An opinion was filed in this case February 3,1897, and reported in 50 Neb., 521. There has been filed a petition and a motion for a rehearing, and thereon it is thought advisable that the views of this court be expressed as to-other cases in which reversals were entered following the result of this case.
In Austin v. Tecumseh Nat. Bank, 49 Neb., 412, a petition in all essential particulars like that in this case had been held insufficient to sustain a judgment. On the oral argument of the cases it was argued that the same result must be reached as that which had been arrived at in the case above cited. In view of the unsatisfactory nature of such an adjudication, counsel for the defendant in error requested that all the cases might be considered upon the evidence rather than with reference to the petitions, at the same time stating that if the evidence was' not sufficient they wished that fact determined; for, on *802another trial, it would be impossible to make more satisfactory proofs than had been already made in the district court. There was no question made that the evidence was identical with that in each of the cases submitted by the same counsel as appeared in this case, and the entry of judgment in this case was, in this court, as we understood it, to be entered in all the cases just referred to. We might have determined this particular case upon the sufficiency of the evidence to sustain the averments of the petition in the district court, and, in its companion cases, might have reached the conclusion we did on the ground that the averments of the petition were insufficient to state a cause of action. We do not deem it necessary, however1, to grant rehearings when it is clear we must again announce affirmances of judgments because of insufficient averments rather than of insufficient proofs — the essential defect being the same, under the ruling in Austin v. Tecumseh Nat. Bank.
From the former opinion Norval, J., dissented, and it is now urged that there was adopted at the general election of 1896 a constitutional amendment which increased the number of judges of this court to five and that, therefore, the concurrence of Post, C. J., and Harrison, J., could not operate to reverse the judgment of the distinct court. In support of the contention that the amendment increasing the number of judges has in fact been adopted, a showing has been made that, at the time of the election above referred to, there were votes deposited for and against the said amendment in boxes used for receiving only those votes all over the state; that these votes were canvassed separately, and that the whole number of votes so cast was 122,475, of which 84,579 were in favor of the said amendment and 37,896 against. Without attempting to verify the correctness of the statements as to the number of the votes cast for and against this amendment, we shall accept the above figures as correct. It was shown, however, that the total number of votes cast for governor at the late election was 217,768, and we shall accept this *803as the highest number of votes cast at said general election for any candidate.
Section 1, article 15, of the constitution of this state contains the following language: “Either branch of the legislature may propose amendments to this constitution, and, if the same be agreed to by three-fourths of the members elected to each house, such proposed amendments shall be entered on the journal with the yeas and nays, and published once each week in at least one newspaper in each county where a newspaper is published for three months immediately preceding the next election for 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.” The claim of the defendants in error that there are now five judges of this court rests on the propositions that the voting on the constitutional amendment, conducted as it was, was in effect an election distinct from the election of senators and representatives, and that, therefore, the majority need be only of the number of votes cast with respect to such amendment. Some reliance seems also to be placed upon the facts that the candidates receiving the highest number of votes for said offices have duly qualified and have received from the governor certificates of their election. We shall.now consider these propositions in the order above stated.
It is urged that the language “such election” in the phrase, “If a majority of the electors voting at such election adopt such amendment” refers to the vote for the approval or rejection of the proposed amendment, and that therefore the total number of votes cast at the election for senators and representatives is immaterial. If this construction is correct, the votes for and against the amendment, not being cast at a general election, must be held to have been cast at a special election, and that the only relation between these two elections was that they were held at the same time under the direction and *804supervision of the same officers. If this is true, the election with reference to the constitutional amendment is abortive, for it was not, in that event, a general election, and the constitutional requirement is that the election must be of that class, restricted to those particular general elections at which senators and representatives are chosen. The case of State v. Babcock, 17 Neb., 188, is relied upon as establishing a rule different from that just announced. The syllabus in that case is now in this language: “The votes necessary to adopt an amendment to the constitution, under the provisions of section 1, article 15, of the same, must be a majority of all those cast in the state at that election for senators and representatives.” By a reference to the original opinion filed in the above case it is found that the syllabus as originally prepared by Judge Maxwell was written as follows: “The vote necessary to adopt an amendment to the constitution under the provision of section 1, article 15, of the same, must be a majority of all those cast in the state for senators and representatives.” This quite explicitly declared that the majority must be of the votes cast for senators and representatives. Apparently to avoid this construction Judge Maxwell, by interlineation, just after the word “state,” wrote the words “at that election,” so that the requirement of a majoiity should be of •all the votes cast, consistently with the language of the constitution, at the election for senators and representatives instead of a majority of the votes cast for senators and representatives as otherwise might have been understood. The words “senators and representatives” are used in this part of the constitution merely to indicate the particular general election at which a constitutional amendment may be voted upon — the majority of the votes must be a majority of all those cast at such general election. That the above conclusion with reference to the case of the State v. Babcock, supra, is correct is borne out by the fact that the following language of Judge Maxwell in respect to the adoption of constitutional *805amendments was made use of in the second paragraph of the syllabus of In re Senate File 31, 25 Neb., 864: “The proposed amendment possesses no efficacy until approved by a majority of the electors of the state voting at the election, and the approval of the governor is unnecessary and adds nothing to the validity of such proposed amendments.”
The contention that the issuance of the certificate of election to a candidate for a provisional office, evidences the creation of such office, is met by the holding in the case just cited. In the case which involved the consideration of a question quite like that now under discussion there has recently been filed an opinion by Harrison, J., in which all the adjudications of this court on this subject have been reviewed with the same conclusion above reached. (Bryan v. City of Lincoln, 50 Neb., 620.) It is unnecessary at this time to do more than refer to this case, for the analogies, upon a perusal thereof, will be so apparent that comment and comparison could subserve no useful purpose of elucidation.
It has been urged that in State v. Roper, 47 Neb., 417, this court has recognized the rule that a majority of all the votes cast with reference to a given proposition was sufficient to effect its adoption, and that the majority of all votes cast at such election was not required. This contention has no merit, for in the case referred to the election considered was a special election, at which the only question voted on was whether the county seat of Red Willow county should be McCook or Indianola. There was, therefore, no standard of measurement possible other than the number of the votes cast on this single proposition. Prom a consideration of all the cases decided by this court which have a bearing upon this subject our conclusion is that to secure the adoption of an amendment to our constitution it is necessary that the favorable votes be in excess of one-half , of the highest aggregate number of votes cast at said election, whether such highest number be for the selection of an officer or *806upon the adoption of a proposition. The motion for a rehearing is therefore overruled.
Rehearing- denied.