author: Minshalu, C. J.

text:
    The State ex rel. v. Foraker, Governor.

      Constitutional amendment — Number of votes necessary for adoption.

    .An amendment to the constitution, submitted by the legislature under the provisions of section 1, article 16 of that instrument, requires, for its adoption, a majority of all the votes cast at the election for senators and representatives at which it is submitted to the electors of the state for their approval or rejection.
    (Decided December 17, 1889.)
    In Mandamus.

      David K. Watson, Attorney-General, for the respondent.
    Brief in support of the demurrer.
    It will be observed that the constitution does not say that amendments shall be submitted to the electors for their approval or rejection, at a special election held for that purpose; but it does say, that they shall be published for six months preceding the next election for senators and representatives, at which time the same (that is, the amendments) shall be submitted to the electors for their approval or rejection; and if a majority of the electors voting at such election, etc. All this means that the amendments are to be voted for at the same time at which the election is held for senators and representatives; and there was good reason for selecting such an election, as the time when so important an act as changing the organic law of the state should be voted upon, for the gravest and most important power which the electors of a state can exercise, is the power to change the fundamental law which governs them, and it should always be exercised at a time when it is most probable that a large vote could be obtained. The framers of the constitution knew that the electors of the state would take a deeper interest in the election for senators and representatives, than any election which they held, for senators and representatives constitute the law-making power of the state, the legislative department of the state goverment; and therefore, represent interests that lie nearest to the people; and it was for this reason that the convention which framed the constitution, provided that amendments to that instrument should be submitted for approval or rejection at an election when such officers were voted for, in order that the fullest expression of opinion might be obtained upon their adoption or rejection.
    It will not be claimed that there was a separate ballot-box, into which were cast the ballots containing the words “ Biennial Elections — Yes,” or “ Biennial Elections — No,” or separate judges to receive and count the ballots so cast, or separate clerks lo record such ballots. On the other hand, it will be conceded that the judges were the same, the clerks were the same, the poll-books and tally-sheets were the same, and, in fact, there was nothing to indicate that the proposed amendments were not to constitute a part of the one general election which was to occur on that day.
    I also apprehend that it will be maintained that the language, “ If a majority of the electors, voting at such election,” means, if a majority of the electors voting thereon, or if a majority of the electors voting at such election on said amendments shall adopt the same, then they shall become a part of the constitution.
    This construction, I claim, is wholly unwarranted, and that the language of the constitution, correctly construed, means, that before an amendment to the constitution can be declared adopted, it must receive a majority of all the votes cast at the election at which it was voted upon, and that it is not sufficient that it received a majority of the votes cast for and against it.

      That this view is correct is shown, I think, by an examination of other provisions of the constitution. Section 18 of the schedule; section 3, Article XVI.
    But the section which we are now considering, and which the court is to construe, to-wit, section 1, Art. XVI, provides, “ If a majority of the electors voting at such election, shall adopt such amendment, then the same shall become a part of the constitution ; ” and it is clearly apparent, that a provision requiring a majority of all votes given at a general election for and against an amendment, is entirely different from a provision which requires an amendment to be adopted by a majority of the electors voting at a general election. To illustrate; at the recent election there were 257,662 votes cast for what is known as the. “ Biennial Amendment,” and there were 254,215 votes east against it, being a majority of 3,447 votes in favor of the amendment, and if the language of the constitution could be construed to mean what will be claimed for it, the amendment would seem to have carried;' but I insist that it cannot be so construed, for the language is “a majority.of all votes cast at such election,” and the total vote for senators and representatives at the time the amendment was voted upon was 780,304, and it would require 380,153 votes to make a majority of this number, or 132,481 more votes than wrnre cast for the amendment; and if a less number of electors than a majority of those voting at a general election can adopt an amendment to the constitution, it follows that it requires a less vote to change our constitution than it does to elect state officers; for the lowest candidate ujiion the state ticket at the recent election received 117,428 more votes than were cast in favor of this proposed amendment.
    In 1883 an amendment was proposed to our constitution, the purpose of which was to prohibit the manufacture and sale of intoxicating liquors in this state. 323,129 votes were cast for it, and 226,595 against it, being a majority of 96,534, in favor of the amendment, of those voting on that proposition. But no one ever came into court and claimed that it had been adopted, and was consequently a part of the constitution.

      It is one of the fundamental principles of statutory and constitutional construction, that in order to ascertain the meaning and intention of the law-makers or framers of the constitution, we may place ourselves as far as possible in the position they occupied when they enacted the statute, or framed the constitution. Relying upon this rule, we can safely look, in trying to determine what construction shall be given to the expression “a majority of all the votes,” cast at such election to the debates of the convention of 1851, when the constitution was framed. What construction did the convention place upon this language ? See Smith’s Debates, Ohio Convention, Voi. 2, p. 338; Debates, Vol. 2, pp. 427-8; Second Debates, 429-30; Second Debates, Ohio Convention, 1874, 2811-13.
    It will be thus seen that in two conventions, attempts have been made to change the language of this section so as to provide that a majority of the electors voting for or against an amendment to the constitution should be sufficient, but each time the framers of the constitution refused to make the change.
    But we-are not without adjudicated authority to aid in arriving at the meaning of the language employed, and which we are endeavoring to construe. State v. Winkelmier, 35 Mo. 103; State ex rel. Omaha Street Ry. v. Bechel, 34 Northwestern Reporter, 342; Byard v. Klinge, 16 Minn. 249 ; State v. Swift, 69 Ind. 505; State ex rel. Jones v. Commissioners, 6 Neb. 474; State ex rel. Davenport v. Brown et. al. 11 Ill. 478; State ex rel. Wheaton v. Wiant, 48 Ill. 263.
    These authorities clearly establish the doctrine for which I contend in the present case, viz.: that it is not the vote cast for the biennial amendment that is to determine whether or not the amendment carried, but whether that vote was a majority of all the votes cast at that election for senators and representatives. McCreary on Elections, sec. 174; Gounty Seat of Linn Gounty, 14 Kan. 500; 2 South Eastern Reporter, 351.
    The foregoing decisions show the rule to be as we claim it, viz.: where a proposition is to be voted for at some general election, and the authority under which it is submitted, whether statutory or constitutional, requires “ a majority of the electors voting at such election ” to adopt it, it is not sufficient that it receive a majority of the votes cast for or against the proposition, but it must receive a majority of all the votes cast at such an election, before it is adopted.
    It is perhaps true, that the case of Gillespi v. Palmer, 20 Wis. 544, declares a different doctrine. But that decision seems to stand alone, wholly unsupported by the opinion of any other court, and in the subsequent case of Bound v. Wis. Central R. R. Co. 45 Wis. 543, was referred to by Chief Justice Ryan, on page 479, as “a decision which has long been a reproach to the court, as a judgment proceeding upon policy rather than upon principle.”
    It appears to me, however, that the whole question raised by the petition and demurrer in this case has been finally determined by the decision of this court in the case of Enyart v. Trustees of Hanover Twp., 25 Ohio State, page 618.
    Constitutions are solemn instruments. They are not to be altered, changed, revised, or amended, except in strict compliance with the method which the instrument itself suggests. Courts never reach such supreme power, such ultimate authority, as when they are invoked to construe their provisions. It makes but little difference to organized society whether A or B is the successful suitor in an action for damages, but let the constitution be misconstrued, and every citizen of the commonwealth is wronged.
    I can not close what I have said in support of the demurrer in this case in a more appropriate way than to call the attention of the court to the language of Chief Justice Bronson, in the case of Oakley v. Aspinwall, 3d New York, 568.

      LeBlond & Williams, for the relator.
    Brief in reply to the Attorney-General.
    The proper construction of section 1, Article XVI, of the constitution, is involved in the determination of the question before this court.

      We desire to call the court’s attention to the phraseology, “for six months preceding the next election for senators and representatives.” The proposed- amendment or amendments shall be published in at least one newspaper in each' county -of the state “for six months preceding the next election for senators and representatives “ at which time ” — not at which election, but “ at which time," the same shall be submitted to the electors for their approval or rejection.

    This clearly shows, as we believe, that the words, “the next election for senators and representatives” are only given to fix the time at which such proposition should be submitted to the electors for their approval or rejection. This, indeed, is clearly shown by the text of the constitution, because the words next following the Avords : “ senators and representatives” are, “ at which time," not- at which election, the same shall be submitted. And, in the phraseology pertaining to its submission is used “approval or rejection.

    As Avas said by a most eminent chancellor, in the celebrated case of Coggs v. Bernard, reported in 2 Lord Raymond, 909 and 911: “Then, let us consider the reason of the case, for nothing is laAV that is. not legal reason.” Therefore in the discussion of this question, not much attention will be paid to precedents, no matter hoAV many there may be, but rather shall we give attention, as best we may, to the legal reasons Avhich avg think are applicable to this case.
    How are constitutions interpreted? Bishop on Written Luavs, section 92; Potter’s Dwarris on Statutes, 654.
    We must then interpret this section of the constitution, and the various words found therein, in the same manner that we AA'ould interpret it, if it were a statute. The rules for the interpretation of statutes are Avell settled.
    A proper decision of the question before the court, turns upon the Avords, “and, if a.majority of the electors voting at such election shall adopt such amendments, the same shall become a part of the constitution.”

      “A majority of the electors.” What is a majority of the electors ? This involves the consideration of five propositions, to-Avit: It means either,

      First — An affirmative vote which shall be at least equal to a majority of the electors of the state; or

      Second — An affirmative vote which shall be at least equal to a majority of the electors who voted on the 5th day of November, 1889, as determined by the total number of names appearing upon all of the poll books ; or

      Third — An affirmative vote which shall be at least equal to a majority of the electors who voted for governor or some other state officer, chosen by the electors of the state at large; or

      Fourth — An affirmative vote which shall be at least equal to a majority of the electors Avho voted at the election held for senators and representatives; or

      Fifth — An affirmative vote which shall be at least equal to a majority of the electors ■who voted at the election held for the approval or rejection of this proposed amendment to the constitution ; or a majority of the electors voting thereon; ora majority of the electors voting on that subject.
    Addressing ourselves first to authority, we cite Cooley on Constitutional Limitations, (5th ed.) p. 33, note 1; page 593, note 1.
    In his note at the foot of page 33, he says it is a mooted question. In his note to page 593, he says it is impossible to harmonize the cases.
    A very interesting discussion also*is found in 22 Albany Law Journal, 44, where the cases which have held on one side or the other of this question are collated and commented upon.
    I desire, however, to call the attention of the court to the fact that the edition of Cooley on Constitutional Limitations quoted in the article in the Albany Law Journal is the fourth edition, while that from which we read is the fifth edition.
    See also Gillespie v. Palmer, 20 Wis. 544, where this question is very fully discussed from the standpoint of legal reason.

      “A majority of the electors,” says this section. What is an elector? Constitution of Ohio, article V, section 1.

      “ Voting at suoh election.” What is an election ? “ The act of choosing.” Webster. “The act of choosing a person to fill an office or employment.” Century Dictionary. “A voting at the polls to ratify or reject a proposed measure.” Ib. Am. & Eng. Ency. of Law, Vol 6, page 260.
    What is a ballot? “A ballot may be defined as a “paper ticket upon which the voter expresses his preference upon the question submitted at the election, by printing, writing or signs, or a combination of all of these methods.” Am. & Eng. Ency. of Law, Vol. 6, page 342, note. Cooley on Constitutional Limitations, page 614.
    From these definitions, it will not be disputed that the action of the people as to the approval or rejection of an amendment to the constitution is an election.
    Therefore, wc return to the words. “ A majority of the electors voting at such election.” What election ? The election for senators and representatives is simply given as fixing the time when the proposed amendment should be submitted to the people of the state for their approval or rejection, and the act of approving, or taking part in the approval or rejection of the proposed.amendment, which the constitution says shall be done at the time of the election for senators and representative's, is an election in itself, and we claim that that is the election referred to by the phraseology: “a majority of the electors voting at such‘election.”
    The last part of section 1, of Article XVI, reinforces the construction for which we contend, because it provides as follows: “ When more than one amendment shall be submitted at the same time ” — not at the same election — “ When more than one amendment shall be submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment separately.”
    If providing a separate ballot and ballot-box for each office or question voted upon on the 5th day of November, 1889, would make each office or question voted upon on that day a separate election, no less would each office or question voted upon be a separate election, when all are placed upon the same ballot and in the-same ballot-box. But counsel for the defendant contend that the antecedent of the words u such election ” is the election held for senators and representatives, and therefore that it is required that a majority of those voting for senators and representatives must have voted also for the biennial election amendment before it can legally be declared a part of the constitution of the state.
    Again let us look into the reason of this case. If only those voting at such election for senators and representatives are to be counted for or against the proposed amendment, how could it be ascertained whether a majority of those voting for senators and representatives also voted for the biennial amendment, except by an inspection of each ballot on which there is a vote for senator and also a vote for representative ? .The constitution does not say “ a majority at least equal to all of those who voted for senators and representatives,” but “ a majority of the electors voting at such election.” Let us consider the words “ such election ” in the phrase “ voting at such election.” What is the antecedent of the words “ such election?” It cannot, in reason, be the election for senators and representatives, for, as we have just said, if only those voting at such election for senators and representatives are intended, how could it be ascertained whether a majority of those voting for senators and representatives also voted "for a constitutional amendment, except by an inspection of each ballot on which there is a vote for senator and also a vote for representative, and, by that means, ascertain whether such elector who voted for both senator and representative also voted for or against a proposed constitutional amendment. But that is what the construction contended for by the attorney-general leads to.
    Suppose separate ballots and ballot-boxes were provided for ■each office or question upon which an elector might have voted on November 5, 1889, (and such a provision would be, in our opinion, clearly constitutional), how could it, by any possibility, be ascertained whether the ballots cast for or ■against a constitutional amendment were cast by an elector who voted for a senator or a representative ?

      This shows conclusively that the words of the constitution, ‘•'at the next election for senators and representatives,” are used only to fix the time at which the proposed amendment should be submitted to the electors for their approval or re-, j ection.
    A reference is made to certain expressions uttered by a member of the convention which framed this constitution, and, which, it is claimed, is decisive that the construction for which we contend, is not correct. We desire to call the attention of the court to the fact that .the remarks quoted are made concerning sec. 2, of art. XVI., and that it is only the interpretation of sec. 1, of art. XVI, which is involved in this case. But even concede, for the sake of the argument, that the language used in the debates was concerning sec. 1, of art. XVI, of how much value is it? How much weight is to be attached to it? Eakin v. Roup, 12 Serg. & R. 352; Taylor v. Taylor, 10 Minn. 107. See also Story on the Constitution, sec. 406. Sedgwick on Statutory and Constitutional Law, (Pomeroy’s Edition), page 415.
    The practice of the legislative department of this state has uniformly been, with but one exception, in favor of the construction for which we contend, because every proposition, submitted by any general assembly for an amendment to the constitution of this state, since the present constitution has been adopted, has provided a form for a negative as well as for an affirmative vote. Therefore, if the construction for which we contend is not correct, then there is no necessity on the part of .any elector to cast a negative vote, and there being no necessity, it is a manifest impropriety that he should cast a negative vote; because, if in order for the adoption of a proposed constitutional amendment, it shall require an affirmative vote at least equal to a majority of all the elector’s voting on that day, or at least equal to a majority of all the electors who voted for senators and representatives, then a negative vote is entirely unnecessary. If a negative voto is entirely unnecessary, why has the general assembly, with but one exception, always provided a form of ballot by which the elector could cast a negative vote? The uniform practice, then, of one of the three co-ordinate departments of this state has been that the construction for which we contend is right. More than this, the 254,215 electors, who, at the election held for the approval or rejection of the proposed amendment to the constitution, providing for biennial elections, voted against its adoption, re-inforces the construction for which we contend; for why should they have voted “no,” if the construction for which the attorney general contends is correct? Why should any of the electors of this state, at any election held for the approval or rejection of a constitutional amendment have voted “ no,” if the construction for which the attorney general contends is correct?
    We shall not argue as to what weight preconceived opinions should have in the determination of this question, because we do not expect the decision of this case to be made upon any preconceived opinion, whether of the bar of this state, or the opinion, so far as ascertained, of the people of the state at large, because the question is not, “ What is the preconceived opinion of any person or class of persons?” but the question is, “What does this provision of the constitution mean ? ” and the only way in which we can interpret or ascertain what this provision of the constitution means, is by what this provision of the constitution says. The preconceived opinion, the popular impression, has been that it requires an affirmative vote equal at least to a majority of all the electors who went to the polls on the 5th day of November, 1889; but where in the constitution is there anything ■whatsoever that can argue for such a construction ? Where is there anything in the constitution that argues for the construction that it requires an affirmative vote at least equal to a majority of all of those that voted for governor or any other state officer on the 5th of November, 1889 ? The impossibility of ascertaining, officially, the total number of persons who voted for senators and representatives on the 5th day of November, 1889, precludes the construction that it refers to the election for senators and representatives; because the constitution, we take it, is not to be interpreted as requiring impossibilities. Therefore, we are left to the only reasonable construction, that it only requires an affirmative vote equal to a majority of those who voted at the election for the approval ■or rejection of the constitutional amendment.
    No one questions but what, if this proposed amendment had been submitted to t'he electors of the state for their approval or rejection by a constitutional convention, and had received, at an election held for its approval or rejection, the ' vote which it received on the 5th of November, 1889, it would have been adopted. No person will contend but what, if it had been an entirely new constitution, containing as did the proposed constitution of 1874, two hundred and thirteen sections, nineteen different ■articles, fifty to sixty different subjects, it would have been ■adopted by a majority of those voting thereon. Yet such a •construction says that an amendment to the constitution submitted by a majority only of a quorum of a constitutional convention consisting of one house, may be adopted by a majority only of those voting thereon; yet a constitutional amendment, proposed by a general assembly (which is a constitutional ■convention ex officio), composed of two separate houses, by a vote of at least three-fifths of all the members elected to each 'house, published in at least one newspaper in each county in the state where a newspaper is published, for six months before it is submitted or voted upon ; that is, after all these prerequisites which are necessary to have been conformed to, before it could have been submitted; — that in order to its adoption, it must receive an affirmative vote at least equal to a majority of all the electors voting for senators or representatives; or, according to the popular impression, .a majority of all the electors who voted on that day upon any ■other question; something that the constitution in nowise requires. Why, this very proposition about which we are bontending, if it had been submitted by a regular constitutional convention, and voted upon by the electors of the state, on the fifth of November last, would have been adopted by a majority of those voting only on that proposition. Would ■this biennial election amendment proposition have been any more deserving of adoption, if it had been submitted by a constitutional convention, composed only of one house, and, perhaps by a bare majority of that, 'than when it is submitted by a general assembly composed of two houses, and by at least three-fifths of the votes of all .the members elected to both houses? Yet, if this same proposition had been submitted by'a constitutional convention, it would only have been published in pamphlet form, perhaps 50,000 or 60,000 of them printed for circulation throughout the state; whereas, we think we are entirely within bounds when we say that the number of copies of the biennial election amendment circulated among the' people of this state was fully equal to five millions.
    But it is said that, if the construction for which we contend is correct, and the biennial amendment is adopted, then the prohibition amendment, which was attempted to be submitted to. the people in 1883, was also adopted. This does not follow.
    A constitutional amendment does not take effect until proclamation is made. That is sustained in the cases of Sewell v. The State, 15 Tex. App. 56 ; The State v. Morgan City, 32 La. Ann. 81; People v. Norton, 59 Barb. 169. JNone was ever made in that case.
    There was no valid election held for the approval or rejection of the prohibition amendment in 1883, because there' was no provision made in that proposition for a “ No ” vote.
   Minshalu, C. J.

The object of this proceeding is to compel the governor of the state to make proclamation of the adoption of an amendment to the constitution of the state, providing for biennial elections, submitted by the legislature to the electors of the state for their adoption or rejection at the last election for senators and representatives. The number of votes cast for its adoption was 257,662; the number of express votes cast for its rejection was 254,215; and the total number of electors voting at the election was 780,304. As will be seen, there were more votes cast for the ádoption of the amendment than were cast for its rejection, but the number cast for its adoption was not a majority of all the votes cast at the election for senators and representatives — a majority of such votes would have been not less than 390,153.

The amendment having been submitted by the legislature, the question of its adoption or rejection must be determined by the provisions of section 1, article 16 of the constitution, which reads as follows :

Either branch of the general assembly may propose amendments to this constitution; and, if the same shalTbe agreed to-by three-fifths of the members elected to each house, such proposed amendments shall be entered on the journals, with the yeas and nays, and shall be published in at least one newspaper in each county of the state, where a newspaper is published, for six months preceeding the election for senators and representatives, for their approval or rejection ; and if a majority of the electors, voting at such election, shall adopt such amendments, the same shall become apart of the constitution. When more than one amendment shall be submitted at the-same time, they shall be so submitted as to enable the electors-to vote on each amendment separately.”

By this section an amendment submitted by the legislature must be published, as therein required, “ for six months preceding the next election for senators and representatives, at which time the same shall be submitted to the electors, for their approval or rejection; and if a majority of the electors, voting at such election shall adopt ” such amendment it shall become a part of the constitution.

The plain reading of this language would seem to indicate but one construction, and that is, that an amendment so submitted, would require for its adoption a majority of all the electors voting at the election for senators and representatives, as being the election indicated by the language “ such election.” Such seems to have been the view taken of it in the convention that framed the instrument, and such has been the uniform construction placed on it by the people of the state down to the present time. 2 Debates, Convention, 1851, p. 427. See also, 2 Debates, Convention, 1874, p. 2811. While the debates of a convention can have no controling effect upon the construction of the provisions of a constitution, they are not without importance where they tend to support a construction indicated by the language of the instrument.

But, it is claimed, that “ the election for senators and representatives is simply given as fixing the time when the proposed amendment should be submitted to the people of the state for their approval or rejection, and that the act of approving or taking part in the approval or rejection of the proposed amendment, which the constitution says shall be done at the time of the election for senators and representatives, is an election in itself, and is the election referred to by the phraseology, a majority of the electors voting at such election.”

The framers of the constitution well understood the use of language.; and whatever views may be entertained of the policy of some of its provisions, it must be admitted that the instrument is a model of purity, precision and clearness of expression. In the next two sections of the same article, provisions are made for the submission of amendments, framed by conventions called for the purpose. And as to the adoption of amendments so framed and submitted, it is expressly provided, that no amendment of this constitution, agreed upon by any convention assembled in pursuance of this article, shall take effect, until the same has been submitted to the electors of the state, and adopted by a majority of those voting thereon.” Sec. 3, Art. 16, Con. If then it was intended that a majority of those voting on an amendment, submitted by the legisláture, should be sufficient to adopt it, the question arises, why language equally clear and explicit was not adopted to express such intention in the one ease as well as in the other; or why, instead of limiting the provision contained in section 3 to amendments “ agreed upon by any convention,” it was not extended so as to include an amendment submitted by any legislature. It would have been natural, and it is probable, that if the framers had had the same intention in framing section 1 as in framing section 3, as to how the majority for the adoption of an amendment should be ascertained, they would have provided in that section as in section 3, that it should be a majority “of those voting thereon” instead of a majority “ of the electors voting at such election.” Such a plain difference of language iudicates a plain difference of intention.

But the difference in the language employed, is no greater than is the difference in the two cases to which the minds of the framers were directed. No doubt but that stability in its provisions was, as should always be the case, a consideration that influenced the minds of the framers of the constitution in providing for .its amendment. Two distinct modes of originating and submitting amendments are provided for; in one it may be done by the legislature, in the other by a convention. Amendments submitted through the agency of a convention are necessarily attended with more deliberation and discussion, than are those submitted by the legislature. Amendments may be submitted by the legislature as often as once in every two years. Hence there is much reason for the provision, contained in section 1, that requires for the adoption of an amendment submitted by the legislature, a majority of all the electors voting at the election at which it is submitted. If it were otherwise, there would be but little, if any, more stability to the constitution, than there is to the statutes of the state. It could, and probably would, be changed every two years.

The argument of the counsel for the relator has the merit of ingenuity. He dissolves a general election into as many distinct elections as there are offices to be filled and questions voted on, at the time it is held. He then utilizes the adverbial phrase, “ at which time,” so as to make it designate, not the time of a general election, but the time of a number of distinct elections, among which will be, where such are submitted, elections for constitutional amendments; and thence infers that the language “ voting at such election,” used in sec. 1, means the election upon constitutional amendments.

Such acute criticism upon language would defeat the plain, manifest intention of any instrument, however' carefully prepared. We are satisfied beyond a doubt that the construction claimed, is not the meaning of the language used in section 1 of article 16 of the constitution.

But one of the most obvious objections to this construction, is, that it requir.es to be demonstrated by such a labored process of occult reasoning upon the meaning of words and phrases, so different from the apparent meaning, as to warrant the belief that it never occurred, either to the framers of the constitution, or to the people who adopted it. So that, upon settled rules of construction, it should be rejected, if it could be shown to be in accordance with the strict grammar of the language and meaning of the words employed.

But even this cannot be claimed for the construction of the relator. The grammar of the language is against it. Such,” as here used, is a pronominal adjective, and necessarily defines an election ” previously mentioned; and the only one found in the context is an “ election for senators and representatives.” The construction of the relator requires for its adoption, the insertion of words, descriptive of an election, neither found in the section, nor required to be supplied by any rule of grammar, in order to complete the fullness of expression.

Counsel for the respondent has collected a great many cases bearing upon the question, some of which directly, and most of them by analogy, support the construction for which he contends. But as that construction is, to our minds, so clearly in harmony with the language of the instrument, and that which long years of common consent has placed on it, it is hardly necessary to do more than cite a few of them. State v. Smith, 69 Ind. 505; State ex rel. v. County Commissioners, 6 Neb. 474; State ex rel. v. Babcock, Auditor, 17 Neb. 188; State ex rel. v. Brown, 11 Ill. 478 ; State ex rel. v. Wheaton, 48 Ill. 263; Enyart v. Hanover Township, 25 Ohio St. 618; McCreary on Elections, 174.

In the case of Gillespie v. Palmer, 20 Wis. 544, much relied on by counsel for the relator, the judgment of the court was placed, principally, upon the language applicable to that case, and which, as there construed, is substantially different from the language contained in section 1, of article 16 of our constitution. There the language construed was, “ a majority of all the votes cast at such election.” The court, holding, that “ votes” is not synonymous with voters, determined that-a majority of all the votes cast on the subject was sufficient to adopfrthe amendment. But no such question can arise under our constitution on the meaning of words, the language being, “a majority of all the eleotors voting at such election.” While “electors” may not be the exact synonym of voters, it is in no sense synonymous with votes. So that, if the decision were a sound one, it would not be in point here, by reason of the difference in the language of the two provisions. But the case does not seem to be regarded with very great favor in the state where it was decided. See Bound v. Railroad Co., 45 Wis. 479.

Writ refused and petition dismissed.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Trustees of Canaan Township v. Board of Infirmary Directors.

      Pending proceedings — Pot affected by amendments of statutes.

    Any judgment or final order rendered before § 6723 Rev. Stats., as amended March 28, 1889, took effect (October 1, 1889), may be reviewed on a proceeding in error commenced within two years from the time the judgment or order was rendered.
    (Decided December 20, 1889.)
    Motion to dismiss the cause, on the ground that it was not commenced in time.

      James H. Beebe, for plaintiff in error.

      Olds, Fluohey & Baxter, for defendants in error.
   By the Court.

At the May term, 1889, of the Circuit Court of Morrow County, to-wit, on the 25th of May, the defendant in error recovered a judgment, in a proceeding in mandamus, against the plaintiff in error, to reverse which judgment the plaintiff in error commenced its proceeding in this court December 30, 1889.

On March 28, 1889, the legislature adopted an act repealing and amending § 6723 Rev. Stats. (86 Ohio Laws, 167), reducing the time in which proceedings may be commenced <fto reverse, vacate or modify a judgment or final order,” from two years to six months. The amended section contains no provision making it applicable to causes of action, prosecution, or proceeding,” existing at the time of the amendment or repeal. It provides, however, that it shall take effect from and after October 1, 1889.

Held: That the repealed section continued in force until the section, as amended, took effect October 1,1889; and that, as the plaintiffs in error had the right before the amendment took effect, to prosecute proceedings in error at any time within two years from the time judgment was rendered against them, the taking effect of the statute amended on October 1, 1889, did not affect this right. § 79 Rev. Stats.; Laferty v. Shinn, 38 Ohio St. 46 ; Bode v. Welch, 29 Ohio St. 19; State ex rel. v. Rabbitts, 46 Ohio St. 178.

Motion overruled.