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Young, 29 Minn. 574; Secombe v. Kittleson, 29 Minn. 555; State v. McBride, 4 Mo. 505; State v. Timm, 54 Wis. 318; Jameson Cons. Convention, 4th Edition, 617.
We have carefully examined each of these authorities, and they clearly and fully support the
statement of the text.
The case from Missouri being especially emphatic, as is also the case from Alabama. In this last case, the court say:
"We entertain no doubt, that, to change the constitution in any other mode than by a convention, every requisition demanded by the instrument itself must be observed, and the omission of
any one is fatal to the amendment. The constitution is the supreme and paramount law. The mode by which amendments are to be made under it are clearly defined. It has been said, that certain acts are to be done certain requisitions are to be observed, before a change can be effected. But to what purpose are these acts required, or these requisitions enjoined if the legislature or any other department of the government can dispense with them. To do so would be to violate the instrument which they are sworn to support; and every principle of public law and sound constitutional poncy requires the court to pronounce against every amendment, which is shown not to have been made in accordance with the rules prescribed by the fundamental law."
The learned editors of L. R. A., in the note to Miller v. Johnson, Vol. 15, page 524, expressly say:
That the question of lawful adoption of an amendment to the Constitution is a judicial question."
Judge Handy and Chief Justice Smith clearly treat the question as a judicial question in Green v. Weller, and language could hardly be clearer or stronger in support of this view than is that of Chief Justice Smith in that case. All that is said in ex parte Wren, 63 Miss. page, on this subject is pure dictum, the question not being before the court. The true view is that the constitution, the organic law of the land, is paramount and supreme over governor, legislature and courts. When it prescribes the exact method in which an amendment shall be submitted, and defines positively the majority necessary to its adoption, these are conconstitutional directions mandatory upon all departments of the government, and without strict compliance with which no amendment can be validly adopted. Whether an amendment has been validly submitted, or validly adopted, depends upon the fact of compliance or non-compliance with the constitutional directions as to how such amendments shall be submitted and adopted; and whether such compliance has, in fact, been had must, in the nature of the case, be a judicial question. It may be that where the con
stitution creates a special tribunal and confides to that tribunal the exclusive power to canvass the votes, and declare the result, and make the amendment part of the Constitution as a result of such declaration, by a proclamation or otherwise prescribed method fixed for such tribunal by the Constitution, then the action of such special tribunal would be final and conclusive whether its action be judicial or not. This is so because it was competent for the sovereign people speaking through their constitution so to provide. Such provision was made in Maryland and Maine, and the three cases cited from those States rest expressly upon the fact that the Constitution did so establish such
special constitutional tribunal, clothed with exclusive power in the premises.
In Bennett's case, 54 Amer. Dec. 602, 32 Me. 508, it was made the exclusive duty of the governor and council to open and compare votes returned, and the effort was - the governor and council declining to do so to compel them, by mandamus, so to do. So, in Miles v. Badford, 22 Md. 170, it appears, at page 183, that the 8th section of the act under review required the returns of the votes on the adoption or rejection of a constitution to be made to the governor, and it was made his duty to count the vote, and ascertain the result, and, by his proclamation to the people of the State, finally declare the fact whether the constitution had been adopted or not. In this case also the effort was made, by mandamus, to control the discretion of the executive as is seen from the opinion in chief at page 185, and from the concurring opinion of Bartol, J., at page 186. In both of these cases the court, of course, held that it was not competent for the court by mandamus to compel the executive to act, or to direct him in what mode his discretion should be exercised, in the matter intrusted exclusively to him. It is to be noted that Bartol, J., n the last case cited, thought the action of the governor under that particular statute even was subject to review.
So in Worman v. Haggan, 78 Maryland, at page 164, it is shown that it was made the duty of the governor to make publication of the bills which propose amendments to the Constitution, and the votes cast for and against the amendments were to be returned to him, and it was then provided that, if it should appear to him, the governor, that a majority had voted in favor of the amendment he should, by his proclamation, declare that the amendment had been adopted by the people, and it was expressly provided that thenceforth it should become a part of the Constitution. It is perfectly obvious that the provisions of the Maine and Maryland constitutions are wholly unlike section 273 of the Constitution of 1890. Those constitutions did create the governor and council in one, and the governor in the other, a special tribunal to count the vote, canvass the returns, declare the result, and, upon its appearing to such tribunal
that a majority did vote for the amendment, so to declare by proclamation to the people.
Another case referred to is State v. Barnes, 3 N. Dak., page 323. But it is manifest from reading pages 323-4 (bottom of one and top of the other) that section 8 of the Enabling Act there required a separate vote on the amendments to the Constitution, and that the facts as to that vote should be shown to the president of the United States, with a statement of the votes for and against the Constitution, and each specific proposition so separately submitted, and that the president, from these data, was required to determine whether or not the Constitution was republican in form, and whether or not the requirements of the Enabling Act had been complied with; and if so, he was further required to issue his proclamation admitting the State as a State into the Union. Here again the matter was confided to the president, the act conferring upon him exclusive power in the premises.
Counsel mistakes the case of State v. Swift, 69 Ind., as can be seen from page 513 of the report. He says that the court did not go into the question, but held that the governor having issued his proclamation, the matter was res adjudicata. What the court said was res adjudicata, at page 513, was the action of the governor and secretary of state under an act of the General Assembly of 1873 not the matter then before the court, into which last matter the court did examine, treating it as a judicial question manifestly.
Our constitutional provisions create no special tribunal to determine whether amendments have been validly submitted or validly adopted. It is not said that “if it shall appear" to the legislature, upon which erroneous assumption is builded, the argument counter to our view. Plainly and manifestly the language, "if it shall appear," means simply, if it should be made manifest, or evident; if it should be the fact that, etc.; but whether it is a fact is a judicial question determinable by the
The case of Luther v. Borden, 7 How. I, SO much relied upon by counsel was a case of two opposing governments, each claiming to be lawful, and it was said, in that case, that if a State court should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and be incapable of pronouncing a judicial decision upon the question. Here there is no question of opposing governments, or as to whether this court exists so as to be able to pronounce a judgment, and the case of Luther v. Borden is of no aid in the solution of this case on its facts. See note, page 524, Vol. 15. L. R. A.
The Constitution can be amended in but two ways by the people assembled in a constitutional convention, or by observing the constitu
tional method marked out in section 273 of the Constitution of 1890. When the latter mode of amending the Constitution is sought to be followed, the conditions upon which alone the amendment can become a part of the Constitution are precisely prescribed in said section 273. It is the mandate of the Constitution itself, the paramount and supreme law of the land that such amendments cannot become part of the Constitution unless two facts existed: First, unless such amendment or amendments should be submitted in the mode pointed out. Second, unless such amendment or amendments should be adopted by the majority prescribed. These two conditions are facts which must exist, in truth and in reality, and not simply be declared to exist by the legislature, whether they do exist or not. The legislature is not given the power, as a special tribunal, to count the votes, canvass the returns, declare the result, and make the amendment part of the Constitution by proclamation. All that it does, all that it can do, is, in the first instance, to propose the amendment, or amendments, to the people for their vote in the way the Constitution directs. It is for the people, and the people alone, to say, by the majority prescribed in the Constitution, whether they adopt or reject the proposed amendment or amendments. Amendments which are adopted owe their vitality to the action of the people primarily — that action to be had in accordance with the method prescribed in section 273. The legislature simply proposes an amendment in the first instance, and that is absolutely all that that legislature has to do with the matter. The people then act, and the next succeeding legislature - not the next session of the legislature proposing the amendment - is authorized to insert the amendment as a part of the Constitution, if the former legislature shall have validly submitted it, and the people shall have validly adopted it. The legislature, in what it has to do, acts ministerially as the agent of the people, through the provisions of section 273, in first proposing, and afterwards inserting, the amendment but the people cannot vote effectually upon an amendment unless it shall have been submitted in the mode pointed out, and the vital things are the existence of the facts named, submission in conformity with section 273, and adoption by the majority therein prescribed-upon which facts or conditions the vitality of the amendment itself, its right legally to be written and inserted into the Constitution depends.
The best considered case we have seen on this subject is State v. Wurts (N. J.), reporter in 45 L. R. A. p. 251. Speaking of the proposition that the question here is not a judicial question the court say: "That such a proposition is not true seems to be indicated by the whole history of jurisprudence in this country." The court then reviews numerous decisions, all of which have
been cited in the argument here, properly distinguishing Worman v. Hagan, 78 Md. 152; S. C., 21 L. R. A. 716.
The court say with great force: "If a legislative enactment which may be repealed in a year, or an executive act, which affects only a single individual, cannot be allowed to stand, if it contravenes the Constitution, a fortiori a change in the fundamental law, which is much more permanent, and affects the whole community, should not be permitted to take place, in violation of constitutional mandates."
Chief Justice Beasley put the pith of the whole matter, in one sentence, saying, in State v. Rogers, 56 N. J. L. 480, 616: "When the inquiry is whether the legislature, or any other body, or officer, has violated the regulations of the Constitution, it is entirely plain that the decision of that subject must rest exclusively with the judicial department of the government." That is the whole of it — resulting from the supremacy of the Constitution as the paramount law of the landsupreme over all departments of the government.
As to the second proposition we are satisfied that the proposition submitted to the voters contained at least four separate amendments. The sections proposed to be repealed, to wit: sections 145, 149, 151, 152 and 153 relate to separate matters. Section 145 deals alone with the Supreme Court, as does said section 149. Section 153 deals with the judges of the circuit courts, and of the chancery courts. Section 151 deals with the method of filling vacancies in the Superme Court. Section 152 deals with circuit and chancery districts. It will thus be seen that the sections of the Constitution of 1890 sought to be repealed, treat separately of the Supreme Court and Supreme Court judges, and of the judges of the circuit and chancery courts. Section 177, relating to vacancies in the office of circuit judges or chancellors and the method of filling them, where the vacancy occurs during the recess of the senate was wholly overlooked by the proposed amendments.
It might well be that many voters might have been willing to vote for the election of circuit judges and chancellors, who would be unwilling to vote for the election of supreme judge; that many voters might have been willing to vote for the election of all judges, and yet wholly unwilling to vote for party nominations by districts, of judges to be voted for over the whole State. Whether an amendment is one or many, clearly must depend upon the nature of the subject matter covered by the amendment. If the propositions are separate, one in no manner dependent upon the other, so that a voter may intelligently vote for one and against the other, one being able to stand alone, disconnected wholly from the others, then such amendments are many and not one, are severable and not a unit, are complete each in itself and not each a part of an interdependent scheme; and
such, manifestly, are the amendments in this case. A voter might have chosen to vote for the election of circuit judges and not for the election of chancellors; and one might have chosen to vote for the election of both circuit judges and chancellors, and yet, not for the election of supreme judges; one might have been willing to vote for the election of all judges, and yet not willing to sanction by his vote a scheme for party nomination by districts, for judges to be voted for by electors of the entire State, such as proposed in these amendments. And an elector might have exercised his choice between these four amendments, voting for one or more, and against one or more, and one amendment as to the election of circuit judges, or chancellors, or supreme judges might have been adopted (and the others rejected, and our constitutional scheme remained perfectly symmetrical and harmonious. And so the people could have adopted) the amendments providing for the election of all the judges, and rejected the scheme propounded for party nominations by districts, and such action would have been perfectly intelligent, and these three amendments could have been written into the Constitution without the other, which is not essential to any one of the three amendments. The argument is wholly fallacious which seeks to save this method of submission, by saying, that all of the amendments relate to the judicial department of the government. If that argument were correct then the mere fact that amendments, no matter how many and no matter how absolutely independent, each of the other, relating to the legislative department could all be submitted as one; and so as to the judicial department, and so as to the executive department. Whether amendments are one or many, must be solved by their inherent nature by the consideration whether they are separate and independent each of the other so as that each can stand alone without the other, leaving the constitutional scheme symmetrical, harmonious and independent on that subject; and not upon the mere blanketing
of a name, such as amendments relating to the
judicial department,” or “amendments relating to the executive departments," or "to the legislative department." Nothing could save these amendments unless it be that the fact that they relate to the same general, broad subject of the judicial department could save them, and this is utterly in the face of reason and principle.
rule, the propositions submitted to the electors contained but one amendment."
The purpose there, as stated, was to change from annual to biennial sessions of the legislature; and, incidental and dependent upon this, was the proposition to change the tenure of office of members of the assembly from one to two years, and to change the compensation of the members. The court said: "If they must be submitted separately, why must they? Certainly they should either both be defeated or both adopted. Why, then, should the people be permitted or compelled to vote upon each separately?" This conclusion shows that that court itself would have held, where the amendments were not such that all would have to be defeated or all adopted, that they were separate amendments; but it is further to be noticed, in that case, that great stress was laid upon the fact that all the departments of government had for a long period of time construed the question of the adoption of such amendments as the court construed it in that case. Here there has been no such uniform action of the departments of government.
In the South Dakota case it is perfectly manifest that the proposed amendment was but one amendment. It abolished certain trustees of the university, and established one board of control for all educational institutions of the State, supported by State taxation. It was clearly a single proposition which stood or fell as an entirety, and yet, even in that case, the Supreme Court hesitated before declaring it one amendment.
In the Louisiana case the proposition was to charter a lottery upon its paying, as consideration for its being chartered, to various charitable institutions, named sums of money. There were a great many incidental provisions and regulations auxiliary to the great controlling scheme, to wit, the establishment of a lottery, all of which were manifestly only auxiliary and adjuratory of the proposition for the establishment of a lottery. The decision is manifestly correct, the whole scheme stood or fell to gether, and was manifestly one in design and purpose. These authorities, therefore, are of no value in the determination of the question whether the proposition here submitted to our voters embraced one amendment or more than one amendment.
The question whether there being several amendments they were submitted so that the voters could vote separately on each, was fundamentally vital. Says the Supreme Court of California, 69 Cal. 489, Oakland v. Hilton, "When a mode is thus established and ordained, it must be followed. The people of a State may impose a limit upon their own power, and when this is done by the Constitution it must be regarded as much a portion of the paramount law, and as obligatory on the whole people, as any other portion of the whole Constitution. If we do not so hold, we would sanction revolution and violence, and place
lawlessness on a level with law. The majority of the people, according to law, having adopted the Constitution with a mode of amendment in it, we must regard it as a solemn declaration to the minority in the State-binding as a compact with such minority that the majority, however large or overwhelming, will never exercise its irresistible power, its vis major (to change the law of its organization as a government in any other way. We hold it to be sound law that a constitution, adopted as was the present Constitution of the State of California, is not lawfully changed by the vote of every elector in the State, unless in the mode provided in it. The majority in favor of the change may be so irresistible in its physical power as to command the forced acquiescence or unwilling consent of an inconsiderable minority; but nevertheless a change of the Constitution so brought about, contrary to its provisions, would be lawless, revolutionary and unconstitutional; and it would be the duty of this court, in obedience to the oath which its members have taken, so to declare it, in favor of any litigant who should invoke its judgment in the course of regular procedure, though the sole litigant invoking its aid and power should constitute the non-consenting minority. If they did not so declare, the organic law would not afford that protection and refuge which it was intended to afford."
See also what is said in this case at pages 502-3. The necessity for greater deliberation and strictness of procedure in respect to the adoption of constitutional amendments, than that which applies as to the passage of acts of the legislature, is pointed out with great clearness in State v. Forraker, 46 Ohio State Reporter, 692-3.
See also what is said by Justice Brewer in the prohibitory amendment cases, 24 Kan. at page 712. Judge Brewer very strongly says, speaking of the part that the legislature plays when the constitutional requirements have not been obeyed: "It lacks the same sanction of law, is a disregard of constitutional methods and limitation, and should be taken as a request for a change rather than as a change itself. But notwithstanding this, legislative action is simply a determination to submit the question to popular decision. It is in no sense final. No number of legislatures, and no amount of legislative action, can change the fundamental law. This was made by the people who alone can change it. The action of the legislature in respect to constitutional change is something like the action of a committee of the legislature in respect to the disposition of a legislative bill. It presents it, recommends, but it does not decide. It is the legislative action which is considered in determining whether the law has been constitutionally passed, and it is the popular action which is to be principally considered, in determining whether a constitutional amendment has been adopted."
We, therefore, hold, and so declare, that there
were at least four amendments submitted to the people in this proposition, and that for that reason the amendments were not submitted in accordance with section 273 of the Constitution, and notwithstanding the action of the legislature in inserting them in the Constitution, are null and void, and form no part of said Constitution.
On the third proposition we are satisfied that the majority required by section 273 of the Constitution of 1890 for the adoption of a constitutional amendment must be a majority of all the electors voting at the election - not simply all voting on the adoption or rejection of the constitutional amendments submitted. A consideration of the history of section 273 in our Constitution demonstrates this beyond all controversy. In the Constitution of 1817, found in Hutchinson's Code, page 35, this provision reads as to this point: "If it shall appear that a majority of the citizens of the State voting for representatives, have voted for a convention, etc." In the Constitution of 1832, Hutchinson's Code, page 51, as to this point, the section reads: Public notice thereof shall then be given by the secretary of State, at least six months preceding the next general election, at which the qualified electors shall vote directly for or against such change, alteration or amendment; and if it shall appear that a majority of the qualified electors, voting for members of the legislature, shall have voted for the proposed change, alteration or amendment, then it shall be inserted by the next succeeding legislature as a part of this Constitution, and not otherwise ". note the language, "and not otherwise."
omits, after the word voting, the words "for members of the legislature;" and the enrolled section of the Constitution in the secretary of State's office shows that there should be a comma after the word "voting" in section 273, as it now stands. The significant fact thus stands out - like a mountain in the landscape — that for the whole period of time from 1817 to 1890 the Constitution of the State having been four times changed during such period, a period of 73 years of State history, the people of this State, speaking through their sovereign instrument the Constitution has uniformly declared that no majority of electors less than a majority of those voting for members of the legislature (which election would bring out, it was presumed, the largest number of electors) should avail to change the organic law of the land. That law reaches with its protection every one in the State. Unlike an act of the legislature, which may or may not be general, its effectiveness is universal, its potency reaches in its power the territorial limits of the whole State, and protects all rights of life, liberty and property thereunder. This charter of our liberties - this ark of the covenant — the people for 73 years had said should not be lightly touched or carelessly changed. That law expressly provided that such change could be effected only by a vote of a majority of all votes for members of the legislature. How did this clause “for members of the legislatures" - come to be dropped? It was dropped simply and only because sessions of the legislature were then, and were thereafter to be, quadrennial. In view of this fact the framers of the Constitution wisely foresaw that if one legislature had to propose an amendment, and the succeeding legislature had to insert it, that if a constitutional amendment could only be submitted when members of the legislature were to be voted for, there would result a positive inhibition of an election on the question of adopting a constitutional amendment except at intervals of, at least, every four years; and it might very likely occur that a period of eight years might intervene between the submission of an amendment and its insertion in the Constitution. That so long a period of time should be allowed to stand in the way of a demand for a change in the Constitution made exigent by some great public necessity was wholly unreasonable. It might be that a constitutional amendment ought to be submitted at a special election held for that purpose only. The public necessity might be such that—not waiting for a special election — such amendment should be submitted at some regular election for State officers, or at a congressional election. The time for holding an election on the question of adopting a constitutional amendment was not vital. The majority by which the public policy of the State had always declared such amendments could alone be adopted was vital.
It will be noticed that the Constitution of 1890 Time could be fixed to suit the convenience of the
The Constitution of 1869, Code of 1871, 667, art. 13, as to this point, reads: 'If it shall appear that a majority of the qualified electors voting for members of the legislature, shall have voted for the proposed amendments, etc."
The Constitution of 1890, section 273, reads: "Whenever two-thirds of each house of the legislature shali deem a change, alteration or amendment necessary to this Constitution, such proposed change, alteration or amendment shall be read and passed by a two-thirds vote of each house respectively, on each day for three successive days; public notice shall then be given by the secretary of State, at least three months preceding an election, at which the qualified electors shall vote, directly for or against such change, alteration or amendment; and if more than one amendment shall be submitted at one time, they shall be submitted in such manner and form that the people may vote for or against each amendment separately; and if it shall appear that a majority of the qualified electors voting shall have voted for the proposed change, alteration or amendment, then it shall be inserted by the next succeeding legislature, as a part of this Constitution and not otherwise."