tution of 1851. 2 Const. Debates, 1,258, 1,860, 1,918, 1,938, 1,940.

This examination of the Constitutional Debates shows the affirmative sense of the convention to have been that amendments to the Constitution could be adopted only by the majority of electors of the State. The proceedings also show us that a contrary proposition was ultimately rejected. The section, as first introduced by Read, of Clark, required a majority of the qualified voters to adopt an amendment to the Constitution." Stevenson moved to amend the section by inserting the words, "a majority of all the votes cast for and against the same." This amendment was accepted, and in that form the section was referred to the committee and reported to the convention, as we have seen, without the Stevenson amendment. Mr. Owen's amendment, still without the Stevenson amendment, as we have also seen, was substituted for the section reported by the committee, and became a part of the Constitution. 2 Const. Debates, 1,258-1,260.

We may thus ascertain the expressed intention of the framer of the Constitution. Affirmatively, that it should require a majority of all the electors of the State to adopt an amendment to the Constitution; and also their expressed intention. Negatively, that "a majority of all the votes cast for or against the same," unless such majority was a majority of all the electors, should not be sufficient to ratify an amendment. The act of the Legislature by which the amendment under consideration was submitted to the electors of the State for their ratification or rejection, in this respect followed the Constitution and affirms the same principle. The title of the act is: "An act providing for the submission to the electors of the State of Indiana for ratification, the constitutional amendments proposed," etc., and it declared that "if a majority of the electors should thus ratify any of said amendments, the same shall be a part of the Constitution."

A distinction will be observed in the Constitution as well as in the acts of the Legislature, between voting to adopt the Constitution, or to ratify an amendment to the Constitution, and voting to elect officers. The Constitution requires a majority of all the votes to ratify an amendment, but to elect an officer it requires only the highest number of votes, or a plurality. Sections 4 and 5 of article 5 of the Constitution, providing for the election of governor and lieutenant-governor, declare that in voting for governor the electors shall designate for whom they vote as governor and for whom as lieutenant-governor, * * * and the person respectively having the highest number of votes for governor shall be elected. This difference in language between the highest number of votes and the majority of all the votes is not a mere accident of composition; the words are used advisedly. So the Legislature, doubtless, can provide by law for the ratification of a constitutional amendment by a plurality of votes where there is no constitutional prohibition.

one

Section 3 of article 7 of the Constitution, providing for the election of supreme judges, declares that of said judges shall be elected from each district, and reside therein; but said judge shall be elected by the electors of the State at large." In this provision in reference to the election of an officer, the word "majority" of the electors is not used as it is in the section in reference to the ratification of an amendment to the Constitution. We must suppose that the framers of the Constitution meant just what, in plain words, they said; and that the people who ratified their labors understood them in the same sense.

In the fifteenth clause of the schedule of the Constitution, authorizing a new county to be created out of the territory contiguous to the counties of Perry and Spencer, it is provided that, "if a majority of all the votes given at said election shall be in favor of the or

ganization of said new county, it shall be the duty of the General Assembly to organize the same." In the Constitution, and throughout the legislation of the State, we believe without exception, whenever a majority of all the votes is required to carry a measure it is so stated in substantial words; and when a plurality of votes is sufficient to elect an officer it is declared that whoever shall receive the highest number of votes shall be elected, or that the electors shall elect the officer, without stating that it shall require a majority of the electors to make a choice. The people of a State may form an original constitution or abrogate an old one and form a new one at any time, without any political restriction except the Constitution of the United States; but if they undertake to add an amendment, by the authority of legislation, to a constitution already in existence, they can do it only by the method pointed out by the Constitution to which the amendment is to be added. The power to amend a constitution by legislative action does not confer the power to legislate on any other subject contrary to its prohibitions. Collins & Frierson, 24 Ala. 100.

With these constitutional provisions and legislative enactments before us, forming a line of precedents running from and since the foundation of the State, to hold that a plurality, or majority of a part instead of all the electors could ratify an amendment to the Constitution -a far more important act than the proposal of the amendment, or the passage of a bill which is repealable - would be a departure from the line of safe reasoning and logical sequence, and contrary to the Constitution and laws.

The principle of plurality, contended for by the counsel for the appellee, frequently develops sufficiently glaring disproportions between the number of electors of a constituency and the number of votes cast sufficient to elect; but when applied to the ratification of a constitutional amendment, and pushed to an extreme, it runs into absurdity. The election of an officer affects the right of no one except the person elected. To him it grants a privilege to be exercised for the public good, the exercise of which is a public necessity. It does not affect the right of even the person defeated, but only denies him a privilege which cannot be granted except by an election. In such case the Constitution requires only the highest number of votes to elect, though it may only be a plurality of a very inconsiderable number of the electors in proportion to the whole number. But the ratification of a constitutional amendment affects the rights of millions of people who are not electors and cannot vote, and for an indefinite time, until the amendment shall be abrogated by the same power that made it. In such case the Constitution requires the majority of all the electors to ratify the amendment. The principle of plurality, which might ratify a constitutional amendment, irrepealable by legislative action, binding the rights of two millions of people for an indefinite period, by the vote of two electors against a vote of one when the whole number of votes cast was but three, is not only unconstitutional, but is dangerous to human rights and repugnant to the sense of mankind. As the adoption of a Constitution is the considerate act of an entire people, and as it binds all departments of the government and cannot be repealed except by the same power that made it, its adoption should not be left to the vicissitudes of a meager plurality of votes which the accidents of a day might cast one way or another.

We have seen that there is no analogy between electing an officer and ratifying a constitutional amendment; nor is there any analogy between the cases cited on behalf of the appellee, wherein taxes are assessed and granted by the vote of the majority of the electors and the ratification of a constitutional amendment. such cases the taxes assessed and the franchises granted

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government, and the bulwark which protects the governed in all human interests, and as its ratification is the most solemn political act of a people in making changes therein of amendments thereto, which are irrepealable by legislative action, the letter and spirit of the Constitution and the laws must be complied with, or the amendment so proposed cannot be regarded as a part of the original instrument.

The great advantage, as is supposed, that will arise to the people from the ratification of the amendment is also urged upon us as an argument. Of advantages or disadvantages it is not our province to judge. The question for us to decide is: Has the amendment been ratified or not? The people of the State of Indiana do not desire advantages obtained at the expense of the Constitution; and no considerable advantage could compensate them for a breach of the fundamental law of the State. They would pay dearly, indeed, for the advantage of an immediate decision of this court that the amendment was ratified if it had to be made in violation of the Constitution and the law.

This court holds that it requires at least a majority of all the votes cast at the same election to ratify a constitutional amendment. We also hold that as the act of March 10, 1879, is defective in not providing for the count of the aggregate number of votes cast throughout the State on the day of the election, or in not providing some means to find out the whole number of votes cast, by which it might be learned what proportion the number cast in favor of the raiification bore to the whole number, there is no source from which this court can ascertain whether the amendment received a majority of all the votes cast at the election or not. As the amendment was submitted upon the day of the general spring elections throughout the State, and as there were, by law, officers to elect at the same time in the various counties, it must be presumed that other votes than those for or against the amendment were cast at the same time. From the peculiar ballots used in voting upon the amendment, many electors may have voted "no" or "yes" upon the question of the amendment, which votes would not be counted; such, also, would be counted in estimating the whole number of electors voting. It is also held that the Constitution must remain as it was before the amendment was submitted, until it shall affirmatively appear that the amendment is ratified. As it does not thus affirmatively appear, we must hold that the amendment is not ratified by a constitutional majority. The opinion, therefore, of this court is that it requires a majority of the electors of the State to ratify an amendment to the Constitution; but that the whole number of votes cast at the election at which the amendment is submitted may be taken as the number of electors in the State.

The writer of this opinion, speaking for himself only, holds that it requires the votes of a majority of the

substantial number who vote at general State elections, and the number of whose votes is officially returned by sworn officers into the office of the secretary of State. This number need not necessarily include electors who are sick, absent from the State, or prevented from going to the polls. The construction must be such as has a sensible application to the affairs of men, rather than one of abstract number or theory. The history of a State, the number of inhabitants, and its official statistics, are public facts, known to all persons, and never need be averred or proved in judicial proceedings.

He also holds that if the whole number of votes cast at a given election should be less than the whole number of the State, thus interpreted, the latter number being the constitutional guide, would govern, the former having only the authority of legislative action, for the number cast might bear a very inconsiderable proportion to the whole number of electors in the State. In the opinion of this court the consequence, spoken of in the argument, of this decision, can at most be but a temporary inconvenience. We perceive no irregularity in the proposal of the amendment for ratification. It has simply not been ratified, and not been rejected. The vote upon it was ineffectual for want of the constitutional majority. We see no reason why the General Assembly may not submit the amendment to the electors of the State, under an amended act, such as experience may prove to be sufficient to present the question to the courts if it ever should arise again.

The court below erred. We sustain the appeal at the costs of the appellee.

Niblack and Scott, JJ., dissent.

INJUNCTION OF PUBLICATIONS INJURIOUS TO TRADE-JURISDICTION.

NEW YORK SUPREME COURT JUNE, 1880.

CROFT et al. v. RICHARDSON ET AL. Defendant, who had letters patent for a "carpet exhibitor," issued circulars setting forth that plaintiffs, who also held letters patent for a carpet exhibitor, "or other irresponsible parties," professed to have "a new carpet exhibitor, intending to make considerable profit before legal proceedings put a stop to their nefarious efforts,' and that plaintiffs had no right "to make, sell or lease any carpet exhibitors," and threatening legal proceedings against any one "purchasing, leasing or using such exhibitor." It appeared that no suit for infringement of patent had been commenced, and it did not appear that defendant intended to commence any. Held, that a State court had jurisdiction to enjoin defendant from issuing the circulars, and that there was sufficient shown to authorize an injunction.

OTION for injunction made at Chambers to restrain defendants from publishing and distributing two certain circulars. Sufficient facts appear in the opinion.

A. Bell Malcomson, Jr., for plaintiffs.
George Gifford, for defendants.

POTTER, J. This is a motion for an injunction to restrain the defendants from publishing and distributing two certain circulars set forth in the complaint.

It appears from the complaint and the motion papers that Peterson, one of the plaintiffs and associated in business with plaintiff Croft, procured in 1879 letters patent for a carpet exhibitor, and that defendant Richardson procured letters patent for a carpet exhibitor in 1875, and that the other defendants are his agents or licensees in connection with his patent.

The defendants are charged with publishing and distributing circulars containing libellous matter in respect to the plaintiff's character and business in manu

facturing, selling and leasing carpet exhibitors, and that plaintiff's business success and profits have been and are injuriously affected by means thereof. The circulars represent "that plaintiffs, or other irresponsible parties, are sending out circulars professing to have a new Carpet Exhibitor, intending to make a considerable profit before legal proceedings put a stop to their nefarious efforts. That plaintiffs had no right or authority to make, sell or lease any carpet exhibitors, and that any merchant or responsible person, purchasing, leasing and using such exhibitor, is liable in damages and costs of prosecution," etc. That the plaintiffs have been making such exhibitors under a patent issued to plaintiff Peterson, and selling and leasing the same, and that circulars issued by defendants have injured and are injuring their business by debarring parties from buying, leasing and using the same, and that defendants, one or more of them, declare that it is not proposed to uselessly expend money in proceeding legally against the plaintiffs at present, to protect their interest, etc.

It is plain from the case presented upon this motion, that these circulars, sigued and published by the defendants, are calculated to and intended to, and do in fact injure the plaintiff's business. Will the law permit the continuance of such publications?

It is legal and proper for parties claiming rights under letters patent, to publish the rights claimed by them, and to issue notice and warning of prosecution of all parties who violate the rights secured by such patent, if done in good faith, and the court will not restrain publications and circulars of that character. Hovey v. Rubber Co., 57 N. Y. 119.

In this case the plaintiffs claim the right to make and dispose of a carpet exhibitor under the patent granted to Peterson, and do not deny the existence or validity of the patent granted to defendant Richardson, or defendant's rights thereunder, to make and dispose of the same. The defendants, however, do deny the validity of plaintiffs' patent and the rights under the same, claimed and exercised by plaintiffs. This court has not jurisdiction to try and determine disputed rights and claims under patents granted by the United States government. But that is not the real question involved in this controversy between the parties. The plaintiffs, while not denying the defendant's rights under this Richardson patent, claim that they have rights under the Peterson patent, and that they are lawfully engaged in the making, selling and leasing exhibitors under their patent, and that the defendants are publishing false and malicious libels concerning the plaintiff's business and their business character and transactions. This the State courts have the right and jurisdiction to restrain. Snow v. Judson, 38 Barb. 210; Thorley v. Massam, a case in the English Chan. Div., and published in 21 Alb. L. J. 171.

The circulars issued and distributed among the parties dealing with the plaintiffs go beyond making a claim, that plaintiffs are infringing upon the rights of the defendants, and giving notice of such infringement and its legal consequences. They substantially charge that plaintiffs are prosecuting a business which is an unlawful interference with the defendant's rights, and are irresponsible, and hoping to make something out of it before legal proceedings stop them, and that their efforts in that direction are nefarious. This language is quite too excessive and ill chosen to convey simple information, that plaintiffs and their patrons have no right to make and sell carpet exhibitors and are liable to the defendants for doing so. At all events I think it quite safe to hold that such language is satisfactory evidence of malice, until the defendants commence an action in good faith against the plaintiffs or other parties, to vindicate the rights which the defendants claim.

Motion to restrain the publications complained of granted, with ten dollars costs of motion.

TRANSFER OF CORPORATE SHARES-LIABILITY OF CORPORATION FOR WRONGFUL ISSUE OF

CERTIFICATE.

TEXAS SUPREME COURT, MARCH 23, 1880.

STRANGE V. HOUSTON & TEXAS CENTRAL RAILWAY Co.

The by-laws of a corporation provided that a transfer of its stock should be made in writing, and that upon the presentation of such transfer with the ccrtificate to the secretary, a new certificate should be issued to the assignee, and the certificates of stock contained a provision to the like effect. B., the owner of stock, transferred the same with the certificate to F., from whom plaintiff received a transfer with the certificate for value. B. subsequently transferred the stock for value to M., but without the certificate. The corporation issued a new certificate of the stock to M. Held, that the corporation was liable to plaintiff for the value of the stock, even though the record in the books of the company showed title to the stock in M. at the time plaintiff purchased the certificate.

The records of the corporation were not constructive notice to persons dealing in its stock.

A

CTION for damages by reason of the wrongful issue of a certificate of stock. The facts appear in the opinion.

BONNER, J. This case is one of first impression in this court, and we have endeavored to give it that full consideration in the light of authority, consistently with the pressure of other business, which its importance demands.

It involves the question of the liability of a railroad company for damages for having issued new shares of stock to one claiming under the first shareholder, when the original certificate is still outstanding in the hands of an innocent third party, but who had not presented the same, with his transfer, to the office of the company, previously to the issuance of the new stock.

To determine the liability of the company to some extent necessarily involves the merits of the respective titles of the two claimants, though but one is before the court.

The original certificate of stock issued on April 1, 1861, to J. M. Browder, reads as follows: "Houston & Texas Central R. R. Co., No. 19. Four shares. This certifies that J. M. Browder is proprietor of share No. 917, in the capital stock of the Houston & Texas Central Railway Company, established by Acts of Incorporation passed by the Legislature of the State of Texas, subject to which, and the by-laws, this certificate is transferable by assignment, and upon surrender hereof to the directors, a new certificate of proprietorship of said share will be delivered to the assignee."

Plaintiff, Strange, holds possession of this original certificate for a valuable consideration under the following chain of title: (1) A transfer from J. M. Browder, the original grantee, to E. S. Fletcher, dated March 14, 1862. (2) A transfer from E. S. Fletcher to J. R. Coryell, dated May 10, 1873. (3) A transfer from J. R. Coryell to plaintiff, B. A. Strange, dated August 29, 1873.

The title under which Hutchins holds the new stock is as follows: Browder sold and transferred said certificate of stock on May 6, 1868, for valuable consideration to H. C. Merriman.

In pursuance of said assignment from Browder, Merriman transferred the stock on the books of defendant's company to A. S. Richardson, and certificate of stock was issued to Richardson on July 27, 1868, and afterward Richardson transferred the stock to W. J. Hutchins, on or about January 14, 1871. The certificate to Richardson was surrendered and a new certificate

for the same stock was delivered to Hutchins, who holds and represents the stock in defendant's company.

The by-law of the company, authorized by its charter, upon the subject of the transfer of stock, reads:

"Sec. 4. The transfers of any share may be made by an instrument in writing signed by the owner, which writing may be indorsed on the certificate, or made on a separate paper. The assignee must cause his transfer to be presented and delivered to the secretary of the company before it will entitle him to be recognized as the owner, and upon presentation of such transfer, with the certificate of stock, the secretary shall record the same in books to be kept for that purpose, and called "Report Transfers," and the president and secretary shall issue new certificate or certificates to the assignee as he may be entitled, unless they have notice of fraud or invalidity of said transfer."

Subsequently to the issue of the new stock to Hutchins a demand was made to the company by the plaintiff, Strange, for the issuance of stock to him, he having presented the original certificate with the transfer to himself, which demand was refused. On the trial below a jury was waived and judgment rendered by the court for the defendant.

From the above statement it will be seen that the original certificate of stock was transferable by assignment, either indorsed on the certificate itself or on a separate piece of paper, and was not required to be made, as in some cases, on the books of the company.

By the terms of the certificate and by-law there was a continual affirmation made by the company that they would hold, for the use and benefit of the rightful owner of the certificate, the amount of stock therein specified until it was presented at the office of the company for cancellation and new stock issued; and the company was estopped from denying this. Holbrook v. Zinc Co., 57 N. Y. 616; In re B. & San F. R. R. Co., E. L. R. 32 B. 584.

The company is, to a certain extent, the custodian of the rights of the stockholders, and is responsible for an illegal issuance of stock to their prejudice. Bayard v. Bank, 52 Penn. St. 234; Lowery v. Bank of Baltimore, Taney's C. C. R. 310; Bank v. Lanier, 11 Wall. 369; Salisbury Mills v. Townsend, 109 Mass. 121; Pratt v. Taunton Copper Co., 123 id. 110; Loring v. Salisbury Mills, 125 id. 150; Bridgeport Bank v. R. R. Co., 30 Conn. 231; New York & C. R. Co. v. Schuyler, 34 N. Y. 30.

It is not intended by this, however, to prescribe an arbitrary rule. that the company shall, in any event, without being in default, as by negligence or fraud, be liable for the issuance of the stock to any other party than the holder of the certificate, but that it takes the risk, if issued without due precaution, that the certificate may be presented by some one having the superior title.

The non-production of the original certificate of stock was notice to the company that such superior title might be in a third party. New York, etc., R. R. Co. v. Schuyler, 34 N. Y. 81; Bayard v. Bank, 52 Penn. St. 235.

A provision for the record of the transfers of certificates, to be made upon the books of the company, as required by the act of December 19, 1857 (P. D., art. 4909), was intended for the benefit of the company, so that it might know, by ready reference, who were legal shareholders, who were entitled to vote at its meetings, receive dividends, etc., and to whom it could safely issue new stock. Bank v. Kartright, 22 Wend. 362; Broadway Bank v. McElrath, 2 Beas. (N. J.) 36.

Although the certificate was not the share of stock itself, it was what the company constituted the visible representation of it; and as between the shareholder and his assignee, the equitable, if not the legal title to

the stock, would pass by a transfer of the certificate, and this without it being recorded on the books of the company. Angell and Ames on Corp., § 353-4; id. 564; New York, etc., R. R. Co. v. Schuyler, 34 N. Y. 30; McNeil v. Bank, 46 id. 331; Leitch v. Wells, 48 id. 592; Bank v. Kortright, 22 Wend. 362; Turnpike Co. v. Ferree, 2 C. E. Green (17 N. J.) 118; Bank v. McElrath, 2 Beas. (13 N. J.) 24.

Such certificate and transfer is prima facie sufficient to authorize the holder to demand of the company the privileges and benefits to which the original holder would be entitled.

This construction of the legal effect of a certificate of stock and its transfer is now required, almost as a matter of necessity, both for the benefit of corporations and of trade, since stocks in incorporated companies have become such an important basis for speculation and collateral security. To hold otherwise would virtually withdraw such stocks from all other than the home market.

Thus it will be seen that the rights of a bona fide holder of a certificate of stock are two-fold in their character. As against the shareholder he would, whether his transfer be recorded on the books of the company or not, have a good title; as against the company, to enable him to demand that he be recognized as a shareholder and entitled to his rights and privileges, he should present his certificate and transfer for record in the office of the company. New York, etc., R. R. Co. v. Schuyler, 34 N. Y. 80.

There is a class of cases in which it is held that shares of stock cannot be assigned simply by delivery and transfer of the certificate, unless made on the books of the company, so as to defeat the rights of an attachment or execution creditor without notice by levy at the office of the company.

These cases generally turn upon some particulr provision of the charter or upon some statute providing for such levy.

In the absence of some such positive provision, which would make a transfer on the books of the company an essential condition, as between the shareholder and his assignee, to pass title as against such creditor it is believed that by reason of the policy which favors the unrestrained transfer of shares of stock, the interest of the creditor should be subordinate to that of such bona fide assignee; and particularly as otherwise such assignee would virtually be without remedy if the company could protect itself under the levy and sale. Broadway Bank v. McElrath, 2 Beas. (N. J.) 24.

Browder, the original shareholder, testified that he placed his certificate of stock with a blank transfer, executed by him thereon, into the hands of Fletcher for the purpose of effecting a sale. Having thus given to Fletcher possession of the original certificate with the external indicia of ownership and the right of disposal, Fletcher's subsequent sale of it, under which plaintiff, Strange, claims, clothed him with the apparent legal title. The rights of Strange, if bona fide, do not depend upon the actual title or authority of Fletcher to sell, but upon the act of Browder giving the apparent authority and which would estop him and his assignee. Salters v. Everett, 20 Wend. 278; MeNeil v. National Bank, 46 N. Y. 325; Bridgeport Bank v. R. R. Co., 30 Conn. 231; Turnpike Co. v. Ferree, 2 C. E. Green (N. J.) 117; Holbrook v. Zinc Co., 57 N. Y. 617.

The title of Strange, however, was subject to be defeated by a superior title in Browder or his assignee, if it could be shown that Strange purchased either with notice of it or without paying a valuable consideration therefor. It is uncontradicted, both that Strange was a purchaser for value and without actual notice, and it remains to inquire whether he can be charged with constructive notice.

So far as it appears, either from any public statute or