order to ratify an amendment if such doctrine is not sound, then the amendments were ratified, and by that act become a part of the Constitution, and the only office of the proclamation is to serve as conclusive evidence of that fact.
The determination of the question whether a Constitution or an amendment thereto has been ratified by the people rests exclusively with the page: 131[View Page 131] political department of Government. The Supreme Court of the United States, in the case of Luther vs. Borden (7 Howard, 1), says:
[Reads from page 7.]
In the same opinion the Court further says:
[Reads from page 14.]
The the Supreme Court of Indian had no jurisdiction to sit in judgement upon the question whether amendments now under consideration had been ratified or not is further demonstrated by the provisions of the State Constitution and of the act of 1879.
Article 3 of the Constitution provides:
[Reads.]
Section 4 and 8 of Article 7 read as follows:
[Reads.]
These provisions establish that the jurisdiction of the Court is subject to the regulations and restrictions which the General Assembly may prescribe. They also establish that when duties are charged upon the officers in one department the officers of another department can not exercise such functions.
The act of 1879 conferred the power and placed the duty of, determining and deciding all the facts relative to the submission of the amendments upon:
- First Item
- The Clerks of the Circuit Courts.
- Second Item
- The Secretary of State.
- Third Item
- The Governor of the State,
And upon them alone.
Therefore, none of this power or duty could under the State Constitution, be asserted or discharged by the judiciary.
Entertaining these views in regard to the decision, it follows, as a matter of course, that I should feel reluctant in contributing toward giving a legislative indorsement to it.
Another reason why I have been slow in giving my support to the proposition to resubmit the amendments is, that I doubt the power of this General Assembly to do so legally. It seems to me that the terms of Section 1 of Article 16 of the Constitution, make it the duty of the General Assembly last voting in favor of proposed amendments to provide for the resubmission. And that when the effect of any other interpretation than that which makes it the exclusive duty of such General Assembly is considered, such interpretation must prevail. But I do not now propose to discuss this proposition. The majority of the Supreme Bench in the case I have referred to suggest a resubmission as a sort of northwest passed by which the Court might escape from the disagreeable and unfortunate consequences which would necessarily follow the decision they rendered. In view of the fact that the people will be the chief suffers from such consequences, I am disposed to open such a passage, in the hope the Supreme Court will pass through and avert the disaster with which it has threatened the public.
Mr. BELL in consideration of the discussion already had, and the lateness of the hour admonishing that he should not take up the time of the Senate now, he would glad to present his views at some future time. He moved that the further consideration of this matter be postponed till 2 o'clock on Monday, to be resumed at that time as the special order.
The motion was agreed to.
The Senate then adjourned.
