case heard upon objection to the sufficiency of the petition.
Judgment for defendant.
J. W. Tilly, (H. Steenerson, of counsel) for relator.
Article 20 of the constitution is void because it was never approved by the qualified voters of the state as required by § 8, of the enabling act. The vote as canvassed and certified was “for prohibition” 18,552, against 17,393. The total vote cast for governor was 38,098 showing at least that number of qualified voters present and voting, and 448 less than a majority voted for article 20. The words “qualified voters of said state” mean the qualified voters voting at the election. Peo. v. Warfield, 20 Ill. 163; Peo. v. Gamer, 47 Ill. 246; Peo. v. Wiout, 48 Ill. 263; Bridgeport v. R. R. Co., 15 Conn. 475; St. Joseph Tp. v. Rogers, 16 Wall. 644; Taylor v. Taylor, 10 Minn. 107; Bayard v. Klenge, 16 Minn. 221; Everet v. Smith, 22 Minn. 53; Walnut v. Wade, 103 U.S. 683; State v. Beched, 34 N. W. Rep. 342; State v. Babcock, 22 N. W. Rep. 372. The prohibition statute, Ch. 110, Laws 1890, was passed in December 1889, before the legislative assembly had any legislative power. The legislature of 1889 was called by proclamation of the governor for election of two United States senators. The term of service of members of the legislative assembly begins on the first Tuesday in January next after their election. Art. 2, § 41, Const. It is a primary requisite to the enactment of laws that there be a legal legislature. In time and place the members entitled so to do must lawfully convene. Tenants Case 3 Neb. 409; State v. Judge, 29 La. Ann. 223; Gormly v. Taylor, 44 Ga. 76; Peo. v. Hatch, 33 Wl. 151. When convened in extra session and limited by the constitution to business for which the session was specially called, all acts passed relating to other subjects will be void. Southerland on Stat. Const. § 25; Davidson v. Moorman, 2 Heisik. 575; Jones v. Theall, 3 Nev. 233; Speed v. Crawford, 3 Met. (Ky.) 207. This statute is void as inflicting excessive punishment. 1 Bish. Cr. Law 947; State v. Driver, 70 N. C. 423; State v. Petty, 80 N. C. 367; ex-parte Mitchell, 70 Cal. 1; State v. Williams, 77 Mo. 310; State v. Durston, 52 la. 635.
