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voters. The great fundamental condition the requisite majority — was to remain essentially unaltered. It would be imputing to the wise framers of the Constitution of 1890 the greatest folly to suppose that they meant to reverse the policy of this State for seventy odd years, as to the majority necessary to adopt a constitutional amendment, when the real purpose of the omission of the words "for members of the legislature" lies on the very surface of the investigation, and was manifestly, as stated, the result alone of the fact that sessions of the legislature were then quadrennial. If an election should be held to determine alone whether the constitution should be amended or not, a majority of the electors voting would, in such case, necessarily be a majority of those voting for or against the adoption of the amendment. Clearly, therefore, this consideration in no wise affects the soundness of our holding that whether the vote on a constitutional amendment occurs on a day when State officers are also voted for, there must be a majority of all the electors voting that day for anything, to make the adoption of the amendment valid, as is expressly held in Stebbins v. Judge, 108 Mich. 698.

The court said: "We see nothing absurd in the legislature providing that at a special election a majority of the votes should control, while at a general election a majority of all the votes cast at the election should control. There might have been, in the legislative mind, the very best of reasons for such provisions."


Nothing is gained by referring to the words an election at which the qualified electors shall vote directly for or against such amendment." The very same words, "directly for or against such amendment," occur in the same provision in the Constitutions of 1869 and of 1832. Nor do the words, "an election," mean, as alleged, a special election. If that construction were correct, then every constitutional amendment would necessarily have to be submitted at some special election called for that purpose alone; yet for seventy odd years the policy of the State had been exactly the reverse. That policy of the State was never to submit a constitutional amendment except at an election for members of the legislature, for the reason that at such elections for members of the legislature the fullest possible vote would be polled.

The Constitution framers of 1817, 1832 and 1869 correctly thought that the best way to secure a full vote was not by submitting an abstract proposition for a change in the organic law at a special election, but at an election when friends, or others in whom voters might be interested, as candidates for the legislature, should be chosen. This was an eminently wise and common sense view founded on good reason. "An election" simply means any election, whether it be a special election or a regular election for State officers, or a con

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gressional election. Electors voted "directly for or against an amendment" under the Constitutions of 1832 and 1869. Also the dropping of the words "the next general" before the word "election" from section 273 of the Constitution, and the substituting for these words "an election" was made necessary solely because of the fact that sessions of the legislature were quadrennial. Prior to the Constitution of 1890, the electors would vote at an election, "directly for or against," and it then required a majority of the qualified electors voting for members of the legislature, at the general election, to adopt the amendment. Now qualified voters at an election, special or general, at which they vote, vote directly for or against such amendment," but it requires a majority of all the qualified electors voting at that election, whether special or general, no matter for what officers or for what things or propositions they may vote. The number to be ascertained to find what a majority of that number was the number of all the qualified electors who vote at the election, who vote at that election no matter for what they vote, keeping up the uniform policy of this provision of the Constitution. This Constitution provides that not simply a majority of the qualified electors voting for members of the legislature should be required, but that a majority of all the qualified electors voting that day, at that election. special or general, should be required. This might require a larger number of voters to adopt a constitutional amendment than would constitute a majority of the electors voting for members of the legislature. It cannot require less than such a majority. So that it is perfectly obvious that the policy of this State through all the days of statehood was, under the Constitution of 1890, not only maintained, but absolutely strengthened. It is not enough now that a majority of electors voting for legislators shall vote for the amendment. The adoption of such an amendment requires a majority of all the qualified electors voting for any purpose whatever. This construction preserves the policy the State manifested by these provisions in three Constitutions by universal usage before and since the war, and conserves the great principle which imperatively demands that the great organic law of the State its Constitution, supreme and paramount over every interest — shall never be altered or changed, except upon the maturest judgment, and by a majority sufficient to warrant the conviction that the change has met the approval of intelligent freemen..

Such is the view deduced from a history of this section, the public policy of the State as declared by this section in its various forms, in the different Constitutions, from 1817 to 1890, and from the construction of the several clauses of section 273 itself. It may be added that this would be entirely sufficient to dispose of the case, since it is admitted that these amendments did not receive a majority

so as


of all the qualified electors voting at the election. Little aid can be gathered from the decisions of other Statcs construing their particular clauses in their constitutions providing for amendments to their constitutions, little aid that is of direct authority, since a decision from another State would only be persuasive authority, even where it was rendered in construction of a clause or clauses in its Constitution identical with like clause, or clauses, of our Constitution. But the overwhelming weight of authority adopts our view on this proposition also. In the case of prohibitory amendments, 24 Kan. 707, the clause is, "if a majority of electors voting on said amendments, etc." Of course there was no room for doubt on that sort of a clause, that only a majority of the electors voting on said amendments" was required. There are many cases of propositions to remove court-houses, and change county sites, to get franchises, and to vote bonds, etc., as to which there have been many conflicting decisions. Such decisions are of very little value in the solution of this question.


State v. Langlie, 5 N. Dak. 504, was a county site case. State v. Grace, 20 Oregon, 161, was another county site case. It is to be remarked that both of the cases quote Gillespie v. Palmer, 20 Wis. 573, a case thoroughly repudiated by many courts and of no authority. See specially the criticism of this case in Stebbin's case, 108 Mich. 695, in which it is shown that it has been overruled in Wisconsin 45 Wis. 579- Chief Justice Ryan characterizing it as "a reproach and a judgment proceeding upon policy rather than upon principle."

The case of State v. Barnes, 3 N. Dk. 319. goes upon the fact that the vote upon the constitutional amendment was by the provision of law therein controlling, made a wholly separate and special election, though occurring on the same day with an election for officers. Being made a special election, of course a majority of electors voting on the question of adopting the Constitution would control. The case of Marion County v. Winkley 29 Kan. 40, is purely a local case about a hedge bounty submitted to the people of a county. The distinction between a local election and this sort of a State election on the adoption of a Constitution, is too obvious for comment.

Our view as to the majority required for the valid adoption of a constitutional amendment is directly and clearly supported by the following cases: State v. Forraker, 46 Ohio, 692; State v. McGowen, 138 Mo. 193; State v. Swift, 69 Ind. 505: Bank v. Saunders, 51 Neb. 801; Bayard v. Klinge, 16 Minn. 252; Stebbins' Case, 108 Mich. 693; and many others in briefs of counsel.

In the Nebraska case it was held that it required a majority of the highest aggregate num. ber of votes cast, whether for an officer or for an amendment.

In State v. Swift, 69 Ind. 520, the distinction

was pointed out between the reasons for requiring a different majority to elect an officer and to adopt a constitutional amendment, a distinction which the framers of the Constitution of 1890 evidently had in mind when they provided, as they have done, that the majority now required to amend the Constitution must be a majority of all the qualified electors voting, whether such majority be equal to or larger than a majority of the qualified electors voting for members of the legislature. All the statements to be found in different decisions touching the doctrine that electors absenting themselves from an election, and those present and not voting for some candidate for every office, or on every proposition submitted, are held to assent to the action of those who do vote, are not applicable to a case like this which is governed by a constitutional standard, as to the majority necessary, expressly defined in the Constitution itself. that being, as stated, that the required majority shall be a majority of all the qualified electors voting at the election, for any purpose, or for any officer, as held in Stebbins' case, 108 Mich. 699. Manifestly when the Constitution itself, in section 273, expressly declares that no amendment shall be adopted, except where it shall be a fact that it received, at the election, a majority of all qualified electors voting, we have a positive rule prescribed, and a fixed standard set up, and nothing short of strict compliance with the rule, or of a majority measuring up to that standard will avail to change the organic law. There is one other most important consideration, and that is that the members of the constitutional convention of 1890 used language with the greatest precision when talking about the majority required to accomplish different ends. In section 259 it is provided: "No county seat shall be removed, unless such removal be authorized by two-thirds of the electors of the county voting therefor; but when the proposed removal shall be towards the center of the county it may be made when a majority of the electors participating in the election shall vote therefor ' Section 260 provides: No new county shall be formed unless a majority of the qualified electors voting in each part of the county," etc. Section IOI provides: The seat of government of the State shall be at the City of Jackson, and shall not be removed, or re-located, without the assent of a majority of the electors of the State." It is perfectly idle to contend, in the face of all these different provisions of sections 259, 260, 101 and 273, that the members of the constitutional convention of 1890 very many of them the ablest lawyers in this or any other State - did not carefully use. with exact precision, words apt to convey the different and distinct meanings they had in view. in the adoption of these different provisions. See the forcible reasoning of the Supreme Court of Missouri in State v. McGowen, 138 Mo, 193, along this line. There are other authorities which we


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have not thought it necessary to cite at length. There was but one election. It is a complete fallacy to argue that, because the constitutional amendments were submitted and voted on at a general election, the election was separate, and that there were two in number. There was but one election, held at the same time and place, though officers were voted for, and these amendments were voted for or against. The ballot used was a single ballot, on which was printed along with the names of the candidates the amendments, with directions to vote for or against them, in one body.

In the case of Bank v. Saunders, 51 Nebraska, 802, it is shown that votes were deposited for and against the amendments, in boxes used for receiving ballots thus cast, all over the State; that these votes were canvassed separately, and that the whole number of votes so cast was 122,000, of which 84,000 were for, and 37,000 against speakin round numbers - but 217,000 votes were cast for governor, and the contention was - see page 803 that it was a separate election, as to the amendments.

But the court held that there was but one election. That was a far stronger case for the idea that it was a separate election than this one. Here there was no separate deposit of ballots touching the amendments, in separate boxes, and no separate canvass of such ballots. The whole conduct of the election shows it to have been one election.

tion of this State is, and, in accordance with our oaths, to support and maintain it in its integrity, imposes upon us a most difficult and embarrassing duty one which we have not sought, but one, which, like all others, must be discharged when the hour comes. The action of the court below is in accordance with the view we have announced. It declared, and we now declare, that for the reasons that the said amendments were not submitted to the voters in the State in accordance with the provisions of section 273 of the Constitution of 1890, and because these amendments were not adopted at said election by a majority of all the qualified electors voting at said election, as required by said section 273, the said amendments are null and void, and form no part of the Constitution, and that all the sections of the Constitution which they sought to repeal remain in full force and effect.




May, 1900.


In re HOLLAND EMSLIE et al., Bankrupts. Charles H. Young, for mechanic's lienor; T. V. W. Anthony, for trustee in bankruptcy.

One final observation; we are not embarrassed in this case, as some of the courts whose decisions we have discussed were embarrassed, by the fact that a construction different from ours has been uniformly acted upon for a long period of time by all the departments of government, and that rights have grown up under such different constructions. The governor of this State, foreseeing the evil effects to come from long delay, and the confusion which would be introduced by waiting for years, it might be, until the validity of these amendments should be otherwise presented, wisely determined to have this question settled now, in advance, finally and authoritatively by this, the court of last resort in this State. This action saves the people of this State the very great embarrassments which would certainly have attended a delay of the settlement of this much-vexed question. This court recognizes the importance of the coordinate legislative department of the government. the agreed price or value of the labor performed It has the highest regard for the legislature as a or to be performed and materials furnished or to co-ordinate branch of the government, and for its be furnished," and "the time when the first and members individually. It is one of the very ablest last items of work are performed and materials are legislative bodies that has ever assembled in this furnished." The notice of lien does not attempt capitol. We do not seek a jurisdiction not im- | to comply with either of these requirements, but posed upon us by the Constitution. We could states merely that there remains due and unpaid not, if we would, escape the exercise of that jurisdiction which the Constitution has imposed upon us. In the particular instance in which we are now acting, our duty to know what the Constitu

We agree with the court below that a valid lien was not acquired by the subcontractor owing to the omission to comply with the terms of the statute which requires the notice of lien to specify


(under contracts with Holland Emslie & Son) the sum of $1,700." Not only is there no statement of the contract price, or the value of the work and materials, or of the time when the first and last

WALLACE, Circuit Judge. - This is an appeal from an order granted upon the application of a trustee in bankruptcy staying an action brought in a State court by a subcontractor to foreclose a lien, claimed under the New York Mechanic's Lien Law, for the labor and materials furnished in building a house. The notice of lien was filed by the subcontractor April 28, 1899. August 15, 1899. upon a petition in involuntary bankruptcy filed by creditors, the contractors who erected the house for the owner of the real estate were adjudicated bankrupts. The action to foreclose the lien was commenced August 16, 1899.

items were furnished, but there are no statements which by any possible implication can supply any information about these facts. The statute is to be liberally construed in aid of every beneficial purpose which was contemplated in its enactment, and a substantial compliance with its provisions is sufficient to uphold the lien. But a construction which would uphold a notice like the present would nullify its provisions, which are intended for the benefit of every claimant as for the owner of the property (Foster v. Schneider, 19 N. Y. St. Rep. 449; Brandt v. Verdon, 44 N. Y. St. Rep. 885). As was said in the former of these decisions, Το entitle a claimant to its benefits, the direction of the statute must be substantially observed; if they are not, the lien cannot be secured, and the court has no power or authority to sustain the proceeding, for a substantial compliance with the requirements of the statute is necessary to confer jurisdiction."


We are constrained to differ from the opinion of the court below that the lien was void as against the trustee in bankruptcy irrespective of the insufficiency of the notice. The statute gives a lien for the value, or the agreed price, of the labor and materials from the time of the filing of the notice, authorizes the notice to be filed at any time during the progress of the work or within ninety days thereafter, provides that if an action shall not be brought to enforce the lien within a specified time the lien shall be discharged and prescribed the procedure in an action to enforce the lien. When the notice is filed, provided the filing is within the period prescribed, the lien binds the property to priority of payment in favor of the lienor for any indebtedness for improving the property due from the owner as against subsequently acquired rights and titles. It will be observed that although the lien is not created until the filing of the notice, this is an act optional with the mechanic or materialman, and if he chooses he can perfect a lien day by day concurrently with the progress of the work. A trustee in bankruptcy cannot acquire a better title than the bankrupts had except as to the property which has been transferred contrary to the provisions of Bankrupt Act, and takes the estate subject to all liens and incumbrances other than those enumerated in section 67. That section denies the privileges of a lien to claims which for want of record or for other reasons would not have been valid as against creditors if there had been no bankruptcy, and enumerates the liens and incumbrances which are dissolved by the adjudication of bankruptcy or can be kept on foot and enforced by the trustee for the benefit of the estate. The latter consists of two classes, liens obtained through legal proceedings against an insolvent debtor within four months prior to the filing of a petition in bankruptcy against him, and incumbrances created by the act of the bankrupt within four months prior to the filing of the peti

tion which are intended to defraud creditors or are void by the laws of the State in which the property is situated. The section preserves all liens given or accepted for a present consideration. In our opinion liens like the present do not fall within either of the two classes. They are not within the first class because they are not created or obtained through legal proceedings either in strict definition or in the ordinary meaning of the


A legal proceeding is any proceeding in a court of justice by which a party pursues a remedy which the law affords him. The term embraces any of the formal steps or measures employed in the prosecution or defense of a suit. In the section it obviously refers to the use of judicial process, the phraseology being "levies, judgments, attachments or other liens obtained through legal proceedings." The filing of notice of a mechanic's lien has no necessary relation to the initiation or the prosecution of a suit. The filing is essential in order to maintain the action to foreclose the lien, because otherwise the lien does not attach, but it is no more a preliminary step in the suit than is the protesting of a note in a suit against the indorser. It is a proceeding of the same kind as filing a chattel mortgage or recording a deed.


Such liens are not within the second class, because they are not an incumbrance created by the debtor. They are created by the statute, or by the act of the lienor in filing the statutory notice. The incumbrances which are invalidated by the section are those which are "made or given" by the person adjudged a bankrupt. They include not only those specifically mentioned, conveyances, transfers and assignments," but all incumbrances of whatever form derived from his contractual act. | Unless it can be said that the lien emanates in or is created by the contract authorizing the labor and materials to be furnished, it arises without his act. If it is a creature of the contract rather than of the statute, it is supported by the same consideration, and being given for a present consideration" is preserved by the section.


There are no equitable considerations in favor of the general creditors of a debtor which should defeat a mechanic's lien. Every creditor dealing with the debtor does so with the knowledge that those who are furnishing labor and materials for the building can, if they choose, acquire a priority of payment over other creditors. Statutes giving such liens are designed to enable mechanics and materialmen to rely upon the security of the building itself without looking to the responsibility of the owner. The justice and expediency of giving such claims priority over the debts of general creditors is manifested in the legislation of the several States. We cannot believe that it was the intention of congress to put them upon the footing of the liens particularly mentioned in section 67.


The question of the validity of such liens was considered by the Circuit Court of Appeals for the Seventh Circuit in Re Kerby-Dennis Company

(95 Fed. Rep. 116). In considering the provisions Court of Rhode Island had before it for con

N State v. Dalton (46 Atl. R. 234) the Supreme

sideration the validity of the following statutory provision:

of section 67 the court used this language: "We cannot indulge the presumption that congress intended to avoid a lien secured by the act of labor and preserved and continued in force only when legal proceedings are instituted within a specified time. Such a construction would avoid all mechanics' liens and all the liens of laborers which the laws of various States have for years sought to protect and to prefer." We agree with the opinion of the court that the terms of section 67 do not invalidate such a lien. The learned judge in the court below thought the lien given by the New York statute was to be distinguished from the lien given by the statute of Michigan, which was under consideration in that case, by the circumstance that the lien under the New York statute originates in the filing of the notice of lien, while in the Michigan statute it originates by the act of furnishing the labor or materials, and is thus a strictly contemporaneous lien. We do not discover any substantial distinction between the two statutes. In one the lien is not given unless the notice is filed; in the other, although it arises when the labor or materials are furnished, it is lost unless a notice is filed within a specified time. The object of both statutes is the same, and both accomplish practically the same result. In one the filing of the notice is necessary to perfect the lien, and in the other it is necessary to preserve it. In both it is wholly optional with the lienor whether he will avail himself or not of his right of priority.

We have thought it necessary to discuss the questions which have been considered in regard to the efficacy of the lien, because in making the order the court below passed upon these questions apparently with the view of determining the rights of the parties to the fund in controversy. The order staying the action in the State court was a proper exercise of power, and should not be disturbed. That action was an interference with assets of the bankrupts in the custody of the bankruptcy court over which that court had previously acquired jurisdiction, and as it was brought without the leave of the court the order staying its prosecution was properly granted within the principle of the decision of this court in the recent case in Re Russell & Birkett.

The order is affirmed, without costs.
All concur.

Joseph A. Sleeper, who has been known for thirty years among the ablest lawyers at the Chicago bar, has been for over two years a helpless invalid, requiring attention night and day. He is not able to stand alone or to speak, but his mind is clear and he can understand what is said to him.


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Section 1. It shall be unlawful for any person or corporation to sell, give, or distribute any stamp, coupon, or other device which shall entitle the purchaser of property to demand or receive from any person or corporation other than the vendor, any article of merchandise other than that actually sold to said purchaser, and for any person or corporation other than the vendor, to deliver to any person any article of merchandise other than that actually sold upon presentation of any such stamp, coupon or other device; provided, however, that this act shall not affect any existing contract."

It was held that, whatever the powers of a legislature to prohibit the "trading-stamps" system in proper cases may be, the statute under consideration was so general in its terms as to amount to an infringement of constitutional liberty. The court relies to a material extent upon the decision of the New York Court of Appeals in People v. Gillson (109 N. Y. 389). In all cases of this character the turning point is whether there is a lottery - that is, an essential element of chance - or whether the additional benefit to a purchaser is in the nature of a "chromo," or gift. The Rhode Island court cites and analyzes a large number of previous authorities bearing upon this general question. The following extract from the opinion states the court's essential position:

"Referring again to the act in question, our view thereof may be stated thus: The act, as we construe it, prohibits a person from selling a given article, and at the same time, and as a part of the transaction, giving to the purchaser a stamp, coupon, or other device which will entitle him to receive from some third person some other welldefined article in addition to the one sold. This is equivalent to declaring that it is illegal for a man to give away one article as a premium to the buyer for having purchased another; for, as already intimated, it can make no possible difference that the article given away with the sale is delivered to the purchaser by a third person, instead of the seller himself. We think it is clear that such a prohibition is an unwarranted interference with the individual liberty which is guaranteed to every citizen both by our State constitution and also by the Fourteenth Amendment to the constitution of the United States. The term 'liberty,' as used in the constitution, is a very broad and comprehensive one. It does not mean freedom from physical restraint, simply, but embraces the right of each individual to be free in the enjoyment of the faculties with which he has been endowed by his

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