tioned the decision. The question is therefore settled." The vote cast in favor of this amendment was 158,400 and the vote cast against the amendment was 1030. The analogies cited to prove that a majority of the electors of the State was required to ratify an amendment were the following: (1) By the terms of the Enabling Act, a majority of the whole number of delegates was necessary to decide upon the expediency of adopting the Constitution of 1816. (2) A majority of all the votes polled at the election was required to adopt the Constitution of 1851. (3) A majority of all the votes cast was necessary to ratify Article 13 of the Constitution of 1851, which was submitted as a separate proposition. (4) It requires the vote of a majority of the members elected to each of the two houses of the General Assembly to propose amendments to the Constitution. (5) A majority of the members elected to each House is necessary to pass a bill or joint resolution. (6) The 15th clause of the schedule provided that a new county might be formed out of the counties of Perry and Spencer, "if a majority of all the votes given at said election" were in favor of the new organization. An examination of the constitutional debates shows that the sense of the Convention was that amendments could be adopted only by a majority of the electors of the State. As originally reported and as finally adopted, amendments must receive the affirmative sanction of "a majority of the qualified voters;" and a proposal to amend by providing that "a majority of all the votes cast for or against the same," was rejected. The court likewise held that since other matters were submitted at the April election, "the Governor, by the act, had no power to declare whether the amendment had been adopted or rejected...."

MAJORITY OPINION.

[69 Ind. 505.]

We can find no authority, either in the constitution of 1816, or in the constitution of 1851, or in the legislative acts upon the subject, by which a constitition, or any of its separate articles, or any amendment thereto, could be adopted or ratified by a plurality of votes of the electors, or by any less number than a majority of the whole number cast at that election...

The people of a State may form an original constitution, or abrogate an old one and form a new one, at any time, without any political restriction except the constitution of the United States; but if they undertake to add an amendment, by the authority of legislation, to a constitution already in existence, they can do it only by the method pointed out by the constitution to which the amendment is to be added. The power to amend a constitution by legislative action does not confer the power to break it, any more than it confers the power to legislate on any other subject, contrary to its prohibitions.

...to hold that a plurality, or a majority of a part instead of all the electors, could ratify an amendment to the constitution-a far more important act than the proposal of the amendment, or

the passage of a bill which is repealable-would be a departure from the line of safe reasoning and logical sequence, and contrary to the constitution and the laws.

The principle of plurality-frequently develops sufficiently glaring disproportions between the number of electors of a constituency and the number of votes cast sufficient to elect; but, when applied to the ratification of a constitutional amendment, and pushed to an extreme, it runs into absurdity. The election of an officer affects the rights of no one except the person elected. To him it grants a privilege, to be exercised for the public good, the exercise of which is a public necessity. It does not affect the right of even the person defeated, but only denies him a privilege which can not be granted except by an election. In such case the constitution requires only the highest number of votes to elect, though it may be only a plurality of a very inconsiderable number of the electors, in proportion to the whole number. But the ratification of a constitutional amendment affects the rights of millions of people who are not electors and who can not vote, and for an indefinite time, until the amendment shall be abrogated by the same power that made it. In such case the constitution requires a majority of all the electors to ratify the amendment. The principle of plurality, which might ratify a constitutional amendment, irrepealable by legislative action, binding the rights of two millions of people, for an indefinite period, by a vote of two electors against the vote of one, when the whole number of votes cast were but three, is not only unconstitutional, but it is dangerous to human rights, and repugnant to the sense of mankind. As the adoption of a constitution is the considerate act of an entire people, and as it binds all departments of the government, and can not be repealed except by the same power that made it, its adoption should not be left to the vicissitudes of a meagre plurality of votes, which the accidents of a day might cast one way or the other

If an amendment to the constitution could be proposed by the General Assembly, and adopted by a mere plurality of votes, however small the whole number cast might be, such as is sufficient to elect members of the General Assembly, the constitution would have no more permanence or force than a legislative act, and would thus be rendered useless as a fundamental, irrepealable, supreme law, to resist unconstitutional action, either by the legislative, judicial or executive departments of the State government. Indeed, such a principle would leave the General Assembly politically omnipotent, in spite of the constitution.

The question for us to decide is, has the amendment been ratified or not? The people of the State of Indiana do not desire advantages obtained at the expense of the constitution; and no conceivable advantages could compensate them for a breach of the fundamental law of the State. They would pay dearly, indeed, for the advantage of an immediate decision of this court that the amendment was ratified, if it had to be made in violation of the constitution and the law.

This court holds that it requires at least a majority of all the votes cast at the same election to ratify a constitutional amendment. We also hold that, as the act of March 10, 1879, is defective in not providing for the count of the aggregate number of votes cast throughout the State on the day of the election, or in not providing some means to ascertain the whole number of votes cast, by which it might be learned what proportion the number cast in favor of the ratification bore to the whole number, 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. 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. 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; but the law does not provide for certifying them up. It is also held that the constitution must remain as it was before the amendment was submitted, until it shall affirmatively appear that the amendment is ratified. As it does not thus affirmatively appear, we must hold that the amendment is not ratified by a constitutional majority. The opinion, therefore, of this court is, that it requires a majority of the electors of the State to ratify an amendment to the constitution, but that the whole number of votes cast at the election at which the amendment is submitted may be taken as the number of electors of the State.

The writer of this opinion, speaking for himself only, holds that it requires the votes of a majority of the electors of the State to ratify a constitutional amendment. He thinks that this is not only the plain meaning of the words used in Section 1 of Article 10 of the constitution, but that it was also the manifest intention of

the framers of the constitution, as ascertained by the proceedings of the convention. He also holds that the number of electors of a State is a public fact which the courts must ascertain, without averment or proof, whenever it is necessary to the decision of a cause. For this purpose a court may look to the archives of the State, to the official returns of general State elections, to legislative action, and to the proclamations of the executive. He does not mean that a court must know the exact number of electors of the State, to a unit; this is impossible, for the number, on account of deaths and coming of age, is not the same during any twentyfour hours; and what is impossible to do is not required to be done. The practical meaning of the phrase "all the electors of the State" is that substantial number who vote at general State elections, and the number of whose votes is officially returned by sworn officers, into the office of the Secretary of State. This number need not necessarily include electors who are sick, absent from the State, or prevented from going to the polls. The construction must be such as has a sensible application to the affairs of men, rather than one of abstract numbers or theory. The history of a State, the number of inhabitants, and its official statistics are public facts known to all persons, and never need to be averred or proved in judicial proceedings. He also holds, that, if the whole number of votes cast at a given election should be less than the whole number of the electors of the State thus interpreted, the latter number, being the constitutional guide, would govern the former, having only the authority of legislative action; for the number cast might bear a very inconsiderable proportion to the whole number of electors in the State.

In the opinion of this court, the consequences spoken of in the argument, of this decision, can at most be but a temporary inconvenience. We perceive no irregularity in the proposal of the amendment for ratification. It has simply not been ratified and not been rejected. The vote upon it was ineffectual for want of the constitutional majority. We see no reason why the General Assembly may not re-submit the amendment to the electors of the State, under an amended act, such as experience may prove to be sufficient to present the question to the courts, if it ever should arise again.

DISSENTING OPINION OF JUDGE NIBLACK.

In a dissenting opinion, Judge Niblack contended: (1) That if a proposed amendment is submitted to the electors of the State and agreed to by a majority of the electors voting at the election, it is ratified and becomes a part

of the Constitution. (2) The amendment was submitted at what was, as to it, a special election; for even though the amendment was submitted on the day when the township elections were held and the machinery of those elections was used in obtaining a vote upon the proposition, a separate ballot was required and separate and distinct returns were made to the Secretary of State. The township elections were local, and the returns therefrom were made to the county clerks only and were not made a part of the archives of the State; hence the court was unable to take judicial notice of the aggregate number of votes cast at the township elections. (3) He concurred in the reasoning of his brethern of the court that the Wabash and Erie Canal amendment was fully incorporated as a part of the Constitution; not because it had been “acquiesced in for more than seven years" and "can not now be disturbed," but "because a majority of votes, at a fair election, were cast in favor of it."

[69 Ind. 528.]

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 part of the constitution. But how that majority is to be ascertained, is the important question now presented for our decision.

I am of the opinion that Sections 1 and 2 of Article 16 of the constitution may, for the purposes of this case, 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, such proposed amendment shall become a part of 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 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 a good authority for holding that in such an event the amendment would not have been ratified.

But no such element 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 of April, the day of our township elections, and the machinery, so to speak, of those elec