tions, 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 character, 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 be taken in favor of the legality of every election held under the forms of law, and none against any such election. Everything alleged against an election so held must be affirmatively shown...

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 of 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 result of an election is a matter of exact calculation and 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 very 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

persons 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.

DISSENTING OPINION OF JUDGE SCOTT.

Judge Scott likewise filed a dissenting opinion in which he held that; (1) If a proposed amendment is ratified by a mjority of the electors voting for and against it, it becomes a part of the Constitution. (2) The issuance of the Governor's proclamation declaring the vote given for and against the amendment was conclusive, and the amendment thereupon became a part of the Constitution. (3) Persons entitled to vote but who failed to vote are presumed to assent to the expressed will of the majority.

[69 Ind. 538.]

I 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 governmentand when the Governor, in compliance with said act, issued 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-When the Governor had issued his proclamation, giving the number of votes for and against the amendment, that was all he was required to do, and the constitution itself fixed the conclusion, 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. Under the act of March 10, 1879, the submission of the amendments

proposed by the General Assembly, was as distinct a proposition as if they 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.

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.

326. Republican Platform of 1880-Adoption of Constitutional Amendments (June 17, 1880).

The Republicans, assembled in convention in Indianapolis on June 17, 1880, some three months after the proposed constitutional amendments had been submitted to the people and ostensibly adopted. The following resolution was adopted before the amendments, in the case of State v. Swift, were declared not concurred in.

[Indianapolis Journal, June 18, 1880.]

Resolved, That we congratulate the people of Indiana upon the adoption of the constitutional amendments recently submitted, under which, by wise legislation, the purity of the ballot-box may be secured, increased economy in the government attained, the speedy administration of justice provided for, and extravagant municipal taxation prevented. And we point to the open hostility of the leaders of the Democratic party to these salutary provisions as evidence of the insincerity of their professions, their unfaithfulness to the public welfare, and their unfitness to administer the State government-recognizing at the same time, the patriotism and independence of the large mass of the democratic party who gave those amendments their support.

THE FIFTY-SECOND GENERAL ASSEMBLY, AND THE SPECIAL SESSION OF 1881 (MARCH 8 TO APRIL 16).

The political complexion of the General Assembly of 1881 was as follows: Senate, 24 Republicans, 24 Democrats and 2 Greenbacks; House, 58 Republicans, 41 Democrats and 1 Greenback. The regular session expired before all of the more important business was transacted and a special session was called and sat from March 8 to April 16. The most important proposition of a constitutional nature which was considered by the General Assembly of 1881 was the resubmission of the constitutional amendments which according to the decision of the Supreme Court had not been adopted at the April election of 1880. Various other constitutional measures were considered at this session. Two unsuccessful attempts were made to provide for the calling of a constitutional convention, and resolutions were introduced embodying proposed amendments prohibiting the manufacture and sale of intoxicating liquor, prescribing the qualifications of lawyers, increasing the membership of the Supreme Court, fixing the terms of State and county officers extending the right of suffrage to women and extending the duration of a regular session of the General Assembly to 100 days.

327. Governor Gray's Recommendation Relative to the Pending Amendments (January 8, 1881).

In his message to the General Assembly on January 8, 1881, Governor Gray recommended that in conformity with the decision of the Supreme Court in State v. Swift the pending amendments should be submitted to the electors at a special election.

[House Journal, Fifty-second Session, 36.]

Under the provision of the act of March 10, 1879, providing for the submission of proposed amendments to the Constitution to the electors at the spring election, held on the first Monday of April, 1880, the number of votes for and against each amendment was announced by proclamation of the Governor, and published April, 1880. In a case arising at a city election in May, appealed to the Supreme Court and determined in June, the question of the ratification or rejection of amendment No. 1 was involved, and, as a matter of law and judicial knowledge of historical facts, it was held that a majority of the electors of the State had not ratified the same, and, therefore, that such amendment had not become a part of the Constitution. Although the number of electors voting for other amendments proposed was larger than the number of those voting for the first, the principle settled has been accepted and acted upon with reference to all. If the enumeration of male inhabitants over the age of twenty-one years, required by the Constitution and made the basis of an apportionment of sena

12-5055a

tors and representatives, and Representatives in Congress among the several counties, be accepted as a census of the electors of the State during the ensuing six years, and an affirmative vote of more than one half that number be necessary to ratify a submitted amendment, the problem is easily solved and comprehended by any one familiar with the passage of bills through your two houses. If it be enough that a majority of those voting shall favor a proposed amendment, it should be submitted to the electors at a special election in order that no questions could arise as to whether the amendment had received a majority of the votes cast. It remains for you to provide for again taking the sense of the electors of the State, or in your large discretion to declare that the amendments proposed have ceased to be living issues before the people, and are no longer "awaiting the action of a succeeding General Assembly or of the electors."

328. Governor Porter's Recommendation Relative to the Pending Amendments (January 10, 1881).

Albert G. Porter, the in-coming Governor, in his inaugural address, delivered to the General Assembly on January 10, indorsed the recommendation of the retiring Governor Gray, relative to the resubmission of the amendments at a special election.

[House Journal, Fifty-second Session, 81.]

The amendments to the Constitution, which, at the last spring election were submitted to the electors for adoption or rejection, have been held by the Supreme Court, in opposition to what, it is believed, had previously to the decision, been the general sense of the legal profession, not to have been constitutionally adopted.

The court, while deciding thus, took occasion to express an opinion that another submission might take place, notwithstanding the submission and vote which have occurred, if the legislature shall choose to provide therefor by an appropriate enactment. The court, though not now composed entirely of the same members as when the decision was made, will, it is believed, feel constrained to accommodate itself to this suggestion, whatever view the new judges might entertain, if the question were one of first impression. I, therefore, earnestly recommend that a bill be speedily passed, giving the electors of the State another opportunity to pass their judgment upon these amendments.

The amendments have been the theme of frequent and careful discussion. So general is the sentiment of unbiased men in