In Re Todd , 208 Ind. 168 ( 1935 )

DISSENTING OPINION. The questions involved are so important and have such a far-reaching effect that I deem it necessary to give my reasons for withholding my assent to the views of the majority of the court.

By his petition, Lemuel S. Todd seeks admission to the practice of law at the bar of this court upon establishing that he is of good moral character and a voter of this state. A constitutional amendment, changing the original provision of the Constitution concerning admission to practice, was submitted to the people at a general election. It received a majority of the votes of those voting upon the question of the amendment, but less than a majority of those voting at the general election. It is contended that the amendment was adopted.

It is also asserted by those opposing the petition that if the amendment was not adopted there is still inherent power in the court, over and above the Constitution, to prescribe rules for admission to practice, and that the original constitutional clause does not have the effect of limiting the court's inherent power. It is further asserted that, even though the court's power is limited by Constitution, good moral character may be defined by the court, and that term may be interpreted as requiring that one who seeks to practice have a legal education before he can be deemed to be of good moral character.

Section 1 of Article 16 of the Constitution of Indiana provides that if an amendment to the Constitution proposed in the General Assembly shall be agreed to by a majority of all the members elected to two consecutive Assemblies, it shall be the duty of the General Assembly to submit such amendment "to the electors of the state; and if a majority of said electors shall ratify the same, such amendment or amendments shall become a part of this constitution." The question presented is, whether the language of the Constitution requires that "a majority of said electors shall ratify," or that a majority of said electors voting upon thequestion shall ratify. In other words, does the language of the Constitution mean exactly what it says, or something else which requires that additional words be supplied to make the meaning clear?

In Greencastle Twp., etc., et al. v. Black (1854),5 Ind. 566, 570, Stuart, J., speaking for this court in a learned opinion, said:

". . . the discretion of Courts is more restricted in applying the rules of construction to a plan of government contained in a written constitution, than in the construction of statutes. And the reason is conclusive. Statutes are often hastily and unskilfully drawn, and thus need construction to make them sensible. But constitutions import the utmost discrimination in the use of language."

Then he quotes:

"`They are the permanent will of the people, intended for the guidance of posterity.' Thus, Marshall, C.J., in relation to the Constitution of the United States: `The framers of the constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they said.' Gibbons v. Ogden, 9 Wheat. 188."

This court said in the case of Lafayette, etc., R. Co. v.Geiger (1870), 34 Ind. 185, 202:

"We recognize as correct the doctrine so repeatedly enunciated by the highest courts and ablest lawyers, that constitutions are to receive a strict construction, . . ."

It is disclosed by the Convention Journal that Mr. Read, a member of the Constitutional Convention, offered a resolution directing the committee on future amendments to insert a clause providing "that such proposed amendment or amendments shall be submitted to the people at said election, and if a majority of the qualified electors shall approve and ratify such amendment or amendments, the same shall become a part of the constitution." When Mr. Read's resolution was taken up for consideration, Mr. Stevenson moved to strike out "a majority of the qualified voters," and to insert "a majority of all the votes cast for and against the same." Mr. Read expressed his willingness to accept the amendment with the remark: "It is precisely what I intended." It is not clear whether Mr. Read meant that the amendment was what he intended to suggest, or whether he thought the amended language was identical in meaning with the language of his resolution, which it clearly is not. But in any event it appears that Mr. Stevenson saw the distinction. The two clauses being before the convention at once, the members of the convention must have clearly discerned the difference. What discussion occurred in committees or among the members privately upon the subject, we do not know, but when the constitution was finally adopted it contained the words of Mr. Read's original resolution in substance. From this we must conclude that the convention considered the proposal to amend, either by ratification by a majority of all of the electors of the state, or ratification by a majority of the votes for and against the same, and rejected the latter and adopted the former. No other conclusion is logically possible if we adhere to the rule that "constitutions import the utmost discrimination in the use of language."

Three times the identical question has been before this court. In the first case, State v. Swift (1880), 69 Ind. 505, it was decided by a divided court that the clause means a majority of all the electors. The majority opinion was written by Judge Biddle, who was a member of the constitutional convention. In reDenny (1901), 156 Ind. 104, 59 N.E. 359, this court reached the same conclusion, again by a divided court. In re Boswell (1913), 179 Ind. 292, 100 N.E. 833, the former cases were sustained by the entire court. In the latter case, Cox, J., speaking for this court concerning the cases cited, said (p. 296):

"To that holding we adhere. It has been considered by this court in the cases cited that the provision is too plain to carry more than one meaning and that the question in any case is not one of construction but of evidence to determine the number of electors in the State and whether an amendment has received a majority of them."

In this latest case the court seems to have treated the question as settled by the prior adjudication. The writers of the dissenting opinions in the first two cases leaned heavily upon the proposition that "it is a fundamental principle under our government, as the authorities assert, which must have been understood by the framers and ratifiers of our Constitution, that a majority of those who exercise the right of suffrage shall control in its affairs."

In re Denny, supra.

But it can hardly be said that the framers of the Constitution intended the clause which they adopted to mean exactly what was proposed to them in open session as a substitute and rejected. Much of the difference of opinion apparent in the two earlier cases involved the method of determining the whole number of electors, ratification by a majority of which was necessary to amend the Constitution. But that question was not before the court in either case, since both cases involved a proposed amendment voted for at a general election, and, although it received a majority of the votes cast for and against, it received less than one-half of the total number of votes cast at the election. It is obvious that, upon such a state of facts, it is not necessary to determine the whole number of electors in the state, since it is clear that, even though there may have been more electors than those voting at the election, the amendment, not having been ratified by one-half of those voting, clearly could not have been ratified by a majority of all of the electors.

But even though the question was not presented by the records, those cases seem to have been treated as laying down a rule which has since been generally accepted and acquiesced in to the effect that, as a practical matter, the whole number of voters voting at a general or special election may be taken as the whole number of electors of the state. No argument is necessary to convince that, in strictness, this cannot be true; but it is obvious that great difficulties are involved in determining accurately the entire number of electors in the state, a consideration which, no doubt, prompted the announcement of the practical rule.

Unless we overthrow the rule established under the cases referred to, and overrule those cases upon the theory that the words "a majority of said electors" mean a majority of saidelectors voting upon the question, the proposed amendment in question cannot be deemed to have been adopted without further extending the questionable rule of evidence referred to. To so extend that rule, admittedly inaccurate in its inception, we must go a step further and say that, since the total of electors voting for and against a constitutional amendment at a special election may be treated as the whole number of electors in the state, then the adoption of an amendment submitted at a general election is to be determined by a majority of the electors voting for and against said amendment regardless of the fact that the number of those voting to adopt the amendment be less than one-half of the whole number of electors voting at said election.

The rule that the number of electors voting at an election may, as a matter of evidence, be treated as the whole number of voters of the state, was announced out of the apparent necessity of having some practical method of establishing the facts. But there is no sound reason for extending the rule, even though regard for precedent may dictate that it should not be overturned.

For more than fifty years the amendment section of the Constitution has been interpreted as requiring a ratification of an amendment by a majority of the electors of the state. The interpretation is supported by three decisions of this court, the last one a unanimous decision which treats the question as settled. Even if not convinced upon the merits of the question, and there has been much difference of opinion, these precedents should be given great weight and force in deciding the issue.

In Board of Commissioners of White County v. Gwin, Sheriff,et al. (1894), 136 Ind. 562, 580, 36 N.E. 237, this court said, concerning a non-judicial construction which has been put upon the Constitution and acquiesced in:

"If there were any doubts as to the correctness of this construction, the great length of time it has been received and acted on, according to the principles already laid down, gives to it the force of positive law."

Buskirk, J., in a careful and exhaustive opinion in the case ofLafayette, etc., R. Co. v. Geiger, supra, quotes with approval a rule of construction laid down by the United States Supreme Court, and reaffirmed in many decisions, as follows (p. 203):

"A contemporary exposition of the constitution, practiced and acquiesced in for a period of years, fixes the construction; and the court will not shake or control it."

The application of these rules is, of course, limited to those cases in which the construction to be put upon the language of the Constitution is doubtful or debatable. They do not command or require the perpetuation of a construction that is clearly erroneous. It has been said that:

"Decisions construing the constitution or acts of the legislature should be followed, in the absence of cogent reasons to the contrary, inasmuch as it is of the utmost importance that the organic and statute law be of certain meaning and fixed interpretation." 7 R.C.L., 1002, and cases cited.

The importance of stable and settled rules of law is generally recognized, and strong respect for precedent has become a part of our legal system.

That the rule laid down upon the question of amendment, by the decisions of this court above referred to, has been accepted and acted upon as the settled law, is illustrated by the provision in the legislation submitting the so-called "Lawyer Amendment" and an income tax amendment by the legislature in 1931. Section 8 of chapter 157 of the Acts of 1931 provides:

"If it shall appear that the number of votes cast in the state for any one or more of the proposed amendments was greater than the number of votes cast against such amendment, and equal to or greater than a majority of all of the electors who voted at the election, then each such amendment shall be deemed and taken to have been ratified by the electors of the state, and become a part of the constitution of the state, and shall be so declared by the governor in his proclamation. But if it shall appear that any proposed amendment has received in its favor a number of votes less than a majority of all the electors who voted at the election, then each such amendment shall be deemed and taken to have been rejected by the electors of the state and shall be so declared by the governor in his proclamation."

And this construction and direction to the voters was doubtless acted upon by the voters, and it can not be doubted that many, who would have voted against the amendment had they understood that only those voting for or against would be counted, merely voted at the general election and refrained from voting either way upon the amendment, believing that those thus voting would be counted against it.

This situation illustrates the soundness of the view that an interpretation of our Constitution, repeatedly announced by this court and acquiesced in over a long period of years, should not be overturned on debatable grounds. If the clause in question can be said to be open to construction, the question of whether it means literally what it says, or means a majority of the voters voting upon the question, is at least open to reasonable debate, with so much to be said in favor of the literal construction that, at least, grave doubts must arise as to whether this court has rested in error, and, in the writer's opinion, the established rule should be adhered to.

Section 21 of article 7 of the Constitution of Indiana provides:

"Every person of good moral character, being a voter, shall be entitled to admission to practice law in all courts of justice."

That it was the clear constitutional intention that persons without legal training or education be admitted to practice, if they were voters and of good moral character, can not reasonably be doubted after an examination of the constitutional debates and the history of the times. It is urged that one who will undertake to practice law, and hold himself out as competent to do so, without legal training or education, can not be of good moral character. But such argument can not avoid the inescapable fact that the Constitution intends that legal training or education shall not be a necessary requirement. The power of the courts, like the power of the other branches of the government, may be limited by the Constitution, and is limited by this clause. It is true that, as stated by this court in In re McDonald (1928),200 Ind. 424, 164 N.E. 261, "Courts may make reasonable rules and regulations for the admission (to practice law)"; but these rules must be within constitutional limits. The rules may prescribe reasonable practices concerning applications for admission, and the court to which application shall be made, the manner in which proof shall be adduced, etc. In the absence of constitutional restriction, and with or without legislative sanction, the courts might impose educational requirements or legal training, as a condition to admission to practice law; but, in the face of the constitutional provisions, they are limited in fixing qualifications to those provided in the Constitution, or to lesser qualifications. In the case of In re Petition of Leach, Ex Parte (1893), 134 Ind. 665, 34 N.E. 641, it was held that the courts had inherent power to admit a woman to practice, although she was not a voter; but this is not forbidden by the Constitution. The courts have power to provide by rule for the admission of persons who are not of good moral character. But the Constitution fixes, and was intended to fix, the maximum requirements that may be established by the courts. The will of the people, as expressed in the Constitution, is supreme and controls the power of the courts. It may be that educational requirements, as a condition to admission to practice, are highly desirable, and that people generally now recognize such to be the fact, but, until the Constitution is amended, courts are bound by the will of the people as expressed in section 21, article 7.

My views do not permit me to concur in the conclusion that a constitutional amendment has been accepted until it has been ratified by at least a majority of the voters voting at a general election. If the Constitution is to be treated as unamended upon the subject of admission to the bar, the statute, which assumes to give rule-making power to this court, is not necessarily unconstitutional, but is limited in its operation as the court was limited without it, but such rules as to qualifications as are not in conflict with the constitutional provision as originally written.

It would follow that the petitioner should be admitted to practice law upon establishing his good moral character, and that he is a voter, under such reasonable rules as the court has adopted or may adopt.