dissenting.
Being unable to concur in the opinion of the majority of the court, and having no disposition to criticise it, I will content myself with a brief statement of my views of the question submitted, with the preliminary statement that it is the duty of the court, and of each member of it, to expound the constitution as they understand it, without regard to questions of convenience, the responsibility for which rests with the people of the state in their political capacity.
The sole question presented for our consideration is, whether, under -the provision of the constitution providing *197for its own amendment, it is sufficient that the proposed amendment receive a majority of the votes cast for and against it, or is it necessary that it receive a majority of the votes for and against that proposition, or the several candidates for that office, voted upon at the same time, upon which the greatest number of electors exercised the rights of voting. The section of the constitution directly governing the question under consideration is as follows: “Article XV., section 1. Either branch of the legislature may propose amendments to the constitntion, and if the same be agreed to by three-fifths of the members elected to each house, such proposed amendments shall be entered on the journals, with the yeas and nays, and published at least once each week in at least one newspaper in each county where a newspaper is published for three months immediately preceding the next election of senators and representatives, at which election the same shall be submitted to the electors for approval or rejection, and if a majority of the electors voting at such election adopt such amendments, the same shall become a part of this constitution.” * * *
Now, in what sense is the word election, when last used in this section, to be understood? Is it to be confined to that general sense in which we speak of a certain day, between certain hours, the polling places, the inspectors and ■clerks, the poll books, ballot boxes, ballots, etc., as the election, or does it not mean that choosing between the adoption or the rejection of the proposition submitted, which is the object and purpose of the submission?
The word election is defined by Webster as follows:
1. The act of choosing; choice; the act of selecting ■one or more from others.
2. The act of choosing a person to fill an office or employment, by any manifestation of preference, as by ballot, uplifted hands, or viva voce; as the election of a president ■or a mayor.
If this authority be accepted, then the words “ at such *198election ” must be construed to mean the same as though it read “ at such act of choosing, to-wit, at the act of adopting or rejecting the proposed amendment.” And, looking at the language of the constitution, I think that any other construction is strained and artificial.
In an adjudicated case, Commonwealth v. Kirk, 4 B. Monroe, 1, the supreme court of Kentucky has construed the word election as used in the statute of that state, and given it a meaning consistent with the above. The case arose upon an indictment against one Kirk for betting with another person a certain sum of money that one Dobyns, who was a candidate for representative, would hot receive six hundred and fifty votes for said office. The statute under which the indictment was found provided “ That if any person shall wager or bet any sum of money or other thing upon the election of the officers aforesaid (among whom are members of the general assembly), within six months next before said election, he shall forfeit and pay the sum of one hundred dollars, to be recovered by indictment.” The court, in construing the said act, used the following language. “ An election is the voting and the taking of the votes of the citizens,” etc.
Let us read that part of the section of our constitution applicable to the question under consideration, substituting for the word “ election,” where it last occurs therein, the words of the court in the above case: “And if a majority of the electors voting at such voting, and the takiug of the votes of the citizens, adopt such amendments, the same shall become a part of this constitution.” Read in this way the mind is confined to the expression of the voters upon the question submitted to them for adoption or rejection, without reference to the other proceedings, which in my judgment are only named for the purpose of designating the time as the proper one for the submission of such question for that purpose.
Section 1 of article 3 of the constitution of Wisconsin *199provides that white male persons over the age of twenty-one years, who have resided in that state one year next preceding any election, and who are citizens of the United States, or have declared their intentions to become citizens, and also certain persons of Indian blood, shall be deemed qualified electors at such election. Then follows a proviso in the following words: “ Provided, That the legislature may at any timé extend by law the rights 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 election.”
An act was passed by the legislature of that state, pursuant to the above proviso, and submitted to the people at a general election, at which there were 5,265 votes cast for said law and 4,075 against it, while there were at least thirty thousand votes east for and against the state officers elected at the said election.
The case of Gillespie v. Palmer, 20 Wis. R., 572, arose under the above law; the plaintiff, a mulatto, having offered to vote at a subsequent election, and his vote having been rejected by the defendant and others, inspectors of the election.
The sole question was, whether the law had been approved by a sufficient majority. The united court were of the opinion that it had been, and I think the reasons for the opinion given by Judge Downer and Chief Justice Dixon are quite satisfactory; and, while it is not my purpose to further comment on that case, I will observe 'that the language of the proviso construed by them is scarcely distinguishable from that of the section of our constitution now under consideration. The above case was followed and expressly approved in the same court in the case of Stanford v. Prentice, 28 Id., 358.
The case of the State v. Swift, 69 Ind. R., 505, relied on by the attorney general, counsel for respondent, is a *200strong case for that side, and still it cannot be admitted that the language of the section of the constitution of that state, construed by the court in that case, is the same as that of our own now under consideration. There, after providing for the proposed amendments being agreed to by a majority of the members elected to each house and referred to the general assembly next to be chosen, the section continues, “ 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 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.”
It is noticeable- that neither the word election or voter occurs throughout the section as applicable to the adoption of the amendments. The word election is not exactly the equivalent of the word voter. As said by Ch. J. Dixon in Stanford v. Prentice, supra: “The primary and proper signification of the words ‘ legal voter’ is, persons qualified by law to vote, and who do vote. There is a difference between an elector or person legally qualified to vote and a voter. In common parlance they may be used indiscriminately, but strictly speaking théy are not the same. The voter is the elector who votes—the elector in the exercise of his franchise or privilege of voting—and not he who does not vote.”
Again, it will be noticed that the decision in the Indiana case is predicated mainly upon the intention of the convention which framed the constitution, as shown by the debates and amendments to the section adopted and rejected, and not upon the language itself. The former source of interpretation is denied us, as no record of the debates of our convention was preserved.
I do not think that any purpose would be subserved by *201a discussion of the cases cited by counsel where in the several states of Ohio, Illinois, Missouri, Kansas, Minnesota, and our own state the supreme courts have construed their several statutes providing for submitting to the people of questions for the removal of county seats, the adoption of the township system of government, making donations to works of internal improvement, and similar matters. In none of them is the language construed the same as that of the section of our constitution now being considered, and while I do not claim that the majority of them sustain the position of the relator, I by no means concede that they are against him.
• I am of the opinion that the so-called legislative amendment was adopted by a sufficient majority and has become a part of the constitution, and that the relator is entitled to the writ of mandamus.