Dissenting Opinion.
Scott, J.— I am unable to concur in the opinion of the majority of the court in this case. I am of the opinion, that the constitution itself provides the method of submittting proposed amendments to the electors of the State for their ratification. That method is, that the proposed amendment or amendments shall be submitted in such manner that the electors shall vote for or against each of such proposed amendments separately. I am unable to see why the framers of the constitution made provisions for voting for or against the proposed amendments, if they meant and intended that no amendment should become a part of the constitution, unless ratified by the votes of a majority of all the electors of the State, on the day on which such proposed amendments should bo submitted. Such a construction and interpretation would, in my opinion, lead to interminable trouble and confusion.
*539I am of opinion, that the proper interpretation of sections 1 and 2 of article 16 of the' constitution is, that when an amendment of the constitution is properly passed by the General Assembly and submitted to the electors of the State, if it be ratified by a majority of the electors voting for and against such amendment, it becomes a part of the constitution. Whether such proposed amendment received the requisite number of votes to make it a part of the constitution, must be determined in the manner prescribed by the legislative department . of the State government. The manner of determining this question, as to the amendment involved in this case, was fixed by the act of March 10th, 1879, Acts 1879, p. 29. That act submitted the amendment, together with others, in accordance with the method prescribed by section 2 of article 16 of the constitution, and was fully complied with; and when the Governor, in compliance with said act, issuéd his proclamation declaring that the amendment had received, for its ratification, 169,479 votes, and against its ratification, 152,363 votes, that was an end of the question, and this court can not, in my opinion, go behind’ this political act of a co-ordinate branch of the State government, and hunt for information upon which to base a judgment. It is objected that there was nothing in the act of March 10th, 1879, authorizing the Governor to declare the amendment as having been ratified, and a part of the constitution; and that, therefore, the act was incomplete. It is conceded, that if the act had, m express terms, authorized the Governor to issue his proclamation, declaring the amendment ratified, and he had done so, that act would have been conclusive. I am unable to see any. force in this position. When the Governor had issued his pi-oclamation, giving the number of votes for and against the amendment, that was all he was required to do, and the constitution itself fixed the *540conclusion, that such amendment had become a part of that instrument.
The opinion of the majority of the court proceeds on the theory that, if the amendment had been submitted on a day when there was no general election, the number of votes cast for and against such amendment would constitute the number of electors of the State ; and, if it had received a majority of the votes thus cast, it would have been ratified in accordance with section 1 of article 16 of the constitution. I am unable to see any force in this distinction, when applied to the case under consideration. Dnder the act of March 10th, 1879, the submission of the amendments proposed by the General Assembly, was as distinct a proposition as if the^ had been submitted on some other day. The ballots were distinct; the vote on each amendment was separate and distinct; there was a separate and distinct certification of the vote for and against each amendment, by the officers of the election, to the clerks of the several counties; by the clerks to the Secretary of State; by the Secretary of State to the Governor; and the Governor was to declare the result, by proclaiming the number of votes for and against each of the amendments, which was done in accordance with the act.
The following language is used in the opinion of the court:
“As the amendment was submitted upon the day of the general spring elections throughout the State, and as there were, by law, officers to elect at the same time in the various counties, it must be presumed that other votes than those for or against the amendment were cast at the same time.”
If it be meant by this, that it is fair to presume that the electors, at the spring election, voted for township officers, in addition to voting upon the question of the proposed *541amendment, I ‘assent to the presumption; but if it be meant that it must be presumed that more electors voted for township officers than for and against the amendment, or that any elector voted for township officers, who did not vote on the question of ratifying the amendment, then I totally dissent; for no such presumption can arise, either as a rule of law or as a consequence.
Again it is said by the court:
“ From the peculiar ballots used in voting upon the amendment, many electors may have voted ‘ no ’ and ‘ yes,’ which votes upon the question of the amendment would not be counted; such, also, should be counted in estimating the whole number of the electors voting.”
I am wholly unable to see how any such assumption, as is contained in this proposition, can be used for the purpose of formiug a judgment; for it must be assumed, I think, that the electors exercised the right of voting for or against the proposed amendment in the manner prescribed by the constitution and the law. True, they may have voted a double ballot, by mistake or inadvertence, but there is no such presumption in law.
It is said by the court:
“ There is no source from which this court can ascertain whether the amendment received a majority of all the votes cast at the election or not.”
If there were any votes cast at that election other than those cast for and against the amendment, I am unable to ascertain the fact from any source of information of which this court may or can properly take judicial notice.
Under the act of March 10th, 1879, submitting the amendment under consideration to the electors of the State for their ratification, all had the right of voting for or against said proposed amendment Whether all did vote or not, I am unable to say from any source of infor-" mation of which this court can take judicial notice; nor do *542I think it essential that all should vote. I think the true rule is, that all qualified voters or.electors, who absent themselves from an election duly called, or who fail to vote on a proposition legally and fairly submitted to them, 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 greatest inconvenience, and ought not to be adopted, unless the legislative will to that effect be clearly-expressed. County of Cass v. Johnston, 5 Otto, 360; Louisville, etc., R. R. Co. v. County Court, 1 Sneed, 637 ; The People v. Warfield, 20 Ill. 159; The People v. Garner, 47 Ill. 246; The People v. Wiant, 48 Ill. 263.
The court say :
“ The first amendment proposed and ratified under this article of the constitution was section 7 in article 10, in reference to the Wabash and Erie Canal. By the act of the General Assembly of January 28th, 1873, Acts 1873, p. 83, the Governor and Secretary of State were required to examine the election returns and declare the result of the election; ‘ and if it shall appear from said examination that a majority of all the votes cast at said election were in favor of the adoption of said proposed amendment, then, and thereupon, the said amendment shall be and become a part and parcel of the constitution of the State of Indiana, and the Governor of this State shall, as soon as practicable, issue his proclamation, embodying the said amendment therein, and declaring and proclaiming that the same has been duly ratified by the people, and is therefore a part of the constitution of the State.’
“ In pursuance of this act, the Governor and Secretary of State declared the returns of the election, and the Governor issued his' proclamation, declaring that the proposed amendment had received the requisite constitutional majority in its favor, necessary to its ratification, and had *543become a part of the constitution of the State, as section 7 of article 10 thereof, which section is now printed by authoiity in the constitution. The matter, therefore, having been decided and proclaimed, according to law, by the executive department, a .co-ordinate branch of the government, has now become res adjudicata.”
While I agree to the conclusion announced in this portion of the opinion, I am wholly unable to see what relation it bears to the question in this case. The question of the validity of section 7 of article 10 of the constitution was certainly not before the court for its judgment. If it be true, that the constitution requires a majority of all the electors of the State to vote affirmatively in favor of a proposed amendment, to make it a part of the constitution, then the doctrine announced in this portion of the opinion of the majority of the court would permit the legislative and executive departments of the State government to violate the constitution by pronouncing an amendment to have passed, when in point of fact it had not, and make this-act of usurpation binding on the people of the State. The constitution does not require the Governor to issue any proclamation, in order to give validity to a constitutional amendment. The majority of the electors is the vitalizing force, and, if a majority vote in favor of a proposed constitutional amendment, it becomes a part of the constitution, without any proclamation of' the Governor ; for the constitution says: “If a majority of said electors shall ratify the same, such amendment or amendments shall become a part of this constitution.”
Courts take judicial knowledge of the proclamation of the Governor of the State, and the facts therein stated are taken as true; but I cannot assent to the proposition, that a proposed amendment may become a part of the constitution, because it may be so decided and proclaimed by the executive department of the government.
*544The amendment now published as seetiou 7 of article 10 of the constitution, like the amendment under consideration in this ease, became a part of the constitution, in my opinion, the moment the last ballot was cast, and all that was afterwards done in relation to the election, such as the aggregation, compilation and certification of the vote. by the several officers, and the proclamation of the Governor, was done in compliance with the methods adopted by the General Assembly, for the purpose of ascertaining an already accomplished fact.
The amendment became a part of the constitution by reason of its having been ratified by a majority of votes cast for and against'it, and not by reason of the Governor’s proclamation, which was and still is the evidence of its ratification by a majority of the electors of the State.