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Young, 29 Minn. 574; Secombe v. Kittleson, 29 stitution creates a special tribunal and confides to Minn. 555; State v. McBride, 4 Mo. 505; State v. that tribunal the exclusive power to canvass the Timm, 54 Wis. 318; Jameson Cons. Convention, votes, and declare the result, and make the amend4th Edition, 617.

ment part of the Constitution as a result of such We have carefully examined each of these au

declaration, by a proclamation or otherwise prethorities, and they clearly and fully support the

scribed method fixed for such tribunal by the Constatement of the text.

stitution, then the action of such special tribunal

would be final and conclusive whether its action be The case from Missouri being especially emphatic, as is also the case from Alabama. In this

judicial or not. This is so because it was compelast case, the court say:

tent for the sovereign people speaking through

their constitution so to provide. Such provision " We entertain no doubt, that, to change the

was made in Maryland and Maine, and the three constitution in any other mode than by a conven

cases cited from those States rest expressly upon tion, every requisition demanded by the instru

the fact that the Constitution did so establish such ment itself must be observed, and the omission of special constitutional tribunal, clothed with excluany one is fatal to the amendment. The constitu

sive power in the premises. tion is the supreme and paramount law. The

In Bennett's case, 54 Amer. Dec. 602, 32 Me. mode by which amendments are to be made under

508, it was made the exclusive duty of the govit are clearly defined. It has been said, that cer

ernor and council to open and compare votes tain acts are to be done -certain requisitions are

returned, and the effort was - the governor and to be observed, beiore a change can be effected.

council declining to do so to compel them, by But to what purpose are these acts required, or

mandamus, so to do. So, in Miles v. Badíord, these requisitions enjoined if the legislature or

22 Md. 170, it appears, at page 183, that the 8th any other department of the government can dis- section of the act under review required the repense with them. To do so would be to violate

turns of the votes on the adoption or rejection of the instrument which they are sworn to support; a constitution to be made to the governor, and it and every principle of public law and sound con

was made his duty to unt the vote, and ascertain stitutionai poucy requires the court to pronounce

the result, and, by his proclamation to the people against every amenument, which is shown not to

of the State, finally declare the fact whether the have been made in accordance with the rules pre

constitution had been adopted or not. In this scribed by the fundamental law."

case also the effort was made, by mandamus, to The learned editors of L. R. A., in the note to control the discretion of the executive as is seen Miller v. Johnson, Vol. 15, page 524, expressly from the opinion in chief at page 185, and from the say:

concurring opinion of Bartol, J., at page 186. In · That the question of lawful adoption of an both of these cases the court, of course, held that amendment to the Constitution is a judicial ques- it was not competent for the court by mandamus tion."

to compel the executive to act, or to direct him in Judge Handy and Chief Justice Smith clearly

what mode his discretion should be exercised, in treat the question as a judicial question in Green the matter intrusted exclusively to him. It is to v. Weller, and language could hardly be clearer be noted that Bartol, J., in the last case cited, or stronger in support of this view than is that of thought the action of the governor under that Chief Justice Smith in that case. All that is said | particular statute even was subject to review. in ex parte Wren, 63 Miss. page on this subject So in Worman v. Haggan, 78 Maryland, at page is pure dictum, the question not being before the 164, it is shown that it was made the duty of the court. The true view is that the constitution, the governor to make publication of the bills which organic law of the land, is paramount and supreme propose amendments to the Constitution, and the over governor, legislature and courts. When it votes cast for and against the amendments were prescribes the exact method in which an amend- to be returned to him, and it was then provided ment shall be submitted, and defines positively the that, if it should appear to him, the governor, that majority necessary to its adoption, these are con- a majority had voted in favor of the amendment constitutional directions mandatory upon all de- he should, by his proclamation, declare that the partments of the government, and without strict amendment had been adopted by the people, and compliance with which no amendment can be it was expressly provided that thenceforth it should validly adopted. Whether an amendment has become a part of the Constitution. It is perfectly been validly submitted, or validly adopted, de- obvious that the provisions of the Maine and pends upon the fact of compliance or non-com- Maryland constitutions are wholly unlike section pliance with the constitutional directions as to 273 of the Constitution of 1890. Those constituhow such amendments shall be submitted and tions did create the governor and council in one, adopted; and whether such compliance has, in fact, and the governor in the other, a special tribunal been had must, in the nature of the case, be a to count the vote, canvass the returns, declare the judicial question. It may be that where the con- result, and, upon its appearing to such tribunal

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that a majority did vote for the amendment, so to tional method marked out in section 273 of the declare by proclamation to the people.

Constitution of 1890. When the latter mode of Another case referred to is State v. Barnes, 3 N. amending the Constitution is sought to be folDak., page 323. But it is manifest from reading lowed, the conditions upon which alone the pages 323-4 (bottom of one and top of the other) amendment can become a part of the Constitution that sectior. 8 of the Enabling Act there required are precisely prescribed in said section 273. It is a separate vote on the amendments to the Con- the mandate of the Constitution itself, the parastitution, and that the facts as to that vote should mount and supreme law of the land that such be shown to the president of the United States, amendments cannot become part of the Constituwith a statement of the votes for and against the tion unless two facts existed: First, unless such Constitution, and each specific proposition so amendment or amendments should be submitted separately submitted, and that the president, from in the mode pointed out. Second, unless such these data, was required to determine whether or amendment or amendments should be adopted by not the Constitution was republican in form, and the majority prescribed. These two conditions whether or not the requirements of the Enabling are facts which must exist, in truth and in reality, Act had been complied with; and if so, he was and not simply be declared to exist by the legislafurther required to issue his proclamation admit- ture, whether they do exist or not. The legislating the State as a State into the Union. Here ture is not given the power, as a special tribunal, again the matter was confided to the president, the to count the votes, canvass the returns, declare the act conferring upon him exclusive power in the result, and make the amendment part of the Conpremises.

stitution by proclamation. All that it does, all that Counsel mistakes the case of State v. Swift, 69 it can do, is, in the first instance, to propose the Ind., as can be seen from page 513 of the report. amendment, or amendments, to the people for He says that the court did not go into the ques- their vote in the way the Constitution directs. It tion, but held that the governor having issued his is for the people, and the people alone, to say, by proclamation, the matter was res ad judicata. What the majority prescribed in the Constitution, the court said was res adjudicata, at page 513, was whether they adopt or reject the proposed amendthe action of the governor and secretary of state ment or amendments. Amendments which are under an act of the General Assembly of 1873 - adopted owe their vitality to the action of the not the matter then before the court, into which people primarily — that action to be had in accordlast matter the court did examine, treating it as a ance with the method prescribed in section 273. judicial question manifestly.

The legislature simply proposes an amendment in Our constitutional provisions create no special the first instance, and that is absolutely all that tribunal to determine whether amendments have that legislature has to do with the matter. The been validly submitted or validly adopted. It is people then act, and the next succeeding legislanot said that “ if it shall appear” to the legislature, ture not the next session of the legislature proupon which erroneous assumption is builded, the posing the amendment - is authorized to insert argument counter to our view. Plainly and mani- the amendment as a part of the Constitution, if festly the language, “if it shall appear," means the former legislature shall have validly submitted simply, if it should be made manifest, or evident; it, and the people shall have validly adopted it. if it should be the fact that, etc.; but whether it is the legislature, in what it has to do, acts ministeria fact is a judicial question determinable by the ally as the agent of the people, through the provicourts.

sions of section 273, in first proposing, and afterThe case of Luther v. Borden, 7 How. I, SO wards inserting, the amendment but the people much relied upon by counsel was a case of two cannot vote effectually upon an amendment unless opposing governments, each claiming to be law-it shall have been submitted in the mode pointed ful, and it was said, in that case, that if a State out, and the vital things are the existence of the court should come to the conclusion that the gov- facts named, submission in conformity with secernment under which it acted had been put aside tion 273, and adoption by the majority therein and displaced by an opposing government, it prescribed - upon which facts or conditions the would cease to be a court, and be incapable of vitality of the amendment itself, its right legally pronouncing a judicial decision upon the question. to be written and inserted into the Constitution Here there is no question of opposing govern- depends. ments, or as to whether this court exists so as to The best considered case we have seen on this be able to pronounce a judgment, and the case of subject is State v. Wurts (N. J.), reporter in 45 Luther v. Borden is of no aid in the solution of L. R. A. p. 251. Speaking of the proposition that this case on its facts. See note, page 524, Vol. the question here is not a judicial question the 15. L. R. A.

"That such a proposition is not true The Constitution can be amended in but two seems to be indicated by the whole history of ways by the people assembled in a constitu- jurisprudence in this country.” The court then tional convention, or by observing the constitu- , reviews numerous decisions, all of which have

court say:


been cited in the argument here, properly distin- such, manifestly, are the amendments in this case. guishing Worman v. Hagan, 78 Md. 152; S. C., 21 A voter might have chosen to vote for the election L. R. A. 716.

of circuit judges and not for the election of chanThe court say with great force: “If a legisla-cellors; and one might have chosen to vote for tive enactment which may be repealed in a year, the election of both circuit judges and chancellors, or an executive act, which affects only a single and yet, not for the election of supreme judges; individual, cannot be allowed to stand, if it con- one might have been willing to vote for the electravenes the Constitution, a fortiori a change in tion of all judges, and yet not willing to sanction the fundamental law, which is much more perma- | by his vote a scheme for party nomination by disnent, and affects the whole community, should tricts, for judges to be voted for by electors of the not be permitted to take place, in violation of con- entire State, such as proposed in these amendstitutional mandates."

And an elector might have exercised his Chief Justice Beasley put the pith of the whole choice between these four amendments, voting for matter, in one sentence, saying, in State v. Rogers, one or more, and against one or more, and one 56 N. J. L. 480, 616: " When the inquiry is amendment as to the election of circuit judges, or whether the legislature, or any other body, or chancellors, or supreme judges might have been officer, has violated the regulations of the Consti- adopted (and the others rejected, and our constitution, it is entirely plain that the decision of that tutional scheme remained perfectly symmetrical subject must rest exclusively with the judicial de- and harmonious. And so the people could have partment of the government.” That is the whole adopted) the amendments providing for the elecof it — resulting from the supremacy of the Con- tion of all the judges, and rejected the scheme stitution as the paramount law of the land propounded for party nominations by districts, and supreme over all departments of the government. such action would have been perfectly intelligent,

As to the second proposition we are satisfied and these three amendments could have been that the proposition submitted to the voters con- written into the Constitution without the other, tained at least four separate amendments. The which is not essential to any one of the three sections proposed to be repealed, to wit: sections amendments. The argument is wholly fallacious 145, 149, 151, 152 and 153 relate to separate mat- which seeks to save this method of submission, by ters. Section 145 deals alone with the Supreme saying, that all of the amendments relate to the Court, as does said section 149. Section 153 deals | judicial department of the government. If that with the judges of the circuit courts, and of the argument were correct then the mere fact that chancery courts. Section 151 deals with the amendments, no matter how many and no matter method of filling vacancies in the Superme Court. how absolutely independent, each of the other, Section 152 deals with circuit and chancery dis- relating to the legislative department could all be tricts. It will thus be seen that the sections of the submitted as one; and so as to the judicial departConstitution of 1890 sought to be repealed, treat ment, and so as to the executive department. separately of Supreme Court and Supreme Whether amendments are one or many, must be Court judges, and of the judges of the circuit and solved by their inherent nature — by the considerachancery courts. Section 177, relating to vacan- tion whether they are separate and independent cies in the office of circuit judges or chancellors each of the other so as that each can stand alone and the method of filling them, where the vacancy without the other, leaving the constitutional occurs during the recess of the senate was wholly scheme symmetrical, harmonious and independent overlooken by the proposed amendments.

on that subject; and not upon the mere blanketing It might well be that many voters might have of a name, such as "amendments relating to the been willing to vote for the election of circuit judicial department,” or “amendments relating to judges and chancellors, who would be unwilling the executive departments,” or “to the legislative to vote for the election of supreme judge; that department.” Nothing could save these amendmany voters might have been willing to vote for ments unless it be that the fact that they relate to the election of all judges, and yet wholly unwilling the same general, broad subject of the judicial to vote for party nominations by districts, of judges department could save them, and this is utterly in to be voted for over the whole State. Whether the face of reason and principle. an amendment is one or many, clearly must de- Three cases are cited by counsel as showing the pend upon the nature of the subject matter cov- oneness of this alleged amendment: State v. ered by the amendment. If the propositions are Timm, 54 Wis. 318; State v. Herrick, 10 South separate, one in no manner dependent upon the Dakota, 120; State v. Morris, 43 La. Annual, 590. other, so that a voter may intelligently vote for one In the Wisconsin case, at page 336, the court say: and against the other, one being able to stand " In order to constitute more than one amendalone, disconnected wholly from the others, then ment, the propositions submitted must relate to such amendments are many and not one, are sever- more than one subject, and have at least two disable and not a unit, are complete each in itself and tinct and separate purposes not dependent upon not each a part of an interdependent scheme; and or connected with each other. Tested by this rule, the propositions submitted to the electors lawlessness on a level with law. The majority of contained but one amendment."

the people, according to law, having adopted the The purpose there, as stated, was to change Constitution with a mode of amendment in it, we from annual to biennial sessions of the legislature; must regard it as a solemn declaration to the and, incidental and dependent upon this, was the minority in the State - binding as a compact with proposition to change the tenure of office of mem- such minority — that the majority, however large bers of the assembly from one to two years, and or overwhelming, will never exercise its irresistible to change the compensation of the members. The power, its vis major (to change the law of its orcourt said: “If they must be submitted separately, | ganization as a government in any other way. why must they? Certainly they should either both We hold it to be sound law that a constitution, be defeated or both adopted. Why, then, should adopted as was the present Constitution of the the people be permitted or compelled to vote upon State of California, is not lawfully changed by the each separately?” This conclusion shows that rote of every elector in the State, unless in the that court itself would have held, where the amend- | :node provided in it. The majority in favor of the ments were not such that all would have to be change may be so irresistible in its physical power. defeated or all adopted, that they were separate as to command the forced acquiescence or unwillamendments; but it is further to be noticed, in that ing consent of an inconsiderable minority; but case, that great stress was laid upon the fact that revertheless a change of the Constitution so all the departments of government had for a long biought about, contrary to its provisions, would be period of time construed the question of the adop- lawless, revolutionary and unconstitutional; and tion of such amendments as the court construed it it would be the duty of this court, in obedience to in that case. Here there has been no such uni- the oath which its members have taken, so to deform action of the departments of government. clare it, in favor of any litigant who should invoke

In the South Dakota case it is perfectly manifest its judgment in the course of regular procedure, tl:at the proposed amendment was but one amend though the sole litigant invoking its aid and power ment. It abolished certain trustees of the uni- should constitute the non-consenting minority. If versity, and established one board of control for they did not so declare, the organic law would not all educational institutions of the State, supported afford that protection and refuge which it was inby State taxation. It was clearly a single propo- tended to afford.” sition which stood or fell as an entirety, and yet, See also what is said in this case at pages 502-3. even in that case, the Supreme Court hesitated The necessity for greater deliberation and strictbefore declaring it one amendment.

ness of procedure in respect to the adoption of In the Louisiana case the proposition was to constitutional amendments, than that which applies charter a lottery upon its paying, as consideration as to the passage of acts of the legislature, is for its being chartered, to various charitable insti-pointed out with great clearness in State v. Fortutions, named sums of money. There were a raker, 46 Ohio State Reporter, 692-3. great many incidental provisions and regulations See also what is said by Justice Brewer in the auxiliary to the great controlling scheme, to wit, prohibitory amendment cases, 24 Kan. at page 712. the establishment of a lottery, all of which were Judge Brewer very strongly says, speaking of the manifestly only auxiliary and adjuratory of the part that the legislature plays when the constituproposition for the establishment of a lottery. The tional requirements have not been obeyed: “It decision is mani estly correct, the whole scheme lacks the same sanction of law, is a disregard of stood or fell to gether, and was manifestly one in constitutional methods and limitation, and should design and purpose. These authorities, therefore, be taken as a request for a change rather than as a are of no value in the determination of the ques-change itself. But notwithstanding this, legislation whether the proposition here submitted to our tive action is simply a determination to submit the voters embraced one amendment or more than question to popular decision. It is in no sense one amendment.

final. No number of legislatures, and no amount The question whether — there being several of legislative action, can change the fundamental amendments -- they were submitted so that the law. This was made by the people who alone can voters could vote separately on each, was funda- change it. The action of the legislature in respect mentally vital. Says the Supreme Court of Cali- to constitutional change is something like the fornia, 69 Cal. 489, Oakland v. Hilton, When a action of a committee of the legislature in respect mode is thus established and ordained, it must be to the disposition of a legislative bill. It presents followed. The people of a State may impose a it, recommends, but it does not decide. It is the limit upor their own power, and when this is done legislative action which is considered in determinby the Constitution it must be regarded as much a ing whether the law has been constitutionally portion o the paramount law, and as obligatory passed, and it is the popular action which is to be on the whole people, as any other portion of the principally considered, in determining whether a whole Constitution. If we do not so hold, we constitutional amendment has been adopted." would sanction revolution and violence, and place We, therefore, hold, and so declare, that there



were at least four amendments submitted to the omits, after the word voting, the words “ for mempeople in this proposition, and that for that reason bers of the legislature; ” and the enrolled section the amendments were not submitted in accordance of the Constitution in the secretary of State's office with section 273 of the Constitution, and notwith- , shows that there should be a comma after the standing the action of the legislature in inserting word “voting” in section 273, as it now stands. them in the Constitution, are null and void, and The significant fact thus stands out — like a mounform no part of said Constitution.

tain in the landscape that for the whole period On the third proposition we are satisfied that the of time from 1817 to 1890 the Constitution of the majority required by section 273 of the Constitu- State having been four times changed during such tion of 1890 for the adoption of a constitutional period, a period of 73 years of State history, the amendment must be a majority of all the electors people of this State, speaking through their sovervoting at the election - not simply all voting on eign instrument - the Constitution — has unithe adoption or rejection of the constitutional formly declared that no majority of electors less amendments submitted. A consideration of the than a majority of those voting for members of the history of section 273 in our Constitution demon- legislature (which election would bring out, it was strates this beyond all controversy. In the Con- presumed, the largest number of electors) should stitution of 1817, found in Hutchinson's Code, page avail to change the organic law of the land. That 35, this provision reads as to this point: “If it | law reaches with its protection every one in the shall appear that a majority of the citizens of the State. Unlike an act of the legislature, which may State voting for representatives, have voted for a or may not be general, its effectiveness is universal, convention, etc.” In the Constitution of 1832, its potency reaches in its power the territorial Hutchinson's Code, page 51, as to this point, the limits of the whole State, and protects all rights of section reads: Public notice thereof shall then life, liberty and property thereunder. This charter be given by the secretary of State, at least six of our liberties – this ark of the covenant - the months preceding the next general election, at people for 73 years had said should not be lightly which the qualified electors shall vote directly for touched or carelessly changed. That law expressly or against such change, alteration or amendment; | provided that such change could be effected only and if it shall appear that a majority of the quali- by a vote of a majority of all votes for members fied electors, voting for members of the legislature, of the legislature. How did this clause — " for shall have voted for the proposed change, altera- members of the legislatures

to be tion or amendment, then it shall be inserted by the dropped? It was dropped simply and only benext succeeding legislature as a part of this Con- cause sessions of the legislature were then, and stitution, and not otherwise " note the language, were thereafter to be, quadrennial. In view of “ and not otherwise."

this fact the framers of the Constitution wisely The Constitution of 1869, Code of 1871, 667, art. foresaw that if one legislature had to propose an 13, as to this point, reads: “If it shall appear that amendment, and the succeeding legislature had to a majority of the qualified electors voting for insert it, that if a constitutional amendment could members of the legislature, shall have voted for only be submitted when members of the legislathe proposed amendments, etc."

ture were to be voted for, there would result a The Constitution of 1890, section 273, reads: positive inhibition of an election on the question Whenever two-thirds of each house of the legis- of adopting a constitutional amendment except at lature shali deem a change, alteration or amend- | intervals of, at least, every four years; and it ment necessary to this Constitution, such pro- might very likely occur that a period of eight posed change, alteration or amendment shall be years might intervene between the submission of read and passed by a two-thirds vote of each an amendment and its insertion in the Constituhouse respectively, on each day for three succes- tion. That so long a period of time should be sive days; public notice shall then be given by the allowed to stand in the way of a demand for a secretary of State, at least three months preceding change in the Constitution made exigent by some an election, at which the qualified electors shall great public necessity was wholly unreasonable. vote, directly for or against such change, alteration It might be that a constitutional amendment ought or amendment; and if more than one amendment to be submitted at a special election held for that shall be submitted at one time, they shall be sub- purpose only. The public necessity might be such mitted in such manner and form that the people that - not waiting for a special election – such may vote for or against each amendment sepa- amendment should be submitted at some regular rately; and if it shall appear that a majority of the election for State officers, or at a congressional qualified electors voting shall have voted for the election. The time for holding an election on the proposed change, alteration or amendment, then question of adopting a constitutional amendment it shall be inserted by the next succeeding legisla- was not vital. The majority by which the public ture, as a part of this Constitution and not other- policy of the State had always declared such wise."

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

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