« ForrigeFortsett »
pardon, direct the execution of the sentence, or / government the framers of our Constitution had grant a further reprieve; and if the legislature | the right to lodge the pardoning power where shall fail or refuse to make disposition of such they saw proper in the departments of governcase, the sentence shall be enforced at such ment. We know from judicial history that time and place as the governor may direct.' the pardoning power was a part of the royal Provision is also made in the section for re- prerogative in England, and Chief Justice ports to the legislature by the governor of the Marshall
, in speaking for the court in United fines or forfeitures remitted, or reprieves, States v. Wilson, 32 Ŭ. S. 7 Pet. 150, 8 L. ed. pardons, or commutations granted. The 12th 640, says: "As this power has been exercised section of the same article, as it stood when the from time immemorial by the executive of that act of 1895, supra, was passed, provided that nation whose language is our language, and to the governor, justices of the supreme court, whose judicial institutions ours bear a close and attorney general, or a major part of them, resemblance, we adopt their principles respectof whom the governor shall be one, may, ing the operation and effect of a pardon, and upon such conditions, and with such limitations look into their books for the rules prescribing and restrictions as they may deem proper, re- the manner in which it is to be used by the mit fines and forfeitures, commute punishment, person who would avail himself of it." As and grant pardons after conviction, in all cases to the exercise of the power under our system except treason and impeachment, subject to of government we must look to our organic such regulations as may be prescribed by law law, the Constitution. By the 11th section of relative to the manner of applying for pardons." article 4 the governor alone is given power to Under the amendment to this section, adopted suspend the collection of fipes and forfeitures, this year, the secretary of state, comptroller, and grant reprieves for a period not exceeding and commissioner of agriculture take the sixty days, for all offenses, except in cases of places of the justices of the supreme court. impeachment, and in cases of conviction for Article 2 of the Constitution divides the powers treason the legislature can pardon on the susof government into three departments—legisla- pension of the sentence by the governor. The tive, executive, and judicial--and provides 12th section of the article, as amended, conthat no person properly belonging to one offers power upon the governor, secretary of the departments shall exercise any powers ap- state, comptroller, commissioner of agriculture, pertaining to either of the others, except in and attorney general to permanently remit cases expressly provided for by the Constitu- tines and forfeitures, commute punishment, tion. In the distribution of the powers of land grant pardons after conviction, in all cases
nesty before conviction. The court distinguishes to guerrillas or other unlicensed trespassers and the cases of State v. Sloss, and State v. Fleming, limited to soldiers of either army for acts done unsupra, on the ground that they were decided under der color of or by compulsion of military authorconstitutions which did not limit the governor's ity. Haddix v. Wilson, 3 Bush, 523. power to pardon to cases after conviction, and In the Kentucky, North Carolina, and Alabama says the language used therefore amounts to an cases the power of the legislature to enact such absolute grant of all the pardoning power of the amnesty laws is assumed without question. state to the executive, and therefore is an inhibi- The power of Congress to grant amnesty has been tion against the legislative branch interfering with the subject of much discussion and conflict of it. It further distinguishes the case of State v. opinion. Congress has assumed the power in many Fleming on the ground that Fleming was convicted instances by special acts to remove the disabilities before he knew of the legislative resolution pro- of certain individuals for participation in rebellion. hibiting his punishment, and stood before the Some of these acts of Congress named a single in. court in the light of one who bad waived his dividual, others named a great number of indipardon.
viduals. Section 13 of the confiscation act of July The Arkansas case of State v. Nichols, supra, was 17, 1862, purporting to confer upon the President one of those which arose under statutes of various power to grant pardon and amnesty in certain southern states granting amnesty and pardon for cases. But while President Lincoln made reference offenses committed during the time of the war. to this act of Congress, in his proclamation of The Arkansas statute gave amnesty for all crimes December 8, 1863, proclaiming full pardon and resexcept rape committed between May 6, 1861, and toration of all rights of property, except as to July 4, 1865, if convictions had not yet been had. A slaves, to persons in rebellion on condition of their similar statute in North Carolina granted amnesty taking and keeping an oath of loyalty, he began his to all soldiers of the United States or of the con- proclamation by saying: "Whereas in and by the federate states or of the state for acts done in dis- Constitution of the Cnited States it is provided that charge of their duties or under orders as soldiers the President shall have power to grant reprieves prior to January 1, 1866. State v. Blalock, Phill. and pardons," and very plainly sbowed that he L. 242.
based his authority to grant the proclamation upon This act is held applicable to homicide growing the provisions of the Constitution, and not upon the out of war matters. State v. Shelton, 65 N. C. 294. act of Congress. His reference to the act of Con
But it is held inapplicable to any crime that did gress was: “Whereas the congressional declaration not grow out of any war duties or war passions. for a limited and conditional pardon accords with State v. Cook, Phill. L. 535; State r. Haney, 67 N. ('. well-established judicial exposition of the pardon. 467.
ing power." It is also matter of history that the These amnesty acts are held to be irrevocable and sweeping proclamation of amnesty issued by Presito give a vested right which cannot be taken away dent Johnson was based entirely upon his constiby a repeal. State v. Keith, 63 N. C. 140; State v. tutional right, and that the attempt of Congress to Nichols, 26 Ark. 74, 7 Am. Rep. 600.
limit the effect of this amnesty and pardon was held But, to the contrary, it was held in Michael v. by the Supreme Court of the United States to be State, 40 Ala. 361, that a repeal of such a statute ineffectual. United States v. Klein, 80 U. S. 13 Wall. would preclude its operation as a defense in favor 128, 20 L. ed. 519; Ex parte Garland, 71 U. S. 4 Wall. of one who had not previously accepted it.
333, 18 L. ed. 366. The Kentucky amnesty act was held inapplicable But the power of the legislative department to
except treason and impeachment, subject to offense.” This has been approved in an such regulations as may be prescribed by law opinion of the justices of this court (Re Erecrelative to the manner of applying for pardons, i utire Communication, 14 Fla. 318). It is and we are of the opinion that the pardoning settled law that the pardop of an offense not power after conviction, conferred by this sec- only blots out the crime committed, but retion upon the board of pardons designated, is moves all disabilities resulting from the conexclusive, and that the legislature cannot exer- viction. “Imprisonment and hard labor are cise such power. The Constitution of Mis not the only punishments which the law inflicts souri vested the pardoning, power in the upon those who violate its commands. Begovernor, and it was decided in State v. Sloss, sides these are disabilities which are the conse25 Mo. 291, 69 Am. Dec. 467, that such power quences of conviction, and which remain after belonged exclusively to the executive depart. incarceration bas ceased. A pardon is supment, and could not be exercised by the legis- posed to be granted to one who has been im. lature. The Constitution of the United States properly convicted, or who has sufficiently exconfers upon the President the power to grant piated bis offense. If it was only efficacious reprieves and pardons for offenses against the when the party was in duress, its effects would United States, except in cases of impeachment, only be a half-way relief. The doctrine, now and Judge Story says (on the Constitution, vol.2, well recognized upon this subject, we believe,
1404) that "po law can abridge the con is that a pardon gives to the person in whose stitutional powers of the executive department, favor it is granted a new character and makes or interrupt its right to interpose by pardon in of bim a new man. When extended to him in such cases. It was held in Ex parte Garland, prison, it relieves him and removes his disabili. 71 U. S. 4 Wall. 333, 18 L. ed. 366, that the ties; when given to him after his term of im. pardoning power conferred on the President prisonment has expired, it removes all that is was not subject to legislative control. In this left of the consequences of conviction, --bis discase it is said, in reference to the effect of a abilities.” State v. Baptiste, 26 La. Ann. 134. pardon, that it “reaches both the punishment Under the section of the Revised Statutes prescribed for the offense, and the guilt of the referred to a conviction of the crime of larceny offender. When the pardon is full, it releases in the courts of this state disqualifies the conthe punishment and blots out of existence the vict as a witness, and there can be no question guilt, so that in the eye of the law the offender that a pardon in such a case would restore his is as innocent as if he had never committed the competency in this respect. From the con
restrict the pardoning power of the executive is S. 149, 152, 24 L. ed. 442, 443, as follows: "The Constinot within the scope of this note. It may be ob. tution does not use the word 'amnesty;'and, except served, however, that in many states the Constitu- that the term is generally employed where pardon tion provides that the executive sball exercise the is extended to whole classes or communities, inpardoning power subject to such rules and regu- stead of individuals, the distinction between them lations as shall be prescribed by law.
is one rather of pbiological interest than of legal By U.S. Rev. Stat. 8 5294, Congress authorized the importance." But the opinion in the case of Brown remission of certain penalties by the Secretary of v. Walker further proceeds to say: "Amnesty is the Treasury. The constitutionality of this provi- defined by the lexicographers to be an act of the sion was attacked on the ground that it infringed sovereign power granting oblivion, or a general on tbe President's pardoning power, but the section pardon for a past offense, and is rarely, if ever, exwas held valid "in view of the practice in reference ercised in favor of single individuals, but is usually to remission by the Secretary of tbe Treasury and exerted in behalf of certain classes of persons, who other officers which had been sanctioned by statute are subject to trial, but have not yet been conand acquiesced in for nearly a century." Pollock victed." v. Bridgeport S.B. Co. ("The Laura”), 114 U.S. 411,29 L. ed. 147, Affirming 8 Fed. Rep. 612.
III. Incidental or implied pardon. While the special acts of Congress granting par- It is perfectly plain that all the effect of a pardon don or amnesty have not been brought into the or grant of ampesty before conviction, so far as the courts for adjudication of their constitutionality, criminal is concerned,can be achieved by the legisthere is a declaration in favor of the power of Con- lature through the repeal of a statute creating the gress to pass acts of general amnesty made by the offense without any saving clause. The rule that all Supreme Court of the United States in Brown v. pending prosecutions fall, and all prior offenses not Walker, 161 U. S. 591, 40 L. ed. 819, 5 Inters. Com. yet prosecuted are wiped out by such a repeal, is too Rep. 369, where the court, in upholding the act of well established to need discussion or citation of Congress exempting a witness from prosecution on authorities. But there are some other cases in account of any transaction to wbich he may tes which statutes not so directly granting amnesty as tify before the Interstate Commerce Commission, the act of Congress upheld in Brown v. Walker, says: “The act of Congress in question securing 161 U. S. 591, 40 L. ed. 819, 5 Inters. Com. Rep. 369, to witnesses immunity from prosecution is virtu- have an incidental effect which has been alleged to ally an act of general amnesty, and belongs to a be equivalent to a pardon. Thus, a statute providclass of legislation which is uot uncommon either | ing for good-time credits to a convict was held as in England (2 Taylor, Ev. $ 1455, where a large num- to all prior sentences to amount to an unconstituber of similar acts are collated), or in this country. tional pardon in State, Johnston, v. McClellan, 87 Although the Constitution vests in the President Tenn. 52. (For good-time credits as affecting defipower to grant reprieves and pardons for offensesniteness of sentence, see Howard v. United States against the United States, except in cases of im. (C. C. App. 6th C. post, ---, and note. peachment, this power has never been beld to take So, in People v. Cummings, 88 Mich, 249, 14 L. R. from Congress the power to pass acts of general A. 285, a statute authorizing a parole or conditional amnesty."
release by the board of control of persons of a The distinction between amnesty and pardon prisoner sentenced for an indefinite time, whereby is said by the court in this case to be "of no prac- he remains in the legal custody of the board, altical importance," and the court quotes from the though outside of the prison and subject to be opinion in the case of Knote v. United States, 95 u. I taken back on the order of the board if he violates clusions stated, it is evident that an attempt on act would include the restoration of comthe part of the legislature to exercise any part petency to testify as a witness, lost by of the pardoning power exclusively conferred reason of the conviction of crime, as Bishop upon the board of pardons by $ 12, article 4, of could not testify by virtue of the act unless the Constitution, would be in conflict with that it had such effect, and to so construe it instrument, and therefore void.
would place it in antagonism to the ConstituThe act relied on to qualify the witness, tion. Bishop should not have been permitted Bishop, provides for his restoration to "civil to testify, and for the error in this respect the rights." There is, in a section in the suffrage judgment must be reversed. In addition to and eligibility article of the Constitution, a ihe authorities cited, the following bear on the provision that no person convicted of felony by subject of pardons and its proper exercise: a court of record shall be qualified to vote at any State v. Foley. 15 Nev. 64, 37 Am. Rep. 458; election unless restored to civil rights, and People v. Boven, 43 Cal. 439, 13 Am. Rep. 148; within the meaning of this provision it may be People, Forsyth, v. Monroe County Ct. of that the elective franchise is embraced within Sessions, 141 N. Y. 288, 23 L. R. A. 856; Haley the civil rights contemplated. To accomplish v. Clark, 26 Ala. 439; State v. Fleming, 7 the purpose for which the act of 1895 is in. Humph. 152, 46 Am. Dec. 73; Ogletree v. voked, it must have the effect to relieve Dozier, 59 Ga. 800; Baldwin v. Scoggin, 15 Howard Bishop from the disability of not be- Ark. 427; State v. Nichols, 26 Ark. 74, 7 Am. ing able to testify as a witness attaching, under Rep. 600; Sterling v. Drake, 29 Ohio St. 457, the law, to the conviction of the crime of lar- 23 Am. Rep. 762; Atty. Gen., Taylor, v. ceny. This disability is as much a part of the Brown, 1 Wis. 513; People v. Moore, 62 Mich. pains and penalties of the violated law as in- 496; State v. McIntire, 1 Jones, L. 1, 59 Am. carceration, and after conviction it attaches as Dec. 566, and note. surely as any other part of the punishment. The accused made an application for a In our judgment the power to commute pun change of venue, upon which affidavits pro ishment and grant pardons for crimes after and con, were filed. The application was de. conviction has been conferred upon the gov.nied. There was also a plea in abatement of ernor, the secretary of state, comptroller, com the indictment, alleging certain defects in the missioner of agriculture, and attorney general, organization of the grand jury that presented and it is not competent for the legislature to the indictment, and there were certain proceedexercise such power. In this view it is not ings on this plea. We do not think there was necessary to determine definitely wbether the reversible error in the rulings on the applicarestoration to civil rights as provided in the tion for change of venue and plea in abatement.
the condition of his parole'or release, is held to vio- So, a statute which authorizes the supension of late a constitutional provision giving the pardon- certain penalties of a prohibitory liquor law in any ing power to the governor as well as the provision town or city upon certain conditions, including the giving judicial power to the courts. (With the consent of a specified portion of the electors, is above case is a note as to suspension of sentence held valid, and the act is held not to constitute an for good behavior, and as to conditional pardons.) infringement of the governor's pardoning power.
But, on the other hand, in State, Atty. Gen., v. State, Witter, v. Forkner (Iowa) 28 L. R. A. 212. Peters, 43 Ohio St. 629, a statute providing that the The court says: "The power to pardon must not board of penitentiary managers may establish rules be confounded with the power of dispensation or and regulations for the parole of prisoners is upheld | suspension. The former is undoubtedly a prerogaas valid against the contention that it interferes tive of the executive, while the latter must be exwith the executive power to reprieve or pardon. ercised by the legislative department of the govern
So, a statute authorizing a court to suspend sen- ment.” Reference is also made to somewhat simitence is sustained in People, Forsyth, v. Monroe lar statutes which are said to have passed unchalCounty Ct. of Sessions, 141 N. Y. 288, 23 L. R. A. 856. lenged for years, such, for instance, as that which The court denies that this statute encroaches on provides for the discharge of a person convicted the governor's power to reprieve and pardon, since for intoxication and the remission of his fine upon it bolds that this power to suspend sentence is a giving information under oath as to the person common-law power of the court, and totally dis- from wbom he obtained the intoxicating liquor, tinct and different from the power to grant re- and the statutory provision as to the effect of marprieves and pardons; but the court says there can riage to bar an indictment for seduction, and the be no doubt that if the amendment distributed provisions for the bar of certain prosecutions upon any part of the pardoning power conferred upon a compromise. the executive to some other department of the But a statute to authorize county commissioners government, the legislation would be in conflict to change the sentence of a court from work on a with the Constitution and invalid.
chain gang to the hire of the convict to a private So, a statute giving an appellate court power to person for private work is held to infringe on the stay sentence of death or of fine, pending an appeal, governor's exclusive power to commute sentences. is sustained in Parker v. State, 135 Ind. 534, 23 L. R. Ogletree v. Dozier, 59 Ga. 800. A. 859, and it is held that the governor's power to On the other hand, a Missouri case upholds a statgrant reprieves and pardons is not infringed ute giving a justice power to commute a fine to im. thereby.
prisonment for a definite time on the ground that So, a statute providing a board of pardons to in- such an alternative punishment is wholly uplike a vestigate the facts on a petition for pardon and re- pardon, E.r parte Parker, 108 Mo. 551. port to the governor with recommendations, if the These cases, so far as they support legislation recommendations have no binding force upon him, which has the effect to relieve from punishment, is sustained in Rich v. Chamberlain, 104 Mich. 436, are based on distinctions between the powers actu27 L. R. A. 573. The basis of the decision is that the ally exercised and the pardoning power, without governor's power is in fact unrestricted by the act at all deciding that the legislature can exercise the of the board, since he is entirely at liberty to disre- power to pardon.
B. A. R. gard their recommendations.
Under the laws of this state an accused is en sider the instructions of the court to the jury; titled to be tried by an impartial jury, and but we direct attention to the general proposiwhen it shall appear to the trial judge that a tion stated in one of the instructions, that an fair and impartial trial cannot be had in the aggressor in a personal difficulty can never be county where the offense was committed, be heard to acquit himself of liability for its conshould direct that the accused be tried in an- sequences on the ground of self-defense. Withother county. Under our decisions this matter out considering now whether this portion of is left largely to the discretion of the trial court, the charge, in the terms stated, contains a corand its ruling on such matters will not be dis- rect proposition of law under any state of cir. turbed unless it appear from the facts pre- cumstances, it may, so far as we can see, be sented that the court acted unfairly and com- omitted or modified in this case. mitted a palpable abuse of a sound discretion. The judgment will be rerersed and a new trial
We cannot anticipate what the evidence will ordered. be on another trial of the case, and do not con
KENTUCKY COURT OF APPEALS.
W. R. BELKNAP et al., Appts., 1 People, Wheaton, v. Wiant, 48 IU. 263;
People, Mitchell, v. Warfield, 20 I11. 160; People, City of LOUISVILLE et al.
Davenport, v. Bronon, 11 Ill. 478; Bayard v.
Klinge, 16 Minn. 249; Taylor v. Taylor, 10 Ky.........)
Minn. 107; Ererett v. Smith, 22 Minn. 53; En
yart v. Hanover Trop. Trustees, 25 Ohio St. 618; 1. A special election upon the question of State, Cope, v. Foraker, 46 Ohio St. 677, 6 L. isguing municipal bonds cannot be held where the R. A. 422; State, Jones, v. Lancaster County Constitution provides that not more than one Comrs. 6 Neb. 474; People, Crowell, v. Laurelection shall be held in each year, but such ques-rence, 36 Barb. 186; State v. Winkel meier, 35 tion must be submitted at a general election.
Mo. 103; South Bend v. Lewis, 138 Ind. 2. Two thirds of the voters voting at an 512.
election to be held for that purpose, whose as- In Armour Bros. Bkg. Co. v. Finney County sent is necessary to authorize municipal ipdebt. Comrs. 41 Fed. Rep. 321, it is said: “The edness, means two thirds of all the votes cast for words 'a majority of all the votes cast do not any purpose at the election, where but one elec- mean cast at a poll opened for the purpose of tion can be held during the year, at which all questions to be submitted to the voters must be such assessment, at a poll opened for that
a general election, but cast for the purpose of decided.
purpose. 3. An ordinance providing for the sub
Marion County Comrs. v. Winkley, 29 Kan. mission to the voters of the question 36: State, Crooker, v. Echols, 4i Kan. 1; Cass whether or not park bonds shall be issued, at a specified general election, and authorizing the County v. Johnston, 95 U. S. 369, 24 L. ed. 417; issuance of the bonds "in the event that two
Walker v. Oswald, 68 Md. 146; Gillespie v. thirds of those voting at said election shall vote Palmer, 20 Wis. 544; Sanford v. Prentice, 28 in favor," requires a favorable vote of two thirds Wis. 358. of all those voting at the general election. Courts are steadfastly opposed to the pre(Landes, J., dissents from Proposition 1.)
sumptiou that a “majority of all the legal
voters" is intended, because that would lead to (June 13, 1896.)
an inquiry outside of the ballot box and require
proof as to who is a legal voter, which is the A
PPEAL by plaintiffs from a judgment of first case.
the Chancery Court for Jefferson County Carroll County Superx. v. Smith, 111 C, S. in favor of defendants in an action to enjoin 556, 28 L, ed. 517. defendants from issuing bonds for park pur- If the ballot shows that a minority has voted poses. Rerersed.
on a question submitted at a general election, The facts are stated in the opinion.
it shows that it is a minority and not a majority Mr. Randolph H. Blain, for appellants: of those voting. If the lawmaker intends to
The question upon the issue of park bonds confine the evidence to those voting on the could only be submitted or voted on at a question, it should so express it in the act, othgeneral election.
erwise the rule should control. Ky. Const. $$ 147, 148.
The debates in the constitutional convention, Where a question is required and can only and the statutes of Kentucky on the subject, be submitted and voted on at a general election, conclusively show that by the expression two and is made to depend op a majority of the thirds of the voters voting at an election to be votes cast at such election, a majority of all}the held for that purpose” was meant two thirds votes cast at the election is required, and not of all voting at a general election, and not merely a majority of the votes cast on the par- simply two thirds of those voting on any particular question.
ticular question submitted.
NOTE.-As to what constitutes a sufficient major- | gersoll (Tenn.) 6 L. R. A. 310; also People, Wells, v. ity to carry an election, see note to Lawrence v. In. Berkeley (Cal.) 23 L. R. A. 838.
Messrs. Humphrey & Davie, with Mr. ( that the majority cast for a proposition—at a H. S. Barker, for appellees:
special election where it alone is voted for—is In testing the validity of the election to be not the real majority in fact of the actual held for that purpose to determine whether number of voters in the district. these bonds should or should not be issued, the Carroll County Super8. V. Smith, 111 U. only question to be considered is whether the S. 556, 28 L. ed. 517; Douglass v. Pike County, votes in favor of issuing the bonds were more 101 U. S. 685, 25 L. ed. 971; Bassett v. State, than two thirds of those voting for that pur. Renick, 37 Mo. 270; State v. Binder, 38 Mo. pose, i. e., more than two thirds of those 450; Knox County v. Ninth Nat. Bank, 147 voting for and against the issue of the bonds, U. S. 99, 37 L. ed. 96; Dill. Mun. Corp. 4th
When the Constitution comes to define what ed. $ 277: Cooley, Const. Lim. 6th ed. 779; Mc"elections” shall be beld on the 1st Tuesday in Crary, Elections, 3d ed. 173; First Parish in November it carefully limits it to the election Sudbury v. Stearns, 21 Pick. 154; Vance v. of "officers."
Austell, 45 Ark. 406; Richardson v. McReyFidelity Trust & 8. 1. Co. v. Morganfield, 96 nolds, 114 Mo. 641; Yesler v. Seattle, 1 Wash. Ky. 564.1
308. The question whether bonds should be issued Were the language of the Iodiana Constitu. by the city of Louisville was a question which tion like ours, the Indiana court would hold was not constitutionally to be submitted on the the way we contend for. day in November at wbich the elections for Lamo v. Cain, 129 Ind. 486, 14 L. R. A. officers were to be held, but could have been 518; Rushville Gas Co. v. Rushville, 121 Ind. 209, submitted to a vote of the people on any day 6 L. R. A. 315. and at any time that the legislature should fix. The law does not permit the absent or in
No one would have pretended if this election different to neutralize the efforts of the public had been fixed and held in August or Septem-spirited and enterprising, but compels every ber that the question submitted to the voters one who would make his ipfluence effective to was to be decided otherwise than by adding attend the meeting and vote in the manner up the total vote cast on this "question sub- provided by law. mitted to them” and seeing whether two thirds Smith v. Procter, 130 N. Y. 319, 14 L. R. A. of those voting on the question so submitted” 403. were in favor of the issuing of the bonds. As the Constitution does not derive its force
Carroll County Super8. v. Smith, 111 U. S. from the convention which framed, but from 556. 28 L. ed. 517; McCrary, Elections, 3d ed. the people who ratified it, the intent to be ar$ 173.
rived at is that of the people; and it is not to The fact that the legislature or the city ordi- be supposed that they have looked for any nance happened to fix, for the sake of economy, dark or abstruse meaning in the words emthe same day on which elections were being ployed, but rather that they have accepted beld for other purposes or to elect candidates them in the sense most obvious to the common cannot in any manner change the principle or understanding, and ratified the instrument in the result.
the belief that that was the sepse designed to When a matter submitted to the vote of be conveyed. the people the question of its passage or rejec- Exchange Bank v.'Hines, 3 Ohio St. 47; Cooltion is to be determined by the vote of those ey, Const. Lim. 6th ed. 80, 81. people who choose to express themselves upon The proper construction of this clause had that subject--for or against it; and is not to be been thoroughly settled by the courts long determined by persons not voting upon it. before it was adopted into our new Constitu
Gillespie v. Palmer, 20 Wis. 544; Thomp. tion, and where a clause or language bas reCorp. $728; Carroll County Supers. v. Smith, ceived a construction by the courts of the states 111 U. S. 565, 28 L. ed. 520.
where it was formerly used, and it is then Where a question is to be settled by a vote adopted by a convention or legislature of our of the majority or two thirds of the "voters state, it will be considered as adopted within voting at an election to be held for that pur- the construction previously given. pose," it means that it is to be settled by the Metropolitan R. Co. v. Moore, 121 U. S. 558, voles cast on the question submitted, and not 30 L. ed. 1022; Coolam v. Doull 133 U.S. 223, 33 by the votes cast in elections held for other L. ed. 597; Alien v. Ramsey, 1 Met. (Ky.) 637; purposes or upon other questions.
Cooley, Const. Lim. 6th ed. 66, note; Endlich, Armour Bros. Bkg. Co. v. Finney County Interpretation of Statutes, $ 530; McDonald v. Comrs. 41 Fed. Rep. 321; Walker v. Oswald, 68 Hovey, 110 U.S. 619, 28 L. ed. 269. Md. 155; St. Joseph Trop. v. Rogers, 83 U.S. 16 The phraseology of this section of the new Wall. 644, 21 L. ed. 328; Cass County v. John- Kentucky Constitution has often been conston, 95 U. S. 360, 24 L. ed. 416; State, Lara- strued before its adoption here. bee, v. Barnes, 3 N.D. 319; Metcalfe v. Seattle, Metcalfe v. Seattle, i Wash. 302; Walker v. 1 Wash. 302; Gillespie v. Palmer, supra; Ma- Oswald, 68 Md. 155; Carroll County Supers. v. rion County Comrs. v. Winkley, 29 Kap. 36; Smith, 111 U. 8. 556, 28 L. ed. 517; Sanford v. State, Durkheimer, v. Grace, 20 Or. 154; State, Prentice, 28 Wis. 358: Knox County v Ninth Crooker, v. Echols, 40 Kan. 1; Sanford v. Pren- Nat. Bank, 147 U. 8. 99, 37 L. ed. 96; Dance lice, 28 Wis. 358; Holcomb v. Davis, 56 Ill. 413; | v. Austell, 45 Ark. 406; Richardson v. McReyConstitutional Prohibitory Amendment, 24 nolds, 114 Mo. 641; Yesler v. Seattle, 1 Wash. Kan. 721; Smith v. Procter, 130 N. Y. 319, 14 308; Douglass v. Pike County, 101 U. S. 679, L. R. A. 403.
25 L. ed. 969; Casa County v. Johnston, 95 U. Neither parol evidence, por registration S. 369, 24 L. ed. 417; South Bend v. Lewis. 138 lists, nor the records of the numbers of voters Ind. 512; McCrary, Elections, $ 173; Endlich, in previous elections, can be looked to, to show Interpretation of Statutes, $ 530; Franklin