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OF
INDIANA
By JACOB PIATT DUNN
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- INDIANAPolis:
Sentinel Printing Company; Printers and Binders
... I9 II . * -
THE PROBLEM.
The Constitution of Indiana provides a mode for special amend-
ment of its own provisions, but makes no provision for general
revision, or the adoption of a new constitution, beyond the declara-
tions that “the people have, at all times, an indefeasible right to
alter and reform their government;” and “the legislative authority
of the State shall be 'vested in the General Assembly.”
The mode for special amendment provides that “while an amend-
ment or amendments which shall have been agreed upon, by one
General Assembly shall be awaiting the action of a succeeding Gen-
eral Assembly, or of the electors, no additional amendment or
amendments shall be proposed.” The Supreme Court has decided
that an amendment once submitted to the people remains “pending,”
or “awaiting the action” of the electors, until “a majority of the
electors of the State” vote either for or against it.
The Constitution provides that “every person of good moral
character, being a voter, shall be entitled to admission to practice
law in all courts of justice.” In 1897 an amendment was proposed,
that the 1egislature might prescribe qualifications for admission to
the bar. It was adopted by two legislatures and has been voted on
three times; in 1900, 1906 and 1910, without a decisive vote either
way. Under the Supreme Court decisions it is still “pending;” and
bars all other special amendments.
Question: How may the “indefeasible right to alter and reform
their government” be exercised by the people? -
I.
The Right of Self-Government.
The right of the people of any American State to revise or -alter
their form of government, at any time, is based on the broad prin-
ciples asserted in the Declaration of Independence, and never since
questioned by Americans: “We hold these truths to be self-evident—
that all men are created equal; that they are endowed by their Creator
with certain inalienable rights; that among these are life, liberty and
the pursuit of happiness; that to secure these rights, governments are
instituted among men, deriving their just powers from the consent
of the governed; that whenever any form of government becomes
destructive of these ends it is the right of the people to alter or
abolish it, and to institute new government, laying its foundation on
such principles, and organizing its powers in such form, as to them
shall seem most likely to effect their safety and happiness.”
This right is not dependent on any written constitution, and could
not be taken away by one. It does not admit of question. It is self-
evident, inherent, indefeasible, and inalienable.
It is declared in every American constitution, not for the purpose
of conferring it, but for the purpose of emphasizing it as
the basic principle of every constitution. There is no con-
stitution in existence in this country, and there has never
been one, which did not rest wholly on that natural right. Its asser-
tion was the opening declaration of the Indiana Constitution of 1816
as it is of the present Constitution, which says, in the first section
of the first article, that “All power is inherent in the people; and
that all free governments are, and of right ought to be, founded on
their authorities and instituted for their peace, safety and well being.
For the advancement of these ends, the people have, at all times, an
indefeasible right to alter and reform their government.”
It should be borne in mind that this declaration does not create
any right, but simply recognizes one that exists, perpetual, inalien-
able, unchangeable, inherent in the people. It is not an abstract prin-
ciple, but a practical, available right, that can be acted upon at any
time, and has been acted upon time and again in the United States.
It is so universally recognized that it has been seriously questioned
in the higher courts only once and that was in the extreme case
of the reconstruction constitution of Tennessee. -
In 1861 the legislature of Tennessee decided for secession, but the
State was occupied by Union troops, and the secession government
disappeared, leaving only the United States military government in
its place. Under protection of this, a committee of Union men called
a constitutional convention, which met at Nashville on January 9,
1864, and proposed amendments which were adopted on February 22
following. The amendments were offered to the old Constitution of
5
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6
1834, but in the election the suffrage was forcibly restricted to Union
men, and negroes' were allowed to vote, notwithstanding the prohi-
bition of the Constitution. -
The Supreme Court of Tennessee upheld the amended constitution
on the proposition that “A11 power is inherent in the people, and all
free governments are, founded on that authority, and instituted for
their peace, safety and happiness. For the advancement of these
ends, they have, at all times, an unalterable and indefeasible right
to alter, reform, or abolish the government in such manner as they
may think proper.” - \,
These words were quoted from the Tennessee Constitution of 1834,
but the court added: “These principles in this country are well
recognized political truths independent of any written constitution
or 1aws.” (3 Coldwell, p. 569.)
But some persons have imagined that because the sixteenth article
of the Constitution of Indiana provides for amendments to it, the
Constitution can not be changed in any other way. This error is
based on a misunderstanding of the 1egal maxim that “the expression
of one mode is the exclusion of others.” This maxim, however, has
no application to constitutional provisions. It applies to legislation
for the government of individual citizens, and properly so, because
the natural rights of the individual to life, liberty and property have
sometimes to be 'surrendered for the public safety or welfare, and it
would be dangerous to all if either could be taken except in the mode
expressly provided by 1aw.
But in dealing with the whole people this would be absurd, for
“all power” is inherent in the people, and can be exercised by them
except as they voluntarily prohibit its exercise to themselves. Hence
it is universally recognized that a constitutional provision of a method
in which a thing may be done carries no restriction of doing a
different thing—especially when the constitution itself recognizes
that different thing as an inalienable and indefeasible right. (Jame-
son, The Constitutional Convention, secs. 395, 396, 574.)
It was the fear of a different construction being put on the National
Constitution that caused adoption of the ninth amendment, which
reads: “The enumeration, in the Constitution, of certain rights shall
not be construed to deny or disparage others retained by the people.”
This provision, not usually found in State constitutions, was not really
necessary, but was meant to guard jealously the position that the
National Government had only those powers granted to it by the
Constitution. \
This distinction between the constitutional powers of the United
States and those of the individual States is one as to which there is
quite common misunderstanding. The affairs of the Nation are so
much larger than those of the State, and the acts of Congress occupy
so much more of the attention of the public than the acts of State
legislatures that it is not always easy to realize that the powers of a
State legislature are broader in their scope than those of Congress.
7
The United States, however, is a government of delegated powers
and Congress can act only within those powers. All remaining
powers belong to the States and the people, as provided by the tenth
amendment to the National Constitution: “The powers not delegated
to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States, respectively, or to the people.”
In its division of “the powers of government” into 1egislative,
executive and judicial, the Constitution of Indiana vests “the legisla-
tive authority of the State” in the General Assembly, with no restric-
tions except those elsewhere made in the same instrument. The
question as to the exercise of power by Congress is, “Does the Con-
stitution authorize it?” The question as to the State legislature is,
“Does the Constitution prohibit it?” (Cooley's Constitutional Limi-
tations, p. 242.)
When Hon. A. C. Harris appeared before the Indiana Senate Com-
mittee to argue against the bill for the proposed constitution, he
conceded that the legislature had power to call a constitutional con-
vention, although the Constitution makes no express provision for
it, and does make express provision for special amendment to the
Constitution. When asked where it got the power to call a conven-
tion, that not being mentioned in the Constitution, he replied that
the power was “inherent in the legislature.” Of course, neither Mr.
Harris nor any other lawyer will contend that the legislature has
any powers not conferred on it by the Constitution. The 1egislature
was created by the Constitution, and could not possibly get any
power from any other source. What he evidently meant was that
the power was inherent in “the legislative authority of the State,”
which the Constitution vests in the legislature. On this basis, the
legislative authority is unquestionable. -
The general rule of law as to calling constitutional conventions,
where the Constitution makes no express provision for them, and
where the Constitution does make provision for special amendments,
is thus stated by Jameson: “Under the general grant of legislative
power found in our State constitutions, a legislature is competent to
provide by law for all exigencies requiring provisions of a legislative
nature, so far as it is not restrained by rules of morality, or by ex-
press constitutional inhibitions. This is believed to cover the whole
case. The making of provision for the assembling of conventions,
and the hedging of them about with the restrictions needed as well
for their efficiency as for the safety of the commonwealth, is em-
phatically a matter of legislation. * * * The legislation necessary
to initiate and to temper the operations of a convention no depart-
ment of the government is competent to effect but the legislature;
the sovereign itself could not do it, nor the electors—bodies whose
organization is such as to make deliberation upon the details of laws
impossible.” (Constitutional Conventions, p. 388.) #
If there were any possible question as to the general power of
revision, or adopting a new Constitution, from a theoretical point of
8 .
view, the question has been settled beyond dispute by the action of
State after State, forming a line of precedents that are conclusive.
Says Jameson: “The second subdivision, consisting of conventions
called for legitimate constitutional purposes by the respective State
legislatures, under their general legislative power, without the special
authorization of their constitutions, comprises twenty-seven conven-
tions. * * * It must be laid down as among the established pre-
rogatives of our General Assemblies that the constitution being silent,
whenever they deem it expedient, they may call conventions to revise
their fundamental laws.” (Constitutional Conventions, page 211.)
We have, therefore, two distinct modes of constitutional alteration,
universally recognized in the United States; one of general revision
or adoption of a new constitution, and the other of special amend-
ment of an existing constitution. Their existence in Indiana does
not differ from their existence in other States of the Union. Origi-
nally general revision was the only method in use; and this continued
until 1818, when the Connecticut constitutional convention introduced
the system of special amendment which is provided in article 16 of
the Indiana Constitution. It was aimed there, as here, to avoid the
trouble and expense of general revision when only slight amendment
was desired.
The example of Connecticut was followed by Maine and Alabama
in 1819, by Massachusetts in 1820, and by New York in 1821, since
when it has been generally adopted; but it is always adopted as a
supplementary method, and not as a substitute for general revision;
and this is a commonly recognized historical fact. -
It is stated by Borgeaud as follows: “This method of partial revi-
sion, inaugurated in 1818, and from this time forth adopted in most
of the new constitutions, has become firmly adopted in practice. By
adopting this system, American democracy did not, however, intend
to discard that of revision prepared by special conventions, whose
work is likewise submitted to the verdict of the people. Both sys-
tems, in the form they had taken in New England, and which the
adhesion of New York had served to spread throughout the Union,
were nothing but the application to two different cases, of the theory
that the electoral body itself is the whole depository of constituent
power. Each one had its place in the edifice of which this theory is
the very cornerstone.” (Adoption and Amendment of Constitutions
in Europe and America, p. 170.)
It may possibly be suggested that the fact that the Indiana Con-
stitution of 1816 provided expressly for revision by convention, and
that this was dropped in the Constitution of 1851, constitutes a denial
by the latter instrument of the right to call a convention. This ques-
tion is considered by Jameson, and after giving a list of the States
in which this same situation existed, he says: “Now, in all these
cases, save those of Indiana and Vermont, the dropping of the pro-
vision relating to the call of conventions was not regarded as a
prohibition of the exercise of that power thereafter, because the
9
States, have all, except those two, since called conventions, without
question or objection; and, doubtless, upon the principles above ex-
plained, Vermont and Indiana might at any time have called them.”
(Constitutional Conventions, sec. 574i.)
II.
Intent of the Indiana Constitution.
While the right of the people to adopt a new constitution at any
time is clear under the general principles of American law, it is
equally clear that it was the actual intent of the makers of the present
Constitution to preserve that right, as well as the right of special
amendment. It is also plain that they meant to preserve it by
simply not prohibiting it. In fact it is by virtue of this distinction
between what is prohibited and what is not prohibited that our present
Constitution itself exists. The Constitution of 1816 made no provi-
sion for separate amendments, and its only provision as to a new
constitution, aside from the declaration of right above mentioned,
was that “every twelfth year after this Constitution shall have taken
effect” a vote of the people should be taken for or against a constitu-
tional convention, and, if the vote was favorable, the legislature
should call an election for a convention. - -
But, in fact, no such vote was taken in 1828, and not in 1840. In
1849, however, there was a strong demand for a new constitution.
The breaking down of the State's internal improvement system had
made necessary a large increase of private corporations, each of
which had to be formed by a special act of the legislature, and this
made an intolerable burden. There were also other features in which
changes were desired, and on January 15, 1849, the General Assembly
passed a law calling for a vote on the question of a constitutional
convention. There was considerable opposition to the convention,
but at the election on August 6, 1849, it was decided for by a vote
of 74,895 to 53,639, as announced by the Secretary of State.
The convention itself recognized fully that it had not been called
as provided by the Constitution of 1816, and the matter came into
discussion in connection with the question of amendment, as to which
there were conflicting views. The present provision for amendment
(Article 16) was proposed by Robert Dale Owen, but there were
others who wanted to make a provision for a convention, as in the
old Constitution. - -
In the debate, John Pettit, of Tippecanoe, afterward judge of the
Supreme Court, and recognized as one of the ablest lawyers in the
convention, said:
“Sir, I am clearly of the opinion that we are encumbering our
records too much with these propositions for amendment. All expe-
rience shows us that the people of the several States of the Union
will amend the constitutions of the States whenever and in whatever
mode they see fit. Thirty years ago our fathers formed a constitu-
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tion in which they inserted a provision that it might be amended in
such a mode, and in no other manner. Yet, here we are proposing
to violate that very provision.” (Debates, page 1938.)
This last proposition was controverted by J. B. Howe, of Lagrange,
who desired to limit the power of amendment. He said: “The gen-
tleman from Tippecanoe has stated that in the old Constitution there
is a prohibitory clause preventing amendment or alteration of the
Constitution unless it be made in the manner set forth therein. I
think he is a little mistaken, however, as to the text. The Constitu-
tion prescribes the manner in which it shall be done, but it does not
deny, or prevent by injunction, the making of amendments in any
other way. It is for that reason I propose to add the words that no
convention for the purpose of amending the Constitution shall be
called at any other time than once in twelve years. I wish to exclude
a conclusion by declaring that amendments shall not be made in any
other manner than herein prescribed.”
This view was indorsed by Robert Dale Owen, who said: “I agree
with the gentleman from Lagrange that the gentleman from Tippe-
canoe has taken an incorrect view of this subject. He has declared
that we are here in direct violation of a provision of the old Consti-
tution. The gentleman from Lagrange has well shown that there
was no prohibition in regard to the matter. It was well said that the
question of amendment should be submitted every twelve years; but
it was not said that the people might not, or that the legislature,
might not pass a law at other periods, calling a convention to amend
the Constitution.” (Debates, p. 1938.)
But Mr. Owen was equally in opposition to the proposaſ to restrict
the right of revision. He proceeded:
“Now the gentleman from Lagrange proposes that there shall be
in the Constitution an absolute prohibition in regard to this matter.
There are some things, sir, that it is in vain to do, in legislation.
We must never, in legislation, attempt impossibilities. The gentleman
is attempting an impossibility now; he is attempting that which he
has no right, which this Constitution has no right to do—which no
power on earth has any right to do. [Applause.]
“If we have a right to say that the legislature shall not, in twelve
years, pass a law calling a convention, we have an equal right to say
that they shall not call a convention in twenty years, or in fifty years.
We have an equal right to say that there shall be no convention held
within our time or within that of our children. Shall we, by a section
to be inserted in our Constitution, declare that we are infallible, and
that what we now enact shall not be changed?” -
The views of Mr. Owen on this subject are of special importance
because they were fully adopted by the convention, on a11 points, by
overwhelming votes; and he made it clear that he had no intention
of restricting the power of revision, but on the contrary, he desired
to furnish an easy and simple mode of amendment which would
obviate the necessity of calling a convention. He said:
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11
“I am not prepared to say as, to how far the abstract right of the
legislature c Xtends in regard to submitting to the popular vote propo-
Sitions of amendment; nor am I prepared to say that as a matter of
abstract right they may not do so whenever they think it proper and
expedient. But I say if you insert such a provision as this, placing
no greater check than that of requiring two successive legislatures to
act affirmatively upon the question before it shall be submitted to the
people, I am convinced that it will be entirely satisfactory.” (De-
bates, p. 1939.) -
This same idea of avoiding the trouble and expense of an unneces-
sary convention was general. When the plan of separate amend-
ments was first offered, A. C. Stevenson, of Putnam, said:
“It will be no easy or brief task for this convention to remodel
the whole Constitution. It will take this convention at least four
months to do it; whereas, if there had been a provision of this kind
in the old Constitution the necessary amendments might have been
made with a very trifling expense.” (Debates, p. 1258.)
The same argument was used afterward (Debates, pp. 1916, 1918),
and it was clearly shown that the aim of the convention was not to
limit the right of revision, but to extend it by the system of special
amendment.
It is well-settled law that the debates of a constitutional conven-
tion may be looked to in determining the meaning of a provision of
the Constitution; and it is equally well-settled that the whole instru-
ment is to be construed as one, giving full effect if possible to every
section. (Cooley's Constitutional Limitations, p. 91.) By both of
these tests it is evident that the provisions for amendment in article
16 are not intended as any limitation on the right of the people to
adopt a new constitution whenever they so desire, which is declared
in article 1. The only restriction is that if they desire to proceed
by special amendment, under article 16, they must follow strictly the
method there provided, in order to make the amendment valid. This
principle is so firmly and universally settled that anything more than
its statement would be superfluous.
It is fortunate for the people of Indiana that this general power
is reserved to them, for the system of special amendment has come
to grief in a way that the constitution makers of 1851 never con-
templated. It is impossible to read their statements and believe that
they ever dreamed that the Supreme Court would hold that an amend-
ment once submitted to the people and in which the majority of the
people did not take enough interest to vote, either for or against it,
should remain “pending” forever, and thereby block the introduction
of any other amendment. But they provided that “while an amend-
ment or amendments, which shall have been agreed to by one Geli-
eral Assembly shall be awaiting the action of a succeeding General
Assembly, or of the electors, i. o additional amendment or amend-
ments shall be proposed.”
The so-called “lawyer’s amen, ºnent” was introduced in the legisla-
12
ture in 1897, and under the decisions of the Supreme Court has
been “pending” ever since. It was voted on in 1900, 1906 and in 1910,
but without result. "It still “pends,” preventing the submission of
any other special amendment. For thirteen years the people have
been shut out of their inalienable right of amendment. The Consti-
tution of 1816 provided for a popular vote for a convention every
twelve years. - . . .
Meanwhile numerous proposals for amendments have come up,
and are “overdue.” Most of the changes proposed have been urged
and discussed for years. The demand has been so pronounced that
I called attention to it as one of the historic movements of the time
in my history of Indiana, edition of 1904. (Indiana, in American
Commonwealth Series, p. 468.) *
This is the situation that has developed from what the constitution
makers of 1851 intended as a simple and easy mode of amendment.
The idea that a sovereign people, with the indefeasible and inalien-
able right to alter their constitution at will, should have their hands
tied, and their right defeated and alienated, because of “lack of inter-
est in some question submitted to them is so grotesque in its absurd-
ity that its mere statement is ample proof of its impossibility. If the
constitution makers of 1851 had produced such a situation, and could
realize it, they would certainly be convinced that “reason had not
died with them.”
But that situation does not exist; and the people of Indiana, in
this emergency, are indebted to Governor Marshall for calling atten-
tion to the great fountain of reserve power in the people themselves,
by which they can at any time make such alteration in their form of
government as they believe essential to their welfare. There is noth-
ing irregular or revolutionary in this. It involves only coming out
of a rut, and moving ahead on the broad and unobstructed road
which is provided for them by the Constitution itself. The people
themselves have only to say whether they desire to remove the evils
which experience has shown to exist in their present Constitution.
This is the sort of solution for such a problem that Oliver P. Morton
would have made, and, it is in such recurrence to the fundamental
principles Of Our government, when new problems arise, that the
truest statesmanship is to be found.
III.
The Legislative Authority.
The situation presented in Indiana is one where a power of special
amendment is provided by the Constitution, and the mode of exer-
cising it is prescribed; while a general power of adopting a new
constitution is also preserved, but with no mode prescribed. Under
these conditions the provision of the mode is necessarily a matter
of legislative discretion, because it is a legislative act, and the
13
Constitution vests “the legislative authority of the State” in the
General Assembly. The rule is thus stated by Judge Cooley: {
“The will of the people to this end can only be expressed in the
legitimate modes by which such a body politic can act, and which
must either be prescribed by the constitution whose revision or
annendment is sought or by an act of the legislative department of
the State, which alone would be authorized to speak for the people
upon this subject, and to point out a mode for the expression of
their will, in the absence of any provision for amendment or revision
contained in the constitution itself.” (Constitutional Limitations,
p. 42; Jameson, Constitutional Conventions, sec. 375.)
This is necessarily true, because neither the executive nor the
judiciary could prescribe the mode, and there is no way for the
people to act except through their representatives. It is true that
there have been cases when the movement was initiated by volunteer
bodies, but this was in the absence of a valid, or effective legislative
body. Of the thirteen original States, Pennsylvania was the only one
in which the initiative of the constitution was not by the legislative
body, but that case was one of practical necessity. The same course
was followed by Vermont, which had no legislature, in 1777, and has
been followed by some other States since, but it is a generally con-
ceded legal proposition that if there is a valid legislative department
in existence, an independent movement is not to be considered legiti-
Imate.
This question, however, has been the cause of serious disturbance
in the United States, and of great agitation. It was the central
question in the Kansas troubles over the Topeka and Lecompton
constitutions, and also in “the Dorr rebellion” in Rhode Island. In
the latter case a body of citizens, probably a majority, wearied by
the refusal of the charter government to allow a more democratic
form of government, undertook to establish a new constitution and
a government under it. The movement was suppressed, and the case
finally came to the Supreme Court of the United States, which sus-
tained the charter government as the valid existing legislative body.
(7. Howard, United States, p. 1.) In none of these cases has any-
body questioned the validity of initiation of a revision by the legisla-
ture—the question was the validity of the initiative by independent
bodies of citizens. & - -
The common mode of legislative procedure is to call a constitu-
tional convention, or to submit to a vote of the people the question
of calling a constitutional convention. A convention so called is
simply an agency for preparing a form of constitution for submission
to the people. It is governed by the law which calls it not only as
to its membership and mode of election, but as to the scope of its
work. The legislature may limit the convention to a change of only
a part of the constitution if it so desires. (Jameson, Constitutional,
Conventions, sec. 379.) In the absence of constitutional restriction.
the matter is one of legislative discretion; and this extends beyond
14
the calling of a convention to any other mode of submitting a con-
stitution to the people that is within “the legislative authority of the
State.’
This term was borrowed from English law, and means the legislative
power exercised by the British Parliament, subject, of course, in this
country, to the restrictions of constitutions. (Cooley, Constitutional
Limitations, pp. 104-5.) In the United States, at the time. of the
Declaration of Independence, the colonial legislative bodies had been
supplanted by independent, or revolutionary 1egislative bodies in all
the Colonies but Rhode Island and Connecticut. These bodies were
known chiefly as “assemblies,” “congresses,” or “conventions,” and
were ordinary 1egislative bodies, as distinguished from the “constitu-
tional conventions” of later date. When, therefore, on May 15, 1776,
the Continental Congress “recommended to the several assemblies
and conventions of the United Colonies where no government suffi-
cient to the exigencies of their affairs hath been hitherto established,
to adopt such government as shall, in the opinion of the representa-
tives of the people, best conduce to the happiness and safety of their
constituents,” its appeal was to the ordinary legislative bodies, which
were recognized as having the same power of making fundamental
law, or constitutions, as the British Parliament. (Jameson, Constitu-
tional Conventions, secs. 128-9.)
The action taken was on the same basis. The first Colony to
move was New Hampshire, whose legislative body was known as
“the Provincial Convention.” On November 3, 1775, the Continental
Congress had agreed to call for the formation of independent colonial
governments, and, without waiting for the formal call, the Provincial
Conventions of New Hampshire called for the election of a new con-
vention “empowered by their constituents to assume government”—
the Colony had not yet abandoned allegiance to King George. The
election was held, and “as soon as the new convention came together,
they drew up a temporary form of government; and agreeably to the
trust reposed in them by their constituents, having assumed the 11ame
and authority of a House of Representatives, they proceeded to
choose twelve persons to be a distinct branch of the 1egislature, by
the name of a Council.” (Belknap’s Hist. of New Hampshire, vol. 2,
p. 305.) In other words, the colonial legislature adopted the first
constitution of New Hampshire, and then organized as the first legis-
lature under the constitution they had made, continuing in office for
one year.
This was the mode of adoption of the first American constitution,
and the institution of independent government under it. It followed
the precedent of the “Convention Parliament” of Great Britain, which
was assembled by King William in 1689, in its “assumption of gov-
ernment;” but in its adoption of the constitution the colonial legisla-
ture exercised only the legislative powers of a British parliament,
which were what was meant by “the legislative authority of the
State,” at that time. For the subsequent modification of that power
1.5
by constitutional restraint, it will be necessary to look briefly at Some
of the precedents in the history of the American States. .
The three original States next following New Hampshire in the
adoption of constitutions used the same method, i. e., the constitu-
tions were formulated and adopted by the ordinary 1egislative bodies
without submission to the people; and these legislative bodies as-
sumed the legislative powers under the constitutions, and proceeded
with their exercise. These three States were South Carolina, Vir-
ginia and New Jersey, and these, with New Hampshire, were the
only States that adopted constitutions prior to July, 1776. Exactly
the same course was followed by Georgia in October, 1776.
These were illustrations of “the legislative authority of the State”
without constitutional restriction. Its exercise was considered by
the Supreme Court of South Carolina in 1823, and the court made the
clearest and most exact statement of the character of the legislatures
of the revolutionary period that was ever written. It is as follows:
“Between the declaration of our national independence and the .
adoption of the Federal Constitution this State was sovereign and
uncontrolled. The people, in whom all power was vested, thought
proper to employ the legislature as their agent in the exercise of .
that power.
“In the use of this power the legislature was not restricted. The
legislators were the representatives of the people for all purposes;
whatever could be done by the people could be done by the legisla-
ture. Each succeeding legislature possessed the same power and
could not be bound by any act of a preceding legislature, for each
legislature was the people. Whatever, therefore, one legislature
could enact, a succeeding 1egislature could repeal. The form of
government adopted by the 1egislature of 1776 was no more than
any other legislative act, and was subject to the revision and repeal
of a succeeding legislature. The legislature of 1778 did revise and
repeal the act of 1776, and adopted another form of government,
which is called ‘the Constitution of 1778.’ This constitution pretends
to no control over succeeding legislatures, although it does restrain
the officers of the government in the exercise of the powers vested in
them for the administration of the laws. Had it attempted to re-
strain future legislatures it would have been inoperative, as each
legislature possessed all the power of the people. The people, or
their representatives, the legislature, when unlimited by the people,
may do whatever is (not) physically impossible, although they ought
not, as moral agents, to do what is morally wrong.” (3 McCord,
p. 354.) -
This last sentence, so far as the law-making power is concerned,
states exactly “the legislative authority of the State,” which is
vested in the State legislatures of today, and which has been fully
recognized by the Supreme Court of Indiana in an unbroken line
of judicial decisions running from 6 Blackford, p. 299, to 163 Ind.,
p. 512. As put by Judge Dewey and indorsed by Judge Elliott: “The
16
legislative authority of this State is the right to exercise supreme
and sovereign power, subject to no restrictions except those imposed
by our own Constitution, by the Federal Constitution, and by the
laws and treaties made under it.” (101 Ind., p. 564, at p. 567.)
IV.
The Legislative Discretion.
The right to exercise sovereign legislative power necessarily in-
volves full legislative discretion in the exercise of that power. The
power would not be “sovereign” if this were not true. The use of
this discretion was well illustrated in the action of the thirteen
Original States, all of which stood on the same basis of unlimited.
sovereignty after declaring their independence. In five of them,
as we have seen, viz., New Hampshire, South Carolina, Virginia, New
Jersey and Georgia, the legislatures exercised the full sovereign legis-
lative power by adopting constitutions without submitting them to a
vote of the people for ratification, and by organizing the new goverra-
ment under these constitutions. They retained and exercised the
legislative powers themselves, and elected the necessary executive
and judicial officers. * *
In the remaining States, four distinct courses were followed by the
legislatures. In August, 1776, the legislature of Maryland called for
the election of a new legislature or “convention” for the special
purpose of adopting a constitution, in addition to usual legislative
work. The “convention” so elected continued as a legislature after
adopting the constitution, which was not submitted to the people for
ratification. The same course was followed by New York in 1777;
and with these two may be classed Pennsylvania and North Carolina,
where the action was the same, except that the legislative body
which adopted the constitution was called in Pennsylvania by a volun-
teer committee of citizens, and in North Carolina by the Committee
of Safety. In these four the constitutions were not submitted to the
people, and the bodies that formed them continued as ordinary
legislatures. *
In Rhode Island and Connecticut the power exercised by the
legislatures was in principle the same as in the first five States above,
but differed in the fact that the legislatures of these two adopted
their existing colonial charters as constitutions, merely transferring
their allegiance from the King of Great Britain. The same legis-
latures continued under the new governments, and the matter was
not submitted to the people for ratification in any way. -
In July, 1776, the legislature of Delaware called for the election of
“deputies, to meet in convention, there to organize and declare the
future form of government for this State.” This convention met in.
August, and the constitution adopted by it was proclaimed on Sep-
tember 21, without submission to the people. It was the first body
chosen for the special purpose of forming a constitution, and the
only one of the original thirteen that did not exercise ordinary legis-
17
lative powers; except that it called an election on October 21 for
selecting the officials provided for in the Constitution. -
The last of the thirteen Colonies to adopt a constitution was
Massachusetts. In that State the legislature first had a vote taken on
the question of calling a special convention to form a constitution,
and called it in compliance with the vote. The convention so called
framed a constitution and submitted it to a vote of the people, with
provision that a three-fifths vote should be necessary for ratification.
This was the only one of the thirteen original States in which the
first constitution was submitted to the people for adoption.
Since the adoption of the Federal Constitution “the legislative
authority” of each State has been limited to the extent of the author-
ity vested in the United States, but “the powers not delegated to the
United States by the constitution, nor prohibited by it to the States,
are reserved to the States, respectively, or to the people.” In addition
to this there have been various restrictions on “the legislative author-
ity of the State” that is vested in State legislatures, by the constitu-
tions of the several States, the most important and universal being
the restriction of the legislature to legislative powers as distinguished
from executive and judicial powers. - - -
In regard to fundamental legislation, or the adoption of constitu-
tions, there is generally conceded to be a limitation of final power
by the common declaration that “the people have, at all times, an
indefeasible right to alter and reform their government.” It is true
that there have been a number of State constitutions adopted without
submission to the people, but this has been done only by constitu-
tional conventions, and when done is justified on the theory that the
people have delegated their final power of adoption by electing a
convention especially for that purpose. Nobody claims that a State
legislature would have power to adopt a constitution without submit-
ting it to a vote of the people. - -
On the other hand, the power of initiation of fundamental legisla-
tion is even more firmly established in the legislature than it was in
colonial times, for in the original States all of the legislatures that
adopted constitutions were in the first instance created by independ-
ent action of the people, and in Pennsylvania the body that adopted.
the first constitution was called directly by an independent, volunteer
committee of citizens. But since the formation of our National
Government no such independent action has been recognized as
valid if there was in existence at the time a valid legislature. Fur-
thermore, in all cases when constitutions have provided for either
special amendment or general revision, the initiative step, whatever it
might be, has been given to the legislature. -
The constitutions adopted in this later period have been of two
classes: (1) those adopted by existing States, in place of former
constitutions; (2) those adopted by new States for admission to the
Union. In both these classes the usual mode of procedure has been
by constitutional convention, for three reasons: (1) Where constitu-
1S
tions have provided the mode of general revision they have adopted
the convention system; (2) Where new States have been formed
under enabling acts those acts have usually provided for conventions;
(3) Where no mode of general revision has been provided by the
constitution, legislatures have usually provided for constitutional
conventions, because they had as much as they could well attend to in
ordinary 1egislation. Hence the cases of general revision by legisla-
tures in the later period are few in number, and in the nature of
emergency action; but they are none the less examples of “legislative
authority” and “legislative discretion.”
Of the exercise of legislative discretion by existing States in the
general revision of their constitutions, the most notable illustrations
are under what is known as “the commission system.” This orginated
in New York in 1872, when the legislature, without any express
authority, and without any precedent, passed an act for the appoint-
ment of a commission of thirty-two members, four from each judicial
district, “for the purpose of proposing to the legislature at its next
session, amendments to the Constitution.” The amendments so pro-
posed were so extensive that they amounted to a revision of the
Constitution, some fourteen weeks being occupied in their prepara-
tion. With some changes by the legislature they were submitted
to the people as “amendments,” although the existing Constitution
provided for conventions to “revise the Constitution and amend the
same.”
A similar course was followed by New Jersey in 1875, except that
the commission was composed of three persons appointed by the
Governor, the President of the Senate and two persons appointed by
him, and the Speaker of the House and two persons appointed by
him. The changes proposed by this commission were also submitted
to the people, by the legislature, as “amendments.”
The Michigan legislature of 1873 provided for a commission of
eighteen members appointed by the Governor, not more than two
from any one congressional district, who were to report to the next
session of the legislature, general or special, “such amendments and
revision of the Constitution” as they deemed advisable. They recom-
mended a revised constitution to the special session of the legislature
in 1874, which amended it and submitted the amended constitution
to the people as a whole, just as the Indiana legislature has done.
(Michigan Session Laws, 1874, p. 11; Senate Journal, p. 215.)
In Maine there was a novel action that will illustrate the scope of
“legislative discretion” in the initiation of constitutional reform.
The proposals of the commission were submitted as amendments,
but with the provisionſ that after the election “the Chief Justice of
the Supreme Judicial Court shall arrange the constitution as amended,
under appropriate titles; and in proper artcles, parts and sections,
ormitting all sections, clauses and words not in force, and making no
other changes in the provisions or language thereof, and shall submit
the same to the legislature at its next session.”
19
If approved by the legislature this revision was to be formally
enrolled and “the constitution with the amendments made thereto,
in accordance with the provisions thereof, shall be the supreme law
of the State.”
This provision was carried out, and the revised constitution so
adopted became the Constitution of the State, although the preceding
Constitution contained no provision for change in that manner.
In the adoption of constitutions for new States the general rule
has been for conventions to be called under “enabling acts” passed
by congress, but a number of new States adopted constitutions with-
out waiting for that authorization. Among these were Tennessee, in
1796; Michigan, in 1835 and 1836; Arkansas, in 1836; Florida, in 1839;
Iowa, in 1844; Wisconsin, in 1847; California, in 1849; Kansas, in
1855; Oregon, in 1857; Nevada, in 1864; Nebraska, in 1866, and Colo-
rado, in 1876. -
In most of these the constitutions were prepared by conventions
called by the territorial legislatures. In California the convention
was called by the Governor; and the first Constitution of Nebraska
was prepared by the territorial legislature and submitted to the peo-
ple for ratification.
The Nebraska case presents the most extreme test of “legislative
authority” that has ever occurred, and, indeed, as extreme a test as
could be imagined. As a general proposition the authority of a terri-
torial legislature is less than that of a State legislature; and in addi-
tion to this there were charges of fraud and illegal voting in the
election, which was declared to have resulted in a majority of only
100 for the Constitution. The historical facts in the case are stated
by the Supreme Court of Nebraska as follows:
“In April, 1864, Congress passed an enabling act providing for the
election, in June of that year of delegates who should meet in conven-
tion in July following, for the purpose of framing a constitution,
with a view to the admission of Nebraska as a State into the Union.
The sentiment of the people at that time being opposed, evidently, to
becoming a State, the delegates chosen in the manner provided, upon
meeting, refused to make a constitution and adjourned sine die.
“Without any further act of Congress, the territorial legislature of
1866, submitted a proposed constitution to the electors, to be voted
on in June of that year, with directions to choose, at the same time,
legislative, executive and judicial officers for the proposed State.
The Governor, Secretary of State, and Auditor of the Territory were,
by the act submitting the instrument, constituted a board of can-
vassers; and they declared the Constitution adopted by a majority
of a hundred.” -
The legislature, so elected, met and elected two United States
Senators, who took the Constitution to Washington; and Congress
admitted the State, after prolonged debate, with provision only that
the word “white,” as a qualification for electors, should be removed
by the ‘Nebraska legislature. The Nebraska legislature accepted this
20
change, without any submission to the people, and the constitution so
adopted remained in force until replaced by a new one in 1875.
The facts in the case were quite fully before Congress, and the
debate there was not as to the validity of the Constitution, but as to
whether Congress, with the consent of the Nebraska legislature, could
amend a constitution that had been adopted by the people, by strik-
ing out the word “white.” Congress was at the time engrossed in
“reconstruction” legislation, and it was considered fatally inconsistent
to admit Nebraska with an exclusion of negro voters while refusing
to allow their exclusion in the reconstructed southern States. (Con-
gressional Globe, July, 1866, pp. 4206, 4213, 4219–22, 4275; January,
1867, pp. 448-56, 472-80.) - - -
The action of the legislature in preparing and submitting the con-
stitution, instead of being treated as invalid, was treated as a guaran-
tee against the charges of irregularity in the election. Senator Jacob
M. Howard, of Michigan, former Attorney-General of that State,
said: ...'The whole proceeding for the formation of the State Consti-
tution took place under and by the authority of the territorial legis-
lature; they prescribed the rules of the proceeding; they submitted
the instrument which was the work of their own hands, and a very
wise and excellent one I believe, to the consideration of the people,
and the people adopted it as their form of government by a respect-
able majority. I am not able exactly to deny the power of a terri-
torial legislature to pass an enabling act for the purpose of taking
the sense of the people of the territory upon the question of forming
a State government. I have too high a precedent before me to
dispute the validity of such legislation. The people of my State, while
a Territory, through their legislature, passed a similar enabling act,
an in 1835 called a convention which framed a constitution of govern-
ment, which was afterward adopted by a vote of the people. I never
heard it alleged that this territorial statute was invalid.” (Congres-
sional Globe, July, 1866, p. 4210.)
The bill for the admission of Nebraska was vetoed by President
Johnson, on the sole ground that Congress had no power to require a
change in a constitution. that had been adopted by the people, and
the bill was passed over his veto. (Congressional Globe, February 9,
1867, p. 1121.) The Constitution itself came before the Supreme
Court of Nebraska on the same question—a case involving the va-
lidity of a jury of which a negro was a member—and in that case
the Constitution was assailed at every point. The Supreme Court
sustained the Constitution, including the amendment made by Con-
gress and the legislature. In this decision the court gave the broadest
construction to every point offered against the Constitution, and held
that it was valid nevertheless.
Particularly notable is the following statement as to the origin of
the Constitution: “As is well known, the Constitution was originally
drafted in a lawyer’s Office by a few self-appointed individuals. These
importuned the legislature then sitting to submit it to a vote of the
21
people. At the start, then, we must reject the instrument, or admit
that any one may draft the organic law of a proposed State who
chooses to volunteer. * * * To say that the people of a Terri-
tory must frame—that is, write out—their constitution in the first
instance themselves, is not correct. The document might be im-
ported from Japan, or fall from the clouds; and if by any subsequent
action it becomes the constitution of the State, we are bound by it,
and cannot question where it came from.” (Brittle vs. The People,
2 Nebr., p. 198.) . . . .
. This case more than covers the present question in Indiana, but,
before leaving this branch of the subject I would call attention to a
singular, and generally overlooked, provision of the enabling act
under which the first Constitution of Indiana was formed. In our
territorial period the House of Representatives was the only part of
the legislature elected by the people; and it nominated ten persons
to Congress, which elected five of these to serve as a “Council,” or
upper house of the legislature.
The enabling' act provides that the citizens of the Territory having
“the legal qualifications to vote for Representatives in the General
Assembly of the said Territory, be, and they are hereby authorized
to choose representatives to form a convention, who shall be appor-
tioned amongst the several counties within the said Territory accord-
ing to the apportionment made by the legislature thereof at its last
session. * * * And the election for the representatives afore-
said “ ” * shall be conducted in the same manner, and under
the same penalties, as prescribed by the laws of said Territory regu-
lating elections therein for members of the House of Representa-
tives.” - -
This body, elected in every respect as a House of Representatives,
is authorized by the act to meet, and to “first determine, by a major-
ity of the whole number elected, whether it be or not expedient
at that time to form a constitution and State government for the
people within the said Territory; and if it be determined to be expedi-
ent the convention shall be, and hereby are authorized to form a
constitution and State government; or, if it be deemed more expedi-
ent, the said convention shall provide by ordinance for electing repre-
sentatives to form a constitution or frame of government, which said
representatives shall be chosen in such manner, and, in such pro-
portion, and shall meet at such time and place as shall be prescribed
by the said ordinance; and shall then form for the people of said
Territory a constitution and State government.” -
This provision giving to a body elected as an ordinary legislature,
the power either to adopt a constitution or to call a constitutional
convention was also used in the enabling acts of Ohio, Illinois and
Missouri. In all the other enabling acts provision is made for the
direct election of a constitutional convention, excepting that of Wis-
consin. In that case the provision was simply that the people might
22
adopt a constitution, and the mode of procedure was left to be fixed
by the territorial legislature.
V.
The Legal Objections to the Proposal.
The legal objections thus far offered to the submission of the pro-
posed constitution to the people are the two offered by Hon. A. C.
Harris, of the Republican lawyers' committee, at the Senate hearing.
Mention has been made of the first of these—that the legislature had
general power, not expressed in the Constitution, to call a constitu-
tional convention, but not to submit a proposed constitution to the
people. This is merely a question of the mode of procedure within
“the legislative authority of the State”; and, as has been shown, the
legislature is not limited to one mode, but may use, in its discretion,
any known legislative mode, there being no constitutional restriction
on this subject.
His second objection was more plausible, but only so because it
rests on a confusion of the ordinary and the legal meaning of terms.
Calling attention to the mode of amendment provided by the Consti-
tution, and the necessity of following it in amendment, he urged that
the proposed changes in the Constitution were only “amendments,”
and that the proposed constitution was not a new constitution, but
an “amended constitution.” When asked whether, if a constitutional
convention were called, and it adopted the proposed constitution,
word for word, it would be a “new constitution” or an “amended
constitution,” he replied that it would be an amended constitution.
The question was then asked by a member of the Senate com-
mittee: “Suppose two parties make a written contract, and, desiring
to change it in some particular, they rewrite it, including the change.
Would that be a new contract or an amended contract?” Mr.
Harris replied that it would be an amended contract. This position
was controverted by Hon. Dan Simms, who said it would be a new
contract; and illustrated his position by a change in a will. He urged
that if a man had made a will, and, desiring some change in it, had
it rewritten, it would be a new will; but if the change were added
as a codicil it would be an amended will.
Any lawyer will recognize the fact that in this discussion Mr.
Harris was using words in their ordinary sense, while Mr. Simms used
them in their legal sense. In common usage the distinction between
amendment and revision is one of extent. Revision is extensive
amendment, and it would be impossible to fix a line where one begins
and the other ends.
On that basis the proposed constitution is certainly a revision from
the standpoint of the diversity of its effects. It affects every branch.
of the Government. Even the bill of rights is changed—an unusual
thing—by the provision for a workman’s compensation law, and that
only in case of necessity shall private property be taken by the public,
23
even with just compensation. It changes the qualifications of
electors. It changes the powers of the executive. It changes the
terms of State and local administrative officers and provides that
their salaries shall not be increased during their terms. It changes
the constitution and powers of the legislative department. It changes
the constitution of the Supreme Court, and makes possible the abol-
ishment of the Appellate Court. It changes the mode of constitu-
tional amendment. If this be not revision, what is revision?
On that basis this is a new constitution or there has never been
such a thing as a “new constitution” in the United States since the
first one was adopted. They are all on the same model. Judge
Cooley says, “Certain things are to be looked for in all these instru-
ments”; and he enumerates, (1) the general framework of govern-
ment; (2) the qualifications for suffrage; (3) the “check and balance”
system of division of powers into legislative, executive and judicial;
(4) the recognition of local self-government; (5) the bill of rights.
(Constitutional Limitations, p. 46.) These are found in all American
constitutions. Nine-tenths of the provisions of the proposed constitu-
tion are the same as those of the Constitution of 1816, and those of
our neighboring States. We retain even the provisions that soldiers.
shall not be quartered in private houses, and that no titles of nobility
shall be granted, although there is not much more need for them
than for a provision that witches shall not be burned at the stake.
On the other hand, from the standpoint of the number of sec-
tions affected it would not be improper to call it an amended con-
stitution, for of the 189 sections of the present Constitution only 23
are changed in any respect, and the remaining 166 are 1eft exactly,
as they now stand. The exact wording is retained because the
present Constitution has received very thorough judicial construction.
in the sixty years that it has been in force, and it is desirable to
leave the law in its settled condition so far as it is satisfactory. It
may be noted also that the re-enactment increases its stability. Some,
constitutional questions have been decided in only one case, and
Some by a divided court. The Supreme Court is at liberty to change
its construction. But it is a well established judicial rule that when
a statute, or a constitutional provision, that has been judicially con-
Strued, is re-enacted, it carries the judicial construction with it. (155
Ind., p. 484.) - * .
It is unquestionable that exactly the same changes could be made.
in the Constitution by 23 amendments, if the mode of special amend-
ment could be used. In ordinary language, therefore, this might be
called an amended constitution, or an amendatory re-enactment of
the Constitution. But in 1egal questions words must be used in their
legal sense (Burns Rev. Stats., sec. 240) and these words have fixed
legal meanings. The distinction in law between amendment and
revision, or new enactment, is one of form and not of extent. Suther-
land explains revision thus: -
“Revision of statutes implies a re-examination of them. The word
24
is applied to a restatement of the law in a corrected or improved
form. The restatement may be with or without material change. A
revision is intended to take the place of the law as previously formu-
lated. By adopting it the legislature says the same thing in effect as
when a particular section is amended by the words “so as to read as
follows.” The revision is a substitute; it displaces and repeals the
former law as it stood relating to the subjects within its purview.
Whatever of the old law is restated in the revision is continued in
operation as it may operate in the connection in which it is
re-enacted.” (Statutory Construction, sec. 154.)
But for this legal distinction, the Constitution would be violated
at every legislative session, for the Constitution of Indiana, like most
American constitutions, provides that, “No act shall ever be revised
or amended by mere reference to its title, but the act revised or .
section amended shall be set forth and published at full length.” (Yet
acts are constantly amended, without either reference to title or
setting out the act as amended, through the effect of new laws which
provide for the repeal of all laws “or parts of laws” in conflict with
them. The universal rule of law on this subject is that “An act of
the legislature, not amendatory in character, but original in form
and complete in itself, exhibiting on its face what the law is to be—
its purpose and scope—is valid, notwithstanding it may in effect
change or modify some other law upon the same subject.” (24 Ore-
gon, p. 558.)
In its amendatory effect, the proposed constitution is of exactly
the same character as the park law of 1909, the towns and cities law
of 1905, the tax law of 1891, the election law of 1889, and hundreds
of other laws, which amend former laws by repealing parts of them,
but do not set out the laws so amended. It is “new enactment” just
as they are, although in fact they are almost wholly re-enactment of
former laws, with amendment in some particulars. To question the
regularity of their adoption would be to dispute the legality of half
the statute law of the State.
VI.
Sentimental Objections to the Proposal.
As is natural, the objections thus far offered to the proposed con-
stitution have come from Republican sources; and this is entirely
proper, for the welfare of the country is insured by one party watch-
ing the acts of the other. But it should also be remembered, as a
matter of fairness, that one political party is very liable to make
criticisms of the acts of the opposition that are not founded in fact
or reason; and therefore that in weighing such criticism all unfounded
effort to make political capital should be excluded, and a fair basis.
for the criticism be called for. * - - . . -
A common form of objection has been that voiced by, ex-Governor
J. Frank Hanly, in these words: “I do not doubt that the General
25
Assembly has the legal power to make and submit a constitution,
but that it should do so is ill advised and audacious.” But why?
The legislators are the representatives of the people, and what is
there “ill advised” or “audacious” in their exercising a legal power for
the purpose of relieving the people of an intolerable situation. It
is true that the exercise of the power is unusual, but the situation is
unusual. Manifestly Governor Hanly does not agree, in his esti-
mate of the province of a legislature, with Jameson, who says:
“In any crisis calling for legal authority to act, and where no con-
stitutional provision, either permissive or restrictive, exists, if the
legislature take upon itself, within the limits of a wise expediency,
the power to act, to give the requisite authority and direction, there
is no department of the Government that can question its right to
do so; and not only that, but a failure to act would stamp it as false
to its duty. Having all legislative power within the limits indicated,
the making of such provisions of law as are needed to save the State
from inconvenience, loss, or danger, defines precisely the legitimate
exercise of that power. To do it is its imperative duty. For that it is
constitutionally competent, and all departments of the Government,
all agents and representatives of the sovereign, charged with col- .
lateral functions, are bound, within the scope of that power, to obey
its behests, as the authentic expression of the will of that sovereign.”
(Constitutional Conventions, sec. 375.)
Another much-reiterated objection is that it is “a one-man con-
stitution.” Taking it in that view, is this not merely an appeal to
childish prejudice? Every idea must originate somewhere, and rea-
soning men know it. The members of the first Massachusetts con-
vention did not reject the constitution which was brought in, all
written out, by John Adams. They made a few amendments, and
adopted it. The members of the first Virginia convention did not
reject the constitution prepared and offered by George Mason. They
adopted it, and the State retained it for over half a century. Who
ever objected to the Emancipation Proclamation on the ground that
it was written by Abraham Lincoln? And yet that document made
a greater political and social change in the United States than was
ever made by any constitution. Nobody ever objected to the Declara-
tion of Independence because it was written by Thomas Jefferson.
Nobody objects to our excellent State Board of Charities law because
it was prepared and brought to the 1egislature by the Rev. Oscar
McCulloch. No rational man objects to such things any more than
he would think of objecting to the telegraph because it was a “one-
man invention” of Morse. • . -
Another objection that has been worked overtime is that the pro-
posed constitution was “approved by a caucus,” and was “adopted in
one night.” There is a legitimate force to this objection, but the
objection is not altogether accurate. The exact facts are that the
proposed constitution was submitted to a Democratic caucus, com-
posed of a majority of the members of both houses of the legisla-
26
ture. After being considered by them, and after being published and
subjected to public criticism for a week, it was amended by a
Second caucus to meet every reasonable objection made to any part
of it, and was then introduced as amended, in its present form, and
passed by a party vote.
The legitimate force of the objection is that as caucuses are com-
monly used for partisan advantage, and sometimes' for bad purposes,
this should fairly raise a suspicion that such was the case here, and
the Democrats should be put to prove that the public welfare was
sought. I further concede that one partisan advantage is sought.
The Demócratic party admits that honest and intelligent suffrage
is to its advantage; and it has maintained that position in Indiana
ever since 1889, when it adopted the Australian ballot law and the
most stringent law ever adopted to prevent vote buying. Its justifica-
tion for seeking this advantage is that it likewise advances good gov-
ernment and promotes the general welfare.
Moreover, the Democratic party in its platforms has repeatedly -
charged that the Republican party has conceded this claim by
amending and weakening those laws. It is evident that their opposi-
tion to a speedy and inexpensive mode of securing intelligent and
honest suffrage now is based on the knowledge that it will injure
that party politically. The caucus method was adopted as a political
necessity because everybody knew that the Republicans would oppose
any reform in this line at every step. That is common, every-day
politics. The Republicans made exactly that sort of opposition to the
adoption of the Australian ballot law, and the new tax law; and their
papers and speakers made every effort to prejudice the people against
those laws; but everybody concedes now that they are wholesome
and proper measures. Nevertheless they could not have been passed.
except as party measures. The only fair and reasonable way of judg-
ing a measure that is adopted as a party measure is by the merits of
the measure itself. That test the Democratic party welcomes as to
the proposed constitution. “-º-º-º- - -
Of all the cheap politics attempted by Republicans, in this connec-
tion, the cheapest appears in the following editorial paragraph of -
the Indianapolis Star of March 23:
“Governor Marshall would bar out the alien voter so that the elec-
torate may be of the pure native quality shown in Adams County,
Ohio.” *}
Note the adroit juggle by which “alien” is put in contrast with
“pure native,” on the supposition that citizens of foreign birth or
foreign descent will be included by the reader with “alien.” Note
the false implication in the reference to the reliably Republican and
hopelessly corrupt county of Adams, Ohio, whose people, it is said,
are to a very unusual degree of New England descent. The obvious
inference from the paragraph is that the average native American
is more corrupt than the average foreigner, but even the Star does
not dare to say this directly. No intelligent American believes that
27
the native American is excessively honest, but equally none believes
that he is worse than the average foreigner. Note the bold hypocrisy
of such a plea from a paper that said editorially of the proposed
constitution on February 15: “Unqualified approval should be given
to the limitations upon suffrage.” *
Such transparent humbug merely illustrates the low estimate of
the intelligence of our foreign-born citizens that is commonly shown
by Republican writers and speakers, and that always has been
shown by them since the old “Knownothing” party went bodily into
the Republican ranks after its overthrow by the Democratic party.
There is probably not one foreign-born American in a hundred who
believes that an alien—an unnaturalized foreigner—ought to be
allowed to vote. Why should he? He has shown his appreciation
of American citizenship by naturalizing; and why should he want
another put on an equality with him who would not even go to that
slight trouble to gain full citizenship, in a country that has the most
liberal immigration and naturalization laws in the world?
Everybody of ordinary intelligence knows that the question of
civil rights of aliens, is not one of honesty, but of presumed allegi-
ance. Indiana is one of the few States that allows them to vote, but
it has always limited their civil rights for the evident reason that a
mere sojourner has none of the interests or responsibilities of a
citizen. Our land law, as revised by the Republican legislature of
1905, does not allow an alien to hold over 320 acres of land, no:
matter how acquired, for more than five years; and if he attempts to
do so the excess escheats to the State. The meanest criminal on
trial in our courts has the right to demand that no alien
shall serve on the jury that tries him; and if a single alien were
On the grand jury that indicted him the indictment is invalid. No
alien can be a representative in Congress or a member of the State
legislature; but yet we stupidly allow them a voice in choosing these
officials.
Another quibbling objection is that the Constitution is so “sacred”
that it must not be changed. This was carried to such a 1ength
that, in the debate. on the bill, it was declared that a member who
voted to submit the proposed change to the people “violated the
Constitution he had sworn to support.” This is of the same char-
acter as the objection made by the pharisees when the disciples
“plucked ears of corn” and ate them on the Sabbath; and which was
met by the instructive rebuke that “the Sabbath was made for man,
and not man for the Sabbath”; i. e. it was for man’s benefit as a day of
rest, and not for his injury by forcing him to go hungry, or endure
Other hardship. The Constitution was made for the people, and not
the people for the Constitution. It is to be sacredly observed as the
will of the people, but itself provides that, whenever the people think
it does not promote their welfare or happiness, they have the inalien-
able right to change it in any way they see fit. Instead of violating
the Constitution, the representatives of the people who voted to
28
submit the proposed constitution to the people, voted to give effect
to this provision; and if anybody violated the Constitution it was
those who tried to debar the people from their right.
VII.
Elevation of the Suffrage.
The changes at present proposed in the Constitution are greater
than those made in the Constitution of 1816 by the Constitution of
1851; and yet they are not greater in proportion than the changed
conditions of the State in the two periods. f -
By the special census of 1815 the population of Indiana was 63,897,
and the Indian title to two-thirds of the State had not been extin-
guished. In 1850 the population had increased to 988,416, but it was
still almost wholly agricultural. The total investment in “manufac-
turing plants” in 1850 was only $7,750,402, as against over $250,000,000
now; and this was chiefly in the individual shops of carpenters, black-
smiths, shoemakers and other tradesmen, with the sawmills and flour-
mills of the State. -
In 1850 there were only 212 miles of railroad in Indiana, and 124
miles of that length had been completed in the preceding year. In
1816 the total State tax levied was $6,043.36; in 1850 it had grown to
$450,481.76; at present it exceeds $6,250,000. ,
In 1816 there was not a town of two thousand inhabitants in Indi-
ana. In 1850 there were only nine that had more than two thousand
people. The largest of these was New Albany, with 7,786; and it was
closely followed by Madison, with 7,714, and Indianapolis, with
7,686. Then came Lafayette, with 5,997; Evansville and its suburb,
Lamasco, with 4,587; Ft. Wayne, with 4,201; Terre Haute, with 3,824;
Lawrenceburg, with 2,604, and Logansport, with 2,194.
Of the changes made, and proposed, in the Constitution, none are
more closely connected with these conditions than those affecting,
suffrage. The Constitution of 1816 restricted suffrage to white men,
twenty-one years old, who were citizens of the United States, and
who had resided in the State for one year. The Constitution of 1851
reduced the residence requirement to six months, and extended
suffrage to foreigners who had lived in the United States one year,
and had officially declared their intention to become citizens, or “had
taken out their first papers,” as it is commonly expressed.
The avowed purpose of these changes was the encouragement of
immigration to the State. There were a few who protested against
this—who pointed out the wrong of giving to people who were not
citizens of the United States the suffrage rights of citizens of the
United States—for they all vote in national elections as well as
in State elections; but local interests prevailed. The State had piled
up over $15,000,000 of debt, by its internal improvement ventures. Its
chief visible assets were its unsold “canal lands,” and Congress had
added a million acres of “swamp lands” by the act of September 28,
29
1850. Of the 23,000,000 acres of land in the State, only 12,585,678 acres,
were reported “in farms” in 1850, and of these less than 5,000,000 acres
were improved. The State needed population, and the people were
determined to have it. Easy and speedy access to full citizenship
was believed a strong inducement to immigration, and it was pro-
vided. . + -
There was another reason for this in 1851. The American people
have always given warm welcome to foreign exiles who were victims
of religious or political persecution, and have usually found them
most desirable citizens. The republican revolutionary movements of
Europe in the forties had awakened their warmest sympathy—a
sympathy which was manifested a few years later, in the enthusiastic
receptions to Kossuth. In particular, the German revolution of 1848
had sent to this country a large body of exiles who were men of
intelligence and thoroughly imbued with the spirit of progress—so
much so that they were, in ridicule, called “weltverbesserers,” or
world-reformers, by their opponents.
But while welcoming this immigration, the existing sentiment of
the time was equally shown by a rigid prohibition of negro immi-
gration. The thirteenth article of the Constitution not only pro-
hibited any negro or mulatto from coming into the State, but also
made it a penal offense to “employ such negro or otherwise encourage
him to remain in the State.” - -
It also made any contract with any such negro, immigrant void,
and this was enforced to the extent of making void the marriage
contract of a negro with a negro woman who came into the State
after the adoption of the Constitution (7 Ind. 389). This article of
the Constitution became a dead letter during the civil war; and was
removed altogether in 1881 by the amendment which substituted for
it the restriction of municipal debt to 2 per cent. Of the assessed
value of taxable property.
In the experience of Indiana since 1851, there has been a vigorous
growth of sentiment, especially in the last twenty-five years, that we
have made suffrage too cheap. We have made it so cheap that
men do not value it as they should. Thousands regard it as an asset
rather than as a privilege, and stand ready to barter it for a mess
of pottage. They are worse than Esau, for he sold his birthright
when pressed by hunger; and the appalling revelations in Adams
County, Ohio, and at other points, has shown the terrible menace to
popular government in this condition.
£very sane man knows that popular government without an intelli-
gent and honest suffrage is a ghastly farce. If the voters be ignorant,
it is the government of those best able to delude them. If the voters
be corrupt, it is the government of those who have the money to
buy them. If the voters feel no interest in their government, they
easily fall into one or both of these classes. The evils of admission
to the suffrage of foreigners who come here with no intention of
making this country their home, but only to accumulate enough
30
money to attain ease on return to their native lands, was first im-
pressed on Americans by the large body of Chinese immigrants. In
recent years the impression has been strengthened by thousands of
Europeans who have come here with a like purpose, and who have
absolutely no interest in the welfare of the country beyond their
Own present advancement. If a man be here solely to accumulate a
little money, why should he not sell for money a vote that is almost
thrust on him? Manifestly, if we are to have good government, the
suffrage must be restricted in the first place to those who can reason-
ably be supposed to feel some interest in good government.
There is another restriction that should be imposed unless we dis-
regard utterly the very corner-stone of our governmental system. It
was declared in the “forever unalterable compacts” of the ordinance
of 1787 that “morality and knowledge are necessary to good govern-
ment.” We declared in our. Constitution of 1816 that “knowledge
and learning, generally diffused throughout a community, are essen-
tial to the preservation of a free government”; and we repeated the
declaration in the Constitution of 1851. It is on this principle that
Our free school system is based, for great as is the benefit to the
individual educated, the justification of taxation for education is the
benefit to the community of enlightened suffrage.
The people of Indiana are paying more than $8,000,000 a year, to
maintain free schools. We have a compulsory education law requir-
ing the attendance at school of children between the ages of seven and
fourteen years. We have truant officers to enforce their attendance,
and penalties for failure to attend. We have provided that if chil-
dren lack proper books or clothing these shall be furnished at public
expense. -
And yet we say to the boy who manages to grow up under this
system without learning to read and write: “We will reward your
evasion of the law by giving you the highest privilege of citizen-
ship.” We do this although such a boy must necessarily have some
quality that unfits him for good citizenship. Could anything be more
completely inconsistent and stupid? There have been legitimate
excuses for illiteracy in the past. There is absolutely no excuse for
the Indiana boy of today who grows up illiterate. -:
Illiteracy has become a special menace to good government through
the opening it offers for the corruption of voters. Indiana has made
an earnest effort to prevent bribery in elections. The purpose of the
Australian ballot law is to prevent the voter from proving how he
voted to the man who buys his vote. He can state how he voted, but
can only give his word. -
The one weak point in the Indiana law is the permission to th
illiterate voter to have his ballot marked by the poll clerks; and this
is allowed to make the law constitutional. The qualifications of
voters are fixed by the Constitution, and, under the decisions of the
courts, can not be added to nor taken from by 1aw, either directly
or indirectly.
31
As illiterates are allowed to vote, by the Constitution, the right
could not be taken from them by providing an election system under
which they could not vote. But it is notorious that this provision is
grossly abused, and is made a common mode of vote buying; the
poll clerk, in violation of his oath, certifying to the purchaser how the
voter has voted. The only apparent mode of removing this evil is
to stop admitting illiterates to suffrage.
The remaining restriction on suffrage that is proposed is the
requirement of the payment of current poll tax, and poll tax of the
year previous to the election. The provision makes the poll tax
separable from other taxes, in order to avoid any hardship on per-
sons who for temporary reasons are unable to pay their property
taxes. For all practical purposes the poll tax is a suffrage tax,
although men more than fifty years of age are exempt. It is the only
tax payable by the voter unless he owns visible property—his only
Contribution to the cost of government. The requirement of its
payment in a number of the States is on the theory that a man who
is not enough interested in his government to pay his poll tax ought
not to have any voice in the government. ſº
The chief objection to it is that in some States the political parties
pay poll taxes as a part of the process of buying votes. The proposal
qf the constitution is to avoid this by making all poll taxes payable in
the spring, before campaigns begin. If this should fail to prevent
the vote buying there would at least remain the fact that the amount
so paid would go into the public treasury instead of the pocket of the
corrupted voter. -
It will be noted that these restrictions are wholly of future applica-
tion. It is not proposed to disfranchise any present voter; but to
allow all legal voters to register up to November 1, 1913, after which
the educational test is to be put in operation. This delay is allowed
to bring about the ultimate adoption of the reform. There were
more thati forty thousand illiterate voters in Indiana by the census
of 1900, and there are many more now. If it were proposed to dis-
franchise them, they would probably vote against the constitution,
and defeat it; but they would have no personal ground for objec-
tion to a restriction applying to the future.
It is worthy of note that at present Indiana is not among the
progressive States in the matter of suffrage. Thirty-five of the States
of the Union admit only citizens of the United States as voters. The
States which allow voting on declaration of intention are Alabama,
Arkansas, Colorado, Indiana, Kansas, Missouri, Nebraska, Oregon,
South Dakota, Texas and Wisconsin. Of these only Indiana, Kansas,
Oregon and Nebraska admit the foreigner to suffrage on less than
one year’s residence in the State.
The educational qualification for suffrage is a comparatively recent
advance, though in the Colonies there were property and other quali-
fications that were largely equivalent to the educational qualification.
In the early years of the republic there was a general movement
32
toward “manhood suffrage,” which took away most of the bars,
though at the same time they were raised against the negro. . . -
Prior to the revolution negroes were allowed to vote in all the
Colonies but Georgia and South Carolina. Between 1792 and 1834
negro suffrage was abolished by Delaware, Maryland, Virginia, New
Jersey, New York and Connecticut. North Carolina followed in 1835,
and Pennsylvania in 1838. The only States with educational qualifica-
tions prior to 1889 were Connecticut, which adopted them in 1855,
and Massachusetts, which adopted them in 1857. s
In 1889 Wyoming led off with provision for educational qualifica-
ction. The example was followed by Mississippi in 1890, Maine in
1893, California in 1894, South Carolina in 1895, Louisiana in 1898,
Delaware and North Carolina in 1900, Alabama and Virginia in 1901,
and Georgia in 1908. In the Southern States there were discriminat-
ing provisions which allowed suffrage to ignorant whites while they
denied suffrage to ignorant negroes, but these were all of temporary
application, and at the present time the restriction applies to all new
voters, white and black alike, except in Georgia, where the discrim-
ination ends on January 1, 1915.
The growth of the sentiment has been shown in Congress by pro-
visions for our insular possessions. In Hawaii the voter must be
able to read and write either the English or the Hawaiian language.
In the Philippines he must be able to read and write either English
or Spanish, but exemption is given to persons with $250 of property
and those who held “substantial office” under the Spanish regime.
The Foraker act of 1900 gave “manhood suffrage” to Porto Rico, but
in his recent report on Porto Rican conditions, Secretary of War
Dickinson recommended the adoption of educational or property
qualifications, and this was indorsed by President Taft, who said:
“it is much better, in the interest of the people of the island, that
the suffrage should be limited by an educational and property quali-
fication.” (House Doc., 615, second session Sixty-first Congress, and
Cong. Record, vol. 45, p. 1199.) Is there a sane person in the
United States who doubts it? And if it be a good thing, is there
anything too good for Indiana?
VIII.
To Eliminate the Gerrymander. &
If any Hoosier whose memory runs back over the last forty years
were asked what local questions had caused the greatest political
controversy in that period, he would probably answer, on reflection,
that they were the gerrymander and the appointing power. He
would recall the days when Thomas A. Hendricks and Benjamin
Harrison alternately canvassed the State, denouncing, respectively,
Republican gerrymanders and Democratic gerrymanders.
He would recall how Governor Hovey was roused to fury by a
Democratic legislature’s appropriation of some of his appointments:
He would recall how both questions went to the courts, which suc-
33
ceeded in putting both in such a condition that the wayfaring man,
even though a lawyer, can not tell just what the law is. It is the
effort of the proposed constitution to eliminate these two causes of
trouble as completely as possible. t
The obvious cause of the gerrymander is the irrational basis of
representation provided by the present Constitution. It requires an
enumeration every six years of “the white male inhabitants Over
twenty-one years of age” (the word “white” removed by implied
repeal) and the apportionment of Senators and Representatives
“among the several counties, according to the number” of voters
enumerated. The adoption of this system is probably an illustra-
tion of the force of American habit, for there was never any good.
reason for it. -
The enumeration is a needless expense, and affords opportunity
for both mistake and fraud, while a much more reliable enumeration
is provided by the United States census. The members of the legis-
lature do not represent voters only, but the entire population of their
districts. The idea of personal or numerical representation has only
a secondary place in American theories of government. The Amer-
ican axiom that “taxation without representation is tyranny” does
not mean the taxation and representation of the individual. There
have always been thousands of individuals who have been taxed
without having any voice in government. It means, and has always
meant, that the taxation of a community without representation is
tyranny. - -
The natural community unit of representation in Indiana is the
county, and this fact is recognized by the Constitution itself, both in
the provision for apportionment “among the several counties,” and
by the provision that “no county, for senatorial apportionment, shall
ever be divided.” By universal consent this last rule has always
been applied also to representative apportionment, if, indeed, that be
not an implied requirement of apportionment “among the several
counties.” The courts, the land record system, the tax system, the
jail system, the school system and to a large extent all the remainder
of local government, outside of city and town government, is on a
county basis. As a natural result many other things follow the same
rule and we have churches, bar associations, medical associations and
numerous societies of one kind and another, organized on a county
basis. 4 g $
The net result of all this is that the people of each county have a
community of public interests, independent of and often differing
from those of any other county. As a mere matter of justice and
propriety, under the American theory of government, such a com-
munity ought to have a representative in the legislature. -
This is, with one exception, the system in force as to the National
House of Representatives, each State having one Representative,
and the larger ones additional Representatives for quotas of popula-
tion. The difference is that the congressional quota is fixed by Con-
}
t 34
gress, and is a periodical cause of jugglery and squabbling. The
proposed Indiana quota is a fixed quantity, ascertained by dividing
the total population at the last national census by ninety-two (the
number of counties in the State) or, in other words, the average
county population of the State. This removes any possibility of dis-
crimination in apportionment for representatives, and corrects an
. injustice that has long been done to the smaller counties, which have
been practically disfranchised by throwing them into “joint districts”
with larger counties to “kill their vote.”
There is nothing to prevent this in the Constitution or in the
decisions of the Supreme Court, and therefore the Democrats usually
fasten a small Republican county to a big Democratic county, and
the Republicans, vice versa. If there be no satisfactory big county
contiguous, the deficiency is supplied by making a “shoestring dis-
trict” of “unrepresented surpluses,” to come within the judicial rul-
ings. Everybody who has paid any attention to practical politics
knows the process. Everybody knows it is essentially wrong. Every-
body “just laughs” and takes the party advantage that the law
allows.
It is to be regretted that an equally efficient remedy - could not be
applied to Senatorial apportionment. The only one that has ever been
suggested is to divide the State into five districts, and elect ten Sen-
ators from each by proportional representation. This would pre-
vent gerrymandering; but it is met by the practical objection that it
would force a candidate for the Senate to canvass a district twice as
large as a congressional district, and nobody would want to be a
candidate for Senator. | -
For this reason the proposal was dropped, and the regulation of the
election of Senators left as open as possible in the hope that future
ingenuity might suggest some mode of senatorial apportionment that
did not admit of abuse. . -
In justice to 1egislators it may be mentioned here that not every
apportionment denounced as a gerrymander is necessarily one in
fact. It is a mathematical impossibility to create equal districts of
counties varying altogether in size, and the fairness of the approxima-
tion to equality is a question of judgment only. It is impossible to
make an apportionment which is not subject to plausible, though
possibly unjust criticism; though usually there is some ground for
criticism. It is like the old problem of dividing thirteen apples
equally among three boys, without cutting an apple; which the judge
solved by appropriating the thirteenth apple to himself and giving
the boys four each. -
It may also be mentioned here that the proposed representative
apportionment would not make a House of Representatives of 130
members, as seems to be assumed in some quarters. That number
is made a maximum to cover possible future expansion. By the
national census of 1910 the population of Indiana is 2,700,876. Divid-
ing this by ninety-two we have a representative quota of 29,357. This
35
would require 44,035 for two Representatives and 73,392 for three
Representatives. - -
Under it, the counties having more than one Representative, with
their population, are as follows: Marion (263,661), nine Representa-
tives; Allen (93,386), Lake (82,864), St. Joseph (84,312), Vanderburg
(77,438) and Vigo (87,930), each three Representatives; Delaware.
(51,414), Elkhart (49,008), Laporte (45,797) and Grant (51,426), each .
two Representatives. This would make a total of 114 Representa-
tives. The number would presumably increase at the next census,
but not as rapidly as might be imagined, because the size of the
quota would increase with the increase of population. Under the
census of 1900 a similar apportionment would have given 109 mem-
bers. The increase for the last ten years is five members, and there
is no apparent reason why it should exceed that in the next ten
years.
The abuse of the appointing power by the early legislatures was
one of the chief evils sought to be remedied in the Constitution of
1851. The Constitution of 1816 put almost unlimited power in the
legislature, partly because the legislative department was the special
representative of the people, and partly because the new State was
too poor to undertake any special elaboration of government. The
legislature elected part of the State officers, and exercised almost
unlimited control over local affairs. f
With the development of party government came the tendency to
take advantage of this power, and it was exercised to an extent
that would cause general revolt today. It was so easy, for example,
to abolish the office of auditor of Clark County and create the new
office of auditor of the County of Clark, incidentally electing some-
body to the new office; and this very sort of thing was done in
several cases. - • *
The Constitution of 1851 made all of the principal State and County
officers elective by the people and gave the Governor power to fill
vacancies. But it recognized the probability of new offices being created
and provided by section 1, of article 15: “All officers whose appoint-
ment is not otherwise provided for in this Constitution, shall be
chosen in such manner as now is, or hereafter may be, prescribed
by law.” *
The result of this was that the legislature could take any such office
whenever it desired, for it made the law, and if the Governor vetoed
it the measure could be passed over his veto by a majority vote. It
was this situation that brought about the troubles of Governor Hovey,
and the lesson which that controversy should teach is that the
appointing power should be fixed definitely and permanently.
No more certain cause of trouble can be provided than to leave
unsettled a question that involves the possession of political spoils.
It is not so important how it is settled as that it should be settled be-
yond question. “Lead them not into temptation” ought to be a central
thought of every constitution. But, as a matter of principle, it is
36
generally conceded that the appointing power is properly an execu-
tive or administrative function, and that it should not be exercised
by the legislature. One of the strongest arguments for the popular
election of United States Senators is the occasional interference of
that function with the business of legislation, which is sometimes
suspended for months by a “deadlock.” The proposed constitution .
removes this evil altogether, excepting, of course, the election of
United States Senators and the legislative officers.
IX.
Initiative, Referendum and Recall.
The provision of the proposed constitution permitting the initia-
tive, referendum and recall to be adopted by the legislature, on
petition of 25 per cent. of the voters of the State, has attracted much
criticism from both friends and enemies of the system.
It should be kept in mind that this discussion refers to the “manda-
tory” initiative and referendum, i. e., allowing a small minority of the
voters to submit any measure to a vote of the people, without any
intervention of the legislature. Aside from this, we have the freest
initiative imaginable in Indiana. Any one can get a bill introduced
in the legislature “by request.”
We have always had the referendum as to amendments to the
Constitution, and there has been a large increase of its use in ordinary
ImatterS. - º
In Indiana, as in all the other States of the Union, the strictness
of the former enforcement of the rule against the “delegation of
legislative powers” has been much relaxed by judicial construction.
It is a far cry from the judicial opinion in Maize vs. The State (4 Ind.,
p. 342, 1853) to that in The State vs. Gerhardt (145 Ind., p. 439, 1896),
and many questions are now commonly referred to the decision of
the people that could not have been so referred sixty years ago.
The most notable criticism of this proposed section of the consti-
tution comes from Senator Jonathan Bourne, of Oregon, who is
perhaps the most prominent advocate of the initiative and referendum
system in the country, and who is quoted in the Indianapolis Star of
February 16, as saying: - -
“That provision was written into the proposed State Constitution
by the enemies and not the friends of the initiative, referendum and
recall. Either that is true or those who designed it do not know
a workable initiative, referendum and recall principle when they
see it.” -
Under the Oregon Constitution 8 per cent, may initiate legisla-
tion, and Senator Bourne says “it is practically impossible to get 25
per cent. of the voters to act.”
“Nothing but a great impact, such as a tremendous scandal in
public office, would arouse 25 per cent. Of the electors,” he said, “and
if they should get aroused they would find that the legislature could
37
peremptorily refuse to act and they would have no recourse. I have
never known an initiative and referendum provision like this. The
injection of the legislature as an intermediary makes it unique. It
is worse than nothing.” ' , , . "
An even more radical position was taken by James Noel, of the
Republican lawyers’ committee, which appeared against the proposed
constitution before the Senate committee. He urged that the legisla-
ture should have power to adopt the system without any request
whatever from the people. t -
But why should there be a radical and fundamental change in our
system of government if it be “impossible to get 25 per cent. of the
voters to favor it”? Why should a legislature, not elected on that
issue, but of which possibly a majority—a total of seventy-seven men
or more—be authorized to make such a change, without a substan-
tial expression of sentiment by the people? Is that government by
the people? ! , , , *
In Indiana we have always held that government by the people
meant government by a majority of the people—not by a minority.
It is true that in elections the majority govern, even though they
be a minority of the whole electorate; but that is only because it is
impossible to get all the voters to vote, and it is necessary, to have
any government at all, that those voting at an election should decide,
But when it comes to law-making, where it is possible to have a
majority of all the representatives of the people, we have provided
in our Constitution that “a majority of all members elected to each
house shall be necessary to pass every bill or joint resolution.”
The statement of Senator Bourne calls attention forcibly to the
most serious objection to the initiative and referendum system, which
is its tendency to minority rule. This is due to the fact that a large
proportion of the people will not vote at all on legislative questions.
In Indiana this is notoriously true. The present necessity for the
adoption of a new constitution arises from the fact that we have a
“pending” amendment to the Constitution which has been voted on
three times without securing a majority of the electors either for or
against it; and therefore remains as a bar to any further amendment
under the special amendment system. This experience is not peculiar
to Indiana. -
In 1900, after a full review of the facts, Dr. Oberholtzer, who is
one of the most prominent advocates of the initiative and referendum
in America, said:
“So far as our experience has already gone in the United States,
a number of glaring defects have been exhibited by the people in their
role as lawmakers. The most impressive of these is their strange
apathy, even in the face of great issues. They as a mass have so
little interest in legislative subjects that only a small percentage will
attend the polls for special elections, and at general elections when
individual candidates are to be chosen, though the proposition be
printed on the same ballots with the names of the candidates, a large
38
proportion of the voters will not put themselves to the slight trouble
of placing a pencil mark under the word ‘Yes’ or ‘No.' The con-
clusion is unavoidable that the people considered as a body do not
know anything, nor do they care anything, about the merits or
demerits of a particular law. * * * It is true that the largest
possible vote is never polled for candidates, but, speaking roughly,
twice as many electors vote for individuals as vote for measures.”
(“The Referendum in America,” page 411.)
Nor is this experience limited to America. We hear a great deal
about the success of the system in Switzerland, but, writing of that
in 1907, Arthur Sherburne Hardy says:
“One of the strongest claims made for the referendum was that it
would silence the protestations of the minority by showing where
the real majority is. This claim the remarkably large number of
abstentions would certainly seem to negative. In the case of so
important a measure as the constitutional amendment of July 7, 1891,
establishing the initiative, less than one-half the registered voters
(641,692) participated, the affirmative and negative votes being 183,029
and 120,599, respectively. Only when a fine is imposed for failure
to vote is the voting general. For example, in two communes of the
Canton of Zurich, where voting is obligatory, 94 and 97 per cent.
of the voters took part, while in three communes where voting is not
obligatory, only 19, 14 and 10 per cent. voted on the same measure.
From 1869 to 1888, in sixty-eight measures submitted to the people
in Berne, the average abstentions were 45 per cent. In Bale-Cam-
pagne, from 1864 to 1881, of ninety-four popular votes, seventeen were
altogether without result because an absolute majority, as required,
took no part whatever.” (Independent, June 13, 1907.)
The experiment was tried in Canada in 1898 in a special vote on
the liquor question under “The Prohibition Plebiscite Act of 1898.”
The election covered the entire Dominion of Canada, and cost the
government about $300,000. A small majority favored prohibition,
but less than 30 per cent. of the voters went to the polls. A Canadian
correspondent of the New York Evening Post wrote, at the time:
“In some cases half the electorate polled, but these were exceptional.
From one-fourth to a third was a more common proportion, and in
some districts it fell as low as one-eighth. Many of those who did
vote seemed to wander into the polling stations more by accident
than by set purpose.” *
In November of this same year, 1898, it is said that “the people”
of South Dakota adopted the initiative and referendum system.
What actually happened was this: The question was submitted as a
constitutional amendment, and was adopted by a vote of 23,816 to
16,483. But at the same election there were 75,159 electoral votes
cast, and this was a light vote, for at the presidential election two
years earlier the vote of the State was 82,777. A plurality of less than
7,500 with over 50 per cent. of the people not voting, fastened the
system on South Dakota Is, that government by the people?
39
But we are told that it is different in Oregon; and it must be
admitted that the popular interest shown in legislation there exceeds
any manifested in any other part of the known world. The cause
of this is not known. It may be due to the fact that the citizens
of that State have nothing to do but kill the bugs on their apple
trees—an occupation which leaves their minds free for the considera-
tion of legislative problems. If this be the reason, their experience
would be of no value in Indiana, where the mind of the average
citizen is always absorbed in working out the plot for his next novel.
But even its example is not conclusive. In his great speech on
“The Bliss of Oregon,” delivered in the national Senate on May 5,
1910, Senator Bourne set out the votes of the State on referendum
questions for three years. In 1904 two questions were submitted, on
one of which 72,559 votes were cast, and on the other (a local option
liquor law) 83,514 votes. The average of the two is 78,036, which is
86 per cent. of the total electoral vote (90,154) cast that year. In
1906 there were eleven questions submitted, and the average VOte Oil
them was 74,102, which was 76 per cent. of the total electoral vote
(96,715) cast in that year. In 1908 there were nineteen measures
submitted by referendum, and the average vote on them was 86,435,
which is 74 per cent. of the total referendum vote (116,614) as shown
by the official returns from the poll books.
In 1910 there were thirty-two questions submitted, and the official
returns of the poll books show that 120,248 persons voted on theni.
The average vote on each . question was only 84,316, or 70 per cent.
of the total vote cast. The explanation of this is, of course, that
some of the electors voted on one question and some on another.
Of the measures submitted, eleven were constitutional amendments.
Of these, seven were rejected and, four adopted. Of the four adopted,
not one had a majority of the 120,248 electors voting. The heaviest
voting was on the prohibition amendment and the prohibition law,
both of which were defeated by large majorities. On each of these
the vote exceeded 100,000, and they were the only ones on which
So large a vote was cast, excepting the city local option measure,
which was carried by a small majority. The next highest vote was
on the woman’s suffrage amendment, which was defeated for the
fifth time since Oregon adopted this system, the vote being 35,270
to 59,065.
Possibly this experience is too brief for conclusive judgment, but
a decrease of 19 per cent. in the referendum vote in six years would
seem to indicate that the people of Oregon are tiring of the practice.
They have already reached the point where constitutional amend-
ments and important laws are being adopted by minorities. More-
over, the heavy vote is apparently called out by the desire to defeat
objectionable measures; and why should small but aggressive minor-
ities have the power to put the majority on the defensive, year after
year, to protect the laws and institutions they wish to preserve?
One of the objects of our National Constitution is “to preserve
40
domestic tranquility.” Possibly it might be worth while to try some-
thing on that line in Oregon.
Possibly the results in Oregon are satisfactory to Senator. Bourne
—there is no reason why they should not be, personally. But I con-
fess that they leave me still open to conviction. It is plainly evident
that the average American still clings to the representative system,
so far at least as general lawmaking is concerned. He looks on the
initiative and referendum much as he would on any proposal to hire
some one to do a piece of work for him, and to reserve the right to
do the work himself. He hires legislators to make laws, and reserves
only the right to object if the laws do not suit him. However, if
the people of Indiana should ever want to try this system, they have
the right to do so, and certainly would do so. -
X.
Workmen’s Compensation Law.
Of the changes proposed, only two affect the part of the Constitu-
tion known as “the bill of rights.” The first of these permits the
legislature to enact “a workman's compulsory compensation law for
injuries occurring in hazardous employments.” This is a change
favored by practically everybody concerned. In Indiana, as in the
rest of the civilized world, the enormous development of industries
since the present Constitution was adopted, with the introduction of
rapid transit, Steam and electric power, high explosives, and com-
plicated machinery, has made accidents a fixed feature of a large part
of industrial employment. Experience has convinced all intelligent
inquirers that it is advantageous to both employers and employes
to settle for injuries without litigation if possible. The only obstacle
to legal provision for this is the constitutional restriction of remedies
to “due course of law.”
There is no great difference of opinion as to what are “hazardous
employments.” The model “Workmen’s Compensation Bill for Uni-
form State Legislation,” proposed by the National Civic Federation,
limits them to employment “in or about a railway, factory, mine or
quarry, electric, building or engineering work, general or terminal
warehouse, grain elevator, malthouse, coal yard, lumber yard, stock
yard, building material yard, or shipyard.” This bill does not apply
to an injury which “does not disable the workman for a period of
at least two weeks from earning full wages.” The proportion of
accidents in such occupations does not vary materially on the average,
throughout the country. In Indiana the reports of the coroners to
the Bureau of Statistics for the year 1910 show a total of 1,113 fatal
accidents, of which 391 were on steam railways, 109 on interurbans,
and 29 on street railways—“all others,” 684. No other figures for
1910 are at hand, but for 1909 the Department of Inspection reported
45 fatal and 305 serious accidental injuries in factories; and the Mine
41
Inspector reported 50 fatal, and 533 permanent and serious accidental
injuries in mines in this State.
The percentage of accidents is so fixed that accident and liability
insurance have become well-established industries, based on averages
as reliable, mathematically, as those of life and fire insurance. John
Mitchell stated the fact in a very forcible way, in his address to
the Industrial Welfare Conference at New York, in November, 1909,
in these words: “It is not to our credit that in America, in this
country we all love, more men are killed in industry, more men,
both in the aggregate and in proportion to the number employed,
than in any other country in the world. In my own trade four men
are killed for each one killed in other countries. In my trade, tomor-
row, not less than twenty men must die. Every day the dawn
breaks, from ten to twenty men who enter the darkness of the mine
return no more to their wives and loved ones. This is a problem—
a living problem—that cries aloud for solution. I am heartily in
favor of workmen’s compensation. I believe that our laws should
be so amended, or that such contracts should be made between
employers and workmen, that when a man is injured or a workman
is killed, the money needed for the relief of the injured workman or
for the relief of the family of the workman who has been killed,
should be available at once; not five or ten years after the death
or accident occurs.”
This is the practically unanimous position of labor organizations,
and employers on a large scale take largely the same position. In
the agitation of this question in Indiana, one of the strongest pre-
sentations of the merits of the system was the address before the
State Bar Association, on July 7, 1909, by Hon. A. C. Harris, whose
extensive legal experience and opportunity for personal observation
of the system while Minister to Austria, make his views of more
than ordinary weight. He gave the following statement of the pay-
ments of damages for accidents, in one year, by seven railroad com-
panies, doing business in Indiana, which he had obtained from friends
connected with these companies: “A,” $307,117.88; “B,” $337,866.28;
“C,” $224,950.86; “D,” $405,815.81; “E,” $109,682.86; “F,” $493,290.65;
“G,” $284,127.22. As is commonly known, all railroad companies, and
many other large corporations, have their attorneys, claim agents, and
adjusters, who endeavor to make compromise settlements for dam-
ages whenever accidents occur; and Mr. Harris stated that some of
these companies had paid “more on settlements than by way of
judgments.” -
In addition to this effort to avoid litigation, many large employers
take out liability insurance to meet the cost of damages for accidents.
In 1910 the State of Illinois established a commission to investigate
this question, with a view to legislation, which did its work very
thoroughly, and presented a valuable report. Among its sources of
information was the Illinois Manufacturers’ Association, 141 of whose
members reported to the commission. Of these, 138 took out liability
42
insurance, for which they paid a total of $100,715.95 a year. In addi-
tion to this, 17 of the companies reporting contributed to “mutual aid
Societies” to the extent of $19,539.91 a year; and 84 companies fur-
nished medical services to employes, costing them $20,841.95 a year.
The commission showed that the total cost to the companies for all
the accidents that occurred, under the proposed compensation law,
would have been $74,073.62, or $26,642.33 less than they were actually
paying for liability insurance alone. The amounts paid for mutual
aid Societies and medical services were not taken into consideration,
because these also covered “sick benefits,” which could not be sep-
arated from the amounts paid for “accident benefits.”
This difference in cost is obviously due to the fact that the com-
pensation plan is one of direct settlement, which does away with the
“middleman” in the shape of insurance companies. Of necessity the
expense and profits of the insurance, companies must come from the
insured. In reality the compensation plan is a form of direct insur-
ance, and in a number of the countries that have adopted it the sys-
tem is one of direct insurance in form as well as in theory. -
Under our “due course of law” system, the workman has a simila
expensive middleman in the lawyer. Not usually being able to pay
a direct fee, the workman commonly agrees on a contingent fee of
one-third to one-half the amount recovered, and this usually applies
to settlements out of court. In 17 cases of settlement without trial
reported by the Illinois commission, out of $38,240 paid by the em-
ployers, $11,085, or nearly 30 per cent. went for attorneys’ fees and
costs. In addition to the cost the workman has the hazard of
losing altogether through some legal technicality, even if he has a
meritorious case. , Mr. Harris estimates that “at least one-half of the
cases appealed are reversed, not on the evidence, but from some
mistake of somebody in the long course of procedure, extending from
the complaint to the petition for a rehearing.”
Even more serious to the workman and his family is the delay of
settlement, which not uncommonly reaches from two to five years,
leaving them without relief when it is most needed. And here is
where the public becomes directly interested, because the situation
frequently forces an appeal for public aid. Of 147 families thus
forced to ask public aid in Cook County, Illinois, the I11inois com-
mission found that 104 families had no income whatever after the
injury of the wage-earner; and in the remaining cases there was
none but a scant pittance earned by the wife and children. It is
the consideration of the public burden that has caused the com-
pulsory insurance legislation of Europe. -
In view of the unquestionable facts, Mr. Harris was justified in the
following prediction: “When the people at large come to fully
understand that in all public utility cases, and largely in all cases of
negligence, in the end they pay the verdicts; and that these are dis-
sipated; and that they more or less supply by public and private aid
the means to support disabled workmen and their families, it will
43
not be long until they find a way to relieve themselves on account
of any constitutional embarrassment, and to reach better results than
now prevail. The people make the laws as they want them. Just
when, or in what form this advance will come, one cannot at pres-
ent foretell. But in time it will come, and abide.” The opportunity
to remove the constitutional embarrassment is now before the people
of Indiana.
His view is confirmed by the general action where a constitutional
provision did not prevent it. Great Britain, from which we took the
Magna Charta provision for “due course of law,” was not impeded
by it, because Parliament can change the British Constitution at will;
and Great Britain 1ed in the adoption of this system. Its example
has been followed by fifteen European nations—every country of
Europe but Portugal, Turkey, and the Balkan States—and by Canada,
Australia, New Zealand, and the British South African States. Our
consuls in these countries report the operation of these laws as
satisfactory to both employers and employes. (Report III. Employers'
Liability Com., p. 214.) *
In the United States, Congress passed a law in 1906 applying
the system to interstate commerce; but the Supreme Court held it
invalid because the wording made it apply to commerce within a
State. (207 U. S., p. 463.) Congress then, in 1908, passed another
law restricted to interstate commerce. This law was sustained by
the Unitel States District Court for Arkansas, in 1909 (169 Federal
Reporter, p. 942); but at nearly the same time it was held invalid
by the Supreme Court of Connecticut. (82 Conn., p. 352.) Where the
courts will finally land with the question is one of the inscrutable
mysteries; but it is very evident that if the State of Indiana should
want the system it must provide for it in its Constitution.
XI.
Other Proposed Changes.
The remaining proposed changes in the Constitution are so well
understood that, little explanation of them is needed. Those in the
“schedule” apply only to the taking effect of the constitution, and do
not affect its provisions. Of those in the Constitution proper, that
in section 21, article 1, is a provision that compensation shall be
first assessed and tendered before private property is taken by the
State for public use, save only in case of necessity. Under the pres-
ent Constitution the State could take property and leave the owner
to get his claim for it allowed by the 1egislature. Of course emer-
gencies may arise in which such action would be necessary, but the
proposed section limits such action to cases of necessity only.
The change in section 4, article 2, is for the prevention of false
claims of residence by persons who have left the State as residents
but who are brought back to vote. At present “residence” is held
to be a matter of “intention,” which nobody can know with certainty
44
but the person affected. For the protection of the public against
fraudulent voting, the claimant is required to give evidence of his
intention by a simple, public declaration of it. -
The proposed section 9 of article 4 limits regular sessions of the
legislature to 100 days, and special sessions to 30 days; and limits
the special sessions to the specific purposes for which they are called.
The present Constitution (section 29, article 4) limits regular sessions
to 61 days, and special sessions to 40 days. It is generally conceded
that 60 days is too short a time in which to do the legislative work
of the State properly, and it is well known that special sessions have
been forced repeatedly on this account. A longer regular session,
with the restrictions on special sessions, is fairer both to the legisla-
tors and to the public. f -
The change in section 19, article 4, is to get rid of our awkward and
confusing system of titles to acts, which was intended to furnish in-
formation, but which, when one gets through reading half a page of
“An act to amend section 19 of an act entitled an act,” etc., is more
liable to 1eave one in hopeless bewilderment. The section amended
is seemingly contradictory and vague. Its construction has varied,
and in reality the brief title has been 1argely adopted as in “an act
concerning elections.” The brief name system was originated in
Great Britain, and usually means a single declaratory section, as,
“This law shall be known and referred to as ‘The General Elections
Act.'” The reason and convenience of the system are obvious.
The change in section 22, article 4, permitting special charters for
cities, is also one that has in fact been made by a common evasion of
the constitutional provision against special legislation. The American
people simply will not submit to laws of any kind that cause general
inconvenience and are contrary to public sentiment; and the difficulty
of amending our present Constitution has caused it to be nullified
in various features. One of the most notable was the prohibition of
negroes coming into the State, which was an absolute “dead letter”
from 1860 to 1880, when it was finally removed from the Constitution
in form. This system of amending the Constitution by ignoring or
violating it is objectionable as breeding a disrespect for law, and a
disregard for the real “sacredness” of the Constitution. It is far better
to amend the instrument openly. -
As has been mentioned, there were practically no cities in the
State when the present Constitution was adopted in 1851, and the
problems of city government have developed here since that time.
The demands of 10cal self-government made the prohibition of special
legislation intolerable, and under legislative evasion and judicial con-
struction, based on the fiction of “classification,” special charters have
been made at will. Any one who doubts this statement may be con-
vinced by the following extract from the index to the Laws of 1903;
- “Cities of more than 100,000, see Indianapolis.
- Cities of 50,000 to 100,000, see Evansville.
Cities of 35,000 to 49,000, see Fort Wayne.
45
Cities of 30,000 to 36,500, see South Bend. .
Cities of 20,900 to 30,000, see Muncie.
Cities of 20,200 to 20,900, see Vincennes.
Cities of 17,000 to 18,000, see Marion.
Cities of 7,800 to 7,820, see Goshen.
Cities of 7,200 to 7,700, see Alexandria.
Cities of 7,095 to 7,105, see Frankfort.
Cities of 6,000 to 7,000, see Bedford, Bloomington, Conners-
ville, Crawfordsville, Princeton, Seymour, and Valparaíso.
Cities of 5,300 to 5,800, see Mishawaka.
Cities of 4,500 to 4,545, see Rushville.
Cities of 4,025 to 4,050, see Martinsville.
Cities of 3,410 to 3,420, see East Chicago.
Cities and towns of 2,820 to 2,830, see North Vernon.
Cities and towns of 1,400 to 1,420, see Arcadia, Converse, and
Howell.”
The plain meaning of this is that in each of these cases the legisla-
ture of 1903 adopted a special law applying only to the cities named;
and it was very sensible to name the cities in the index, so that people
would know what the laws meant without investigating a census
report. But it is farcical to talk about the sacredness of the Consti-
tution, and at the same time nullify its provisions by such evasions
as this. The Supreme. Court has held some of these laws unconsti-
tutional. (162 Ind., p. 193; 164 Ind., p. 117.) s
The proposed section 14, of article 5, gives the Governor a real
veto power, in place of the nominal one he now has, by requiring a
three-fifths vote to pass a bill over his veto, and by authorizing him
to veto Special items of an appropriation bill. The object of the
veto, from the American point of view, is to insure a serious recon-
sideration of a proposed law in connection with the objections offered
to it. Under the present system there have not been lacking instances
of bills passed over a Governor’s veto, in both houses, under suspen-
sion of rules, on the same day that the veto was received. The
present veto has no force but what the legislature chooses to give to it.
The changes in sections 1 and 2 of article 6, section 11 of article 7,
and section 8 of article 8, put all State and county officers on a com-
mon basis of a four years’ term without re-election. If there was ever
any occasion for the discrimination giving part of them two years'
terms, it disappeared long ago, and there is now a general rule of
common consent that the occupant of a two-years' office is entitled
to renomination without opposition, unless he has given cause for it.
The change would remove a multiplicity of elections and simplify
the entire official system of the State.
Proposed section 2 of article 7 increases the maximum number of
judges of the Supreme Court from five to eleven. In 1851 five judges
could dispose of the cases brought to the court, but as the State grew
it became impossible to do so. The court fell behind two or three
years in the decision of cases, to the great injury of litigants. After
46
fruitless effort to get a majority of the people to adopt an amendment
the legislature of 1891 created an Appellate Court, of five judges, to
which a part of the work of the Supreme Court was transferred. Its
existence was originally limited to six years, but it was found neces-
sary to continue it, in 1897, in order to secure a reasonable securing
of justice “speedily, and without delay.” The system is so awkward
and confusing that the law has had to be amended repeatedly; and it
also denies in some cases the appeal to the Supreme Court which
citizens ought to have. It would be much more rational to adjust
the court to the business conditions of today, than to try to adjust
the business conditions to the court of 1851. -
Proposed section 21 of article 7—the cause of the present “tie-up”
of the power of amendment—is a question of common sense. The
provision that “every person of good moral character, being a voter,
shall be entitled to admission to practice law” was put in the Consti-
tution on the amusing theory that the practice of law had become a
sort of monopoly. The only objection made to requiring some sort
of legal knowledge as a qualification is the equally amusing theory
that “it is the smart lawyers that do the damage, and not the ignorant
ones.” Most of the damage done by smart lawyers is when they are
opposed by ignorant ones who do not know how to attend to the
interests of their clients. The sale of legal ability ought to have as
much safeguard as the sale of butter. A man should not be allowed to
misrepresent the quality of his goods—to hold himself out as a skilled
1awyer, recognized by the courts, when he has no knowledge of law.
Everybody recognizes this as to doctors; but there are cases where
the loss of legal rights through an ignorant lawyer are almost as
serious as the loss of health through an ignorant doctor. -
The remaining changes, those of sections 1 and 2 of article 16, re-
lating to amendment, are among the most important, if not the most
important, proposed. The effects to be secured by them are four,
as follows: -
(1) The present source of trouble is removed by provision that
an amendment which does not receive a majority of the votes, when
submitted to the people, shall be defeated, and not remain “pending”
to block other amendments.
(2) Consideration of amendments is secured by allowing political
parties to declare for or against them, and make them party issues.
The only way to insure general public consideration of a question in
this country is to make it a political issue. An amendment to the
Constitution ought to receive careful consideration, and ought to be
adopted by a majority of the electors, which is contemplated in the
proposed change by requiring submission at a general election only.
(3) The mode of general revision is made definite and certain
instead of being left a matter of legislative discretion as at present.
(4) The mode of special amendment is made simple, as was in-
tended in the present Constitution, but failed of accomplishment.
Under the proposed change any legislature can submit amendments
47
to the people, which is practically what is being done now, in the
common use of the terms. The people should have in fact, as well
as in theory, what they are declared by the Constitution to have,
“at all times, an indefeasible right to alter and reform their govern-
ment.” It is both wrong and foolish to put unnecessary obstacles in
the way of the exercise of that right. - *
If a constitution contained only declarations of essential rights it
would be different. Nobody wants to take away, for example, the
right of habeas corpus, or freedom of conscience, and there is no
danger of such a thing no matter how simple amendment may be
made. But the Constitution also contains a mass of formal matter
as to which a change of conditions may completely change the inter-
ests of the public. As to such provisions, the experience of Indiana
has demonstrated, as illustrated in cases heretofore mentioned, that
when amendment is made difficult the people will remove them either
by evading or by ignoring them.
As a whole, there is no known material objection to any of the
proposed changes. Some objection has been made because other
changes were not proposed, but as to these it should be remembered
that their future submission will be much easier if the proposed con-
stitution be adopted than if it be rejected, and the present system of
amendment be kept in force. There are some persons who approve
of the proposed changes but object to the mode of submission. They
should reflect that if they wish to rebuke the Democratic party for
submitting a good thing to the people, the logical way to do it is to
vote against the Democratic ticket, but for the constitution. In that
way you make your rebuke reach the right persons, and do not, at
the same time, spite yourself. If you really believe that “it is good
meal, but it came through the wrong hopper,” the sensible course is
to take the meal and save your condemnation for the hopper.
ADDENDUMI.
THE INDIANA CONSTITUTION
Parallel Columns Showing Proposed Changes—To be Voted on in
W November, 1912.
BILL OF RIGHTS.
Present Constitution.
Section 12. All courts shall be
open; and every man, for injury done
him in his person, property or repu-
tation shall have remedy by due
course of law. Justice shall be admin-
istered freely and without purchase;
completely, , and without denial;
Speedily, and without delay.
Section 21. No man’s particular
services shall be demanded without
just compensation. No man’s proper-
ty shall be taken by law without just
compensation; nor, except in the case
of the state, without such compensa-
tion first assessed and tendered.
ARTICLE II.
Proposed New Constitution.
Section 12. All courts shall be
Open; and every man, for injury
done to him in person, property or
reputation, shall have remedy by due
course of law; but the General As-
sembly may enact a workman’s com-
pulsory compensation law, for injuries
or death occurring in hazardous em-
ployment. In enacting such law, the
General Assembly shall have the right
to define hazardous employment. Jus-
tice shall be administered freely, and
without purchase; completely, and
without denial; speedily, and without
delay.
Section 21. No man’s particular
services shall be demanded without
just compensation. No man’s prop-
erty shall be taken by law without
just compensation; nor, in case of
the State, without just compensation
first assessed and tendered, save only
in case of necessity.
Suffrage and Elections.
Present Constitution.
Section 2. In all elections not oth-
erwise provided for by this Constitu-
tion, every male of the United States,
of the age of twenty-one years and
upward, who shall have resided in the
State during the six months, and in
the township sixty days, and in the
ward or precinct thirty days, immedi-
ately preceding such election, and ev-
ery male of foreign birth, of the age
of twenty-one years and upwards, who
shall have resided in the United
States one year, and shall have re-
sided in this State during the six
imonths, and in the township sixty
days, and in the ward or precinct
thirty days, immediately preceding
such election, and shall have declared
his intention to become a citizen of
the United States, conformably to the
laws of the United States on the sub-
ject of naturalization, shall be entitled
Proposed New Constitution.
Section 2. In all elections not oth-
erwise provided for by this Constitu-
tion, every male citizen of the United
States,
years and upward, who shall have re-
sided in the State during the twelve
months, and in the township sixty
days, and in the precinct thirty
days, immediately preceding such
election, shall be entitled to vote in
the precinct in which he may reside
if he shall have been duly registered
according to law enacted by the Gen-
eral Assembly as in this section pro-
vided and shall have paid his poll tax
due and payable the year of such elec-
tion and the year previous thereto
without delinquency; but all poll tax
shall be payable in full at the Spring
payment of taxes, and may be paid
separately from other taxes, at the
option of the taxpayer.
t
of the age of twenty-one
to vote in the township or precinct
where he may reside, if he shall have
been duly registered according to law.
It shall be the duty of the General
Assembly to provide by law at its
first session after the adoption of this
Constitution, for the registration of
all legal voters up to, and including
November 1, 1913; but thereafter, 'no
person not theretofore registered
shall be admitted to registration who
can not read in English or some other
known tongue any section of the Con-
stitution of the State. ſ
ARTICLE II.
Present Constitution.
Section 4. No person shall be
deemed to have lost his residence in
the State by reason of his absence,
either on business of this State or of
the United States.
Proposed New Constitution.
Section 4. No person shall be
deemed to have lost his residence in
this State by reason of his absence
from the State, either on business of
this State or of the United States;
but any person absent from the State
for twelve consecutive months for
other reasons shall lose his residence
unless, prior to the expiration of
such year, he files with the clerk of
the circuit court of the county in
which he resides, a declaration of his
intent to hold his residence, and the
exact location of the same.
ARTICLE IV.
Legislative.
Present Constitution.
Section 2. The
exceed fifty nor the House of Repre-
sentatives one hundred members;
and they shall be chosen by the elec-
tors of the respective counties or dis-
tricts into which the State may, from
time to time, be divided.
Senate shall not
Proposed New Constitution.
Section 2. The Senate shall consist
of fifty members, the House of Rep-
resentatives shall not exceed one
hundred and thirty members, the
same to be apportioned, among the
several counties of the State as in
section number 4 of this article pro-
vided, and they shall be chosen by
the electors of the respective counties
and the districts into which the State
may from time to time be divided.
ARTICLE IV.
Legislative. -
Present Constitution.
Section 3. Senators shall be elected
for the term of four years, and Repre-
sentatives for the term of two years,
from the day next after the general
election: Provided, however, that the
Senators-elect at the second meeting
of the General Assembly under this
Constitution shall be divided, by lot,
into two equal classes, as nearly as
may be; and the seats of the Senators
of the first class shall be vacated at
the expiration of two years, and of
those of the second class at the
expiration of four years; so that
one-half, as nearly as possible, shall
be chosen biennially forever thereaf-
ter. And in case of increase in the
number of Senators they shall be so
annexed, by lot, to one or the other of
the two classes, as to keep them as
nearly equal as practicable.
2
Proposed New Constitution.
Section 3. Senators shall be elected
for the term of four years from
the day next after the general elec-
tion: Provided, however, that the Sen-
ators holding office at the time this
Constitution goes into effect, shall
serve until the expiration of the term
for which they were elected.
3
ARTICLE IV.
Legislative.
Present Constitution.
Section 4. The General Assembly
shall, at its second session after the
adoption of this Constitution, and ev-
ery six years thereafter, cause an
enumeration to be made of all the
male inhabitants over the age of
twenty-one years.
Proposed New Constitution.
Section 4. Each county shall have
at least one Representative in the
House of Representatives, who shall
be elected for a term of two years
from the day after their election. A
representative quota shall be obtained
by dividing the total population of the
State at the last national census by
ninety-two, and each county having
population in excess of a quota shall
have an additional representative for
each full quota and fractional surplus
of half a quota, in excess of the first
quota. If any office of representative
shall become vacant by death, resig-
nation or otherwise, the Governor
shall call a special election to fill the
vacancy.
ARTICLE IV.
Legislative.
Present Constitution.
Section 5. The number of Senators
and Representatives shall at the
session next following each period of
making such enumeration, be fixed by
law, and apportioned among the sev-
eral counties, according to the num-
ber of male inhabitants above twenty-
one years of age in each: Provided,
that the first and second elections of
members of the General Assembly,
under this constitution, shall be ac-
cording to the apportionment last
made by the General Assembly before
the adoption of this constitution.
Proposed New Constitution.
Section 5. The number of Senators
shall be apportioned among the sev-
eral counties according to the popu-
lation as shown by the last preceding
United States census, but they shall
only be apportioned every ten years;
Provided, That the first election of
Senators in the General Assembly un-
der this constitution, shall be accord-
ing to the apportionment last made by
the General Assembly before the
adoption of this constitution.
ARTICLE IV.
tº:
Present Constitution.
Section 9. The sessions of the
General Assembly . shall be held
biennially at the capitol of the
State, commencing on Thursday
next after the first Monday of
January, in the year one thousand
eight hundred and fifty-three, and on
the same day of every second year
thereafter, unless a different day or
place shall have been appointed by
law. But if, in the opinion of the
Governor, the public welfare shall re-
quire it, he may, at any time, by proc-
lamation, call a special session.
Legislative. .
Proposed New Constitution.
Section 9. The sessions of the Gen-
eral Assembly shall be held biennially
at the capitol of the State, beginning
on the first Thursday after the first
Monday in January, 1913, and on the
same day every second year thereaf-
ter, unless a different day or place
shall have been appointed by law.
The General Assembly shall remain
in session for not exceeding one hun-
dred days. If in the opinion of the
Governor the public welfare shall re-
quire it, he may, at any time, by
proclamation, call a special session
for a specific purpose or purposes, but
for a limited time, not to exceed thir–
ty days, at which special session only
such specific purpose or purposes
shall be taken up and acted upon.
ARTICLE IV.
f Legislative.
Present Constitution.
Section 19. Every act shall em-
brace but one subject and matters
Proposed New Constitution.
Section 19. Every act shall em-
brace but one subject and matters
properly connected therewith, which
Subject shall be expressed in the ti-
tle. But if any subject shall be em-
braced in an act which shall not be
expressed in the title, such act
shall be void only as to so much there-
º shall not be expressed in the
t1tle.
ARTICL
properly connected therewith; which
subject shall be expressed in the ti-
the unless such act shall provide a
brief and comprehensive name for it-
self, by which it may thereafter be
known and referred to; but if any sub-
ject shall be embraced in an act which
shall not be expressed in or fairly
covered by the titlé, such an act shall
be void only as to so much thereof
as shall not be expressed or covered.
E IV.
Legislative.
Present Constitution.
Section 22. The General Assembly
shall not pass local or special laws in
any of the following enumerated
cases, that is to say:
Regulating the jurisdiction and du-
ties of justices of the peace and con-
stables.
For the punishment of crimes and
misdemeanors. -
Regulating the practice in courts of
justice.
Providing for changing the venue
in civil and criminal cases.
Granting divorces.
Changing the names of persons.
For laying out, opening, and work-
ing on highways, and for the election
or appointment of supervisors.
Vacating roads, towns, plats,
Streets, alleys, and public squares.
Summoning and impaneling grand
and petit juries, and providing for
their compensation. \
Regulating county and township
business.
Regulating the election of county
and township officers, and their com-
pensation.
For the assessment and collection
of taxes for the state, county, town-
ship or road purposes.
Providing for supporting common
schools and for the preservation of
school funds.
In “relation to fees or salaries; ex-
cept that the laws may be so amend-
ed as to grade the compensation of
officers in proportion to the popula-
tion and necessary services required.
In relation to interest on money.
Providing for opening and conduct-
ing elections of state, county, or town-
ship officers, and designating
place of voting.
Providing for the sale of real estate
belonging to minors or other persons,
laboring under legal disabilities, by
executors, administrators, guardians,
Or trul SteeS. -
the
Proposed New Constitution.
Section 22. The General Assembly
shall not pass local or special laws in
any of the following enumerated
cases, that is to say: -
Regulating the jurisdiction and du-
ties of the justices of peace and con-
stables;
For the punishment of crimes and
misdemeanors.
Regulating the practice in courts
of justice;
Providing for changing the venue in
civil and criminal cases;
Granting divorces;
Changing the names of persons;
For laying out, opening, and work-
ing on highways, and for the election
or appointment of supervisors;
Vacating roads, town plats, streets,
alleys and public squares;
Summoning and impaneling grand
and petit juries and providing for
their compensation; ,
Regulating county and
business;
Regulating the election of county
and township officers, and their com-
pensation;
For the assessment and collection
of taxes for state, county, township,
or road purposes;
Providing for supporting common
schools and for the preservation of
school funds;
In relation to fees or salaries except
that the laws may be so made as to
grade the compensation of officers in
township
proportion to the population and the
necessary services required.
In relation to interest on money;
Providing for opening and conduct-
ing the elections, of state, county, or
township officers, and designating the
place of voting; -
|Providing for the sale of real estate
belonging to minors or other persons
laboring under legal disabilities, by
executors, administrators, guardians,
or trustees; ---
But the General Assembly may
adopt special charters for the differ-
ent cities of the state.
5
ARTICLE IV.
Present Constitution.
Section 29. The members of the
General Assembly shall receive for
their services a compensation to be
fixed by law; but no increase of com-
pensation shall take effect during the
session at which such increase may
Legislative.
Proposed New Constitution.
Section 29. The members of the
General Assembly shall receive for
their services a compensation to be
fixed by law, but no increase of com-
pensation shall take effect during the
session at which such increase shall
be made. No session of the General be made.
Assembly, except the first under this
constitution, shall extend beyond the
term of sixty-one days, nor any spec-
ial session beyond the term of forty
days. y
ARTICLE V.
Executive.
Present Constitution.
Section 14. Every bill which shall
have passed the General Assembly
shall be presented to the Governor;
if he approve, he shall sign it, but if
not, he shall return it, with his Ob-
jections, to the house in which it
shall have originated, which house
shall enter the objections, at large,
upon its journals, and proceed to re-
consider the bill. If, after such re-
consideration, a majority of all the
members elected to that house shall
agree to pass the bill, it shall be sent,
with the Governor’s objections, to the
other house, by which it shall like-
wise be reconsidered; and if approved
by a majority of all the members
elected to that house it shall be a
law. If any bill shall not be returned
by the Governor within three days,
Sunday excepted, after it shall have
been presented to him, it shall be a
law without his signature, unless the
general adjournment shall prevent its
return, in which case it shall be a
law, unless the Governor, within five
days next after such adjournment,
shall file such bill, with his objec-
tions thereto, in the office of Secretary
of State, who shall lay the same be-
fore the General Assembly, at its next
session, in like manner as if it had
been returned by the Governor. But
no bill shall be presented to the Gov-
ernor within two days next previous
to the final adjournment of the Gen-
eral Assembly.
Proposed New Constitution.
Section 14. Every bill which shall
have passed the General Assembly
| shall be presented to the Governor, if
he approve, he shall sign it, but if
not, he shall return it, with his ob-
jections, to the house in which it
shall have originated, which house
shall enter the objection, at large,
upon its journal, and proceed to re-
consider the bill. If, after such re-
consideration, three-fifths of all the
members elected to that house shall
agree to pass the bill, it shall be
sent, with the Governor’s objections,
to the other house, by which it shall
likewise be reconsidered; and, if ap-
proved by three-fifths of all the mem-
bers elected to that house, it shall be
a law. If any bill shall not be re-
turned by the Governor within three
days, Sunday excepted, after it shall
have been presented to him, it shall
be a law without his signature, unless
the general adjournment shall prevent
its return, in which case it shall be a
law, unless the Governor, within five
days next after such adjournment,
shall file such bill, with his objections
thereto, in the Office of the Secretary
of State, who shall lay the same be-
fore the General Assembly, at its next
session, in like manner as if it had
been returned by the Governor. But
no bill shall be presented to the Gov-
ernor without his consent within three
days next previous to the final ad-
journment of the General Assembly.
The Governor may veto any clause or
clauses, item or items, in any appro-
priation bill, and may approve the
residue of such bill.
*. -
ARTICLE VI.
Administrative.
Present Constitution. 2.
Section 1. There shall be elected,
by the voters of the State, a Secretary
and Auditor, and a Treasurer of
State, who shall severally hold their
offices for two years. They shall per-
Proposed New Constitution.
Section 1. There shall be elected
by the voters of the State, a Secre-
tary, an Auditor, a Treasurer of State,
Attorney-General, Reporter of the Su-
preme Court, and Clerk of the: Sº-
* *
f
form such duties as may be enjoined
by law; and no person shall be eligi-
ble to either of said offices more
than four years in any period of six
years.
*
preme Court, said officers and all oth-
er State officers created by law and
to be elected by the people, except
Supreme Court Judges, shall severally
hold their office for four years. They
shall perform such duties as may be
enjoined by law; and no person other
than judges shall be eligible to any
one of said offices for more than four
years in any period of eight years.
ARTICLE VI.
Administrative.
Present Constitution.
Section 2. There shall be elected,
in each county, by the voters thereof,
at the time of holding general elec-
tions, a clerk of the circuit court, au-
ditor, recorder, treasurer, sheriff, cor-
Oner and surveyor. The clerk, audi-
tor, and recorder shall continue in
Office for four years; and no person
shall be eligible to the office of clerk,
recorder or auditor, more than eight
years in any period of twelve years.
The treasurer, sheriff, coroner and
surveyor shall, continue in office two
years; and no person shall be eligible
to the Office of treasurer or sheriff
more than four years in any period of
six years. •3
Proposed New Constitution. -
Section 2. There shall be elected
in each county by the voters thereof
at the time of holding general elec-
tions, a clerk of the circuit court, au-
ditor, recorder, treasurer, sheriff, cor-
oner and surveyor, who shall severally
hold their offices for four years; and
no person shall be eligible to either of
said offices for more than four years
in any period of eight years.
ARTICLE VII.
Judicial.
Present Constitution.
Section 2. The Supreme Court shall
consist of not less than three, nor
more than five judges, a majority of
whom shall form a quorum; they shall
hold their offices for six years, if they
so long behave well.
Proposed New Constitution.
Section 2. The Supreme Court shall
consist of not less than five, nor more
than eleven judges; a majority of
whom shall form a quorum. They
shall hold their office for six years,
if they so long behave well.
ARTICLE VII.
Judicial.
Present Constitution.
Section 11. There shall be elected
in each judicial circuit, by the voters
thereof, a prosecuting attorney, who
shall hold his office for two years.
Proposed New Constitution.
Section 11. There shall be elected
in each judicial circuit, by the voters
thereof, a prosecuting attorney, who
shall hold his office for four years,
and shall not be eligible to hold said
Office more than four vears in any
period of eight years.
ARTICLE VII.
Judicial.
Present Constitution.
Section 20. The General Assembly
at its first session after the adoption
of this Constitution, shall provide for
the appointment of three commission-
ers, , whose duty it shall be to revise,
'simplify, and abridge the rules, prac-
tice, pleadings and forms of the
courts of justice. And they shall pro-
vide for abolishing the distinct forms
of action at law now in use and that
justice shall be administered in a
uniform mode of pleading, without
distinction between law and equity.
And the General Assembly may, also,
*
* *
º >
&
Proposed New Constitution.
Section 20. The General Assembly
shall, from time to time, take such
steps as may be necessary for the
codification of the laws of the State,
and on petition of twenty-five per cen-
tum of the qualified electors of the
State at the last general election, the
General Assembly may adopt laws
providing for the initiative, referen-
dum and recall, both of State and lo-
cal application. But no bill for the
recall of the judiciary shall ever be
passed.
make it the duty of said commission- ||
ers to reduce into a systematic code
the general statute law of the state;
and said commissioners shall report
the result of their labors to the Gen-
eral Assembly, with such recommen-
dations and suggestions, as to abridg-
ment and amendment, as to said com-
missioners may seem necessary or
proper. Provisions shall be made, by
law, for filling vacancies, regulating
the tenure of office, and the compen-
sation of said commissioners.
ARTICLE VII.
Judicial.
Present Constitution.
Section 21. Every person of good
moral character being a voter shall
be entitled to admission to practice
law in all courts of justice.
Proposed New Constitution.
Section 21. The General Assembly
may by law provide for the qualifica-
tions of persons admitted to the prac-
tice of the law.
ARTICLE VIII.
Present Constitution.
Section 8. The General Assembly
shall provide for the election, by the
voters of the State, of a State Super-
intendent of Public Instruction, -who
shall hold his office for two years, and
whose duties and compensation shall
be prescribed by law. -
Education.
Proposed New Constitution.
Section 8. The General Assembly
shall provide for the election, by the
voters of the State, of a State Super-
intendent of Public Instruction, who
shall hold his office for four years,
and whose duties and compensation
shall be prescribed by law.
ARTICLE XV.
Miscellaneous. -
Present Constitution.
Section 1. All officers whose ap-
pointment are not otherwise provided
for in this Constitution shall be chosen
in such manner as now is, or here-
after may be, prescribed by law.
Proposed New Constitution.
Section 1. All State officers whose
appointments are not otherwise pro-
vided for in this Constitution, shall
be elected by the people or appointed
by the Governor as may be provided
by law; and all municipal and local of
ficers shall be elected or appointed
as provided by law; but no officers
shall be elected or appointed by the
General Assembly except its own of-
ficers and United States Senators;
and no elective officer shall have his
salary, compensation, or emoluments
increased during the period for which
he was elected.
ARTICLE XVI.
Amendments.
Present Constitution.
Section 1. Any amendment or
amendments to this Constitution may
be proposed in either branch of the
General Assembly; and if the same
shall be agreed to by a majority of
the members elected to each of the
two houses, such proposed amend-
ment or amendments shall, with the
yeas and nays thereon, be entered on
their journals, and referred to the
General Assembly to be chosen at the
next general election; and if, in the
General Assembly so next chosen,
Such proposed amendment or amend-
ments shall be agreed to by a ma-
Proposed New Constitution.
Section 1. Any amendment or
amendments to this Constitution may
be proposed in either branch of the
General Assembly; and if the same
shall be agreed to by a majority of
the members elected to each of the
two houses, such proposed amend-
ment or amendments shall, with the
yeas and nays thereon, be entered on
their journals; and it shall be the duty
of the General Assembly to submit
such amendment or amendments to
the electors of the State at the next
general election, and if a majority of
said electors voting on such amend-
jority of all the members elected to
each house, then it shall be thé duty
of the General Assembly to submit
such amendment or amendments to
the electors of the State; and if a
majority of said electors shall ratify
the same, such amendment or amend-
ments, shall become a part of this
Constitution.
UNIVERSITY OF McHaAN |
|||||||||||||
"356158733635#"
Sarne,
ment or amendments shall ratify the
such amendment or amend-
ments shall become a part of the Con-
stitution; but if a majority of said
electors shall not ratify the same, such
amendment or amendments shall be
defeated. Any political party may de-
Clare for or against any amendment,
in convention, and have such declara-
tion made a part of its ticket for sub-
mission to the electors but no new
Constitution shall be submitted to the
people of this, State for ratification
and adoption or rejection, until by
virtue of an act of the General As-
Sembly a majority of the legal voters
of the State have declared in favor of
a constitutional convention; when
and whereupon such constitutional
convention shall be convened in such
manner as the General Assembly may
provide; but any Constitution by such
convention proposed shall be submit-
ted to the voters of this State for rati-
fication or rejection at a special elec-
| tion as may be ordered by the Gen-
eral Assembly.
ARTICLE XVI.
Amendments.
Present Constitution.
Section 2. If two or more amend-
ments shall be submitted at the same
time, they shall be submitted in such
manner that the electors shall vote
for or against each of such amend-
ments separately; and while an
amendment or amendments which
shall have been agreed upon by one
General Assembly shall be awaiting
the action of a succeeding General As-
sembly, or of the electors no addi-
tional amendment or amendments
shall be proposed.
Proposed New Constitution.
Section 2. If two or more amend-
ments shall be submitted at the same
time, they shall be submitted in such
manner that the electors shall vote
for or against each of such amend-
ments separately; and while such
amendment or amendments which
shall have been agreed upon be await-
ing the action of the electors; no ad-
ditional amendment or amendments
on the same subject shall be proposed.
* SCHEDULE.
Sixth. There shall be a session of
the General Assembly on the first
Monday of December, in the year one
thousand eight hundred and fifty-one.
Eighth. The first general election
under this Constitution shall be held
in the year one thousand eight hun-
dred and fifty-two.
Ninth. The first election for Gover-
nor, Lieutenant-Governor, Judges of
the Supreme Court and Circuit Courts,
Clerk of the Supreme Court, Prosecut-
ing Attorney, Secretary, Auditor, and
Treasurer of State, and the State Su-
perintendent of Public Instruction, un-
der this Constitution, shall be held at
the general election in the year one
, thousand eight hundred and fifty-two;
and such of said officers as may be in
office when this Constitution shall go
into effect shall continue in their re-
spective offices until their successors
shall have been elected and qualified.
Sixth. There shall be a session of
the General Assembly, commencing
on the first Thursday after the first
Monday in January, in the year one
thousand nine hundred and thirteen.
Eighth. The first general election
under this Constitution shall be held
in the year one thousand nine hun-
dred and fourteen. *
Ninth. The first election for Gover.
nor, Lieutenant-Governor, Judges of
the Supreme and Circuit Courts, un-
der this Constitution, shall be held .
at the general election in the year
one thousand nine hundred and six- .
teen, and all other officers at the gen-
eral election in the year one thousand
nine hundred and fourteen; but all offi-
cers who may be in office when this
Constitution shall go into effect shall
hold their offices to the expiration of
the term for which they shall have
been elected, or until their successors
shall have been elected and qualified.