the Constitution unless the same shall have been called for and approved of by a majority of all the voters of the State." A vote being taken on Mr. Pettit's motion, it was lost by a vote of twentyseven to ninety-three, and the section was thereupon passed by a vote of seventy-seven to forty-five. Debates of Constitutional Convention, p. 1940. Thereafter the second section of Article 16 was added providing that the amendment or amendments should be so submitted that the electors shall vote for or against each of said amendments separately." An examination of these debates apparently discloses that it was the affirmative sense or meaning of the convention to fix or provide no particular time for an election at which proposed amendments should be submitted to the people. Neither does it appear that it was intended to fix or provide, aside from the usual and ordinary one, any particular method or criterion for ascertaining the majority of the electors voting as an election called in pursuance of an act of the legislature for the submission of proposed amendments. As indicated by the Constitution itself, as well as by the debates and action of those who framed it, it would certainly seem that the question both as to the time when the amendment or amendments were to be submitted, and likewise as to the standard or method by which the required majority should be tested, was, as previously asserted, left by the Constitution to the consideration of the legislature in submitting proposed amendments.

...I may also indulge in the presumption that the men who framed the Constitution and the people who ratified their work, must have understood that the great body of electors of the State is composed of a changing, uncertain, or indefinite number, which it is difficult at any given time actually to ascertain. They also presumably knew that there are thousands comprising that body who by reason of religious or conscientious views, or indifference, or from other reasons, decline when the opportunity is presented to exercise the right of suffrage. That while many do not vote at all others will vote only for some particular proposition or officer and will fail or decline to vote for others, and that, therefore, the most feasible and simplest method was the one universally recognized in the eye of the law long before the adoption of our Constitution, namely, give all entitled to vote an opportunity to exercise this privilege, and then combine or aggregate the whole number of votes upon a given proposition or measure submitted to the electors of a district or locality, such combined vote to be taken or accepted upon any given proposition for all

practicable purposes as comprising the whole number of the electors of the particular district or locality. This method of measuring the whole number is the one, as the authorities disclose, generally adopted, except where a different one is expressly prescribed. In such cases the non-voting must be counted as willing to be bound by the action of the majority who did vote upon the particular proposition, or, in other words, they may be considered as tacitly assenting to the result of those voting, and in this manner or by this method all of the electors of the district, or State, as the case may be, are taken into account.

The method which I have indicated must in reason be the one which the Constitution contemplates shall be adopted or provided by the legislature, in submitting proposed amendments for ratification, and the test by which the majority necessary for ratification shall be determined is to consider alone the majority of the combined or aggregate vote cast for and against the ratification of each amendment. In this view I am supported by Section 2 of Article 16 which requires that the amendment or amendments shall be submitted in such a manner that the electors shall vote for or against each amendment separately. This provision would seem to be a positive command that the electors exercising the right to vote thereon shall vote for or against each of them separately and distinct from the others. Why was this required if the whole number of the electors was not to be tested by the combined affirmative and negative vote cast separately on each amendment, but, as contended, must be ascertained by the highest number of votes cast at the same time upon some other proposition? -In my opinion there can be no sufficient reason advanced for asserting that those who molded and ratified the Constitution of this State, intended by the provision in question to change the well settled policy or mode so universally recognized, by allowing electors, who from indifference, or otherwise, decline to express any choice upon the ratification or rejection of an amendment to the Constitution, to be counted, the same as those who took an interest therein and evinced such interest by voting pro or con thereon. The Constitution surely does not contemplate that the silent, passive, or non-voting electors upon a proposed amendment shall be counted or considered in estimating the number of electors, or the majority essential to its ratification. Evidently the clause "a majority of said electors' was intended to mean such electors as saw proper to exercise the right of suffrage and actually cast their votes for or against a proposed amendment.

It is insisted that the election at which the amendment was submitted was a general election and that it was submitted to the electors of the State to be voted upon at and as a part of said general November election, and hence the returns of the votes cast thereon cannot alone be accepted, but that the court must go beyond and look to the returns in respect to said general election, and thereby it is asserted that it will be shown that a majority voting at the general election for Governor or other candidates on the Sta se ballot did not vote upon the proposition of ratifying or rejecting the amendment. It, however, can not be successfully asserted that the amendment was submitted to the people to be voted upon at and as a part of the general election of 1900. It was submitted under a special act of the legislature enacted solely for that purpose, and the votes cast for and against it can not be said to have been cast at a general election. The proposition to ratify the amendment was neither upon the State nor local ballots used for voting at the general election, but was, as provided by the act of 1899, printed upon ballots which were separate and distinct from all other ballots used at said general election. To all intents and purposes the vote directed by the act of 1899 to be taken upon the adoption or rejection of the proposed amendments, was under that law a special election, as much so as though the act had fixed the 7th day of November, 1900, the day following the general election, for a vote to be taken on their adoption or rejection, and had further provided that it should be held at the same precincts and by the same election officers who held the general election on the previous day. Had the legislature intended that the amendment should be submitted at a general election, and as a part thereof, it would have provided that it be submitted under that section of our general election law in respect to constitutional amendments which is as follows: "Whenever any constitutional amendment or other question is required by law to be submitted to popular vote, if all the electors of the State are entitled to vote on such question, the State Board of Election Commissioners shall cause a brief statement of the same to be printed on the State ballots, and the words 'yes' and 'no' under the same, so that the elector may indicate his preference by stamping (marking) at the place designated in front of either word. In case any elector shall not indicate his preference by stamping (marking) in front of either word, the ballot as to such question shall be void and shall not be counted." §6258 Burns 1894. The act of 1899 under which the amendments were submitted among other things pro

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vided that they should be printed on ballots of white paper and should be designated as "Amendment No. 1", and "Amendment No. 2", and on the ballot to the left of each separate amendment should be the words, "For the amendment," and underneath the words "Against the amendment," and directed that "the voter shall make a cross with a blue pencil in the square to the left of whichever set of words he desires to vote." One of these ballots as the act directed was to be delivered to each of the electors before entering the election booth in the manner now provided by law. The act further provides that the election shall be governed by the laws controlling elections "except as hereinafter provided." Section 2 after providing for the return to the Secretary of State of the total vote given for and against each amendment, etc., provides: "If it shall appear that a majority of all the votes cast at such election were given in favor of the adoption of either or both of said proposed constitutional amendments, the Governor shall make proclamation, and it or they shall then become part of the Constitution of the State of Indiana."

....If they did not under the circumstances avail themselves of the right to vote, or exercise a choice in the manner provided by law, it must be considered, when tested by the rule herein asserted, that those who did not express a choice upon the amendments, or expressed a choice only as to one and not as to the other amendment, must by their action be deemed to have affirmatively declined to do so, and in effect may be said to have thereby declared that they were willing to assent to the expressed will of the majority who voted upon each amendment.

. The act in question provides in effect that if it shall appear that "a majority of all the votes cast at such election" upon either amendment was in its favor, it shall then become a part of the Constitution. That is the usual and ordinary test or criterion, as I have shown, and the one which the legislature had the power to provide, and that is the test or evidence of the ratification of the amendment by which this court in this case should be controlled. It appearing that the amendment in controversy having received a majority of all the votes cast for and against it at the time designated by the statute for a vote to be taken thereon, it was, therefore, duly ratified by the electors of the State, and has become a part of the Constitution of the State of Indiana.

The extreme views and conclusions announced in the prevailing opinion of the court, in respect to the interpretation to be placed upon the particular clause of the Constitution, are, in my

opinion, not in harmony with its meaning, neither are they justified by the canons which control the construction of constitutional law. The decision is to be regretted, as it will materially hinder, or render it an extremely difficult matter in the future to make the needed changes in our fundamental law. The holding therein to the effect that although the amendments had each received a large majority of the votes cast thereon, still they must be considered as rejected, and hence cannot be resubmitted for the reason that they did not receive a majority of all the votes cast at the general election for Governor, is not warranted by the Constitution, and militates against sound reason. The decision in this respect goes beyond the holding in State v. Swift, 69 Ind. 505, as it was there held that the amendment involved was ineffectual for want of the constitutional majority, but that the legislature might resubmit it to the electors of the State. The Constitution does not limit the submission to any particular legislature, but simply declares that it shall be the duty of the General Assembly to submit, etc. The power is a continuing one in the legislature, and while it may be said that it is the duty of the legislature which has finally agreed to the amendment to submit it, still if not properly submitted, or if the people neither ratify nor expressly reject it by their votes cast thereon, it may be resubmitted. I conclude that the judgment ought to be affirmed.

THE SIXTY-SECOND GENERAL ASSEMBLY (1901).

In the 62d session of 1901, there were 33 Republicans and 17 Democrats in the Senate, and 61 Republicans and 39 Democrats in the House. The two amendments which had been submitted to the electors at the general election in November, 1900, had failed to receive a majority of all votes cast at the election, and hence, according to the Denny case of 1900, they were rejected and no legal obstruction existed to the submission of new amendments. In order to dispose of these rejected amendments it was necessary to resubmit them to the people, and measures were proposed accordingly. Unsuccessful attempts were also made to secure the adoption of amendments fixing the term of county officers, authorizing the use of voting machines, extending the right of suffrage to women, and providing a method of re-districting the State, and providing for municipal home rule. One bill was also considered providing for the call of a constitutional convention.

466. Membership of Supreme Court (February 4, 1901).

The amendment fixing the membership of the Supreme Court was introduced in the Senate on February 4 by Mr. E. S. Crumbaker, a Republican, and referred to the Committee on the Judiciary. On February 6 the com