dissenting:
I cannot concur in the reasoning or the conclusion reached in the foregoing opinion. The construction put upon the section of the constitution in question is to me not the natural one and not the one intended to be placed upon it by the members of the constitutional convention and the people who ratified its work. Beyond question the convention could have made the test for the adoption of an amendment that the majority opinion holds was made, but it seems to me the conclusion reached by the opinion on this point is most unreasonable in view of the wording of other sections of the constitution as to determining the results of the election, and especially in view of the wording of the first section of article 14, on amendments, which provides, in terms, that if a convention is to be called to amend a constitution “the question shall be submitted to the electors at the next general election.” The convention clearly had in mind different standards for determining the result of elections, for it provided in section 4 of article 5 of the constitution that the candidate for Governor should be elected by receiving the highest number of votes cast for that office. A similar provision was found in sections 7 and 8 of article 4 as to the members of the legislature, while for the election to decide whether a new State house should be built the test was the majority of the votes cast at such election. Section 18 of article 4 provided, as to creating a public debt, that the question should be submitted to the people, and in order to be passed must receive a majority of the votes “cast for members of the General Assembly at such election.” Obviously, therefore, it is necessary, in order to decide the test to be applied in each case, to consider carefully the wording of the constitution on that question, having in mind, in order to reach a proper construction of the section, “the mischief designed to be remedied and the purpose sought to be accomplished by a particular provision.” (Wulff v. Aldrich, 124 Ill. 591.) It is true, as stated in the majority opinion, that in construing constitutional provisions the true inquiry is, what was the understanding of the meaning of the words by the voters who adopted it? “Still, the practice of consulting the debates of the members of the convention which framed the constitution, as aiding to a correct determination of the intent of the framers of the instrument, has long been indulged in by courts as aiding to a true understanding of the meaning of provisions that are thought to be doubtful.” Burke v. Snively, 208 Ill. 328. See, also, Fergus v. Russel, 277 Ill. 20.
Sections 1 and 2 of article 14 of the constitution of 1870, on amendments to the constitution, read, in part, as follows:
“Sec. 1. Whenever two-thirds of the members of each house of the General Assembly shall, by a vote entered upon the journals thereof, concur that a convention is necessary to revise, alter or amend the constitution, the question shall be submitted to the electors at the next general election. If a majority voting at the election vote for a convention, the General Assembly shall, at the next session, provide for a convention, to consist of double the- number of members of the senate, to be elected in the same manner, at the same places, and in the same districts.
“Sec. 2. Amendments to this constitution may be proposed in either house of the General Assembly, and if the same shall be voted for by two-thirds of all the members elected to each of, the two houses, such proposed amendments, together with the yeas and nays of each house thereon, shall be entered in full on their respective journals; and said amendments shall be submitted to the electors of this State for adoption or rejection, at the next election of members of the General Assembly, in such manner as may be prescribed by law. The proposed amendments shall be published in full at least three months preceding the election, and if a majority of the electors voting at said election shall vote for the proposed amendments, they shall become a part of this constitution.”
It will be seen that the convention, in the first section, used the words “the question shall be submitted to the electors at the next general election. If a majority voting at the election vote for a convention,” etc., whereas in section 2, for the adoption of an amendment, it provided that the amendments “shall be submitted to the electors of this State for adoption or rejection, at the next election of members of the General Assembly, * * * and if a majority of the electors voting at said election shall vote for the proposed amendments.” The conclusion of the opinion is that the last wording in section 2 means the same as the wording in section i. It seems to me an extraordinary conclusion, when the members of the convention used a different wording in the second section from that used in the first section of the same article, that the two wordings should be construed as meaning the same thing. If they intended to mean in the second section, as the opinion holds, that in order to adopt an amendment there must be a majority of the electors voting at said general election, why did they not use the same wording as they did in the first section, where it is plain that they mean the majority voting at the general election ? Reading and construing these two sections together, it seems to me that anyone would naturally construe them to mean different things. The words in the second section, “voting at said election,” manifestly mean those voting at the election for members of the General Assembty, and not those voting at the general election, ' as is specified in the first section of this article.
This construction is greatly strengthened, I think, by the proceedings in the constitutional convention at the time this article was adopted. This whole article was reported by the committee on future amendments to the convention, worded substantially, so far as this question is concerned, as it was finally adopted. There were two minority reports submitted in the convention along with the majority report. The first of these provided, as to the second section, that it “shall be submitted to the people at the next general election thereafter for their adoption or rejection, in such manner as may be prescribed by law, and if a majority of all the electors voting at such election shall vote for,” etc. The second minority report provided that the amendment “shall be submitted to the electors at the next general election for their adoption or rejection, and if a majority voting at such election shall vote,” etc. (2 Const. Debates,'1310.) Both of these minority reports on this point were rejected, and the majority report, worded as section 2 is now worded, was adopted by the convention. While there was no particular discussion in the convention on the different wording on this point in the minority reports; the conclusion seems to be inevitable that the convention intended to give a different meaning to that part of section 2 here under discussion than is given by the opinion in this case or it would have adopted one of the minority reports, because both of these minority reports stated, in plain words that cannot be misunderstood, the test that the majority opinion holds shall be required before an amendment can be adopted. Such construction, in the light of the rejection of these two minority reports, seems to me to be most unreasonable.
That the convention intended that the test should be the majority votes cast for the members of the General Assembly is further supported by the wording of the constitutions of 1818 and 1848, and especially the latter, as to amendments. Section 2 of article 12 of the constitution of 1848 provided that after an amendment was recommended by the legislature, that body should “submit the same to the people at the next general election, for their adoption or rejection, in such manner as may be prescribed by law; and if a'májority of all the electors voting at such election for members of the house of representatives shall vote for such amendment or amendments, the same shall become a part of the constitution.” The second section of article 14 of the present constitution provides that it shall be submitted “at the next election of members of the General Assembly.” The constitution of 1848 provided that it should be taken “at the next general election,” but the vote for the house of representatives should be the test. Under the constitution of 1870 it was taken “at the next election of. members of the General Assembly,” and to this just quoted part the subsequent, words, “said election,” necessarily grammatically refer. Testing the adoption of amendments by the popular vote for the law-making body or one of its branches has been the policy of this State since 1818. In 1870 such had been its policy for fifty-two years. There is nothing in the wording of section 2 of article 14, or in the debates in the constitutional convention with reference to that section, or in the history of the passage of the section in the constitutional convention, that would lead one to think that the convention intended the test to be the majority of votes cast at the general election. On the contrary, as already shown, the fact that the wording of this section is different from the wording of section 1, and the further fact that the attempted substitution by the minority reports of the wording argued for in the majority opinion was rejected in the convention, would tend strongly to show that the construction of the majority opinion is necessarily incorrect.
In the light of the various constitutional provisions as to the tests for the election of officials or the adoption of certain questions, what basis is there for the argument that the convention intended by the wording of section 2 to apply the same test as it intended to apply to an entirely different wording as to the calling of the constitutional convention under section 1 ? Surely, if the convention intended this meaning, in view of all the tests for over fifty years and in view of the wording of the first section and of the rejected minority reports, it would have worded section 2 differently from what it did. To say that it meant by the words “said election” to refer back to the words “the next election of members of the General Assembly,” is not only reasonable from the wording of the section by itself, but is the inevitable construction, it seems to me, that must be fairly put upon the wording of section 2 when it is read in connection with the rest of the constitution, having in mind the history of the passage of this article.
.The members of the General Assembly are always elected at a general election, but why have inserted the words in said section 2, "at the election of members of the General Assembly,” instead of the words “at the next general election,” if the votes cast for the members of .the General Assembly had nothing to do with the test? It seems to me that the construction given by the opinion • absolutely disregards this and requires an intent on the part of the General Assembly that does not anywhere appear in the wording of said section 2. It requires the words “at the next election of members of the General Assembly” to be read as if they meant “at the next general election at which members of the General Assembly are elected,” and the legislature certainly would not have used this last wording when it would mean no more than “at the next general election,” as it would leave without any meaning the words “members of the General Assembly.” This argument applies with equal force to the present wording of said section 2 as to the construction placed upon it in the foregoing opinion.
There is another suggestion that tends to strengthen this conclusion. The debates with reference to the adoption of the various sections of said article 14 show that the convention was not attempting to make the adoption of amendments to the constitution more difficult than it had been under former constitutions. The holding of the majority opinion renders the adoption of an amendment by the people more difficult than under either of the former constitutions. While the general consensus of the debate was that perhaps it had been too difficult to make amendments under former constitutions, it was also agreed that the convention did not want to go to the other extreme and open the door so wide that amendments could be made without proper restrictions. No criticism appears to have been made of the tests under the former constitutions as to the adoption of amendments by a vote of the people, and it is extremely difficult to understand how it can be argued that the convention intended to make the provisions as to the adoption of amendments more strict than they were before, by using the wording in section 2 that was finally adopted, when it had repeated opportunities to adopt a wording that would necessarily require the construction as given to the present wording by the majority opinion.
The State board of canvassers is a co-ordinate branch of the government, and any action by said board should be placed, on the same basis as action by the legislature. Its acts are therefore entitled to the same presumption in their favor as given to statutes passed by the General Assembly, and this court has repeatedly held that courts will overturn the statutes as being unconstitutional only with great reluctance, and only when it is clear, beyond a reasonable doubt, that the provisions of the constitution have not been followed. The majority opinion holds that the construction, placed by that opinion on section 2 of article 14 is the only clear one. To me it seems that the only reasonable and fair construction of said section is directly opposite from that placed upon it by the opinion. When the members of a court of last resort disagree upon any construction that should be placed upon any provision of the constitution, how can it be fairly said that a given construction is the only clear one ?
In my judgment the decision of the circuit court should be reversed and the findings, of the State board of canvassers should be approved.