Dissenting Opinion.
Niblack, J.— I regret the necessity which constrains me to dissent from the conclusions at which the court has arrived in this case. I make no question upon the merely historical facts recited by the court, nor do I dissent from many of the abstract propositions announced in its opinion. My disagreement has reference only to matters directly connected with the real question before us, and not to things merely introductory of, or collateral to, that qu estion.
I agree, without reservation, that an amendment to the constitution must be submitted to the electors of the State, and that a majority of such electors must ratify such an amendment, before it can become a paid of the constitution. Put how that majority is to be ascertained, is the important question now presented for our-decision.
McCrary, in his American Law of Elections, at section 183, says: “Where a statute requires a question to be decided, or an officer to be chosen, by the votes of ‘ a majority of the voters of a county,’ this does not require that a majority of all persons in the county entitled to vote shall actually vote affirmatively, but only.that the result shall be decided by the majority of the votes cast, provided always that there is a fair electjon, and an equal opportunity for all to participate. In such a case the only proper test of the number of persons entitled to vote is the result of the election as determined by the ballot-box ; and the court will not go outside of that to inquire whether there were other persons entitled to vote who did not do so. The voters of the county referred to by all such statutes are necessarily the voters who vote at the election, *529since the result iu each case must be determined by a count of the ballots cast, and not by an inquiry as to the number not cast. This doctrine is well settled by the authorities.”
In Cooley’s Constitutional Limitations, p. 619, it is said: “ Unless the law under which the election is'held expressly requires more, a plurality of the votes cast will be sufficient to elect, notwithstanding these may constitute but a small portion of those who are entitled to vote, and notwithstanding the voters generally may have failed to take notice of the law requiring the election to be held.”
Dillon, in his work on Municipal Corporations, at section 215, says: “ The common law principle, that if an act is to be done by an indefinite body it is valid, if passed by a majority of those present at a legal meeting, no matter how small a portion they may constitute of the whole number entitled to be present, has been deemed applicable to the towns of New England. In those towns the corporate power resides, as we have seen, in the inhabitants, or citizens at large, and these form the constituent body. If the meeting has been duly called and warned, those who assemble, though less than a majority of the whole, have the power to act for and bind the whole, unless it is otherwise provided by law. Those who remain away are justly and conclusively presumed to assent to what may lawfully be done by those who attend.”
Cushing, iu his treatise on Parliamentary Law, devotes considerable space to the law of elections, a subject with which legislative bodies have often much to do, and concerning which, in many cases, they are the exclusive judges. In paragraphs 117,120 and 131, he lays down certain rules, as follows:
“117. The term majority, that is, the greater number, is understood in this country in two significations. „In its-broadest sense, it denotes the greatest of any number of *530unequal divisions of the whole body; in its strictest, the greater of any two unequal divisions of the whole body. In the popular elections of this country, both these principles are practically applied; the first being known as the principle of plurality; the other only as that of majority.
“ 120. In order to determine the result of an election, on the principle of an absolute majority, it is necessary in the first place, to ascertain the whole number of persons who have voted; which, if the suffrages are taken orally, is effected by counting the names on the poll-book ; or if the voting is by ballot, by counting the number of ballots;
“ 131. In connection with this subject, it may be observed, that where there are but two sides to a question,— as for example, where a proposition is made in a deliberative assembly, and the members vote for or against it,— or where a particular person is nominated for office, and the electors vote for or against him, -.-or where an election of one out of two given persons is to be made, — in all these cases, the majority and plurality are one and the same thing.”
The constitution of Missouri, which went into effect July 4th, 1865, contained a provision as follows :
“ The General Assembly shall not authorize any county, city, or town to become a stockholder in, or to loan its credit to any company, association or' corporation, unless two-thirds of the qualified voters of such county, city, or town, at a regular or special election to be held therein, shall assent thereto.” See. 14, art. 11.
Under an act of the Missouri Legislature, approved March 23d, 1868, known as the “ Township Aid Act,” Camp Branch township, of- Cass county, in that State, voted by a two-thirds vote of all the votes cast, to issue its bonds to the St. Louis and Santa Fe Railroad Company, and bonds were issued accordingly. Suit was after*531ward brought against Cass County, as the trustee of the township, to recover interest overdue on one of the bonds. The county answered, that, although more than two-thirds voted at the election, two-thirds of the qualified voters of the township did not vote, in favor of issuing the bonds.
The Supreme Court of the United States, in ultimately passing upon the question thus raised, after .reviewing and citing a great many authorities relating to the general subject, announced its conclusion as follows :
“ This we understand to be the established rule as to the effect of elections, in the absence of any statutory regulation to the contrary. All qualified voters who absent themselves from an election duly 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 to be adopted, unless the legislative will to that effect is clearly expressed.” County of Cass v. Johnston, 5 Otto, 360; St. Joseph Township v. Rogers, 16 Wal. 644; Angell & Ames Corp., sections 499, 500 ; Louisville, etc., R. R. Co. v. County Court, 1 Sneed, 637, 692; Talbot v. Dent, 9 B. Mon. 526 ; The State, ex rel., v. Renick, 37 Mo. 270; The People v. Warfield, 20 Ill. 160.
Other authorities to the same effect' might be cited, but I deem it unnecessary to extend the list already given.
The rule laid down as above, by the Supreme Court of the United States, the highest court in this country, appears to be a general rule applicable alike to all classes of popular elections, and to be overwhelmingly sustained by the weight of authority.
I think it may be safely stated, as a rule of law in American elections, that, where a majority vote is necessary to carry an election, a majority of all the votes cast is sufficient, unless there be some statutory or constitutional provision to the contrary.
*532But it is objected that the construction given as above to statutes governing certain elections has no proper application to constitutional provisions, and especially to cases like the one before ns. I am unable to see the force of that objection. It is doubtless fair to assume, that greater care and deliberation are observed in the use of words when framing a constitution, than are ordinarily used in the enactment of a statute, but when, in relation to the same general subject, the same or equivalent words are used, both in a constitution and in'a statute, there is nothing, either in reason or in the authorities, requiring a different construction to be given to such words when found in the constitution, from that which ought to be given to them when used in the statute.
In construing constitutions, as well as statutes, the general maxim is “ that the words used are to be interpreted, and explained, conformable to the general usage.” Smith Constitutional Construction, 629, sec. 481.
“There is a striking analogy, and generally an entire harmony, between the rules of interpretation of constitutions and those of statutes.” Potter’s Dwarris on Statutes & Constitutions, 654. Sedgwick on Statutory & Constitutional Law, 2d ed., p. 404.
Construed in the light of the authorities referred to as above, and conformably to the general usage prevailing in the construction of phrases relating to popular elections," I am of the opinion that sections 1 and 2 of article 16 of the constitution may, for the purposes of this ease, be epitomized and paraphrased so as to read substantially as follows :
When a proposed amendment to the constitution shall have been agreed to by two consecutive General Assemblies, it shall be submitted to the electors of the State, and if a majority of such electors, voting at the election, shall ratify the same, s-uch proposed amendment shall become a part *533of the constitution ; and if two or more amendments shall be submitted at the same time, they shall be submitted in such a manner that the electors shall vote for or against each of such amendments separately.
If I am right in this construction of these sections, — a construction almost uniformly given to similar provisions in statutes, — then the distinction insisted upon by the court, between a plurality merely and a majority of the electors of the State, has no practical importance in its application to the case at bar.
If section 1 had provided that a proposed amendment might have been agreed to by a majority merely of the General Assembly upon each separate vote upon it, no well informed parliamentarian would contend that a majority of a quorum, where only a mere quorum was found voting, might not agree to such amendment. It is a well settled rule of parliamentary law, that a majority of a quorum, when a bare quorum is present, wields the power of the whole body, and is sufficient to pass a bill or to do any other legislative act. But it is provided that a majority of all the members elected to both houses, and to both General Assemblies, shall agree to a proposed constitutional amendment, before it shall be submitted to a popular vote, thus requiring a greater majority in its favor than would have been otherwise necessary. If, therefore, it was the intention of the framers of the constitution to place greater restrictions upon the electors of the State than are imposed in ordinary elections, as insisted upon by the court, why did they not say, in equally plain words to the effect, that- “ if a majority of said electors, entitled to vote at the election, shall ratify the same,” such amendment should become a part of the constitution ? The necessity of being explicit in one case was as great as in the other; and, if it was the intention to place additional and unusual restrictions both upon the General Assembly and upon the *534people, why not use suitable and express words to that end in both cases?
Then, again, nothing is said or provided as to any negative vote when the General Assembly is required to vote in agreeing to a proposed amendment. It was obviously unnecessary that any thing should have been so said or provided, as a majority of all must assent, before the amendment is agreed to. "Why then provide for the easting and counting of a negative vote, when the electors vote, if a majority of all entitled to vote are required to assent affirmatively, before the amendment is lawfully ratified ?
These omissions and differences constitute circumstances which to my mind palpably tend to sustain the construction I am insisting upon in this case.
If the amendment under discussion had been submitted to the electors of the State at, and as a part of, a general election, and if the returns of that general election had shown affirmatively that a majority of those voting at such election had not voted to ratify such amendment, then quite a different question would have been presented for our consideration. There is good authority for holding that in such an event the amendment would not have been ratified. The People v. Garner, 47 Ill. 246 ; The People v. Wiant, 48 Ill. 263.
But no such elemeut enters into this case. The amendment in question was submitted at what was, as to it, a special election. True, it was submitted on the first Monday in April, the day of our township elections, and the machinery, so to speak, of those elections, was used in obtaining a vote upon it. But a separate ballot was required and used in voting both for and against it, and separate and distinct returns were required and made as to the vote upon it to the Secretary of State.
Township elections are local and not general in their *535character, and returns from them are only made to the clerks of the respective counties, and are not made a part of the archives of’the State, as the returns of the general elections are. We are therefore unable to take judicial notice of the aggregate number of votes cast at those' township elections on the day the amendments were voted upon. That is a, subject about which we judicially know nothing-, and concerning which we can presume nothing, adverse to the amendment under consideration. In my judgment, all the presumptions are to bo taken in favor of the legality of every election1 ‘held under the forms of law, and none ágaiust any such election. Every thing alleged against an election so held must be affirmatively shown. This is the essential point of difference betwreen me and. my brethren who speak for the court. McCrary’s Law of Elections, sec. 87.
Granting that- we are required, in proper cases, to take judicial notice of each census of the State, and of the number of persons voting at each of our general elections, we are still unable to estimate from these, with even proximate certainty, the number of persons in the State entitled to vote on the first Monday of1 last April. It is an admitted fact, that the number of the voters of the State changes day by day, and is never the same for any perceptible length of time. It is, also, a matter of common observation that an entirely full vote is never polled, the number not voting at every election being always a variable and uncertain quantity.
The “ electoi-s of the State” are, in every sense, an indefinite body, within the meaning of Dillon on Municipal Corporations, supra, as contradistinguished from legislative bodies, corporations, associations and committees composed of a definite number of persons, and where the presence of a quorum is necessai-y to transact business.
The result of an election is a matter of exact calculation *536and not of proximate estimates. One vote superadded in a proper case will turn the scale and constitute a majority. Hence, if we set up our judicial knowledge as to the number of electors in the State in opposition to the count taken from the ballot-box, that judicial knowledge ought to be mathematically accurate as to the number of such electors. Any judicial information less accurate than that, used to overthrow an election, might lead to chaotic confusion and to the most dangerous usurpations. We can never properly be required to act upon judicial information which, from its <ery nature, is indefinite and uncertain.
The proposition that a court may, upon its own information, go outside of the certified result of an election at which all had a chance to vote, and at which all voted who felt interest enough to vote, and enter upon a merely conjectural inquiry as to how many pei’sons there may have been who might have voted, but “ did not,” with a view to testing the validity of such an election, impresses me as a most novel and extraordinary proposition indeed.
Such a proceeding is evidently not contemplated by any express provision of our constitution, and is utterly at variance with all of our long-established theorie as to the power and conclusiveness of the ballot.
I can not agree that the act of March 10th, 187. submitting the amendments to the electors of the State, was defective in not providing for a count of the aggregate number of votes cast at all the elections throughout the State on the same day the amendments were voted upon. No such provision is required by the constitution. No snch provision is contained in the precedent legislation of this State; and no such provision is found in any of the analogous statutes of other States, to which my attention has been directed. I find nothing anywhere to sustain the court in holding that such a provision was necessary to the validity of the act in questiou.
*537In respect to such a provision, the act of March 10th, 1879, stands on the same footing with the act of January 28th, 1873, submitting the "Wabash and Erie Canal amendment. The latter act required no other count of the votes cash than was furnished by the returns of the numbers voting for and against the amendment. The aggregate of the votes cast on that amendment was accepted as the whole number of the electors of the State for that occasion, and the majority of the votes so cast was held sufficient to ratify the amendment thus submitted.
The conclusions reached as to the ratification of that amendment have been acquiesced in for more than seven years. The court admit that that amendment can not now be disturbed. In that I fully concur, but for a different reason than that assigned by the court, and that is, because a majority of votes, at a fair election, were cast in favor of it. The legislation and subsequent proceedings on that amendment furnish what seems to me to be a practical and substantial precedent for the legislation and other proceedings which have been had on the amendment before us.
If the first named amendment was legally ratified, I am wholly unable to see any good reason for saying that the latter has not also been.
The difference between the Governor’s proclamations in the two cases strikes me as quite immaterial. It is the vote of the electors which ratifies an amendment, and not the proclamation of the Governor. The constitution does not require any action of the Governor, in the ratification of an amendment. The proclamations of the Governor were issued in both eases in obedience to a statute and not to the constitution, and only afforded evidence in each case as to what the electors had done. The Governor’s proclamation, however strongly worded, can give no validity to an amendment which has not been *538legally, ratified by the electors of the State. It is from the electors alone that the vitalizing power must come. All else is merely superadded for convenience in ascertaining what their action has been.
The act of March 10th, 1879, afforded every elector of the State an opportunity of voting separately for or against each one of the proposed amendments. The returns show that upon the particular amendment in controversy, there was an aggregate of 321,734 votes cast. Of that number there was a majority of 17,232 votes in favor of its ratification. Beyond these returns we have no right to go in estimating the number of the electors of the State, with reference to that vote. Beyond these returns it was not obligatory upon the Legislature to require us to go.
Eor the reasons given, I am irresistibly led to the conclusion that the amendment before us has been lawfully ratified by the electors of the State.