People v. Stevenson

Mr. Justice Cartwright,

also dissenting:

The law has committed to the State board of canvassers the duty and power to determine the result of an election for or against an amendment to the constitution. That board is a branch of the executive department of the government, and its action in determining the number of votes cast is ministerial and not subject to review by the courts, but its decision as to the test fixed by the constitution is judicial in its nature and subject to review by the courts in the exercise of judicial power. Upon such review there is a presumption in favor of its decision which can be overcome and its decision disregarded only when it is clear that the constitution has not been followed. If the question in this case were merely doubtful it would be the duty of the court to uphold the decision of the canvassing board, but that the decision was correct I am not in doubt, whether the intention of those who framed the constitution and the people who adopted it is 'determined from the language employed, the history and policy of the State respecting the subject matter, or the natural and legitimate relation between the adoption of an amendment to the fundamental law and the choice of members of the legislative branch of the government.

The constitutional amendment section reads in. part (art. 14, sec. 2) : “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.” An amendment is to be submitted at the next election of members of the General Assembly, and if a majority of the electors voting at such election shall vote for the amendment it shall become a law and a part of the constitution. When we consider what is meant by “such election” the reference is to the election of members of the General Assembly, as no other officer or officers or subject is mentioned in the section. I see no reason for saying that the purpose was merely to fix a time for submission of the amendment, since if that had been the intention the natural provision would have been that the amendment should be submitted at an election at which members of the General Assembly would be chosen, or similar language merely denoting time or occasion. The election of members of the General Assembly, even though other officers are voted for and other subjects are voted on at the same time, is separate and independent, of which a separate return is made and a' separate and independent result is reached, and no other officer or subject matter is mentioned in the constitutional provision, so that from the language of the constitution, alone, I do not see how a different result could have been reached by the canvassing board.

The history and policy of the State respecting constitutional changes confirms this view. The constitution of 1818 made no provision for submitting to the people separate amendments to the constitution, but if two-thirds of the General Assembly recommended to the electors at the next election of members of the General Assembly to vote for or against a convention, and a majority of all the citizens of the State voting for representatives, constituting one branch of the General Assembly, voted for the convention, it was to be called. The constitution of 1848 provided for the submission of amendments, and the provision for their submission was as follows: “It shall be their duty to submit the same to the people at the next general election for their adoption or rejection, hi such manner as may be prescribed by law; and if a majority 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 requirement was for its submission at the next general election, and members of the General Assembly were not there mentioned, but the requirement for adoption was that a majority of all the electors voting at such election for members of the house of representatives should vote for the amendment. The test was the vote for members of one branch, only, of the General Assembly, but the adoption or rejection was to be determined by votes for a legislative branch of the government. The present constitution, instead of merely providing for submission at the next general election, provides that an amendment shall be submitted at the next election of members of the General Assembly, and the test of adoption or rejection is the vote for members of the legislative body not.limited to a particular house. Having fixed the election at which an amendment is to be submitted as the next election for members of the General Assembly, it certainly would not be expected that there would be a useless repetition by saying that the amendment should be adopted if a majority of the electors voting for members of the General Assembly should vote for the amendment. That would be a strange and useless repetition, and the provision being for the submission at an election of all members of the General Assembly of both houses, the provision concerning members of one house was necessarily omitted. No significance whatever can be attached to the fact of the omission of a former limitation to members of the house of" representatives. The intent of the people who adopted the constitution will control, but such intent is to be found in the language used, and valuable aid is found in the proceedings of the convention which framed the instrument and adopted the language. (Wulff v. Aldrich, 124 Ill. 591; Burke v. Snively, 208 id. 328; Fergus v. Russel, 277 id. 20.) Two reports providing for submission of an amendment at the next general election, not limited to any officials or subject matter and which would have accomplished the result reached by the majority in this case, were rejected without debate, while other provisions of the constitution calling for submission of questions to a general election, to be determined by a majority of the whole vote, were debated, and this shows that the convention deliberately adopted the provision for the submission of an amendment at an election for members of the General Assembly. It is not to be presumed that a policy existing from the organization of the State and having a just and proper relation to the subject matter of amendments to the constitution was changed, and changed without consideration or debate.

During the previous history of the State and in the adoption of the present constitution there was an adequate reason for the test adopted in the relation of the General Assembly to amendments of the fundamental law. Each constitution provided, in the first instance, for the consideration of a proposed amendment by the General Assembly and a submission by the law-making body to the people for adoption or rejection. Any amendment to the constitution must originate with the General Assembly and be voted for by two-thirds of the members of each house, and the relation between the vote upon the amendment and the selection of their successors, who, if it is adopted, will carry it into effect by appropriate legislation, is perfectly natural. That having been the policy of the State from its beginning, a conclusion that it was the intention to reverse that policy in the present constitution is, in my judgment, unwarranted.

Contemporaneous construction, where it is clear and uniform, is an aid to solving doubts in the interpretation of provisions of laws and constitutions, but in order to have any force there must have been a uniform, practical construction by those called upon to act under the law or constitution. There has been no such construction as to the provision of the constitution now under consideration. The only interpretation possible is that the result is to be determined by vote for members of the General Assembly, or the alternative one that it is to be determined by the poll-list which shows the total number voting at the election, and the poll-list has never been adopted. The act of March 14, 1877, providing for the manner of proposing amendments and submitting the same to the electors, provided for abstracts of the votes for officers and abstracts of the votes cast for and against the proposed amendment or amendments to the constitution,, and the abstracts of votes for or against an amendment were to be addressed and mailed to the Secretary of State. There was no provision for any sort of evidence of the number on the poll-list or the total number voting at the election, and the vote to fill a particular office has never equaled the entire vote at the election, the aggregate votes for a particular office in all cases falling short of the total number. All that the State canvassing board would have under that act would be the number voting for and against the amendment, which would not furnish the test adopted by the majority as the true one. No construction of the constitution with reference to the present question was ever called for or made. In canvassing the vote for the amendment of 1878 and declaring the result the vote for clerk of this court was adopted for comparison. That was contrary to the argument that no single subject can be selected but the result must be determined by the poll-list. The same thing is true of subsequent amendments when the highest number of votes cast for some particular office was used for comparison. It is directly contrary to the opinion adopted in this case that the highest vote for some officer at an election is the test made by the constitution. It seems to me entirely unwarranted to say that the people in adopting the constitution considered the test either the poll-list, the vote for President of the United States or any other subject matter except the one specified in the constitution, which was the election of members of the General Assembly.

For these reasons I cannot agree with the majority in this case.