Green v. State Board of Canvassers , 5 Idaho 130 ( 1896 )

HESTON, J.

The constitution of the state of Idaho eon-tains the following provisions in regard to amendments of that instrument:

“Article 20.

“Amendments.

“Section 1. Any amendment or amendments to this constitution may be proposed in either branch of the legislature,, and if the same shall be agreed to by two-thirds of all the members of each of the two houses, voting separately, such proposed amendment or ameiidments shall, with the yeas and nays thereon, be entered on their journals; and it shall be the duty of the legislature to submit such amendment or amendments to the electors of the state at' the next general election, and cause the same to be published without delay for at least six consecutive weeks, prior to said election, in not less than one newspaper of general circulation published in each county; and if a majority of the electors shall ratify the same, such amendment or amendments shall become a part of this constitution.

“Sec. 2. If two or more amendments are proposed, they shall be submitted in such manner that the electors shall vote for or against each of them separately.

“See. 3. Whenever two-thirds of the members elected to each branch of the legislature shall deem it necessary to call a convention to revise or amend this constitution, they shall recommend to the electors to vote at the next general election for or against a convention; and if a majority of all the electors voting at said election shall have voted for a convention, the legislature shall, at the next session, provide by law for calling the same; and siich convention shall consist of a number of members not less than double the number of the most numerous branch of the legislature.

“Sec. 4. Any constitution adopted by such convention shall have no validity until it has been submitted to, and adopted by, the people.”

The legislative assembly of the state of Idaho, at its third session, submitted to the people, under said constitutional provisions, the following amendment of the constitution: “Shall section 2 of article 6 of the constitution of the state of Idaho be so amended as to extend to women the equal right of suffrage ?” The vote as returned by the canvassing board upoD' said question was as follows: “For proposed amendment extending to women the equal right of suffrage: For, twelve thousand ' one hundred and twenty-six; against, six thousand two hundred and eighty-two.” And upon this return said board declares said amendment not adopted; and petitioner brings her action for a review of the action of said board of canvassers in this behalf.

The only question submitted to us for decision is as to the construction to be given to the last paragraph of section 1 of article 20,'above quoted: “And if the majority of the electors shall ratify the same, such amendment or amendments shall become a part of this constitution.” The question presented is by no means a novel one. In fact, so able and experienced a jurist as Judge Thomas M. Cooley admits (Cooley’s Constitutional Limitations, 6th ed., 747, note 1) that “it must be confessed that it is impossible to harmonize the cases.” An examination of the large number of authorities cited by counsel in the argument of this case accentuates the statement of Judge Cooley, and perhaps we shall not bo obnoxious to the charge of evading a duty should we decline to enter upon a task which so eminent a jurist declares to be hopeless. We confess ourselves unable to appreciate the argument which would make the language of section 1 of article 20 and section 3 of said article synonymous or expressive of the same intention. If they were, as counsel for defendants contend, intended to mean the same thing, why was not the same language used? We know of no rule of construction, nor has our attention been called to any, that would warrant us in arbitrarily saying that the language used in the two sections was intended to mean the same thing. -On the contrary, the reason seems to us to be the other way. We can understand why the makers of the constitution should apply a different and more stringent rule in the adoption of a call for a constitutional convention from what they would in the matter of a mere amendment. It is true, the amendment under consideration is one of vast importance, but so, likewise, are the other amendments submitted at the same time. With the character or importance of the amendment we have nothing to do in this consideration. Was the amendment adopted as required by the terms and provisions of the constitution? To hold that it was not is virtually to say that no amendment of the constitution is practicable. In fact, counsel do not strenuously contend for a construction involving such a conclusion, but rather insist that the words “majority of the electors,” in section 1, should be construed to mean tbe same as the words ‘‘majority of all the electors voting at such election,” in section 3. Even the authorities cited by counsel do not go to such an extent or sustain such a conclusion.

For us to go into an analysis of all the authorities cited and read upon the argument would accomplish nothing. We have carefully examined them all, in the light of the able arguments of couusel, and we find ourselves unable to base our conclusions upon any apparent weight of authority. We must decide this case upon the provisions of our constitution as the same appear to us, and, so doing, we are compelled to say that the construction contended for by the petitioner is the correct one. Experience has shown that it is almost, if not quite, an impossibility to secure an expression from every elector upon any question, and, above all, upon a question of an amendment of the constitution; and it is equally difficult to ascertain the actual number of electors at any given time. To rely upon the vote cast upon some other question at the same election would be entirely unsatisfactory, and such a construction is, we think, at least impliedly negatived by the provisions of section 3. While it is true that some ten thousand or more electors would seem to have been entirely indifferent upon the question of the adoption of this and the other amendments, still all were — must have been — fully advised as to the importance of the questions submitted, and should their indifference be taken as conclusive of their opposition to the amendments? TJpon what rule of honesty or righteousness can this be claimed ? Is it not more reasonable, as well as more righteous, to say that in a matter about which they manifest such indifference their silence shall be taken as assent? We hold that the amendment imder discussion is adopted, and has become a part of the constitution of the state of Idaho.

Sullivan, J., concurs.