pressive taxation, and even to limit the power of the people themselves improvidently to authorize the assumption of such obligations, the wisdom of the restriction of such elections to the day of the general election is evident. Not only is a much larger vote usually brought out on the occasion of the general election, but the people at large are usually better informed of the matters upon which they are entitled to vote by reason of the greater interest taken and the fuller discussion of such matters.

We come now to the main question presented in this record. By section 157 of the constitution it is provided: "No city shall be authorized or permitted to become indebted, 480 in any manner or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year, without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose."

The object of this provision was to limit the power of the local authorities and the people to burden themselves and their posterity with taxation, except upon full consideration and by the assent of the people given understandingly. In order to effect that object, it was provided that no city should be authorized to become indebted in excess of the current year's revenue without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose. It was sought to protect the people from their own improvidence and that of their local officials, and such a construction must be given to the constitution as will give effect to its manifest purpose.

There could be but one election in the year except in the cases specially provided for. This question was to be submitted to the people at that election. It was one election, though held for several purposes, and was in no sense a collection of elections held on the same day. One of the purposes of the election was to determine this question, which, under authority of the constitution, the statute and the ordinance passed in accordance therewith was to be submitted to the voters of the city. It was required that two-thirds of the voters of the city voting at such election should give their assent to the bond issue. Assent implies action, and is not mere failure to dissent. At the election held for the purpose of electing various officers, and for the additional purpose of determining the question of the bond issue, there were cast 32,425 votes, and of all those voters voting at the election held for those purposes but 6,483, less 481 than onefifth of the total number, gave their assent to the proposition to impose on the city of Louisville the burden of an additional debt of a million of dollars.

AM. ST. REP., VOL. LIX.-31

The authorities which, to a greater or less degree, bear upon this question are numerous and conflicting. It may be conceded that under a provision like the one under consideration it is not necessary that two-thirds of those entitled to vote should actually vote in favor of the proposition, and that as was said by the supreme court of the United States in Carroll County v. Smith, 111 U. S. 565, "the words 'qualified voters,' as used in the constitution, must be taken to mean not those qualified and entitled to vote, but those qualified and actually voting. In that connection a voter is one who votes; not one who, though qualified to vote, does not vote."

To the same effect are many authorities cited by appellees, and the reason of the rule is well stated in People v. Wiant, 48 Ill. 263, as follows: "It was held in People v. Warfield, 20 Ill. 160, that to give this provision of the constitution a practical operation we must presume that it was the intention of the framers of that instrument that the voters would all vote, and that the majority of those voting should determine the question. To give it a different construction would involve an inquiry whether there were other voters of the county, who had, from any cause, abstained from voting; and this would lead to interminable inquiry and invite contests in such elections which would be embarrassing and baneful, if it did not destroy all the practical benefits of laws passed under these provisions of the constitution."

But we are met with a very different question when the question is required to be submitted at a general election 482 is one of the purposes for which that election is held, and is required to receive the assent of two-thirds of the voters of the city voting at that election.

In such case, the result depends on a majority of all the votes cast at the election being cast for the proposition, and not merely a majority of the votes cast on the particular question.

In the case of People v. Wiant, 48 Ill. 263, the constitution required that a majority of the voters should vote in favor of the removal of a county seat, and the court held, referring to the case in People v. Warfield, 20 Ill. 160: "In Warfield's case there was no vote taken at that election, except upon the question of the removal of the county seat, and that vote was adopted as the means of ascertaining the number of legal voters of the county, and whether the majority was in favor of or against removal. In this case, however, there was at the same time an election held for circuit judge, which was a regular election. We, therefore, have in this case additional means of ascertaining the whole number of voters of the county. If the return of the various poll-books of

the county showed a larger number of votes cast for circuit judge or other officer than were cast for and against removal of the county seat, then that should be taken as the number of voters of the county; and it should appear that a majority of the voters at that election had cast their votes in favor of removal before the county seat could be changed. It is not the vote cast upon that single question that is to govern, where it appears that any other election was held at the same time, but it must appear that a måjority of all the votes cast at that election were in favor of removal. When there is no other election held at that time the returns of the officers of votes on that question will govern."

483 So in People v. Brown, 11 Ill. 478, a case of mandamus to compel township organization under a constitutional provision that "the general assembly shall provide by general law for a township organization . . . . whenever a majority of the voters of such county at any general election shall so determine," the court said: "The language is clear and explicit, and admits of but one meaning. It does not mean a majority of those voting on the question to be submitted, but a majority of all the legal voters in the county."

In Everett v. Smith, 22 Minn. 53, the constituuon provided. that the question should be "submitted to the electors of the county at the next general election after the passage thereof, and be adopted by a majority of such electors," and it was held that the provision required a majority of the electors voting at the election and not a majority of those voting on the question.

So in Enyart v. Trustees, 25 Ohio St. 618, the legislature had authorized the levy of a tax, with this proviso: That the levy should not be made "until a majority of the electors of said township at some regular election shall vote in favor of said levy," and it was held that a majority of all the votes cast at the regular election was required, and not a majority of those voting on the question.

And in State v. Foraker, 46 Ohio St. 677, a provision of the constitution that, "if a majority of the electors voting at such election shall adopt such amendments, the same shall become a part of the constitution" was held not to be complied with by a majority of the votes cast on the amendment.

The Ohio constitution had another provision requiring the adoption of amendments which had been agreed upon by conventions "by a majority of those voting thereon," and 484 the court called attention to the difference in language, saying 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.”

This is directly in point in the consideration of the case at bar, for in section 256 of the Kentucky constitution we find it provided that the passage of an amendment to the constitution shall be determined by a "majority of the votes cast for and against an amendment"; and in section 64 it is provided that no county shall be divided, etc., "unless the majority of all the legal voters of the county voting on the question shall vote for the same." So that, in two other sections of the instrument, the convention was at no loss for apt words with which to limit the decision to the determination of those only who should vote upon the question. In State v. Lancaster Co., 6 Neb. 474, the constitution provided for a township organization, "whenever the majority of the legal voters of such county, voting at any general election, shall so determine"; and it was held that as the affirmative vote on the question submitted was less than a majority of those voting at the election the proposition was defeated.

In State v. Winkelmeier, 35 Mo. 103, authority was claimed under a legislative grant of power "whenever a majority of the legal voters" authorized the same, and the majority of those voting on the question were in favor of the grant; but the court said: "It is evident that a vote of 5,000 out of 13,000 is not the vote of a majority."

The case of Hogg v. Baker, 17 Ky. Law. Rep. 577, was under 485 section 64 of the constitution as to the removal of a county seat, which requires two-thirds of those voting to decide. That case, however, was decided largely on the ground that the voters were misled, and nothing appears in the record of the case at bar to show that the voters of Louisville were misled, except as it may be argued inferentially from the language of the statute and the ordinance and the smallness of the vote cast upon the question.

Little weight can be given the argument drawn from the fact that at a general election candidates for various offices may be elected notwithstanding other candidates for other offices may have received more than twice as many votes. The statute of election provides that the person receiving the highest number of votes for an office shall be declared elected to that office, and the election is decided by a plurality of votes.

Moreover, it may well be considered that there is an essential difference between the action of electors in voting for a candidate for office and in assenting to the creation of a municipal

debt. The former is the exercise of a political privilege, the mere selection of a person to perform officially duties which have been annexed to a particular office, and it is fair to presume that those who do not participate in the election consent to be governed by those who do; but the latter is the authorization of a contract by which the people of the locality incur obligations and bind their property to the payment of a debt; and it is natural to expect that the language used in relation to it will be different; that definite action will be required of a majority of the voters, and that it will be required that their assent thereto shall be expressed, and so we find it in the constitution and the statute.

If the submission were permitted to be and were in fact 480 submitted at an election at which no votes were cast except upon the proposition, it might very well be concluded that the words "two-thirds of the voters of the city" meant two-thirds of those who see fit to exercise their privilege, and that the ballot-box is the only test to be applied: Louisville etc. R. R. Co. v. Davidson County, 1 Sneed, 637; 62 Am. Dec. 424.

In this case, the test of the ballot-box shows that only one-fifth of the voters who voted at the election gave their assent to the proposition.

There were many authorities cited on both sides of this question, but it would be unprofitable to review them in detail. A very interesting analysis of a large number of them is given in South Bend v. Lewis, 138 Ind. 512. It will be found that they have turned, in some cases, upon the settled policy of the constitution which was under consideration, as in the case of Metcalfe v. Seattle, 1 Wash. 297, which at first blush appears to be directly in point against the conclusion reached by this court.

In most of the cases, the courts' conclusions were reached by considering not only the language of the provision in question, but all other relevant sections of the instrument, as well as its general intent. These differ in the different cases, and it is not surprising that the courts have apparently differed in the weight which they have attached to the arguments drawn from them. Several of the cases cited have been doubted or qualified in subsequent cases. One of them, Gillespie v. Palmer, 20 Wis. 544, much relied on by counsel for appellee, has since been referred to by the chief justice of the Wisconsin court as one of a number of cases "which have long been a reproach to the court, as judgments proceeding upon policy rather than upon principle": Bound v. Wisconsin Cent. R. R. Co., 45 Wis. 543.

487 In all of the cases the object sought was the intent of the instrument.