JK 24 Ther min JOHNS HOPKINS UNIVERSITY STUDIES IN Historical and Political Science Extra Volumes New Series, No. 1 Revision and Amendment of State Constitutions THE REVISION AND AMENDMENT OF STATE CONSTITUTIONS BY >> a WALTER FAIRLEIGH DODD Sometime Henry E. Johnston Scholar in The Johns Hopkins University THE JOHNS HOPKINS PRESS BALTIMORE 1910 (9 1098 CopyrRiGHT, 1910 BY THE JOHNS HOPKINS PRESS PREFACE My purpose in this study is to give a statement of the practice concerning the amendment and revision of state constitutions, and to discuss the legal principles con- trolling the alteration of such constitutions. Emphasis has been placed upon present conditions, but some at- tention has been devoted to the historical aspects of the subject, especially with respect to the constitutional convention, which cannot be understood except when treated historically. Judge Jameson’s great work on “Constitutional Con- ventions’? has been used freely, as have also Ober- holtzer’s “Referendum in America” and Borgeaud’s “Adoption and Amendment of Constitutions.” Judge Lobingier’s recent work on “The People’s Law” did not appear until this study was almost completed, but it has been used to some extent. My indebtedness to these works is great, and I have also received much as- sistance from Professor J. Q. Dealey’s monograph on “Our State Constitutions;’’ from Cooley’s ‘ Constitu- tional Limitations,” and from Professor J. W. Garner’s article on the “Amendment of State Constitutions” which appeared in volume one of the American Political Science Review. Of the works dealing specifically with the subject of constitutional changes in the United States, Judge Lobingier’s is almost purely historical, and devotes little Vv vi PREFACE attention to the practical or legal aspects of the subject. Judge Jameson’s work constructed a theory regarding constitutional conventions, which conformed more or less closely to the facts, but in which the facts were subordinated to the theory. Oberholtzer and Borgeaud based their treatment of the subject largely upon the foundation of Judge Jameson’s theory. It has been my effort to study the practice of constitutional alteration and the legal principles relating thereto, without refer- ence to any preconceived theory or to questions as to what methods of procedure may be considered most ex- pedient. When Judge Jameson wrote there had been only a few judicial decisions with reference either to the powers of conventions or to the amending procedure through legislative action, and since his work was pub- lished little has been done toward treating the legal as- pects of the subject. For this study the judicial decis- ions have been carefully read, and an effort has been made to present the principles which they have estab- lished. The work upon this monograph was done in part during the years 1908-10 while the author held a re- search appointment as Henry E. Johnston scholar in Johns Hopkins University, and part of the material here used was first presented in a course of lectures delivered at that University in 1909 on “Distinctions between Constitutions and Statutes in the Constitutional Law of the United States.” These lectures discussed (1) the development of methods for constitutional alteration dis- tinct from those for the enactment of statutes, and (2) the development of judicial control over legislation. The first branch of this subject has been elaborated somewhat for publication. The chapter on the first state constitutional conventions appeared in very nearly its PREFACE vii present form in the American Political Science Review for November, 1908, and a part of Chapter IV appeared in the November, 1910, number of the Columbia Law Review. Professor W. W. Willoughby of Johns Hop- kins University has been kind enough to read this work in proof, and to make many useful suggestions. W. F. Dopp TABLE OF CONTENTS PAGE PREFACE 2 60008 ee Od? Sines, oe RS ee esc ov TaBLE or CASES... . 0... 0 ee eee sg AON oe + Xiii I. The First State Constitutional Conventions, 1776-1783... .. I Reasons for framing written constitutions ..... . else a I New Hampshire «35 2. @ be wy ee eR 68 Massachusetts... ......02..00004 $i. a RES Bae 8 New York). 4 <4 4S 6 BK Rw oe Gg ee we ee 10 Maryland: ase (Sie Bee ata GW eae AMawhe GS 12 North: Carolina: i: .6 osc tae Bo eG) Gag oa 13 Delaware:ie ccs a ae SR a wk BR Ge SU RS 14 Pennsylvania: 3.604 6-8) 64 4 eee Pe WE we 15 Georgia... .... ESE Se WP ok Se eB ae tag ad a 3a 16 MERTHONE 4040: oe ee eee Gee a ae ee tera ks ad A ark ane “6 South: Caroling s).4 8 when ati de a oe ee et « New Jersey, Virginia. ©... .....- 050-428 22a 19 Early forms of procedure ......... i We Bi ee BE Provisions for altering first state donatinations arin ene Se Toi SO II. Yhe Constitutional Convention, 1784-1908 ....... +++ 30 Growth of distinction between constitutions and statutes . . 30 Methods of calling conventions ..........-. 7+ + 39 Submission of constitutions to a popular vote........ 62 III. The Legal Position of the Constitutional Convention ....- 72 Legislative control of conventions .......... oe ee 3 Constitutional restrictions upon power of conventions... . 92 Implied restrictions... 6... eee ee es + 103 Power-of conventions to enact legislation not of a constitu- tional characteris and this alteration while only a verbal one, is probably indicative of the then recognized power of the legis- lature. So, in Rhode Island, where the colonial charter served in place of a constitution, the charter seems at first to have been thought to be subject to amendment by regular legislative action, and was in fact several times so amended.° The New York constitution of 1777, by its provision for a council of revision, raises a strong presumption that legis- lative action should be final and conclusive, subject to no further control by judicial or other authorities. In order to prevent hasty action upon laws which might be “ in- consistent with the spirit of this constitution or with the public good,” the governor, chancellor, and judges of the supreme court were constituted a council of revision, with a veto upon legislative acts, which might be overcome by a vote of two-thirds of each house of the legislature. The judges were thus brought in as a part of the legislative branch of government, and were, it may be presumed, not expected to have any further supervision over legislation. 4It may be worth noting that the New Jersey case of Holmes wv. Walton (1780), the first great case in which a law was declared in- valid, was a case involving trial by jury. See Austin Scott’s article on Holmes v. Walton in the American Historical ‘Review, iv, 456. 5 Wilson’s Acts of the General Assembly of New Jersey (1776- 1783), p. 24. ® Mowry, The Dorr War, 22, 37. In Trevett v, Weeden (1786), however, the Rhode Island court seems to have taken the view that the charter and also some colonial legislation of a fundamental char- acter were not subject to legislative alteration. The same view was taken with reference to suffrage legislation by a Rhode Island legis- lative committee in 1829. 28th Cong., 1st Sess, House Report, No. 546, D. 377. CONSTITUTIONAL CONVENTIONS, 1784-1908 33 New York is the only state which associated judges with the work of legislation but that this plan of judicial advice was considered in other states is shown by two proposals made respectively in Virginia and Vermont. Thomas Jet- ferson in his proposed constitution for Virginia, drafted in 1783, provided that the “ governor, two councillors of State, and a judge from each of the Superior Courts of Chan- cery, Common Law, and Admiralty, shall be a council to revise all bills which shall have passed both houses of as- sembly,” and this council was to have practically the same powers as the council of revision of New York.” Judge Nathaniel Chipman, of Vermont, in a book published in 1793," suggested that: “The principal members in the judiciary, may, when the particular duties of their office will permit, be, with propriety, united with the head of the ex- ecutive department, to form a council of revision upon all laws proposed to be passed by the legislature.” Judge Chip- man at this time evidently had no idea that the courts of Vermont would assume the power to declare laws invalid, for he continues: “ Still, the legislature must be the sole judges, whether the information given coincides with the general interest of the community, and the principles of the government, or is dictated by particular views or particular interests.” The language employed by the Massachusetts constitu - tion of 1780 also seems to imply that the courts were not ex- pected to exercise a power of annuling laws. Provision was made for a popular vote in 1795 upon the question of calling a constitutional convention “in order the more ef- fectually to adhere to the principles of the constitution, and 7 Ford’s Writings of Jefferson, iii, 330. 8 Sketches of the Principles of Government (Rutland, 1793), pp. 126, 127. 34 REVISION OF STATE CONSTITUTIONS to correct those violations which by any means may be made therein, as well as to form such alterations as from experience shall be found necessary.” This language was copied almost verbatim into the New Hampshire constitu- tion of 1784,° except that here the vote upon holding a con- vention was to be taken at the expiration of seven years. These provisions strongly imply that the people in constitu- tional conventions should, at intervals, themselves correct violations of the constitution made by the regular organs of government. No idea seems to have been entertained at this time that the courts would assume the function of annuling laws which they thought opposed to the constitution. But we must turn to the first constitutions of Penn- sylvania and Vermont in order to find the clearest expres- sion of legislative power with reference to matters regulated by the constitutions. The Pennsylvania constitution of 1776 created a council of censors to be elected by the people every seventh year, one of whose duties it was to “ enquire whether the constitution has been preserved inviolate in every part; and whether the legislative and executive branches of government have performed their duties as guardians of the people, or assumed to themselves, or ex- ercised other or greater powers than they are intitled to by the constitution.” In the exercise of its power the coun- cil of censors was given “ authority to pass public censures, to order impeachments, and to recommend to the legisla- ture the repealing of such laws as appear to them to have been enacted contrary to the principles of the constitution.” This language was copied into the Vermont constitution of 1777.*° It will be noticed that the above-quoted provi- ® The same language appeared in the proposed constitutions which were rejected in 1781 and 1782. 10 The proposed constitution for the State of Frankland (1785) CONSTITUTIONAL CONVENTIONS, 1784-1908 35 sions seem clearly to recognize laws in conflict with the con- stitution as valid laws, which would remain in force even after the action of the council of censors unless the legisla- ture chose to heed the recommendations of that body. In the council of censors there was established a definite and periodical check upon the legislative power, but this check seems not to have been very effective. Only one council of censors was elected in Pennsylvania, that of 1783- 1784, and the council itself was abolished by the constitu- tion of 1790. The Pennsylvania council of censors of 1783-84 drew up a long report which, while it recognized that in certain cases the constitution had been violated through necessity, also called attention to numerous legis- lative acts which were in conflict with the constitution, and censured the legislature for its failure to observe the form of government adopted in 1776. This report seems to have had little influence.** The first council of censors of Vermont, in its address to the freemen of that state, issued in February, 1786, called attention to frequent clear violations of the constitution by the legislature. The Vermont council, however, recog- nized that there was no effective check upon the legislative power by virtue simply of a recommendation upon its part that certain laws should be repealed. The legislature had as- sumed control over land titles in a manner contrary to the provided for a council of safety, chosen each fifth year, with powers similar to those of the Vermont and Pennsylvania councils, except that this council had no authority to recommend amendments to the constitution. The Frankland proposal was quite evidently copied from Pennsylvania. American Historical Magazine i, 62-63 (Nashville, 1896). 11 Proceedings relative to calling the conventions of 1776 and 1790, pp. 83-123. However, at least one law was repealed as a result of the recommendations of the council of censors. Dallas, Laws of the Commonwealth of Pennsylvania, ii, 213, 252. 36 REVISION OF STATE CONSTITUTIONS constitution, so that, according to the council of censors, “ the surest title to an estate in Vermont would be the favor of its assembly.” Yet the council concluded that redress “could not be expected; none but the legislature, whose in- terest it would be to withhold it, being competent to give it.’ ?* The legislature was supreme, and the constitution formed simply a moral check upon its power. In 1787 a legislative act was passed specifically altering an important provision of the constitution, but this act seems not to have been questioned as unconstitutional. The act of March 8, 1787, limited the right to vote to freeholders, while the con- stitution conferred the right to vote upon freemen, and de- fined a freeman as “ every man of the full age of twenty- one years, having resided in this State for the space of one whole year, and is of a quiet and peaceful behavior. . . .” ** Another indication of the feeling toward the constitution in Vermont is the act of the assembly of that state, of Feb- ruary, 1779, which provided “ that the constitution of this State, as established by general convention held at Windsor, July and December, 1777, together with, and agreeable to, such alterations and additions as shall be made in such con- stitution, agreeable to the 44th section in the plan of govern- ment, shall be forever considered, held, and maintained, as part of the laws of this State.” ** Similar enactments were repeated in June, 1782, and March, 1787; the act of 1787 was formally repealed in 1797."° These legislative confirma- tions are sometimes cited as attempts to give validity to con- 12 Slade’s Vermont State Papers, 537. 19 Statutes of Vermont, 1787, p. 50. Chipman, Memoir of Thomas Chittenden, 111-113. 14Vermont State Papers, 287. 15 Slade’s Vermont State Papers, 449. Vermont Statutes of 1787, p. 31. Vermont Revised Laws of 1798, p. 600. CONSTITUTIONAL CONVENTIONS, 1784-1908 37 stitutions improperly adopted,?* but certainly there can be no charge of improper adoption brought with reference to the revised constitution of Vermont of 1786. Rather it should be said that the Vermont legislature thought itself competent to give additional force to the constitution by such action. A Vermont author has well expressed what were at that time probably the views in this state as to the relation between the constitution and the legislature: “In all governments which had previously existed, the legisla- ture, the law-making power had been sovereign, absolute, and uncontrollable. Judge Blackstone says: ‘ Legislation is the greatest act of superiority that can be exercised by one being over another, wherefore it is requisite to the very essence of law, that it be made by the supreme power. Sov- ereignty and legislation are, indeed, convertible terms. One cannot subsist without the other.’ This constitutional law, this omnipotence of the Legislature, the Colonists brought with them from the mother country, as they brought with them the common law. And when they constituted the legislature, they considered that its power was necessarily supreme and uncontrollable, and that all constitutional re- strictions upon their power were merely directory. No idea was entertained that an act of the legislature, however re- pugnant to the constitution, could be adjudged void and set aside by the judiciary, which was considered by all a subordinate department of government.” *’ Because of the peculiar institution of the council of censors, the develop- ment of a definite distinction between constitutions and sta- tutes and of a judicial sanction for the enforcement of this distinction, seems to have come later in Pennsylvania and Vermont than in many of the other states.** 16 Jameson, Constitutional Conventions, 4th ed., 141. 17: Chipman, Memoir of Thomas Chittenden, 102, 112-113. 18 Austin v, Trustees of the University of Pennsylvania, 1 Yeates, 38 REVISION OF STATE CONSTITUTIONS Returning now to the subject of the procedure employed for the framing of state constitutions, I think it may be said that by 1784 the constitutional convention was firmly es- tablished as a body distinct and separate from the regular legislature. Although an absolutely separate body had up to this time been employed for constitutional legislation only in New Hampshire and Massachusetts, yet in the other states the regular legislative bodies were used largely be- cause of emergencies which made undesirable the assembling of a body of representatives distinct from that already in existence. Conventions as independent bodies were pro- 260 (1793) speaks of a law as “ unconstitutional” but seems to mean nothing more than that the law had been declared by the council of censors to be a violation of the constitution; the law had been re- pealed and the question of ‘its validity was not before the court. Respublica v. Duquet, 2 Yeates, 493 (1799), Emerick v. Harris, 1 Binney, 415 (1808), and Commonwealth v. Smith, 4 Binney, 117 (1811), all assert that the courts have power to declare laws invalid, but do not exercise the power. Justice Gibson in Eakin v. Raub, 12 S. & R. (Pa.), 330, 355 (1825) says that to that time no law had been declared invalid, and the power was not made use of in Eakin v. Raub. James Wilson, however, in his lectures before the college of Philadelphia in 1790-91 argued that the courts had power to de- clare laws invalid. Works of James Wilson (Andrews’ edition), I, 411-418. Dupy v. Wickshire, 1 D. Chipman, 237 (1814), is the first Vermont case of this character. It is of interest in this connection to suggest that Judge Nathaniel Chipman, the leading lawyer in Vermont, in his Sketches of the Principles of Government (Rutland, 1793), Pp. 127, says that the courts should not have power over legis- lative acts; but that in his Principles of Government (Burlington, 1833), pp. 288-297, he is a strong advocate of the judicial power to annul laws. In New York also there were no early cases in which laws were held invalid unless Rutgers v. Waddington (1786) be con- sidered such a case. In certain early cases the legislative repeal of a law after a court had declared it unconstitutional, was probably based upon the view that a judicial decision did not annul the law, but was in the nature of a recommendation to the legislature. Meigs, The Relation of the Judiciary to the Constitution, American Law Review, xix, 175, 185, 188 (March-April, 1885). CONSTITUTIONAL CONVENTIONS, 1784-1908 39 vided for by the first constitutions of Pennsylvania, Ver- mont, Georgia, and Massachusetts, and by the New Hamp- shire constitution of 1784.1° Since 1784 state constitutions have, with few exceptions, been framed or adopted by con- ventions chosen by the people for this purpose.?° In discussing the development of the state constitutional convention it will be well to consider: (1) The usual methods by which conventions have been assembled. (2) The extent to which constitutions have been submitted to a vote of the people, or have been put into effect without popu- lar approval. (3) The legal position of the convention in our constitutional system. The Usual Methods by Which Conventions Have Been Assembled. Attention has already been called to the fact that many of the state constitutions adopted during the revolutionary period paid little attention to the elaboration of machinery for the revision of constitutions. Of the earlier methods devised for the revision of constitutions that adopted by Pennsylvania and Vermont is the most curious. The coun- cils of censors of these states, elected every seven years, had power, by a vote of two-thirds of their members to “ call a convention to meet within two years after their [the coun- 1° Jefferson, in his draft of a proposed constitution for Virginia, made in 1783, provided a convention for the purpose of making changes in the constitution. Ford, Writings of Jefferson, iii, 332. 20 The most important exception to this statement is the Nebraska constitution of 1866, which was framed by the territorial legislature, and by this body submitted to a vote of the people. Brittle v. People, 2 Neb., 198, 206. In 1873 a new constitution for Michigan was drafted by a commission appointed under the authority of a legislative act, and was submitted to the people by the legislature, but was rejected. A proposed new constitution for Rhode Island, drafted in a similar manner, was rejected in 1898 and 1899. 40 REVISION OF STATE CONSTITUTIONS cil of censors’] sitting, if there appear to them an absolute necessity of amending any articles of the constitution which may be defective, explaining such as may be thought not clearly expressed, and of adding such as are necessary for the preservation of the rights and happiness of the people: But the articles to be amended, and the amendments pro- posed, and such articles as are proposed to be added or abol- ished, shall be promulgated at least six months before the day appointed for the election of such convention, for the previous consideration of the people, that they may have an opportunity of instructing their delegates on the sub- ject.” Conventions elected under this provision were thus chosen by the people merely to ratify or reject amendments proposed by the council of censors, and were not constitu- tional conventions in the sense that they had authority to draft new constitutions, or to frame amendments for them- selves. The council of censors proved unpopular in Pennsylvania, where it had a short and inglorious career. Many features of the Pennsylvania constitution were opposed by a large body of citizens of that state, and strong protest was made against the provisions by which it was made unamendable for a period of seven years.** In fact this provision of the constitution was ignored from the very first. The assembly on June 17, 1777, adopted a resolution providing that the sense of the people should be taken as to the advisability of calling a convention to revise the constitution. The British invasion prevented the carrying-out of this resolu- tion. Again on November 28, 1778, the assembly resolved to submit the question of a convention to the people, the members of the convention to be chosen at the same time when the question was voted on; but this resolution was re- 21 Pennsylvania Gazette, Oct. 23, 1776. CONSTITUTIONAL CONVENTIONS, 1784-1908 4I scinded by the assembly before the time set for the vote to be taken.?? Only one council of censors was elected, that of 1783-84, but although it was agreed’ that some changes should be made in the constitution of 1776, political contro- versies made it impossible for two-thirds of the council to agree to any proposed amendments, or upon calling a con- vention. In March, 1789, the general assembly of Penn- sylvania, disregarding entirely the constitutional provisions with reference to the council of censors, ordered that the sense of the people of the state be taken as to the calling of a convention to frame a new constitution. In September, 1789, the assembly, declaring that a majority of the citizens of the state approved a convention in preference to the council of censors, provided for the election of a constitu- tional convention. The convention chosen by virtue of the assembly’s order framed the Pennsylvania constitution of 1790, by which the council of censors was abolished.?* The council of censors of Vermont had a more successful career, and was regularly chosen, every seven years, in conformity with the constitution, until 1869, and during this time nine conventions were called to pass upon constitutional amend- ments proposed by the council. The last council, that of 1869, recommended an amendment abolishing the council of censors, and this amendment was ratified by the conven- tion of 1870. Constitutional revision by councils of cen- 22 Journals of the House of Representatives of Pa., 1776-1781, pp. 145, 246, 324. Pennsylvania Colonial Records, xi, 220. For the politi- cal issues in Pennsylvania during this period see Oberholtzer, Re- ferendum in America, chap. ii, and Paul Leicester Ford, The Adop- tion of the Pennsylvania Constitution of 1776, Political Science Quarterly, x, 426. 28 Proceedings relative to calling the conventions of 1776 and 1790, pp. 129-137. 42 REVISION OF STATE CONSTITUTIONS sors had proven ineffective, and these councils were finally discarded.** The Georgia constitution of 1777 made provision for a constitutional convention, which should be called upon the petition of a majority of the voters of a majority of the counties. The petitions of the people were to specify the amendments desired and the legislature was required to or- der the calling of a convention, “specifying the alterations to be made according to the petitions preferred to the assembly by the majority of the counties as aforesaid.” This method of initiating constitutional changes was extremely cumber- some, and would probably have proven unworkable had it been tried. However, no effort seems to have been made to use the constitutional method of revision. In 1788, when it was desired to revise the constitution of 1777, the legislature of the state named three persons from each county to meet and take into consideration amendments nec- essary to be made in the constitution. The convention so constituted met and framed a constitution, which was re- ferred by the legislature to another convention composed of three persons elected from each county. The second con- vention amended the proposed constitution, and a third convention chosen by the people was authorized by the legis- lature to adopt the constitution, with or without the amend- ments proposed by the second convention. This third con- vention ratified the Georgia constitution of 1789.?° Except for the constitutions of Pennsylvania, Vermont, and Georgia, the only constitutions of the revolutionary period which made provision for the calling of constitutional 24 See The Council of Censors, by Lewis Hamilton Meader, Provi- dence, 1899. (Papers from the Historical Seminary of Brown Uni- versity.) 25 Jameson, Constitutional Conventions, 135, 136. CONSTITUTIONAL CONVENTIONS, 1784-1908 43 conventions were those of Massachusetts and New Hamp- shire. The Massachusetts constitution of 1780 made pro- vision for the submission to the people in 1 795 of the ques- tion as to the desirability of revising the constitution, and if. the vote were favorable, a convention was to be called. No convention was called in 1795, and after that date no con- stitutional provisions were in force in Massachusetts with reference to the calling of a constitutional convention. The New Hampshire constitution of 1784 provided for the call- ing of a convention in seven years, if a popular vote should favor such action, and the amended constitution of 1792 provided for a vote of the people every seven years upon the question as to whether a constitutional convention should be called. But of the revolutionary frames of government which continued after 1784, four made no provision what- ever for constitutional changes ;?° and three others made no provision for revision by constitutional conventions, provid- ing’ simply for amendment through legislative action. Moreover, of later constitutions many have made no pro- vision for revision by conventions. Among these may be mentioned Georgia (1798), Connecticut (1818), New York (1821), Missouri (1820), Rhode Island (1842), Pennsylvania (1790, 1838, 1873), Virginia (1830, 1851, 1864), Vermont (1870), Arkansas (1868, 1874), Tenn- essee (1834), Texas (1868), and Louisiana (1845, 1851, 1864, 1868, 1879, 1898). Twelve of the state constitutions now in force contain no provision whatever for constitu- tional conventions.?”7_ When, in states having no provision 26 Of later constitutions no provisions for constitutional change of any character were made by those of Virginia, 1830, 1851 and 1864, and Pennsylvania, 1790. 27 Arkansas, ‘Connecticut, Indiana, Louisiana, Massachusetts, Missis- sippi, New Jersey, North Dakota, Pennsylvania, Rhode Island, Texas, Vermont. For a list of constitutions containing no provision for con- 44 REVISION OF STATE CONSTITUTIONS for conventions, need was felt for a constitutional revision, the question necessarily arose as to whether conventions might be called in spite of the absence of constitutional authorization to do so. It has now become the established rule that where the constitution contains no provision for the calling of a convention, but has no provision expressly confining amendment to a particular method, the legisla- ture may provide by law for the calling of a convention— that is, the enactment of such a law is within the power of the legislature unless expressly forbidden, and is considered a regular exercise of legislative power. Judge Jameson calls attention to twenty-seven conventions which have met without there being any authority in the constitutions for their assembling,?* and since he wrote there have been at least three cases of the same character—Mississippi in 1890, Louisiana in 1898, and Connecticut in 1902. Of the twelve states which have no express constitutional provisions for the calling of conventions, precedents in eight or nine seem to be practically conclusive in favor of the legislative power ventions see Jameson, Constitutional Conventions, 551. The Oregon constitution of 1857 contained no provision for a convention, but such a provision was introduced by an amendment of 1906. 28 Jameson, 210. In fact in Delaware where the constitution of 1776 provided that the constitution should not be “altered, changed or diminished, without the consent of five parts in seven of the assembly, and seven members of the legislative council,” the legislature of that state in 1791 called a constitutional convention in spite of the provision that the constitution should be altered in only one way. So also the Maryland legislature called the convention of 1850, although the con- stitution of 1776 specifically provided that the constitution should be altered only by a bill passed by two successive general assemblies of that state. The Georgia constitution of 1798 contained a provision with respect to amendment similar to that in the Maryland con- stitution of 1776, but in this state also conventions were nevertheless held. CONSTITUTIONAL CONVENTIONS, 1784-1908 45 to act in this matter without express authorization ;?° in the three others *° there are no precedents, although the question of holding a convention was twice submitted to the people of Rhode Island in 1853; and the Vermont constitu- tional commission in its report of January 6, 1910, sug- gests that a general constitutional revision should be left to a convention, and speaks as if there were no doubt as to the power to hold a convention in that state. The only authorities which may be cited against the legis- lative power to call conventions, where the constitutions do not expressly give such power, are opinions rendered by the judges of the supreme courts of Massachusetts and Rhode Island, in 1833 and 1883 respectively, in response to questions submitted by the legislative bodies of these states. The Massachusetts judges thought that there was no power to adopt specific amendments except in the manner provided by the constitution, but did not express any opinion upon the question whether a convention might be called for a general constitutional revision;** their opinion cannot therefore be cited in support of the view that a convention may not be called for a general revision without constitu- tional authorization, and such a convention was in fact held in Massachusetts in 1853. The Rhode Island opinion of 1883,° however, is explicit in its advocacy of the view that a convention could not properly be called in that state be-° cause the constitution gave no express authority for re- vision by a convention. This Rhode Island expression is the 29 Arkansas, ‘Connecticut, Louisiana, Massachusetts, Mississippi, New Jersey, Pennsylvania, Texas, and probably Indiana. 20 Rhode Island under constitution of 1842; Vermont under con- stitution as amended in 1870; North Dakota under the constitution of 1889. 816 Cushing, 573. 3214 R. 1, 649. 46 REVISION OF STATE CONSTITUTIONS only one which denies the power of the legislature to call a convention for the revision of a constitution although there is no express constitutional authority for such a purpose, and this view has caused difficulties in the effort to obtain constitutional revision in that state.** In order to avoid difficulties, however, most of the consti- tutions since 1784 have made definite provision for the call- ing of conventions by the state legislatures or in some other manner. It will be well to discuss briefly: (1) The consti- tutions which give the legislatures power to call conventions, without submitting the question of a convention to a vote of the people. (2) Those which expressly permit the legis- latures to submit the question of a convention to the peo- ple, whenever the legislatures themselves may think proper. (3) Those which require that a vote be taken by the people at periodical intervals, upon the question of holding a con- vention, without reference to legislative action. The calling of conventions by legislative action alone, without requiring the submission of the question to a vote of the people, has been the method adopted by a few states, and is the one still permitted by the constitutions of Maine and Georgia. Then, too, when no provision is contained in a state constitution regarding the calling of a convention, 88 The Rhode Island judges were simply giving an advisory opinion, which has none of the force of a judicial decision, but their opinion has prevented the holding of a convention in that state. For an ac- count of efforts to obtain a constitutional revision in Rhode Island, see Charles S, Bradley’s The Methods of Changing the Constitutions of the States, especially that of Rhode Island, Boston, (1885); and Amasa M. Eaton’s Constitution-Making in Rhode Island (Providence, 1899). As has been said above, the Rhode Island opinion is contrary to the uniform practice of the states. For dicta that conventions may be held without express constitutional authorization, see Collier v, Frierson, 24 Ala., 108; Wells v, Bain, 75 Pa, St., 39; and Wood’s Ap- peal, 75 Pa. St., 59. CONSTITUTIONAL CONVENTIONS, 1784-1908 47 it would seem to be within the discretion of the legislature as to whether the question should be submitted to the people. Yet even in these cases the feeling has existed that the people should be consulted upon a matter of so much importance. New Hampshire in 1778 and 1780 and Massachusetts in 1779 submitted to the people the question as to whether con- ventions should be called, and conventions were in each case called after the people had voted that they should be held. The Pennsylvania legislature of 1789, although disre- garding the regular constitutional provisions for revision by a council of censors, did obtain the approval of the people with reference to the question of so disregarding the con- stitution, and as to whether a convention was desired by the popular will.** So in New York in 1821,” in Virginia in 1828, and in a number of other cases the question of call- ing a convention has been submitted to a vote of the people, even where there were no constitutional provisions with reference to the calling of conventions, and where the legis- lature might have acted without consulting the people.*® 34 For a statement that only a small number of people expressed themselves upon this question when. submitted, see Proceedings relative to calling the conventions of 1776 and 1790, p. 136. 35 Submission of this question in New York in 1821 was forced by a veto of the council of revision, which presented a strong argument in favor of such action. See Jameson, 669, and Street’s Council of Revision, 390-393, 455-479. 38 Among the cases in which legislatures were bound by no constitu- tional provisions, but yet submitted this question to the people, may be cited: Massachusetts, 1820, 1852; New York, 1821, 1845; Virginia, 1829, 1850; Maryland, 1850; North Carolina, 1835; Pennsylvania, 1835, 1871; Missouri, 1844; Louisiana, 1853, 1898; Tennessee, 1869; Texas, 1875; Connecticut, 1902. The following conventions were called with- out the question being first submitted to the people: Connecticut, 1818; Rhode Island, 1824, 1834, 1841, 1842; New Jersey, 1844; Missouri, 1861, 1865; Arkansas, 1874; North Carolina, 1876; Louisiana, 1879; Missis- sippi, 1890. To the latter class should be added the secession and re- 48 REVISION OF STATE CONSTITUTIONS In the greater number of constitutions, however, provision is expressly made that the people shall be consulted as to the calling of conventions. The curious provision in the Georgia constitution of 1777 is the first instance of requir- ing action by the people for the calling of a convention, as it is also the first instance in which the popular initiative was sought to be given for such a purpose. Most of the con- stitutions which contain provisions for the calling of conven- tions now provide that they be called after the legislature has submitted the question of a convention to the people and has obtained their approval, such a popular vote to be taken whenever the legislatures themselves may think proper. The first provisions of this character were those contained in the Delaware constitution of 1792, the Tennessee constitu- tion of 1796, the Kentucky constitution of 1799, and the Ohio constitution of 1802. The Kentucky provision of 1799, which was substantially repeated in the constitution of 1850, threw great obstacles in the way of calling a con- construction conventions in the Southern States. Of the seceding states in 1861 only Tennessee, North Carolina, and Arkansas submitted to the people the question as to whether conventions should be held. In Rhode Island the question as to whether conventions should be held was submitted to the people in 1821 and 1822, but the conventions actu- ally called later were assembled without popular authorization. For a strong expression in favor of such submission see the resolve of the convention called in Mississippi in 1851 to consider the slavery question. Resolved “ That in the opinion of this Convention, without intending to call in question the motives of the members of the Legislature, by the call of this Convention, the Legislature, at its late extraordinary session, was unauthorized by the people; and that said act, in per- emptorily ordering a Convention of the people of the State, without first submitting to them the question whether there should be a Con- vention or no Convention, was an unwarranted assumption of power by the Legislature; at war with the spirit of republican institutions, an encroachment upon the rights of the people, and can never be right- fully invoked as a precedent.” Journal of the Convention, (Jackson, 1851), pp. 48, 50. CONSTITUTIONAL CONVENTIONS, 1784-1908 49 vention by requiring two successive popular votes,?’ but this plan was not followed by other states except in the one case of the Louisiana constitution of 1812. The Kentucky constitution of 1891 discarded the requirement, but does re- quire the vote of two successive general assemblies to pro- pose the question to the people. The plan of permitting the legislature at its discretion to submit to the people the question of calling a constitutional convention has for many years been the most popular one, and is now adopted into the constitutions of twenty-six states.** The legislative majority required to propose this question varies, but the more usual requirement (that in sixteen states **) is that such a proposal be passed by two-thirds of each house, al- though such action may be taken in some states *® by a majority of the members of each house, and Nebraska re- quires a vote of three-fifths of the members elected to each branch of the legislature. 87Qn this account great difficulty was experienced in calling a convention in Kentucky. 38 Alabama, California, Colorado, Delaware, Florida, Idaho, Illinois, Kansas, Kentucky, Minnesota, Missouri, Montana, Nebraska, Nevada, North Carolina, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, Wyoming. 89 California, ‘Colorado, Delaware, Florida, Idaho, Illinois, Kansas, Minnesota, Montana, Nevada, North Carolina, South Carolina, South Dakota, Utah, Washington, Wyoming. In Ohio also a submission to the people may be had upon the vote of two-thirds of the legislature, at other times than the regular twenty-year periods when the question is submitted without legislative action. Georgia and Maine, while not requiring a popular submission of this question, provide that legislative action calling a convention shall be by a two-thirds vote. 40 Alabama, Kentucky, Missouri, Oklahoma, Oregon, Tennessee, Virginia, West Virginia, Wisconsin; to these should also be added the three states of Iowa, Michigan, and New York, which while providing for the periodical submission of this question without legislative action, also permit the legislature by a law to submit the question at any other time. 50 REVISION OF STATE CONSTITUTIONS Some states have, however, preferred not to leave it to the discretion of the legislature as to when the people may vote upon the question of calling a convention, but have spe- cifically provided by their constitutions that popular votes shall be taken upon this subject at certain definite intervals. Pennsylvania and Vermont in their first constitutions pro- vided that the councils of censors elected every seven years might call conventions without submitting the question to a vote of the people. The New Hampshire constitution of 1784 provided that the question of calling a convention should be submitted to the people at the expiration of seven years; the Georgia constitution of 1789 provided for a con- vention in 1794, and an amendment to this constitution adopted in 1795 provided for another convention in 1797; these Georgia constitutions definitely arranged for conven- tions without a vote of the people upon the subject. The Massachusetts constitution of 1780 provided that the ques- tion of calling a constitutional convention be submitted to the people in 1795, and the Kentucky constitution of 1792 provided for a similar vote in that state in 1797 and 1798 (two popular votes in successive years). Such provisions as those above referred to were merely temporary. The first constitution to provide for the submission of the question to the people at regular intervals was that of New Hamp- shire in 1792, which required that the question of a con- vention be submitted to the people once every seven years, and that the legislature should call a convention if a majority of the voters should favor it. Indiana was the next state to adopt a similar plan, providing in 1816 for a vote on every twelfth year; and the plan of requiring a vote upon this question at regular intervals became for a time a somewhat popular one. The Virginia constitution of 1870 required a popular vote every twenty years upon the question of call- ing a convention, but the constitution of 1902 leaves it to CONSTITUTIONAL CONVENTIONS, 1784-1908 51 the legislative discretion as to when this question shall be submitted to the people. The plan of fixing definite terms for the submission of this question has not gained in favor as against the arrangement for submission at the legislative discretion. Indiana and Virginia have had such provisions, and have abandoned them. The legislatures have ordi- narily been found responsive to popular sentiment in this respect. There are now six states which require the period- ical submission of this question. New Hampshire still re- quires a vote once every seven years; Iowa every ten years; Michigan every sixteen years; Maryland,“ New York, and Ohio every twenty years. The constitutions of Iowa, New York, Michigan and Ohio also contain provisions permitting the legislatures of these states to submit to the people the question of calling a convention, at other times than the ten, sixteen and twenty-year periods. The Oklahoma constitution of 1907 leaves to the legislature the discretion as to when the question of holding a convention shall be submitted to the people, but requires that the question be submitted at least once in every twenty years. The practice of obtaining the popular approval for the calling of a convention may be said to have become almost the settled rule. Thirty-two state constitutions require such a popular expression of approval, and even where it has not been expressly required such a popular vote has been taken in a majority of cases in recent years.” 41 The Maryland constitution of 1851 required a vote every ten years, but this was changed by the constitution of 1864. 42Of the fourteen constitutions which make no provision for the submission of this question to the people, those of Arkansas, Con- necticut, Indiana, Louisiana, Massachusetts, Mississippi, New Jersey, North Dakota, Pennsylvania, Rhode Island, Texas, and Vermont con- tain no provisions whatever regarding constitutional conventions. Those of Maine and Georgia simply authorize the legislatures to call conventions, two-thirds of the members of both houses concurring. 52 REVISION OF STATE CONSTITUTIONS The popular vote required to authorize a convention varies; fourteen states either expressly or impliedly provide that the necessary vote shall be that of a majority of those cast upon the subject of holding a convention,** and Ken- tucky has a similar provision with the additional requirement that the total number of votes cast for the calling of a con- vention be equal to one-fourth of the number of votes cast at the preceding general election; thirteen states require that the proposal of a convention should be approved by a ma- jority of those voting at a general election ;** Alabama and Tennessee require a majority of the votes cast in the elec- tion at which the proposal is submitted, but permit such submission to be made at either a general or special election; Iowa and Michigan require the affirmative vote of a ma- jority of the electors qualified to vote for members of the legislature.** When a majority of the qualified voters, or a majority of all persons voting at a general election, is required, it is ex- 48 California, Colorado, Delaware, Florida, Missouri, Montana, New Hampshire, New York, North Carolina, Oklahoma, Oregon, Virginia, West Virginia, Wisconsin. 44 Tdaho, Illinois, Kansas, Maryland, Minnesota, Nebraska, Nevada, Ohio, South Carolina, South Dakota, Utah, Washington, Wyoming. A bill introduced in the Ohio legislative session of 1910 provided that straight party votes might be counted for or against the calling of a convention, if the party conventions should take action for or against a convention. See p. 194. 45 The regular ten, sixteen and twenty year votes in Iowa, Michigan and New York are required to be taken at general elections but votes at other times may be taken at special elections. In twenty-two states the question must always be submitted at general elections: California, Colorado, Delaware, Florida, Idaho, Illinois, Kansas, Kentucky, Mary- land, Minnesota, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oregon, South Carolina, South Dakota, Utah, Washington, Wisconsin, Wyoming. In Alabama, Missouri, Montana, Oklahoma, Tennessee, Virginia and West Virginia the vote may be taken at either general or special elections. CONSTITUTIONAL CONVENTIONS, 1784-1908 53 tremely difficult to get a popular vote sufficient to call a convention, because of the impossibility of arousing suffi- cient interest in the matter to induce all those voting for candidates to express themselves as to a convention. In Michigan, for example, a large majority of the votes cast upon the question in 1898 and 1904 was in favor of a con- vention, but a sufficient number of votes was not cast, and it was not until 1906 that a popular vote could be obtained large enough to call a convention. In Delaware until 1893 the question of calling a convention was required to be sub- mitted at a special election, and in order to be carried must have received the vote of a majority of all citizens entitled to vote for representatives; under these provisions several unsuccessful attempts were made to call a convention, and finally, in 1893, a constitutional amendment was adopted permitting the question to be submitted at a general election, where it was at last found possible to get an expression by a majority of the qualified voters of the state.** Although many states still require a majority of those voting at a general election,*” it now seems clear that this throws too great obstacles in the way of calling a convention. The obstacles became almost insuperable when, as under the Kentucky constitution of 1850, two successive popular votes were required, in each of which it was necessary to obtain a majority of all citizens entitled to vote for representa- tives.“ The most satisfactory plan seems to be that of pro- viding simply that a majority of those voting upon the ques- tion should favor a convention; however, in order to prevent a convention being called by means of the votes of a small 46 Oberholtzer, Referendum in America, 135. 47 Or a majority of the qualified voters, as in Iowa and Michigan. 48 Oberholtzer, 133, 134. It may be worth while to call attention to the fact that Kentucky in 1891 and Delaware in 1897 adopted less cumbersome methods for the calling of conventions. 54 REVISION OF STATE CONSTITUTIONS minority it may be well to adopt a provision such as was introduced into the Kentucky constitution of 1891, requiring that the vote in favor of calling a convention be equal to at least one-fourth of the number of qualified voters of the state. Power with reference to the calling of a convention must, it would seem, be lodged in the hands of those who take sufficient interest to vote upon the matter, provided there be proper assurance that they represent to a large enough degree the intelligent public opinion of the com- munity.*° The introduction of the initiative and referendum in South Dakota, Oregon, Montana, Oklahoma, Missouri, and Maine makes it possible for the people of these states *° to initiate and adopt a measure providing that a convention be held, and thus removes this question to a large extent from legislative control.** In Maine, where the constitution does not require that the question of holding a convention be submitted to the people, the people may initiate and adopt by popular vote a measure for this purpose. In the same manner each of these states may require that there be a popular vote upon any law under which a convention is pro- posed to be held.°? 49 For a discussion of the popular vote required for the adoption of constitutions and of amendments, see pp. 60, 185. 50 The Utah initiative and referendum amendment of 1900 has never become effective because of the failure of legislation to make it operative. 51Dr, Borgeaud advocated the plan of having a vote upon the ques- tion of a convention at any time when a petition should be filed by a sufficiently large number of voters. He considered this plan better than that of requiring a vote at regular intervals or leaving the matter to the discretion of the legislature. Adoption and Amendment of Constitutions, pp. 182, 183. 52 Reference is made below, p. 57, to specific constitutional provisions in Oregon and Oklahoma with respect to this matter. CONSTITUTIONAL CONVENTIONS, 1784-1908 ae After a convention has been authorized by the people it becomes necessary in most states for the legislature to pro- vide for the election of the convention. In one case at least difficulty has been encountered in obtaining the passage of a law for the assembling of a convention authorized by the people. In 1886 a popular vote taken in New York (under the constitution of 1846 which provided for such a vote once every twenty years) was overwhelmingly in favor of the calling of a constitutional convention. Owing to a dis- agreement between the legislature and the governor, who belonged to different political parties, it was impossible for some time to obtain the passage of a law authorizing the convention, and the convention did not actually meet until 1894.°° In the constitution adopted by this convention it was sought to avoid such a difficulty for the future by mak- ing the constitutional provisions regarding a convention self-executing, no further legislative action being necessary after a convention is once authorized by the people; the constitution itself contains all necessary provisions concern- ing the election of delegates and the assembling of the con- vention. No legislative act is necessary, and the convention is made independent of the regular legislature. The Mich- igan constitution of 1908 accomplishes the same result by provisions similar to those of the New York constitution of 1894. The Missouri constitution of 1875 also makes the assembling of a convention independent of legislative action, 53Jn 1860 and 1864 popular votes in New Hampshire in favor of a ‘convention did not result in any legislative action. “Although the vote taken under act of July 4, 1860, showed a majority in favor of call- ing a convention, the senate and house of representatives at the June session, 1861, failed to agree upon a bill for that purpose. Again the vote under act of Aug. 19, 1864, showed a majority of the voters in favor of calling a convention; but the Legislature at the June session, 1865, by joint resolution decided to take no action in the matter.” Colby, Manual of the Constitution of New Hampshire (1902), p. 218. 56 REVISION OF STATE CONSTITUTIONS after the people have voted that a convention shall be held; the constitution itself contains full provisions regarding the apportionment and election of delegates, and writs for an election are required to be issued by the governor after a favorable vote of the people. In all of the states except those mentioned above * the assembling of conventions is to a large extent dependent upon legislative action, even after the people have voted that a convention shall be held. Either (1) the legislature authorizes the election of a convention without a popular vote approving such action, or (2) a vote of the people is taken upon or independently of legislative authorization, and after such vote a legislative act must be passed providing for the convention.*® Legislative bodies will not ordi- 54 Together with those having the initiative and referendum. 55 An interesting point is that as to whether legislative acts, pro- viding for a popular vote upon the question of calling a convention or making provision for the meeting of a convention, require the ap- proval of the governor. The Alabama constitution specifically pro- vides: “No act or resolution of the legislature ... calling a con- vention for the purpose of altering or amending the constitution of this state, shall be submitted for the approval of the governor, but shall be valid without his approval,” and the Delaware constitution contains a similar provision. In the other states there is no express provision upon this matter, but the language usually indicates whether the governor’s approval is or is not required. The California con- stitution, for example, provides that the question of holding a con- vention shall be submitted to the people “whenever two-thirds of the members elected to each branch of the legislature shall deem it neces- sary to revise this constitution,” but if the people approve of a con- vention, “the legislature shall, at its next session, provide by law for calling the same;” the governor’s veto does not apply to the legisla- tive vote submitting the question to the people, but would, it seems, apply to the law under which it is proposed to call the convention. The same may be said as to the constitutions of Colorado, Florida, Idaho, Illinois, Minnesota, Nebraska, Nevada, North Carolina, Ohio, South Carolina, South Dakota, Utah, Washington, Wyoming. In fact most of the provisions for a popular vote upon the question are for CONSTITUTIONAL CONVENTIONS, 1784-1908 57 narily ignore the expressed will of the people, so that the dependence of the constitutional convention upon the legis- lature has produced little inconvenience, yet logically the plan adopted by New York, Michigan, and Missouri seems the better one, for it makes the superior legislative body— the convention—independent of the inferior body—the regular legislature. Although no other state constitutions go as far as those of New York, Michigan, and Missouri, yet only ten states leave the matter entirely in the hands of the legislature ;°° several either restrict the legislative discretion as to the num- ber of delegates or themselves fix the number ;°’ others reg- ulate the number of delegates, their apportionment, and the method of their election ;°*® while the constitutions of Dela- ware, Illinois, and Montana contain even more detailed pro- visions controlling the election and conduct of conventions The Oregon and Oklahoma constitutions contain no spe- cific restrictions upon legislative action in this matter; but require that a law providing for a convention be approved by the people on a referendum vote. As has been suggested, the legislatures have in a number such a vote after action by the two houses without the governor’s approval. See a dictum in Carton v. Secretary of State, 151 Mich., 341. Yet in Nebraska where the submission of this question to a popu- lar vote seems to be clearly a matter within the power of the two houses, independently of the governor, a joint resolution of 1903 upon this subject was vetoed by the governor after the adjournment of the legislature, and no further action was taken. Nebraska Laws, 1903, pp. 744-745. For a discussion of the executive veto upon the proposal of constitutional amendments, see p. 148. 56 Alabama, Iowa, Georgia, Kansas, Maine, North Carolina, Tenn- essee, Virginia, West Virginia, Wisconsin. 57 Idaho, Nevada, South Carolina, Utah, Washington, Wyoming. 58 California, Colorado, Florida, Kentucky, Maryland, Minnésota, Nebraska, New Hampshire, Ohio, South Dakota. The Florida con- stitution does not regulate the method of election. 58 REVISION OF STATE CONSTITUTIONS of states discretion to determine how delegates shall be elected to constitutional conventions. The qualifications for the exercise of the right to vote are usually fixed by existing constitutions, and are thus ordinarily not matters for legis- lative determination ;°® but where there are no such con- Stitutional regulations of this matter, it lies within the dis- cretion of the legislature. Where legislatures have the de- termination, they have usually as a matter of course fixed the same qualifications as those required for other elections. In certain cases, however, even where the voting qualifica- tions have been fixed by constitutional provisions, legislatures have specified different qualifications for voters who should take part in electing delegates to constitutional conven- tions.*° 59 Green v. Shumway, 39 N. Y., 418 (1868). 80 Jameson, Constitutional Conventions, 4th ed., 260-269, 510-524. Lobingier, The People’s Law, 220-222, 241, 243, 247, 271. The state- ments made above with reference to qualifications of those voting for delegates to a convention apply also with reference to the voting on a proposed constitution. In most of the cases in which constitutional provisions regarding the suffrage have not been observed, there has actually been a widening of the suffrage, as in New York (1821), Rhode Island (1842), New Jersey (1844), Maryland (1867), and Tennessee (1870), with reference to the vote for delegates to a convention, and in Illinois (1870), Virginia (1830), Tennessee (1834), New Jersey (1844), and Maryland (1867), with reference to the popular vote upon a proposed constitution. The Missouri convention of 1865 in submitting its proposed constitution to the people of that state restricted the right to vote to those who should take an oath that they had always been loyal to the United States Government, and this restriction was upheld upon the ground that the convention had power to put the constitution into operation without popular approval, and so might, if it submitted the instrument, determine to whom it should be submitted. State v. Neal, 42 Mo., 119. The same action was taken by the Maryland convention of 1864. See Miles v, Bradford, 22 Md., 170. But here, as also in Vir- ginia (1830), New York (1821), and New Jersey (1844), the constitu- tion did not require submission, while in Maryland (1867) submission was specifically required, and the suffrage qualifications were specified in CONSTITUTIONAL CONVENTIONS, 1784-1908 59 It may be worth while to refer briefly to the calling of conventions for the purpose of framing constitutions for states seeking admission into the union. In the more regu- lar procedure for the admission of territories to statehood, Congress passes an enabling act providing for a convention, such enabling act regulating in detail the election of dele- gates and the conduct of business by the convention. Ter- ritorial legislatures may, of course, call conventions or a convention may be called by a territorial governor,” but a constitution drafted by such a convention has no effect unless it is approved by Congress, and the territory is ad- mitted as a state under it.°? Properly, constitutions of proposed new states should be drafted by conventions as- sembled under the authority either of Congress or of the existing territorial governments. In one case, at least, however, a convention has proceeded without the authoriza- tion either of Congress or of the territorial government, but its acts subsequently obtained validity by virtue of con- gressional ratification.** The Southern reconstruction con- ventions held under the authority of the congressional acts of 1867 may for all practical purposes be classed with terri- torial conventions held under congressional enabling acts.** the constitution. Where the existing constitution requires a vote upon the question of holding a convention or upon a proposed constitution, and itself also fixes the suffrage qualifications for state elections, neither legislature nor convention has the legal right to prescribe other qualifica- tions. See Green v. Shumway, 39 N. Y., 418, 426 (1868). 61 As in California in 1849. 622 Opinions of the Attorney-General, 726. The constitution of a proposed state need not necessarily be framed by a convention. The constitution of 1866, under which the state of Nebraska was admitted to the union, was drafted by the territorial legislature and then ap- proved by a vote of the people. 63 See the Michigan case referred to below, p. 61. 64 Neither Congress nor a territorial legislature, in providing for a 60 REVISION OF STATE CONSTITUTIONS In several cases the question has arisen as to whether the people of a state, acting independently and without any au- thority under the existing government, may call a conven- tion and form a new constitution. This question presented itself particularly in Rhode Island in 1841 and 1842. The state was still governed under the charter of 1663, and the suffrage qualifications as fixed by the legislature were ex- tremely undemocratic. Efforts to obtain relief through the legislature had failed. Those in favor of a more extended suffrage formed associations, and arranged for the meeting of a convention to frame a new constitution. The conven- tion was not authorized in any manner by the existing gov- ernment. The convention met and framed a constitution which was submitted to the people for adoption, and was adopted by a majority of those voting upon it, such majority appearing also to be a majority of the male citizens of the state. An attempt was made to organize government under the new constitution, armed conflict ensued with the charter government, and the movement collapsed upon the announce- ment by the president of the United States that he would support the charter government.** Many of the reforms de- convention, is under the necessity of submitting to the people the question whether a convention is desired. Congress has occasionally submitted to the people of a territory the question as to whether they wished statehood under certain conditions, as in 1906 when the question of joint statehood was submitted to the people of Arizona and New Mexico. In several cases territorial legislatures have submitted the question whether conventions should be assembled and constitutions framed preparatory to seeking admission as states. This was done in Wisconsin several times between 1841 and 1847; in Iowa in 1840, 1842, and 1844; and in Nebraska in 1859. Lobingier, The People’s Law, 263-267, 275-277, 282. 65> Luther v. Borden, 7 How., 1. A full account of this affair may be found in Mowry’s The Dorr War or the Constitutional Struggle in Rhode Island. (Providence, 1901). See also Jameson, 218-226. For a dictum that the people of a state may adopt a constitution, in- CONSTITUTIONAL CONVENTIONS, 1784-1908 61 manded were later obtained through action under the charter government. In Maryland in 1837 there were conditions somewhat similar to those in Rhode Island, and the supporters of re- form elected a convention without any authorization from the regular government, but the convention took no action because the more important of the proposed reforms were adopted as constitutional amendments by the legislature of the state.°* Somewhat, similar to the Rhode Island case was that of the convention assembled at Topeka in the ter- ritory of Kansas in 1855; this convention was assembled upon the recommendation of meetings and associations of private individuals; the constitution which it framed was submitted to a popular vote and received a majority of the votes cast upon the question of its adoption, although only its friends voted upon this question; the constitution was never recognized by Congress, though it would seem that the irregularity of its formation and adoption might have been cured by congressional ratification, had Congress cared to take such action.*” The territory of Michigan in 1835 adopted a constitution and applied for admission into the Union. Congress passed an act admitting Michigan, pro- vided that a restricted boundary should receive the assent of a convention of delegates elected by the people of the terri- tory for that purpose; a convention elected for this purpose under an act of the new state legislature rejected the condi- tion; thereupon a popular movement was begun, delegates were elected to a new convention, which assembled without either congressional or state authorization, and assented to dependently of the existing state government, see Goodrich v, Moore, 2 Minn., 61. Koehler v. Hill, 60 Ia., 615, 616 contains vigorous dicta opposed to this view. 86 McSherry, History of Maryland, 346-356. 67 Jameson, 202-204. 62 REVISION OF STATE CONSTITUTIONS the condition imposed by Congress as necessary for admis- sion to statehood; Congress accepted this action as satis- factory and by its acceptance ratified the action of the ir- regular convention.** Territorial conventions irregularly assembled may, therefore, have their action validated by subsequent congressional ratification. Upon the basis of the Rhode Island case it would seem, however, that there is little chance of a constitution being adopted in the states, independently of or in opposition to the existing govern- ments—such a procedure is revolutionary, and though in certain cases revolution may be amply justified, yet the rela- tions between federal and state governments doom such a movement to failure; the federal government is obligated to protect a state from domestic violence “ on application of the Legislature, or of the Executive (when the Legislature ean- not be convened)”, and must thus support the existing state governments; the United States thus guarantees such un- democratic state governments as those of Rhode Island and Connecticut against overthrow by any popular movement, although it is at the same time under obligation to guaran- tee to the states a republican form of government. Submission of Constitutions to a Vote of the People. Attention has already been called to the fact that of the state constitutions adopted before 1784 only those of New Hampshire and Massachusetts were formally submitted to a vote of the people, although in several other states a plan 68 Jameson, 185-191. Congress has in another case shown a willing- ness to overlook irregularities in the form of assenting to conditions for admission to statehood. The Nebraska constitution of 1866 re- stricted the right to vote to whites. A congressional act of 1867 pro- vided for the admission of Nebraska on condition that there should be no race discrimination. The Nebraska legislature assented to this condition (which altered the constitution), and the state was admitted. Brittle v. People, 2 Neb., 198. CONSTITUTIONAL CONVENTIONS, 1784-1908 63 was pursued which may have accomplished the same pur- pose. The Pennsylvania assembly, when providing in 1789 for the assembling of a constitutional convention, resolved that “it would be expedient, just, and reasonable, that the convention should publish their amendments and alterations for the consideration of the people, and adjourn at least four months previous to confirmation.” The convention met, framed a constitution, published it for distribution among the people, and then adjourned from February 26 to August 9, 1790, in order that the people might have an opportunity to consider the proposed form of government; on August 9 the convention reassembled, made some changes in the proposed constitution, and adopted it as the form of government for the state; the proceedings here cannot be considered equivalent to a formal submission to the people, but did recognize the necessity for popular participation, and may be treated as an informal submission.*? Although not directly submitted for popular approval the Vermont constitution of 1786 (and its later amendments to 1870) and the Georgia constitution of 1789 were ratified by popu- lar votes. In Vermont the revised constitution of 1786 and subsequent amendments thereto were proposed by councils of censors, and ratified or rejected by conventions chosen by the people for that express purpose." In Georgia the constitution of 1789 was framed and revised by two suc- cessive conventions and was then submitted to a third con- vention chosen by the people for the express purpose of rati- 69 Proceedings relative to calling the conventions of 1776 and 1790, Pp. 134, 234, 246. Jameson, 501. 70 So too the federal constitution was ratified by conventions chosen in the several states for that express purpose, although in Rhode Island the constitution was first submitted to a popular vote. Bates, Rhode Island and the formation of the union (Columbia University Studies, x), 163-200. 64 REVISION OF STATE CONSTITUTIONS fying or rejecting it. The New Hampshire constitution of 1792 was submitted to a direct vote of the people, and after this date the first states to submit their constitutions for popular approval were Connecticut in 1818 and Maine in 1819. Rhode Island in 1824 submitted a constitution to the people which was, however, rejected. New York submitted its constitution of 1821 to a popular vote, and was the first state outside of New England to submit a constitution to a direct vote of the people. The popular submission of consti- tutions first developed in New England, largely, it would seem, as Oberholtzer says,"* because there alone the people had in their town meetings workable instruments for the expression of popular sentiment upon such a question. The policy of submitting constitutions to the people soon became a general one. Virginia submitted its second consti- tution for popular approval in 1829, and from this time until 1860 the submission of constitutions to a-popular vote was the prevailing practice.’” Conventions in Georgia in 1833 71 Oberholtzer, Referendum in America, 110, I11. 72 1t will be of interest to refer briefly to the extent to which con- gressional enabling acts have required that the constitutions of new states be submitted to the people. The earlier enabling acts did not require submission, and their language not only seems to indicate that popular approval was not considered necessary, but actually precluded submission. The joint resolution of March 1, 1845, for the admission of Texas, is the first congressional action which indicates that it was thought desirable to have constitutions submitted to the people; this resolution, while not requiring such submission, did provide that “the constitution thereof, with the proper evidence of its adoption by the people of said Republic of Texas, shall be transmitted to the President of the United States, to be laid before Congress for its final action.” (The Texas constitution of 1836 had been submitted to the people.) The enabling act for Minnesota, passed February 26, 1857, is the first act of this character specifically to require popular submission, and the practice so begun has been consistently adhered to since that date. But, although popular submission was not expressly required by en- abling acts, every state admitted since 1836 has come into the union CONSTITUTIONAL CONVENTIONS, 1784-1908 65 and 1839, in Tennessee in 1834, in Michigan and North Carolina in 1835, in Pennsylvania in 1837-38, and in Florida in 1839,"* submitted the results of their labors for the approval of the people. However, the conventions of Delaware in 1831, Mississippi in 1832,7* and Arkansas in 1836 did not submit their constitutions for popular approval. From 1840 to 1860 the practice of submitting constitutions for the approval of the people was followed without excep- tion,” but during the civil war period submission became the exception rather than the rule in the Southern States. The Virginia convention of 1861 submitted its constitution and ordinance of secession to the people; the Georgia conven- tion of 1861 submitted its revised constitution, but not its ordinance of secession ;** the Texas convention of 1861 sub- with a constitution approved by the people; the states admitted between 1837 and 1857 either framed their constitutions without the authority of congressional enabling acts (as in Michigan, Florida, Iowa and California), or submitted their constitutions although not required to do so by congressional act (as in Wisconsin). For a fuller discussion of this subject see Lobingier, The People’s Law, 263-267, 275, 280, 204-297. 78 The reports of the popular vote upon the Florida constitution of 1839 may be found in the Tallehassee Floridian, May 18June 15, 1839. 74 A motion was made in the Mississippi convention, but rejected, that the constitution be submitted to a popular vote. Journal of the Mississippi convention of 1832, pp. 289-290. 75 But the Illinois convention of 1847 declared one article of the constitution in force without submitting it to the people. Constitution of 1848, schedule, sec. 4. So too the Kentucky convention of 1849-50 “after submitting their work to the people, made material amend- ments to that constitution as ratified by the people,” by adding an entirely new section which went into effect without popular approval. Miller v. Johnson, 92 Ky., 580, 590, 604. 78 A motion made in the Georgia convention to submit the ordin- ance of secession to the people was defeated. A movement in favor of submission also took place in the Alabama convention of 1861. Lobingier, The People’s Law, pp. 215, 225. 66 REVISION OF STATE CONSTITUTIONS mitted its ordinance of secession to a popular vote, but not the amendments which it made to the state constitution; in Tennessee the question of holding a convention was sub- mitted to the people and negatived, and later the question of secession was submitted by the legislature and received a majority of the popular vote. The conventions of the other seceding states did not submit their actions for popular approval. Of the reconstruction conventions held in 1864, 1865, and 1866, those of Arkansas (1864), Louisiana (1864), Tennessee (1865), North Carolina (1865), Georgia (1865), and Texas (1866), submitted their pro- posed constitutions or amendments to a vote of the people, but those in the other five states did not do so. The conven- tions just referred to were assembled under the authority of President Johnson; except in the case of Tennessee, gov- ernments organized under constitutions framed by these conventions were not recognized by Congress. The consti- tutions under which the other Southern States were re- admitted to the union were in each case submitted to a vote of the people of the respective states, this being one of the conditions of the congressional reconstruction acts of 1867; although persons who had participated in the secession move- ment were excluded from voting. A Missouri constitu- tional convention held sessions in 1861, 1862, and 1863, adopted a number of constitutional amendments which were not submitted to the people, and acted in many ways as if it were the regular legislative body of the state. With re- ference both to Missouri and to the seceding states, it should of course be remembered that conditions were abnormal, so that methods proper for a time of peace may have been inapplicable. Still it would seem that these cases do show that the practice of submitting constitutions for popular ap- proval had not yet become well-established in the Southern States. The submission of the constitutions under which CONSTITUTIONAL CONVENTIONS, 1784-1908 67 the seceding states were readmitted into the union was under compulsion of federal law, and consequently indicates nothing as to the strength of this practice in the South. Yet from 1870 to 1890 this practice was uniformly acted upon, and the constitutions drafted by conventions were then submitted to a vote of the people almost as a matter of course. However, during the past twenty years there has been a wide departure from what may before this time have been regarded almost as a well-established custom. During this ‘period eleven state constitutions have been adopted. Five of these constitutions were submitted to a vote of the people without reservation—those of New York (1894), Utah (1895), Alabama (1901), Oklahoma (1907), and Michigan (1908) ;” five constitutions adopted during this period were not submitted to the people in any manner— those of Mississippi (1890), South Carolina (1895), Dela- ware (1897), Louisiana (1898), and Virginia (1902) ; and one other, that of Kentucky (1891), was altered by the con- vention after it had been approved by the people. The constitutional conventions of Mississippi, South Carolina, and Louisiana were convened primarily for the purpose of disfranchising the colored voters, and submis- sion of their constitutions to the people might well have placed in peril the principal object which they had in view.** The conventions of South Carolina and Louisiana were au- thorized by express votes of the people to whom this ques- tion was submitted, but in the case of Mississippi there was no submission to the people of the question whether or not a convention was desired. In neither Mississippi nor South Carolina did the legislative acts calling the conventions re- 77 Submission was required in Utah and Oklahoma by congressional enabling acts. 78In Louisiana a constitutional amendment restricting the suffrage had actually been defeated in 1806. 68 REVISION OF STATE CONSTITUTIONS quire that the completed work of the conventions be sub- mitted to the people. The Louisiana act expressly provided that the convention should have full power to frame and adopt a constitution without submission to the people. In Virginia the question of holding a convention was voted upon by the people as required by the constitution’of 1870; and the legislative act authorizing the convention provided that the constitution framed by it should be submitted to a vote of the people. However, the convention did not sub- mit its constitution to the people, largely, it would seem, for fear of its being defeated by the elements to be dis- franchised, in combination with the corporations and other interests adversely affected by the new constitution.’® The failure to submit constitutions to the people in Miss- issippi, South Carolina, Louisiana, and Virginia may per- haps be explained as a necessary part of the plan to dis- franchise the colored population in these states, and may on this account be treated as exceptional. The cases of Ken- tucky and Delaware cannot, however, be explained so easily. In Kentucky the convention of 1891 submitted to the peo- ple the constitution framed by it, as required by the conven- tion act. The people adopted the constitution, but after they had voted on it, the convention reassembled and made a number of changes in the constitution. In Delaware the convention was authorized by a vote of the people, and the legislature in calling the convention recommended that the constitution be submitted to the legal voters of the state, but the convention disregarded this recommendation. In view of the facts discussed above, I think that it is im- possible to assert, as Judge Jameson did, that the submission 79 A. E. McKinley in Political Science Quarterly, xviii, 480, 508. For a rather full discussion of the action of the conventions of Mississippi, South Carolina, Delaware, Louisiana and Virginia see Lobingier, The People’s Law, pp. 301-325. CONSTITUTIONAL CONVENTIONS, 1784-1908 69 of a constitution to a vote of the people is imperatively re- quired by some customary constitutional law of this country, or even to say that a legislature in calling a convention may effectively bind such a body to submit its work for the ap- proval of the people.*° We are, then, forced to the con- clusion, that at present the only rules positively binding a convention to submit its constitution to the people are those contained in the constitution which the convention may have been called to revise. Of the thirty-four state constitutions which contain provisions regarding constitutional conven- tions, seventeen require that constitutions framed by such conventions be submitted to the people.** As has been sug- gested, however, all of the states, with the exceptions just 80 Of course, in Oklahoma and Oregon, where the convention is assembled under an act approved by a popular vote, and in the other states where a similar popular action may have been had through the initiative and referendum, a convention would not be apt to disobey the act under which it assembled. Yet in Oregon in 1910 the calling of a convention was opposed on the ground that: “There is danger that the convention will refuse to obey the provisions of the bill by which it is called, and will decree and promulgate the new constitu- tion of Oregon without submitting it to the people for their approval or rejection.” 81 California, Colorado, Idaho, Illinois, Maryland, Michigan, Missouri, Montana, Nebraska, New Hampshire, New York, Ohio, Oklahoma, Utah, Washington, West Virginia, Wyoming. In all of these states, except Idaho, Washington, West Virginia, and Wyoming, the con- stitutions also specify the popular vote required to ratify a proposed constitution. Several (Michigan, Maryland, Nebraska, New York, Ohio, Oklahoma) require a majority of those voting upon the question of adoption or rejection; others (California, Colorado, Illinois, Missouri, Montana) require a majority of all persons voting at an election, but California expressly and the other states just mentioned impliedly, require that such submission be at a special election; New Hampshire requires the approval of two-thirds of those voting upon the question of adoption or rejection, and Utah requires “a majority of the electors of the state voting at the next general election.” As to the form in which conventions submit their work to the people see note on p. 258. 70 REVISION OF STATE CONSTITUTIONS referred to, have followed the same rule since 1840. Of only two states—Delaware and Mississippi—may it be said that the practice is opposed to a convention’s submitting the results of its labors to a vote of the people. The Dela- ware constitutions of 1776, 1792, 1831, and 1897 were not submitted to a popular vote; the Mississippi constitutions of 1817, 1832, and 1890 were not submitted for popular ap- proval,®? and the constitution of 1869 was submitted only under compulsion of congressional legislation. Even in these states, however, we find that sentiment was favorable to popular submission during the decade just preceding the civil war. The Delaware convention of 1852-53 submitted to the people a proposed constitution, which was rejected. The Mississippi legislature of 1850 called a convention to con- sider the slavery question, and provided that “ the acts of the convention proposed to be held by this act, before they become binding on this State, shall be submitted to the peo- ple at the ballot box for their approval or disapproval, at such time, and in such manner, as the Convention may deter- mine.” The convention assembled in 1851, but took no formal action with reference to the subject which it had been called to consider, and on this account resolved that it was “ unnecessary to refer to the people for their approval or disapproval at the Ballot Box, its action in the premises.” Other resolutions of the convention clearly show, however, its view that the popular judgment should have been ob- tained, had any action been taken by the convention. Summarizing briefly the procedure adopted for the fram- ing of state constitutions, it should be said that they are elaborated by constitutional conventions chosen for this ex- press purpose, and distinct both in organization and election 82 Sproule v, Fredericks, 69 Miss., 903. State v. Williams, 49 Miss., 640. 88 Journal of the Convention (Jackson, 1851), pp. 48, 50. CONSTITUTIONAL CONVENTIONS, 1784-1908 71 from the ordinary legislative bodies. According to what is now the more usual procedure in the adoption of consti- tutions, there are three popular votes connected with the matter: (1) The vote of the people authorizing a conven- tion. (2) The election by the people of delegates to the convention. (3) The submission to the people for approval of the constitution framed by the convention. Some of the states dispense with the first vote and others with the third. Mississippi in 1890 dispensed both with the first and the third, and in this case the only participation which the people had in framing their new constitution was that of voting for delegates to a constitutional convention. In electing delegates simply the people could hardly express very clearly their views on constitutional questions and under the Mississippi plan they really had no greater share in constitution-making than in legislation, except that dele- gates to a convention, chosen as they were for only one pur- pose, would be more amenable to popular sentiment. Yet it might easily be possible under the Mississippi plan for a constitution to be adopted in opposition to the wishes of a majority of the people—this, in fact, was the purpose in Mississippi. The Mississippi plan seems perfectly legal, where the constitution existing at the time requires neither a vote upon the question of holding a convention nor a sub- mission of the constitution to the people ; but from the stand- point of effectiveness in expressing the public will such a plan is extremely defective. CHAPTER III Tue Lecat Postrion OF THE CONSTITUTIONAL CONVENTION * A constitutional convention is a body called together for a limited purpose—that of framing and submitting to the people or of framing and adopting a new constitution, or of revising and amending an old constitution. The con- vention has become in our constitutional system a regular organ for the expression of state will with reference to the state’s fundamental law. It is in no sense a revolutionary or extra-constitutional body and does not supersede in any way the organs of the existing state government. The ex- isting state government continues in full operation until superseded by a new government organized under the con- stitution framed or adopted by the convention.” Bearing in mind the limited functions of a constitutional convention, we must inquire here as to what are the rela- tions of the convention to the organs of the regular state government, and especially as to the relations between the 1 Judge Jameson’s discussion of this subject is perhaps the most im- portant. For other discussions see A. Caperton Braxton, Powers of Conventions, Virginia Law Register, vii, 79 (June, 1901); Revised Record, New York Constitutional Convention of 1894, vol. i, pp. 244- 266; Debates Michigan Constitutional Convention of 1908, ii, 1274- 1276; Debates Virginia Constitutional Convention of 1901-2,, i, 3-17, 29-88, ii, 3104-3139, 3154-3259; arguments of counsel in the case of Wells v. Bain, Philadelphia Press, Dec. 3, 4, 5, 1873. ? Judge Jameson expresses a somewhat similar view. Constitutional Conventions, 4th ed., 315-317. Upon the question as to when a new constitution goes into effect see p. 204, note. 72 LEGAL POSITION OF THE CONVENTION 73 convention and the regular legislative body of the state. We have already referred to the fact that in all of the states ex- cept New York and Michigan legislative acts are necessary for the calling of constitutional conventions.* Can the legis- lature, in the exercise of this power, place limitations upon a convention, requiring it not to consider certain subjects, or that it insert certain provisions in the new constitution, or that it submit its work for the approval of the people, when such submission is not required by the existing con- stitution ? Judge J. A. Jameson in his work on Constitutional Con- ventions took the position that a convention is absolutely bound by restrictions placed upon it in the legislative act by which it is called. Judge Jameson took this view be- cause he thought it necessary that a convention be com- pletely subordinate to the existing government, but even he hesitated to push this doctrine to its extreme limits; for ex- ample, he thought that a convention might disregard a legislative requirement that its work be not submitted to the people, and also took the position that the legislative limi- tations upon a convention “ must be in harmony with the principles of the convention system, or, rather, not incon- sistent with the exercise by the convention, to some extent, of its essential and characteristic functions.” This amounts to a statement that the convention is not absolutely subordi- nate to the regular state legislature, and is in direct contra- diction to Jameson’s fundamental thesis.* Under a number of the present state constitutions it may be definitely said that a legislature may not bind a conven- 8 However, in states which have adopted the initiative and referen- dum, laws for this purpose may be enacted by the people without action by the legislatures. 4 Jameson, 362-365, 494-495. 74 REVISION OF STATE CONSTITUTIONS tion in any way. In New York and Michigan conventions assemble without any legislative action, when authorized by a vote of the people; in these states, constitutional pro- visions were adopted for the express purpose of making conventions entirely independent of legislative control and any effort by the legislature to control the convention’s action would clearly be a violation of the constitution. The same statement holds with reference to the Missouri consti- tution, by the terms of which the only step to be taken by the legislature is that submitting to the people the question as to whether a convention shall be held. And the same is probably true with reference to constitutions which impose upon the legislature the one specific duty of providing for the election of delegates after the people have decided that* a convention shall be held. Inasmuch as both bodies are legislative in character, a specific power conferred upon the regular legislature may perhaps be said by implication to exclude any other control over the convention by the regu- lar legislative body.© The Alabama constitution of 1901 expressly confers full power upon a convention to act in the drafting of a new constitution. But in many cases there are no constitutional provisions expressly or impliedly restraining legislative interference with conventions. What principles should control in states whose constitutions simply empower the assembling of con- ventions under a legislative act, or where the constitutions contain no provision with reference to conventions? In some cases the view has been taken that the people, by voting for delegates under a legislative act or by acting thereunder, themselves adopt the restrictions placed upon the conven- 5 For an argument to this effect see Debates Michigan Constitutional Convention of 1908, ii, 1274-1276. See also a suggestion in Miller v. Johnson, 92 Ky., 589. This view was adopted by Chief Justice Grant in Carton v. Secretary of State, 151 Mich., 337, 339-343. LEGAL POSITION OF THE CONVENTION 75 tion by such an act, and that the restrictions sought to be placed upon the convention by the legislature thus become restrictions imposed by the people, but in most cases this would clearly not be true.* The popular action in connec- tion with a convention may be had in several ways. The question of calling a convention may, in certain states, be determined by the legislature without consulting the people, and an election may be called for the purpose of electing delegates to such convention; it is clear, of course, that the people in voting for delegates to a convention have no way of expressing either approval or disapproval of the terms of the act under which the convention is called; here clearly there is no popular adoption of restrictions sought to be im- posed upon a convention by legislative act. In Oregon and Oklahoma there must be submitted to the people the act under which it is proposed to call a convention, but here, while the people have a greater control, it may be necessary for them to pass upon two questions in one, to determine not only whether they want a convention but also whether they want one under the terms proposed by the legis- lature;” even here the act calling a convention cannot be said 6 Wells v. Bain, 75 Pa. St. 39; Wood’s Appeal, 75 Pa. St., 59; State ex rel. Fortier v. Capdeville, 104 La., 561, 568-60; Ex parte Birmingham and Atlantic Railway Co., 145 Ala. 514; State v. Favre, 51 La. Ann, 434; State ex rel, McCready v. Hunt, 2 Hill (S. C.) Law, I, 222-223, 240-243, 270, 271, 273, 275; Opinion of the Justices, 6 Cushing (Mass.), 574. 7A similar practice has been followed in some other cases, as in Louisiana in 1896. The Supreme Court of Massachusetts in 1833 took the ground that an act so approved would be binding upon a convention, which would therefore have to observe the restrictions contained in the act. Opinion of the Justices, 6 Cushing, 574 (1833). The judges of the supreme court of New York took the view in 1846 that an act so approved by the people was not subject to subsequent legislative alteration, but a contrary view was taken by the New York legislature. Jameson, 382-387, 663-666. Upon this point see A, Caperton Braxton 76 REVISION OF STATE CONSTITUTIONS to be an act of the people. Popular participation to a still greater extent may be obtained by the separate submis- sion of the two questions, (a) whether a convention is de- sired, and (b) then, if a convention is desired, whether the people approve the act under which the legislature proposes to call the convention; and here there may be said to be a popular approval of the legislative act. But the more usual practice is for the question of calling a convention to be submitted to the people, and if they ap- prove, for the legislature to enact a law under which the convention is elected and assembled. Now it cannot be said that the people, by their preliminary vote determining whether or not a convention shall be called, delegate to the legislature power to impose restrictions upon such conven- tion; they simply vote for or against a convention, and there would be a strong presumption that in voting for a conven- tion, they meant to vote for one with full power to propose or adopt a revision of the state constitution. This was the case in the Pennsylvania decision cited above: the question of holding a convention was submitted to the people and decided in the affirmative; the subsequent legislative act calling the convention * sought to impose certain restric- in Virginia Law Register, vii, 100-106. Mr, Braxton takes the view that a convention is bound by a legislative act which has been approved by the people upon a popular vote, but not by other legislative acts. The Alabama legislature by its act of December 11, 1900, submitted to the people the question of holding a convention and provided that if the popular vote should be favorable a convention should be held under the terms of this act; delegates to the proposed convention were voted for at the same election. The people did not vote upon the act itself but may in theory be said to have voted for a convention with knowledge of the terms of the act. But it is clear that in fact the question as to the holding of a convention was the only one passed upon by the people, and that the legislative act itself cannot be said to have received popular approval. Alabama acts, 1900-01, p. 224. 8 This act was not submitted to the people. LEGAL POSITION OF THE CONVENTION 77 tions upon the convention, and the court then said that these restrictions were imposed by the people; the facts found by the court did not conform to the real facts of the case. The presumption in favor of a convention’s having full power to act in the framing of a new constitution would, of course, not apply where no constitutional revision had been in contemplation either by the legislature or by the people, but where a convention had been called by legislative act to determine a particular question of public policy, or to inter- pret a clause of the existing constitution, as in New York in 1801, in South Carolina in 1832-33, and in Mississippi in 1850-51.° Under Judge Jameson’s theory a constitutional conven- tion called by a vote of the people may be restricted by simple legislative act so that it may not revise or propose the revision of any part of the existing constitution which the legislature may forbid it to touch. The convention is made subordinate to an organ of the existing government. Judge Jameson proceeded on the assumption that a consti- tutional convention must possess sovereign power *°—that 9Tt is in view of the specific purpose of the South Carolina con- vention of 1832-33 that we must interpret the language of the judges in State ex rel. McCready v. Hunt, 2 Hill (S. C.) Law, 1. The lan- guage of Judge O’Neall (pp. 222-223), for example, was proper with reference to the facts of the case, and need not be construed as laying down the principle that a constitutional convention is subordinate to the regular legislature: “It is true that the Legislature cannot limit the Convention; but if the people elect them for the purpose of doing a specific act or duty pointed out by the act of the legislature, the act would define their powers. For the people elect in reference to that and nothing else.” See also ibid., 240-243, 270, 271, 273, 275: But see Bradford v. Shine, 13 Fla., 393, 411-415. 10 Judge Jameson’s work may be said to have been written to dis- prove the theory that a convention has sovereign power, and under these conditions the theory assumed in his mind a much more important position than it ever attained in fact. The theory of conventional sovereignty was advanced by speakers before several conventions, be- 78 REVISION OF STATE CONSTITUTIONS is, all of the power of the state—or that it must be strictly subordinate to the regular legislature. He could conceive of no middle ground between these extremes. In attempt- ing to demolish the theory that the convention is sovereign, he went to the other extreme and really made the legisla- ture the supreme body with respect to the alteration of state constitutions, for under his view a convention may be re- " strained by a legislature as to what shall be placed in the constitution, and no alteration can be made without legis- ginning with that of New York in 1821, but no convention seems ever to have attempted to act upon the theory or even to have endorsed it. The report made to the Illinois convention of 1862 and the resolutions adopted by the Pennsylvania convention of 1873 went little if any further than to assert the convention’s independence of the legislative and other organs of the existing state government. Jameson, 303-309, 410. The theory was advanced by several members of the Virginia constitutional convention of 1901-02, but denied by others. Debates of the Virginia Constitutional Convention of 1901-02, i, 63, 77, 83; ii, 3132. Dr. J. L. M. Curry in an address before the Louisiana con- vention of 1898 also stated the theory of conventional sovereignty. Amasa M. Eaton in Harvard Law Review, xiii, 284. It has attained the dignity of being embodied in dicta by the highest courts of several states. McMullen v. Hodge, 5 Tex. 34, 73 (1849): “So in case of a peaceful change of government by the people assembled in convention for the purpose of forming a constitution... It would be in the power of such convention to take away or destroy individual rights, but such an intention would never be presumed...” Sproule v. Fredericks, 69 Miss., 808, 904 (1892): “We have spoken of the constitutional convention as a sovereign body, and that characterization perfectly defines the correct view, in our opinion, of the real nature of that august assembly. It is the highest legislative body known to free- men in a representative government. It is supreme in its sphere. It wields the powers of sovereignty, specially delegated to it for the pur- pose and occasion by the whole electoral body, for the good of the whole commonwealth. The sole limitation upon its power is, that no change in the form of government shall be done or attempted. The spirit of republicanism must breathe through every part of the frame- work, but the particular fashioning of the parts of this frame-work is confined to the wisdom, the faithfulness and the patriotism of the great convocation representing the people in their sovereignty.” LEGAL POSITION OF THE CONVENTION 79 lative consent. Judge Jameson pushed his theory to its logical conclusion and held that a convention, even after elected and assembled, might be dissolved by legislative act," or that the legislature might prevent the submission of its work to the people. The process of piece-meal amendment of state constitu- tions *” is absolutely under the control of the state legisla- tures, except in the states which have adopted the popular initiative. By the ordinary amending procedure no action may be taken except upon the initiative of the legislature; this method of altering constitutions is absolutely subject to legislative control. The calling of constitutional conven- tions is also to a large extent subject to legislative control, but the convention method of altering constitutions is the one more independent of the regular legislature, unless Judge Jameson’s theory be adopted. The convention loses a large part of its usefulness as an organ of the state if it be treated as strictly subject to control by the regular legislative body. This view was well expressed by the judiciary com- mittee of the New York convention of 1894: “It is of the greatest importance that a body chosen by the people of this state to revise the organic law of the State, should be as free from interference from the several departments of govern- ment as the legislative, executive and judiciary are, from interference by each other. Unless this were so, the will of the people might easily be nullified by the existing judiciary or legislature. Should the latter attempt to enact a law prohibiting the constitutional convention from restricting the existing power of the legislature, the act would be at 11 Language introduced into the Alabama constitution of 1901 would seem explicitly to inhibit any such action. 12 As distinct from amendment or revision by conventions. 80 REVISION OF STATE CONSTITUTIONS once recognized as an unwarranted invasion of the rights of the people.” 7° The better view would seem to be that the convention is a regular organ of the state (although as a rule called only at long intervals)——neither sovereign nor subordinate to the legislature, but independent within its proper sphere. Under this view the legislature cannot bind the convention as to what shall be placed in the constitution, or as to the exercise of its proper duties. If then we say that the con- vention is independent of the regular legislature in the ex- ercise of its proper duties, it will be necessary to discuss for a moment what are its proper functions. These are simply to propose a new constitution or to propose constitutional amendments to the people for approval; or, in states where the submission of constitutions is not required, to frame and adopt a constitution if they think proper. In this sphere, and in the exercise of powers incidental to its proper func- tions, it would seem that constitutional conventions should not be subject to control by legislative acts. It may be well to call attention to some of the cases in which legislatures have sought to limit the power of con- 18 Revised Record New York Constitutional Convention of 1894, i, 250. Similar language was used in a committee report to the Michigan convention of 1908. Debates Michigan Constitutional Con- vention of 1908, ii, 1274-1276. Both the legislature and the convention are chosen by the people, and when it is remembered that abler men are usually chosen to conventions than to legislatures, it is perhaps clear that conventions are apt to be equally as competent to exercise the limited powers committed tto them as are legislatures to instruct the conventions as to what they shall or shall not do. The convention is less apt to abuse its power in the drafting of a constitution, than is the legislature in placing limitations upon the convention, if the legislature were assumed to have such power. This practical con- sideration is particularly strong with reference to those states whose constitutions require that the work of a convention be submitted to the people. LEGAL POSITION OF THE CONVENTION 81 ventions. In North Carolina the legislature in 1835 and 1875 placed restrictions upon what the conventions should do, and provided that no delegate should be permitted to take his seat until he should take an oath to observe such restrictions. In these cases the oaths were objected to but were taken and the restrictions were observed.** A similar oath was required by legislative act and taken by the dele- gates to the Georgia convention of 1833. The same plan was followed by the Louisiana legislature of 1896, and the re- strictions were substantially observed by the convention which assembled in that state in 1898.*° The legislative acts under which conventions were assembled in Illinois in 1862 and 1869 required that delegates to the conventions ‘should take an oath to support the constitution of the state; objection was made to this oath, inasmuch as the conven- tions were chosen to propose a revision of the state consti- tution, and the convention of 1862 refused to take the oath; the convention of 1869 took the oath in a modified form.*® 14 Jameson, 282-284, 366, 381. 15 Louisiana acts, 1896, no. 52. The Louisiana act of 1896 was sub- mitted to and approved by the people, as was also the act calling the North Carolina convention of 1835. The Louisiana convention of 1898 expressly recognized the legislative act as binding upon it, and the ‘same view is found in.a dictum of the Louisiana supreme court in Louisiana Railway and Navigation Co. v. Madere, 50 So., 609 (1909). It would seem that these conventions might, had they thought proper, have declined to take tthe oaths, and have organized and proceeded to act without doing so, just as was done by the Illinois convention of 1862. 16 Jameson, 282-284. A similar question arose in the Virginia con- vention of 1901-02; the Virginia constitution of 1870 required all officers of the state to take an oath to the state constitution and “to accept the civil and political equality of all men before the law 3” it was argued that delegates to the convention were not officers as the term was used in the constitution of 1870 and the oath was not taken. Debates Virginia Convention of 1901-02, i, 3-17, 29-88. Upon the question as to whether delegates to a convention are state officers 82 REVISION OF STATE CONSTITUTIONS The Alabama legislature in its act providing for the conven- tion of 1901 forbade the convention to do certain things and required that it incorporate certain provisions into the new constitution, but did not bind the delegates to the con- vention by oath to observe the legislative restrictions.’ The legislative restrictions were not observed in full, and an effort was made to prevent future legislative interference with conventions by inserting into the constitution of 1901 the provision that: ‘ Nothing herein contained shall be con- strued as restricting the jurisdiction and power of the con- vention, when duly assembled in pursuance of this section, to establish such ordinances and to do and perform such things as to the convention may seem necessary or proper for the purpose of altering, revising or amending the exist- ing constitution.” The New York convention of 1867 sat beyond the time fixed by the legislature for its work to be submitted to the people, because its work was not completed within the time fixed by legislative act. In Alabama the legislature linited to fifty days the compensation of delegates to the conven- tion of 1901, but the convention resolved that the pay of its members should continue after the expiration of the fifty days and until the completion of its work. This action is in strong contrast with that of the New York convention of 1894, which under similar circumstances continued its work but without further compensation. With reference to the appropriation of money it seems clear that ordinarily a convention has no power, because in most cases the exist- ing constitutions provide that money shall only be paid see Jameson, 317-320. By the constitutions of Colorado, Illinois, and Montana delegates to a convention are required to take an oath to support both the federal and state constitutions. 17 Alabama acts, 1900-01, p. 224. LEGAL POSITION OF THE CONVENTION 83 from the state treasury upon a legislative appropriation; sufficient appropriations of money have usually been made by the legislatures for the use of conventions.*® Of especial importance are the cases in which legislatures have required that proposed constitutions be submitted to the people in a particular manner or at a particular time, and in which conventions have declined to observe such restric- tions. Wells v. Bain and Wood’s Appeal ** are the most im- portant cases of this character, and are the ones most relied upon.as authority for the view that conventions are abso- lutely bound by legislative acts. The Pennsylvania consti- tution of 1838 contained no provision with reference to the calling of a convention, but the legislature of 1872 provided for the assembling of a convention, after having first sub- mitted to the people the question as to whether or not a convention was desired. The act of 1872, under which the convention assembled, provided that the constitution which it framed should be voted upon at an election held in the same manner as general elections, and that one-third of the members of the convention should have power to require the separate submission of any change proposed by the con- vention. The convention disregarded the legislative act by providing machinery of its own for the submission of the constitution in Philadelphia, and appointed election commissioners for this special purpose.?° It also refused to submit the judiciary article separately although it was claimed that a third of the members of the convention had 18 Jameson, 435-436. 1975 Pa. St., 39, 59. The statements in Wood’s Appeal are mere dicta and are of no force as authority. 20 This action was taken because the regular election machinery of Philadelphia was admittedly corrupt, and there was strong reason to suspect that it would be employed fraudulently to defeat the proposed new constitution. 84 REVISION OF STATE CONSTITUTIONS required such separate submission. An injunction was granted restraining the commissioners appointed by the convention from holding the election in Philadelphia. The court decided that sufficient basis had not been presented to show that the convention had violated the provisions of the law with reference to a separate submission when this was demanded by one-third of the members, but declared that the submission of the constitution in a manner different from that provided by law was clearly illegal. The court said that the convention had no power except that conferred by legislative act, and that any violation of such act or any action in excess thereof would be restrained.** In the more recent case of Carton v. Secretary of State,*® the legislature of Michigan in the law under which the convention was called provided that the new constitution should be submitted to the people in April, 1908; but the convention did not complete its work until the latter part of February, and ordered that the submission should be in November instead of April, 1908. The secretary of state doubted the power of the convention to fix a date other than 21 In connection with Wells v. Bain attention should be called to the thorough argument of the case, which may be found in the Philadelphia Press, Dec. 3, 4, 5, 1873. The arguments advanced in support of the convention’s power were clearer and more convincing than those pre- sented by the court. It has been suggested elsewhere that a state legislature, in the exercise of its general powers, may call a con- vention even in the absence of express constitutional authority to do so. See p. 44. If the calling of a convention is thus assumed to be an exercise of regular legislative power, may it not be plausibly argued that the convention, when called, is absolutely subject to the conditions of the legislative act? This is, to a large extent, the argument of Wells v. Bain, but such an argument, even if it be considered valid, is applicable only to those states whose constitutions contain no provision whatever with reference to the calling of con- ventions. See statement in Carton v. Secretary of State, 151 Mich. 343. 22151 Mich., 337, 340-343, 379 (1908). LEGAL POSITION OF THE CONVENTION 85 that set by the legislature, and the president of the conven- tion sought a mandamus to compel him to act upon the con- vention’s order. The mandamus was granted, but the court was not in agreement as to the reasons for such action. Several members of the court took the ground that the ex- isting constitution impliedly required submission at the gen- eral election in November, and that therefore the legislative requirement was invalid as in violation of the constitution. Chief Justice Grant, with whom one other member of the court concurred, took the broader ground that: “ By neces- sary implication, the legislature is prohibited from any con- trol over the method of revising the constitution. The convention is an independent and sovereign body whose sole power and duty are to prepare and submit to the people a revision of the constitution, or a new constitution to take the place of an old one. It is elected by the people, an- swerable to the people, and its work must be submitted to the people through their electors for approval or disap- proval. . . . The convention was the proper body to de- termine at what election it [the proposed constitution] should be submitted unless that is fixed in the present con- stitution. . . . I can find no language in the constitution from which any implication can arise that this power was vested in the legislature.” Justice Hooker, in a dissenting opinion, contended that the convention was bound by the legislative act, but said that he had “ no intention to dispute the fact that the convention has a sphere in which the legis- lature cannot intrude, a discretion that it cannot control, but that discretion has its clear limitations.” The legislature of Kentucky, acting under the constitu- tion of 1850, passed an act in 1890 providing for the elec- tion of delegates to a constitutional convention. The con- stitution of 1850 authorized the legislature to call a conven- tion, after two popular votes in favor of such action, but 86 REVISION OF STATE CONSTITUTIONS contained no provision regarding the submission of a con- stitution to a vote of the people; the legislative act, how- ever, provided that before any constitution drafted by the convention should become operative, it should be submitted to the voters of the state and ratified by a majority thereof. The convention met in September, 1890, drafted a consti- tution and submitted it to the people in the following April, and the constitution was ratified by a popular vote. The convention reassembled in September, 1891, made numerous changes in the constitution, some of which were alleged to have been material, and promulgated the amended instru- ment. An effort was then made to enjoin the printing and preservation of the constitution, and to have it declared in- valid. The court of appeals of the state declined to pass upon the power of the legislature to bind the convention, but held that the constitution must be recognized as valid inasmuch as the people and the political organs of govern- ment had acted under it as a valid instrument.”* Similarly the legislature of Virginia, in calling the con- vention of 1901-02, required that it should submit its work to the people, although there was no such requirement in the Virginia constitution of 1869. The convention entirely disregarded the legislative requirement that its work should be submitted to the people, and promulgated the constitution of 1902 without submitting it to a popular vote.** Taylor, who was tried without a jury under the constitution of 1902, and sentenced for a felony, contended that this con- 28 Miller v. Johnson, 92 Ky., 589; 15 L. R. A., 524 (1892). So the Illinois convention of 1847, although required by legislative act to submit its work to the people did not submit one article of the con- stitution which it framed, but its action was never contested in the courts. 24 As to the reasons for such action see A. E, McKinley, Two New Southern Constitutions, Political Science Quarterly, xviii, 480. LEGAL POSITION OF THE CONVENTION 87 stitution was invalid because not submitted to the people. Here also the court refused to consider the question as to whether the legislature might bind the convention, but said that the organs of the regular state government and the people had been acting under the constitution for nearly a year and that: “ The constitution having been thus acknow]l- edged and accepted by the officers administering the govern- ment and by the people of the State, and being, as a matter of fact, in force throughout the State, and there being no government in existence under the constitution of 1869 op- posing or denying its validity, we have no difficulty in hold- ing that the constitution in question . . . is the only right- ful, valid, and existing constitution of this State... .” 7° Thus we have the highest courts of the states of Kentucky and Virginia declining to hold constitutions invalid which had been framed in violation of statutory restrictions, and under the circumstances it is difficult to conceive how the courts could have done otherwise than sustain the constitu- tions in these cases. Upon the larger question as to whether a constitution shall or shall not be submitted to the people, and as to the method of submission if it is submitted, although there is little authority either way, it would seem that the legislature cannot bind a convention; Wells v. Bain and Judge Jame- son’s work are the only authorities supporting to its full extent the theory of conventional subordination to the legis- lature.?° Judge Jameson took the ground that the submis- sion of a constitution is an act within the power of the or- 25 Taylor v. Commonwealth, 101 Va., 829 (1903). 26 There are dicta to this effect based upon the theory that the people in voting for a convention confer upon the legislature authority to limit the powers of such convention. Ex parte Birmingham and Atlantic Railway Co., 145 Ala., 514. 88 REVISION OF STATE CONSTITUTIONS dinary legislature,?’ but it is difficult to look upon it other- wise than as a step in the framing of a constitution. To ad- mit that after a convention has acted the legislature may submit its work in any way it thinks proper, or may defeat the proposed constitution by refusing to submit it at all (if the existing constitution requires such submission), is practically to destroy the value of the convention as an in- dependent organ. Even if we should assume that the legislature may limit a convention as to the submission of a constitution, or as to methods of submission, it would yet seem clear that the legislature cannot deprive a convention of powers necessary for its conduct as a deliberative assembly. The convention would seem in any case, in the absence of constitutional re- quirements in the matter, to have power to establish its own rules of order and of procedure, elect its officers, pass upon the qualifications and election of its members,?* and to issue orders for elections to fill vacancies in its membership.” 27 Jameson, 417-421. 28 Revised Record New York Constitutional Convention of 1894, i, 244-270; Lincoln, Constitutional History of New York, iii, 666. A person claiming to have been elected a member of the New York convention of 1894 sought a writ of prohibition from the supreme court of that state to prevent the convention’s determining his right to a seat therein, and claimed that whether or not he was entitled to the seat was a question for determination by the courts. The con- vention adopted a strong report, prepared by its judiciary committee, denying the power of the court, and the court discontinued proceedings in the case. Some constitutions, as for example, those of Delaware and New York, contain specific provisions regarding the power of con- ventions to determine their rules of proceedings, pass upon the qualifi- cations of their members, choose their own officers, and to fill vacan- cies. In Colorado vacancies in a convention are filled by means of writs of election issued by the governor of the state, and in Kentucky power is specifically conferred upon the general assembly to provide for the hearing of contested elections and issuing writs of election in case of a tie. 29 Jameson denies that a convention has power to issue orders for LEGAL POSITION OF THE CONVENTION 89 A dictum of the Minnesota court in the case of Goodrich v. Moore *° went much further than this. The president of the convention of 1857 had made a contract for the printing of the journal and proceedings of the convention, and this contract was subsequently ratified by the legislature, which appropriated money to pay for the printing; Goodrich, the state printer, claimed that he was entitled by virtue of his position to do the printing, and obtained an injunction to prevent Moore from proceeding with the work. The court dissolved the injunction, and said: “ But even had the legis- lature intended and attempted to claim and exercise the act of providing a printer for the constitutional convention, it would have been an unauthorized and unwarrantable in- terference with the rights of that body. The admission of such a right in the legislature, would place the convention under its entire control, leaving it without authority even to appoint or elect its own officers, or adopt measures for the transaction of its legitimate business. It would have less power than a town meeting, and be incompetent to perform the objects for which it convened. It would be absurd to suppose a constitutional convention had only such limited authority. It is the highest legislative assembly recog- nized in law, invested with the right of enacting or framing the supreme law of the state. It must have plenary power for this, and over all of the incidents thereof. The fact that the convention assembled by authority of the legisla- ture renders it in no respect inferior thereto, as it may well be questioned whether, had the legislature refused to make provision for calling a convention, the people in their sov- elections to fill vacancies, unless such power is expressly conferred by legislative act. Constitutional Conventions, 331-340, 392-393. But he is of the opinion that a convention has at least the powers of an unofficial public meeting. Ibid., 455-472. 302 Minn., 61 (1858). go REVISION OF STATE CONSTITUTIONS ereign capacity would not have had the right to have taken such measures for framing and adopting a constitution as to them seemed meet. At all events there can be no doubt but that; however called, the convention had full control of all its proceedings, and may provide in such manner as it sees fit to perpetuate its records either by printing or manuscript, or may refuse to do either.” The court was un- questionably right in its statement regarding the power of a convention to control its own proceedings, independently of the legislature, but it is questionable whether the people in their sovereign capacity may properly assemble in con- vention, and it is also doubtful whether the printing of its proceedings for permanent record is an essential or inci- dental function of a constitutional convention. As has been said, few cases have arisen in which courts have been called upon to pass on restrictions which legis- latures have sought to impose upon conventions. In addi- tion to the cases referred to above, several other cases have given rise to dicta upon the question. In Loomis v. Jack- son ** the decision was rendered by a special election court, which had no other function than that of deciding an elec- tion contest; in addition this court did not have before it any effort by the legislature to restrict a convention, so that its expression was purely dictum. The person rendering the decision of this court said: “I have had no difficulty in reaching the following conclusion upon the constitutional questions presented in this specification, viz: First, That a constitutional convention, lawfully convened, does not de- rive its powers from the legislature, but from the people. Second, That the powers of a constitutional convention are in the nature of sovereign powers. Third, That the legis- lature can neither limit or restrict them in the exercise of 816 W. Va., 613, 708 (1873). LEGAL POSITION OF THE CONVENTION gl these powers. .. .” Similarly in Sproule v. Fredericks,?* the Mississippi court said that the legislature would have no power to require a convention to submit its work to the people, but in this case the legislature had not made any effort so to restrict the convention, and the judicial expres- sion here also was purely dictum. From the above discussion it may be seen that where the question has been raised the conventions and courts have in but a few cases taken the view that constitutional conven- tions are absolutely bound by restrictions sought to be placed upon them by legislative acts. The restrictions placed upon conventions have certainly not in practice been recognized as of binding force, except in a few cases, and theoretically the convention in the performance of its proper functions should be independent of the regular legislative organs of the state. Legislative acts are usually necessary for the assembling of conventions, but this dependence of conven- tions upon legislatures has as yet caused few conflicts. The good sense of the people has ordinarily caused both legis- latures and conventions to restrict themselves to their proper spheres. The general obedience of conventions to the legis- lative acts under which they were called has been due to the fact that legislative acts have usually required only those things which the convention would have done without legis- lative requirement; cases of conflict arise only when a legis- lature attempts to restrict a convention in such a manner as to interfere with its proper functions, and such cases have not been numerous.** However, it would be better to have the assembling of conventions made independent of legis- 8269 Miss., 8908 (1892). Dixon v. State, 74 Miss., 277. 38 Jameson, 369-377, reviews these cases, and says that only in three cases have conventions disobeyed legislative restrictions. To the cases of Ilflinois, 1862 and 1869, and Pennsylvania, 1873, should certainly be added those of Illinois, 1848, Alabama, 1901, and Virginia, 1902. 92 REVISION OF STATE CONSTITUTIONS lative action, as in New York and Michigan. The possi- bility of conflict is avoided if the convention as an organ for constitutional revision is entirely freed from the control of the regular legislature. Except in Pennsylvania, it would seem that a convention may, unless restricted by the existing state constitution, de- termine whether or not it will submit its work to the peo- ple and equally as to the manner of submission, and may regulate the details of its procedure, irrespective of legis- lative action in these matters.** Submission of a constitu- tion to the people may be and is the more proper policy, but it would seem to be a matter within the discretion of the convention itself, unless submission is required by the ex- isting constitution. As a rule, then, constitutional conventions are subject only to the following restrictions: (1) those contained in or implied from provisions in the existing state and federal constitutions, and (2) in the absence of constitutional pro- visions, those derived or implied from the limited functions of conventions. To these restrictions Jameson and others would add those imposed by legislative acts under which conventions are called, but such restrictions are certainly not yet recognized as of absolute binding force, except in Pennsylvania, and should not be so recognized if the conven- tion is to be an instrument of great usefulness. It is clear that existing constitutional provisions are bind- 34 The constitutions of Oklahoma and Oregon by requiring that acts providing for a convention be submitted to the people, would seem im- pliedly to make tthe terms of such acts binding upon a convention when assembled. In states having the initiative and referendum, an act adopted by the people would perhaps in no case be disregarded by a convention assembled thereunder, even though legally the terms of the act might be disregarded. See Opinion of the Justices, 6 Cushing, 574 (1833), and State ex rel. Fortier v. Capdeville, 104 La., 561 (1901). LEGAL POSITION OF THE CONVENTION 93 ing upon a convention.** A convention does not in any way supersede the existing constitutional organization and is bound by all restrictions either expressly or impliedly placed upon its actions by the constitution in force at the time. A new constitution does not become effective until promul- gated by the convention, if this is permitted by the existing constitution, or until ratified by the people, if such action is required. In replacing the existing constitutional organi- zation a convention properly acts only by the instrument of government which it frames or adopts. As an organ of the state and as a legislative body a convention is, of course, subject to the provisions of the federal constitution as to contracts, ex post facto laws, and to all other restrictions imposed upon the states by that instrument.*° Reference is made in another part of this discussion to the attitude of the courts toward constitutional provisions re- garding the amendment of state constitutions.*” It has been shown that the courts as a rule construe such provi- sions liberally, but declare invalid amendments even after they have been approved by the people, with reference to which the constitutional requirements have not been sub- stantially observed. If the courts took the same position with reference to a complete constitution, it is clear that 35 The constitution may of course, place definite limitations upon the power of a convention, or subordinate it to the legislature. By the Kentucky constitution of 1799 the legislature in passing an act taking the sense of the people upon the calling of a convention was required to specify “the alterations intended to be made,” and the convention seemingly would have been bound by such specification. 36 See the state cases of McElvain v. Mudd, 44 Ala. 48; State v. Keith, 63 N. C., 140; Gibbes v. G. & C. R. R. Co, 13 S. C, 228; Hawkins v. Filkins, 24 Ark., 286; Penn v, Tollison, 26 Ark., 545; Berry v. Bellows, 30 Ark., 198; Bragg v. Tuffts, 49 Ark., 554. See also Cooley, Constitutional Limitations, 7th ed., p. 62. 37 See pp. 215-221. 94 REVISION OF STATE CONSTITUTIONS they would hold a constitution invalid, even after its ap- proval by the people, if the convention had not been assem- bled in accordance with the constitutional forms, or if when assembled the convention in framing a constitution had not complied with the constitutional requirements. To what extent and in what manner will the courts enforce consti- tutional restrictions upon the forming of new constitutions? There is no judicial authority squarely upon this question, but a similar question has been discussed in the decisions which have related to the violation of legislative restrictions sought to be imposed upon conventions, and some light may be thrown upon the judicial attitude by a discussion of these cases. In the case of Frantz v. Autry,®* it was contended that the convention of Oklahoma had exceeded the powers conferred upon it by the congressional enabling act, in erecting new counties and appointing officers for such counties. An injunction was sought to restrain the officers . appointed by the convention from acting, and also to re- strain the submission to the people of that part of the con- stitution which provided for the division of the county in question. The court upheld the action of the convention as within its power, and in its decision declared that the con- vention was a legislative body of the highest order and “that the courts will not interfere by injunction or other- wise with the exercise of legislative or political functions.” The court said further : “To concede the power of the courts to enjoin and restrain the convention in the exercise of its powers in incorporating any legislative matter that it may deem appropriate therein, on the ground that it is unconsti- tutional and void, in advance of the submission of the same to the people for ratification or rejection, and prior to the time that it is approved by the President, would, it seems to 38 18 Okla., 561, 604, 605 (1907). LEGAL POSITION OF THE CONVENTION 95 us, lead to interminable litigation, and the inevitable result would be to tie the hands of the convention and indefinitely postpone the submission of the constitution or any of its provisions, to a vote of the people. Fortunately, such is not the law. If the constitution, or any of its provisions, is re- pugnant to the constitution of the United States or any of the terms and conditions of the enabling act, these questions can be litigated and determined at the appropriate time. The moment the constitution is ratified by the people, and approved by the President of the United States, then every section, clause, and provision therein becomes subject to judicial cognizance.” This is simply a statement that the court would not in- terfere with the process of constitution-making, but would hold itself free to declare an act of the convention invalid, after it had been approved by the people, if it were in excess of the convention’s power; similarly several state courts have declined to interfere with the submission of a proposed constitutional amendment to the people by the legislature, reserving the power, however, to declare the amendment invalid after popular approval if it were shown to have been improperly adopted. “A Constitutional Convention is a legislative body of the highest order. It proceeds by legis- lative methods. Its acts are legislative acts. Its function is not to execute or interpret laws, but to make them. That the consent of the general body of electors may be neces- sary to give effect to the ordinances of the Convention, no more changes their legislative character, than the require- ment of the Governor’s consent changes the nature of the action of the Senate and Assembly.” *° The convention 39 Revised Record New York Constitutional Convention, i, 245. (Report of Judiciary Committee.) A similar statement may be found in the report by a committee to the Michigan convention of 1908. Debates Michigan Constitutional Convention of 1908, ii, 1274-1276. 96 REVISION OF STATE CONSTITUTIONS is a legislative body, and according to the well-established rule courts will not restrain the enactment of legislation, although they will inquire into the validity of legislation after it has been enacted. However, the Pennsylvania court in Wells wv. Bain did restrain the submission of a con- stitution in a particular manner, and this case is precisely in point because submission was here enforced in the manner required by legislative act, and in Pennsylvania a legisla- tive restriction was considered equally as binding as a re- striction imposed by a constitutional provision. It seems clear, however, that courts would only in extreme cases in- terfere with a convention’s action, and restrain the submis- sion of a constitution to the people, or seek to prevent sub- mission in a particular manner, even though a convention in such matters had not strictly observed the constitutional requirements. *° But after a constitution has been submitted to and adopted by the people, additional difficulties present themselves in the way of declaring it or even particular portions of it in- valid. Constitutional amendments have frequently been declared invalid because not properly proposed, even after the people had approved such amendments, and a similar attitude might be taken by the courts with reference to par- ticular provisons in a new constitution, if the constitutional objection did not relate to the whole. But even here the judicial action would be a delicate one, although not much more delicate than that of passing upon an amendment which had received popular approval. The Pennsylvania legislature in 1872 by its act calling a convention forbade 40 Ror a discussion of the use of injunctions to restrain the sub- mission of proposed constitutional amendments, and as to whether it is within the province of a court to pass upon the question of the proper adoption of constitutional provisions see pp. 209, 228. See also Miles v. Bradford, 22 Md., 170 (1864). LEGAL POSITION OF THE CONVENTION 97 the convention to amend the bill of rights; the convention did amend the bill of rights, and an injunction was sought to restrain submission to the people; the injunction was de- nied by the lower court, and the case was appealed to the state supreme court, but was not heard until after the con- stitution had been ratified by a popular vote. The court dismissed the case, saying: ‘“‘ The change made by the peo- ple in their political institutions, by the adoption of the pro- posed Constitution . . . forbids any inquiry into the merits of the case.” ** Judge Jameson took the same view of the matter and said of this case: “ The constitution framed by the convention had been submitted to and adopted by the people, including the change recommended to be made in the Bill of Rights; and thus, however irregular, or even revo- lutionary, its inception had been, it had become the funda- mental law of the State, and the Supreme Court must ac- cept it as such.” *? Inasmuch as the Pennsylvania court regarded the statutory restriction as having a binding force equal to that of a constitutional restriction, it would seem that it might, in a case properly brought before it, logically have declared invalid the amendments to the bill of rights, in the same manner as courts declare invalid amendments not proposed in accordance with constitutional forms, even after their approval by the people. The provisions tainted by irregularity were here clearly separable from the remainder of the constitution. Had the restrictions here been ones im- posed by the Pennsylvania constituion of 1838, the case would have been precisely parallel with those in which amendments have been declared invalid because not adopted in compliance with constitutional forms, but the Pennsyl- vania court declined to extend to this case its theory that a 41 Wood’s Appeal, 75 Pa. St., 59. 42 Jameson, 407. 98 REVISION OF STATE CONSTITUTIONS convention may be. absolutely bound by legislative act. Under the prevailing doctrine with reference to amendments the court’s duty would have been clear had the restrictions been imposed by constitutional provisions rather than by legislative act. The courts would unquestionably be cautious about singl- ing out and declaring invalid particular clauses in consti- tutions which had been approved by the people, but with reference to which constitutional requirements had not been strictly observed. No cases have squarely arisen upon this point, and cases would hardly arise where certain clearly separable parts of constitutions would be so tainted with irregularity as to warrant judicial annulment; should such cases arise, however, it is difficult to see why the judicial attitude should be any more liberal than with respect to constitutional amendments.** The better view is that courts should not inquire too technically into irregularities in the submission of a constitution or of an amendment which has been ratified by the people. ** But when a whole constitution is tainted with irregu- larity, the difficulty of a court in declaring it invalid is cor- respondingly increased, especially if the constitution has been approved by the people and put into effect before the question as to the irregularity is presented to the court. For. example, the constitution of Kentucky provides: “When a majority of all the members elected to each house of the general assembly shall concur, by a yea and nay vote, to be entered upon their respective journals, in enacting a law to take the sense of the people of the state as to the neces- sity and expediency of calling a convention for the purpose of revising or amending this constitution, and such amend- 48 See pp. 215-221. 44 Secombe v. Kittleson, 29 Minn., 555. LEGAL POSITION OF THE CONVENTION 99 ments as may have been made to the same, such law shall be spread upon their respective journals. If the next gen- eral assembly shall, in like manner, concur in such law it shall provide for having a poll opened in each voting pre- cinct ” to take the sense of the people upon the question of calling a convention. Suppose that after a constitution had been adopted and put into operation under this provision, it were shown in a case properly before the court that some one of the steps required for calling a convention (for ex- ample, the entering of the law upon the journals) had not been complied with. Under similar conditions, perhaps, an amendment would be declared invalid, but if a complete constitution had already been put into operation it would be a very hardy court which would decide that the constitu- tion was invalid because of an irregularity in the calling of a convention by. which it had been framed.** Cases somewhat similar to that suggested above have arisen both in Kentucky and Virigina, except that the re- quirements which had been violated in these cases were im- posed by laws and not by constitutions. In each case the requirements related to the submission of the constitution 45 An actual case similar to that mentioned above is that of the Delaware convention of 1852-53. Here the question of holding a con- vention was submitted to the people, and the convention was held although the question did not receive the affirmative vote of “a majority of all the citizens in the State, having a right to vote for representatives,” as required by the constitution. If the constitution proposed by this convention had been adopted, the question of its validity might have been raised on the ground that the convention had been improperly called. So too the Maryland constitution of 1776 and the Georgia constitution of 1798 provided that constitutional changes should be made only by legislative action, but conventions were held in bo‘h states, and the acts of such conventions might have been at- tacked as invalid because in violation of constitutional provisions. But the questions here raised are purely theoretical, for the courts would at these earlier da‘es have almost surely considered these mat- ters as political ones and have declined to pass upon them at all. 100 REVISION OF STATE CONSTITUTIONS to the people, and in each the court declined to consider the question upon its merits. In Kentucky the legislature of 1890 required that the work of the convention of 1890-91 be submitted to the people; after submission to and approval by the people the convention further revised and amended the constitution. Had the Kentucky court gone into the merits of the case and held the convention strictly bound by the legislative act requiring submission, it would have had to enforce the constitution as voted upon by the people; if the convention acted illegally in revising the constitution after popular approval, it would have been easy in this case to separate out the illegal action and declare it invalid.** But the court elected to treat the question as one affecting the validity of the constitution as a whole *’ and said: “It is a matter of current history that both the executive and legis- lative branches of the government have recognized its valid- ity as a constitution, and are now daily doing so. Is this question, therefore, one of a judicial character? Does its determination fall within the organic power of the court?” The court further said that the people had acted under the constitution, “the political power of the government has in many ways recognized it, and under such circumstances it is our duty to treat and regard it as a valid constitution and now the organic law of our Commonwealth.” In the case which came before it the Virginia court said: “ The constitution of 1902 was ordained and proclaimed by a con- vention duly called by a direct vote of the people of the state to revise and amend the Constitution of 1869. The result of the work of that convention has been recognized, accepted, 46 Miller v. Johnson, 92 Ky., 580. 47 The court did consider the question of separating owt the parts claimed to be invalid from those recognized as binding, but declined to enter upon such an undertaking, because of its view that the point referred to above was decisive. oi? pags LAW s LEGAL POSITION OF THE CONVENTION IOL and acted upon as the only valid Constitution of the State by the Governor in swearing fealty to it and proclaiming it, as directed thereby; by the Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the Constitution ordained by the convention which assem- bled in the city of Richmond on the 12th day of June, 1901, as the Constitution of Virginia; by the individual oaths of its members to support it, and by its having been engaged for nearly a year in legislating under it and putting its pro- visions into operation; by the judiciary in taking the oath prescribed thereby to support it, and by enforcing its pro- visions; and by the people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as voters under it to the extent of thousands throughout the state, and by voting, under its provisions, at a general elec- tion for their representatives in the Congress of the United States. .. . The Constitution having been thus acknowl- edged and accepted by the officers administering the gov- ernment and by the people of the State, and being, as a matter of fact, in force throughout the State, and there being no government in existence under the constitution of 1869 opposing or denying its validity, we have no difficulty in holding that the Constitution in question . . . is the only rightful, valid, and existing Constitution of this State, and that to it all the citizens of Virginia owe their obedience and loyal allegiance.” ** Another reason why courts would hesitate to pronounce invalid a constitution which was already in operation is that a court acting under such constitution would, in rendering a decision of this character, necessarily pronounce against its own competence as a court. A court organized under a 48 Taylor v. Commonwealth, 101 Va., 829. This case was cited with approval in Weston v. Ryan, 70 Neb., 216, 217. to2 REVISION OF STATE CONSTITUTIONS government, even though that government be revolutionary in character, has no greater validity than the government under which it acts, and would hardly destroy itself by hold- ing that government to be invalid. This view was first presented by a dictum of Chief Justice Taney in Luther wv. Borden, and may be said to be a sound one: “ And if a state court could enter upon the inquiry proposed in this case, and 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 determination upon the question it undertook to try.” *° Although, then, a convention, in framing a complete con- stitution or a revised instrument, would seem, in theory, to be bound by existing constitutional restrictions upon the ex- ercise of its power, as strictly as is the legislature in pro- posing constitutional amendments, yet there are difficulties in the way of enforcing this rule. If a constitition has been proposed for the approval of the people, a court would hardly enjoin its submission, although this might be done; if this were not done the only other opportunity for the court to act would be after a constitution had been approved and before it had gone into operation, for after it had become effective a court would hardly dare overturn the govern- ment organized under it when there were no opposing bodies claiming to be the lawful government—the question as to the validity of the constitution would have become a political question with which the court should properly re- fuse to meddle.*® On the whole it would seem that because 487 Howard, 1, 40. See also Brittle v, People, 2 Neb., 214, and the dictum in Koehler v, Hill, 60 Ia., 543, 608, 614. 50 For a similar attitude taken by the courts of Colorado and Ne- braska with reference to amendments vitally affecting the organization of government see pp. 222-225. LEGAL POSITION OF THE CONVENTION 103 of practical considerations courts must pursue a more liberal policy in passing upon the acts of a convention, especially after they have been approved by the people, than it has pursued in interpreting the constitutional restrictions placed upon the legislative power to propose amendments. The discussion so far has related primarily to express con- stitutional restrictions upon or with reference to conven- tions. Implied restrictions upon conventions may be said to fall into two groups: (1) those implied from the consti- tution under which a convention is called; (2) those implied from the limited functions of conventions. These two classes of implied limitations coalesce and may be consid- ered together. First, a constitution by providing for the calling of a convention to revise or frame the organic law of the state impliedly limits the functions of such a body to that one act and to the exercise of only such powers as are necessary or incident thereto. Second, in the absence of constitutional provisions regarding the convention, a convention if called acts under the constitution in existence, and by such constitution the exercise of executive, judicial, and regular legislative power are expressly conferred upon existing organs of government, which cannot properly be replaced until a new constitution framed by the convention is put into operation. Where the existing constitution pro- vides that a certain power shall be exercised only by an organ of the existing government, as in provisions that money shall not be paid from the state treasury except under the authority of a legislative act,®* it is undoubted 51 For a discussion of cases in which conventions have sought to appropriate money see Jameson, 435-446. ‘Carton v. Secretary of State, 151 Mich., 342. The Louisiana convention of 1898 authorized loans mot only for the payment of its expenses but also for the mobilization of troops during the Spanish-American War, and its action was fol- lowed by legislative appropriations for these purposes. The constitu- 104 REVISION OF STATE CONSTITUTIONS that a convention assembled under such a constitution may not exercise the power; the case is almost equally strong against a convention’s power to exercise authority which has been expressly conferred upon another body by the constitution under which the convention is acting.°? Third, in addition to the limitations implied from the constitution itself, it may be said that a convention is ordinarily a body assembled for a limited and definite purpose, and cannot be presumed to have other powers than those necessary for the performance of its proper functions.** A number of cases have arisen in which conventions have exercised or have sought to exercise regular governmental power. The conventions of the early revolutionary period exercised such powers, but they were primarily provisional governments, and only incidentally constitutional conven- tions of Colorado and Montana specifically authorize the legislatures. to provide for the expenses of conventions, and that of Kentucky provides that the legislature shall fix the compensation of delegates to a convention, In New York and Delaware a convention has power “to. appoint such officers, employees and assistants as it may deem necessary, and fix their compensation, and to provide for the printing of its. documents, journal and proceedings.” There is a similar provision in the Michigan constitution. 52 With reference to an attempt by a convention to interfere with the existing state government Jameson very properly says: “ That body cannot remove from office, or instruct those holding office, by any direct proceeding, as by a resolution or vote applying to particular cases. It is its business to frame a written constitution; at most, to enact one. It has no power, under such a commission, to discharge the public servants, except so far as their discharge might result from the performance of its acknowledged duties.” Constitutional Con- ventions, 4th ed., 320-325. 53 Tf the above statements have any basis it would seem possible to hold that a convention is a body of limited power, without sub- ordinating it to the legislature. Judge Jameson’s theory that a con- vention must be either sovereign or- subordinate to legislative control seems untenable. Jameson, 422-430. LEGAL POSITION OF THE CONVENTION 105 tions, and are not relevant to the present discussion. The Louisiana convention of 1864 instructed the legislature to raise the salaries of school teachers.°* During the seces- sion *° and reconstruction periods in the Southern States conventions in some cases took over almost all powers of government, although the state legislatures were naturally the bodies which suffered most from encroachments by the conventions. In Missouri a convention was elected on February 18, 1861, to “consider the relations between the government of the United States and the government and people of the State of Missouri; and to adopt such measures for vindicating the sovereignty of the state, and the protec- tion of its institutions, as shall appear to them to be de- manded.” No secession ordinance was to be valid until rati- fied by the qualified voters of the state. The convention proved to be strongly union in sentiment, while the organ- ized state government was equally as strong in its sympathy with the South. The convention met in February, 1861, and adjourned to the following December, having first ap- pointed a committee to call it before that date if its as- sembling should seem necessary; the convention met again in July; Governor Jackson had now left the state; the con- vention removed Jackson and appointed another governor in his place, declared the seats of the members of the gen- eral assembly vacant, and abrogated the laws which the assembly had passed for the defense of the state against the federal government. The provisional officers chosen by 54 Jameson, 320, note. 35 It is doubtful whether the Missouri and secession conventions may properly be called constitutional conventions in the sense in which that term is used here; they were called to consider the relations of their states to the federal government, and their actions in changing constitutions were but incidental to their primary object, which was not the framing or revision of constitutions. , 106 REVISION OF STATE CONSTITUTIONS the convention continued in office until August, 1864. The convention itself acted as the legislative body of the State, exercising these exceptional powers until July, 1863." The Missouri convention exercised extraordinary powers from necessity, because of the disappearance of the state government. In the seceding states the conventions acted by the side of organized governments, but would seem to have had full power to act with reference to matters of federal relations, as well as to revise the constitutions so as to make them conformable to the new conditions in which the states found themselves. The conventions of Miss- issippi, Texas, and Georgia confined themselves rather closely to the purposes for which they were assembled ; those of South Carolina, North Carolina, Alabama, Louisiana, Virginia, Arkansas,” and Florida exercised regular legis- lative power in addition; the conventions of South Carolina, North Carolina, Arkansas, Virginia, and Florida each held several sessions, the South Carolina convention remaining in existence for nearly two years; the Alabama convention recognized the purely legislative character of much of its work, and provided that its ordinances should be subject to amendment and repeal by the general assembly. The conventions held in the southern states in 1865-66, under proclamation of President Johnson, and those held in 1867-68, under congressional reconstruction acts,°* were vested with powers greater than ordinary constitutional conventions in states with organized governments, inas- much as they were authorized not only to frame constitutions 56 Ordinances passed at the various sessions of the Missouri State Convention, 1861 and 1862 (St. Louis, 1862). Journal of the Missouri State Convention, June, 1863 (St. Louis, 1863). 57 See statement in Bragg v. Tuffts, 49 Ark. 554. 58 Richardson, Messages and Papers of the Presidents, vi, 312-314. United States Statutes at Large, xv, 2-4. LEGAL POSITION OF THE CONVENTION 107 but also to take steps necessary for the erection of state gov- ernments.°® In Virginia, Arkansas, Louisiana, South Caro- lina, Florida, and Georgia, the conventions of this period seem to have confined themselves rather closely to their proper functions, but in North Carolina (1865-66, 1868), Alabama (1865, 1867-68), Mississippi (1865), and Texas (1868), they acted as regular legislative bodies and passed ordinances of a purely legislative character. Attention should also be called to the fact that conven- tions called in territories under congressional enabling acts ordinarily possess wider powers than conventions called in organized states, inasmuch as they have not only to frame a constitution but also to provide for the organization of state governments. Territorial conventions possess only such powers as are conferred upon them by the congressional acts under which they assemble; their acts in excess of such power may however be ratified by subsequent action of con- gress. °° 5® But the Florida court in Bradford v. Shine, 13 Fla., 393, 411-415, took a different view regarding the convention of 1865 in that state. President Johnson’s proclamation provided for a convention “for the purpose of altering or amending the constitution . . . and with author- ity to exercise within the limits of said state all the powers necessary and proper to enable such loyal people of the state of Florida to restore said state to its constitutional relations to the federal gov- ernment...” The court said: “ The functions of the convention were confined to the objects for which it was elected, the presentation of an amended constitution, having reference to the declaration of cer- tain general principles and rules of government, and providing for the organization thereof by the election of the necessary officers...” It held invalid a clause of the constitution of 1865 the inclusion of which it thought not to be within the power of the convention. 60 Conventions assembling in territories without congressional au- thorization may in the same manner have their acts ratified by subse- quent congressional action. For statements regarding powers of terri- torial conventions see Benner v. Porter, 9 How., 235, and McCornick wv. Western Union Telegraph Co., 79 Fed., 449. 108 REVISION OF STATE CONSTITUTIONS Several cases have occurred since 1860 in which conven- tions acting beside regularly organized governments in time of peace have exercised legislative power. The Missouri convention of 1865 passed several ordinances of a purely legislative character.°* The same statement holds with reference to the Mississippi convention of 1890,** the South Carolina convention of 1895, the Louisiana convention of 1898,°* and the Alabama convention of 1901. In the South Carolina convention a motion was made “ that there shall be no session of the legislature this year, but that the con- vention shall do its work in its place.” °* It has already been suggested that a court would find it difficult to declare a complete constitution invalid because of irregularities in the proceedings or action of a conven- tion. What is the attitude of the courts in enforcing these implied restrictions upon the powers of a convention, in preventing encroachments by a convention, upon powers re- served to other governmental organs of the state? In the first place it should be said that a convention’s action in these matters may be controlled by the courts much more easily than irregularities in the framing of a complete con- stitution. If a convention should attempt to remove an offi- cer of the state government and to appoint another in his place, the court may properly restore the removed officer without in any way interfering with the convention’s proper functions; if the convention passes an ordinance of a purely legislative character, the court in a case properly brought before it may declare the ordinance invalid and decline to enforce it. Improper acts committed by a convention in the 61 Jameson, 322-324. 2 Thorpe, Federal and State Constitutions, iv, 2129. 83 [bid., iii, 1595; vi, 3345. 64 Amasa M. Eaton in American Law Review, xxxi, 198, 210. LEGAL POSITION OF THE CONVENTION 109 framing of a constitution may be acts done in the exercise of a power within the competence of the convention, and are difficult to correct, because of the close interrelation of the irregular acts with those which may be regular and proper. When it encroaches upon the existing government, a conven- tion acts in excess of power and its action may be controlled without interference with the functions which properly be- long to it. In State v. Neal,** the supreme court of Missouri squarely upheld the power of the convention of 1865 to adopt ordi- nances of a legislative character. Neal had been indicted for perjury in violating an oath taken under the provisions of an ordinance of the convention. The court in sustaining the ordinance, said: “The convention might (if it had deemed proper to do so) have declared the constitution framed by it in full force and effect without making pro- vision for its submission to the voters of the State. As the representatives of the people, clothed with an authority as ample as that, certainly its power to prescribe the means by which it was thought best to ascertain the sense of the qualified voters of the State upon that instrument cannot be seriously questioned.”” Even though the question of sub- mitting the constitution were within the discretion of the convention it would seem that if this question were decided in the affirmative the constitution should have been sub- mitted to all voters qualified under the existing constitution and that under the principles here laid down, a disfranchis- ing ordinance was beyond the power of the convention. The court, however, took the view that the passage of the ordinance was within the power of the convention as a part of its authority with reference to a revision of the consti- tution. 65 42 Mo., 119 (1868). I1o REVISION OF STATE CONSTITUTIONS Several cases came before the courts of Alabama involv- ing ordinances passed by the conventions of 1865 and 1867- 1868. In the cases arising with reference to the ordinances of 1865, the courts enforced such ordinances without ques- tioning their validity, and when the question of validity was raised said that this convention was vested with all powers necessary to restore the state to its proper federal relations and in reality acted and possessed power to act as a pro- visional legislature.°° The Alabama court at first took the same view with reference to the ordinances of the conven- tion of 1867-68,°" but later took a somewhat different posi- tion. In Plowman v. Thornton ** there was brought into question the election ordinance of the convention, by which the terms of officers under the new government were so regulated that they should hold until their successors were appointed. The court held the ordinance to be properly within the power of a body convened not only “ for the formation of a constitution” but also for “ the organization and establishment of a state government,” but said: “ We assent fully to the proposition that the power of the conven- tion was special and limited, and that it had not legislative power. But within this special and limited power was em- braced the power of adopting an ordinance putting in opera- tion the governmental agencies.” The case of Quinlan v. Houston & Texas Central Rail- way Company * involved the validity of a Texas ordinance of 1868 providing for the levy of a tax on certain counties 86 Scheible v. Bacho, 41 Ala. 423; Kirtland v. Molton, 41 Ala., 548; Tarleton v. Bank, 41 Ala., 722; Powell vw. Boon, 43 Ala., 489; Wash- ington v, Washington, 69 Ala., 281. 67 McElvain v. Mudd, 44 Ala., 48; Ex parte Hall, 47 Ala. 675; Crump v. Battles, 49 Ala., 223. 6852 Ala, 559 (1875). £9 89 Tex., 356, 376-377 (1896). LEGAL POSITION OF THE CONVENTION IIl in aid of a railway company, should a popular vote of such counties favor this action. The-court said: “We are of opinion, however, that the ordinance was not valid. The convention which met on June 1, 1868, was assembled in pursuance of an act of congress passed March 23, 1867. It was called for the purpose of framing a constitution for the state with a view to its restoration to the union. The constitution to be framed by it was to be submitted to a vote of the people. . . . The act of congress did not invest the convention with the power of independent legislation. It is true that the question of the propriety of incorporating any specific provision into the fundamental law was for the sole determination of the convention. But we are of opin- ion that when a convention is called to frame a constitution which is to be submitted to a popular vote for adoption, it cannot pass ordinances and give them validity without sub- mitting them to the people for ratification as a part of the constitution. ... The ordinance of the convention in question, which divided the state into congressional dis- tricts, and that which provided for a submission of the pro- posed constitution to a vote of the people, are appended to the constitution as framed and the whole are signed by the president and members as one instrument. . . . There is no provision for a submission of the independent ordinances. In Stewart v. Crosby, 15 Texas, 546, an ordinance at- tached to the constitution of 1845 was held valid. In that case the court says: ‘For the present, then, it may suffice to say we think it free from doubt that the ordinance ap- pended to the constitution is a part of the fundamental law of the land. Having been framed by the convention that framed the constitution of the state, and adopted by the convention and the people along with the constitution, it is of equal authority and binding force upon the executive, legislative, and judicial departments of the government of II2 REVISION OF STATE CONSTITUTIONS the state as if it had been incorporated in the constitution, forming a component part of it.’ This decision was fol- lowed without comment in Grigsby v. Peak, 57 Texas, 142, in passing upon the validity of an ordinance of the conven- tion of 1866. . . . The convention which passed the ordi- nance which was held valid in Grigsby v. Peak was called by virtue of the proclamation of President Johnson. This proclamation did not require any part of the work of the con- vention to be submitted to the vote of the people, and in our opinion therefore had the power to pass ordinances without submitting them for adoption to a popular vote.” The ordi- nance now under consideration was not submitted to a vote, though two others, which were added, incorporated into and signed as a part of the constitution, were so submitted. Since the convention could not finally legislate, and since a vote of the people was necessary to make its action ef- fective, we conclude that the ordinance in question was in- valid, and not effective for any purpose.” To the same effect is a dictum in the case of Gibbes v. Greenville & Columbia Railroad Company.” In this case there was under consideration a South Carolina convention ordinance of 1868 annuling earlier legislative acts under which contract rights had been acquired. The court de- clared the ordinance invalid as impairing the obligation of contracts, but said: “It is not easy to define the powers which a convention of the people may rightfully exercise. It has been doubted whether any act of mere legislation in a state having a constitution can be passed by a convention called for a particular and different purpose. The body 70 This convention did submit the constitution which 1t framed but not the ordinance which was involved in this case. 7113S. C., 228 (1878). See also the statements of the South Carolina court in State ex. rel. McCready v. Hunt, 2 Hill (S. C.) Law, I, 270. LEGAL POSITION OF THE CONVENTION 113 is not constituted with two houses, and in other respects lacks the organization necessary for ordinary legislation. The convention of 1868 was not called for a purpose fairly embracing the subject of this ordinance, which was never submitted to the people.” 7? The Illinois convention of 1862 adopted an ordinance re- organizing the government of the city of Chicago, and repealing certain legislative acts in conflict with the ordi- nance; this ordinance was to become effective if approved by the people of Chicago, and was so approved. Several months after this approval the constitution framed by the convention, together with the ordinance regarding Chicago, was rejected by the people of the state. The supreme court of Illinois declined to enforce the ordinance, but the reasons for its action are not known.’* The case of Ex parte Bir- mingham and Atlantic Railway Company ™ involved the or- dinance power of the Alabama convention of 1901. The convention provided by ordinance that a term of court should be held at Pell City in St. Clair county, and the rail- 72In State v. Keith, 63 N. C., 140 (1869), which was also decided upon the ground that the ordinance in question violated the federal ‘constitution, the court discussed to some extent the legislative powers of the North Carolina convention of 1868. In Bragg v. Tuffts, 49 Ark., 554 (1887), the power of a convention to act as a regular legis- lative body is denied, but here too the ordinance in question was held invalid on federal grounds. A statement by Mr. William H. Arm- strong in his argument in the case of Wells v. Bain is also of interest here: “I do not believe that the convention has legislative powers in the sense that they could enact a law and put that law into operation, which should of itself or by itself be binding upon the state, and for the plainest of reasons. A convention is called to do a specific and particular work. They are called to frame a constitution, and that ‘constitution is absolutely null and void and nothing in contemplation of law, until it becomes a constitution either by proclamation or adoption, or both.” Philadelphia Press, Dec. 4, 1873, p. 8. 78 Jameson, 430-434. 74145 Ala. 514 (1905). 14 REVISION OF STATE CONSTITUTIONS road company sought to restrain the hearing of the case by a term of court held at that place. The law under which the convention assembled required that all its acts be sub- mitted to the people. The constitution was submitted to the people for approval, but this ordinance was not a part of the constitution and was not submitted. The court said: “ The ordinance in question pertains in no way to an amendment or revision of the constitution, and it was beyond the power of the convention to pass this ordinance, or it could not become binding or of legal force without having been sub- mitted to and ratified by the people.’ The court in this case, however, did not argue that a convention must not ex- ercise legislative power, but seemed to take the view that the ordinance was invalid because not submitted to the people as required by legislative act—that is, that the act of the legislature was absolutely binding upon the convention. In the case of Frantz v. Autry the court was called upon to consider the powers of a territorial convention act- ing under the authority of a congressional enabling act. The constitution as drafted for submission to the people di- vided Woods county into three counties; the election ordi- nance passed by the convention erected the three counties, appointed officers for them, and provided that they should serve as independent election districts, all of this before the people had sanctioned the separation of the county by adopting the constitution. An injunction was sought to prevent the new officers from serving and also to prevent the submission of that part of the constitution which pro- vided for the division of Woods county. An injunction was granted by the lower court but was dissolved by the territorial supreme court. The supreme court took the ground that the convention had authority under the: con- 7518 Okla. 561, 631 (1907). LEGAL POSITION OF THE CONVENTION 115 gressional act not only to frame a constitution and provide for its submission to the people, but also to provide for the establishment of a full state government; and considered the erection of the counties as incidental to the exercise of these powers. The erection of new districts for election purposes would seem to have been properly within the power of the convention, but it is not clear why the convention should need to exercise power to erect counties for govern- mental purposes, unless it were necessary to appoint county officers in order to have counties properly act as election dis- tricts. Chief Justice Burford, who concurred in the con- clusions of the court expressed clearly the limitations upon the powers of this (territorial) convention: “ The conven- tion has no power to enact laws; it possesses no legislative powers except such as may be necessary to exercise in pre- scribing by ordinance the methods and procedure for ob- taining the expression of the electors upon the ratification of the proposed constitution, and for the election of the officers provided for in the constitution.” Justice Burwell, in dissenting, said that the constitution could only operate for the future, and was inoperative until after approval by the people; and that until then no new counties or officers could be created; his view was that the power exercised was not necessary to the convention’s functions; and that while the convention might not be restrained, yet the courts must . restrain the convention’s officers from improper interfer- ence with the territorial officers before the constitution was adopted. The question is a close one, but it does seem that the convention went further than was necessary for the proper exercise of its functions. It may be said to be fairly well established, then, that a convention may not supersede the regular executive, legis- lative, and judicial organs of a state; it properly acts only by means of the constitution which it frames or adopts, 116 REVISION OF STATE CONSTITUTIONS and has only such powers as are necessary or incidental to the exercise of this function. Yet the constitutional conven- tion is a legislative body, although with limited functions, and it is within the sole determination of the convention as to what provisions shall be inserted into a new constitution. A constitutional convention may not properly enact a law or ordinance abolishing the fellow-servant rule, but it may insert into the new constitution a provision accomplishing the same purpose. By the insertion into new constitu- tions of matters really not fundamental in character con- stitutional conventions have come to exercise great powers of legislation.** Not only may a convention legislate by inserting provisions into a new constitution, but it may also do so by the submission to the people of separate clauses or ordinances to be voted upon either as a part of the consti- tution or separately from it—that is, it may exercise ordi- nance power ™ if the ordinances are submitted to the peo- ple with or at the same time as the proposed constitution.”* But how as to such separate legislation in a state where the submission of a constitution to the people is not re- quired? In State v. Neal and Grigsby v. Peak convention ordinances were upheld because the conventions were not required to submit any of their actions to the people, al- 76 “Tt seems plain that the really important law-making body at the present time is the convention.” Dealey, Our State Constitutions, g. See also Oberholtzer, Referendum in America, 76-98, and Jameson, 429-430. Bradford v, Shine, 13 Fla., 393, 411-415, is a case in which a convention’s power in this respect was denied but under such con- ditions that this case can hardly be cited as a precedent here. 77 The West Virginia constitution of 1876 recognizes such power by providing that: “And all acts and ordinances of said convention shall be submitted to the voters of the state for ratification or rejection, and shall have no validity whatever until they are ratified.” 78 For a discussion of the manner in which a convention may submit its work to the people see note on p. 258. LEGAL POSITION OF THE CONVENTION 117 though they did submit the constitutions which they framed but not the ordinances which were before the courts. The Mississippi convention of 1890 and the South Carolina con- vention of 1895 did not submit either their constitutions or their ordinances to the people, and the constitutions in these cases stand upon the same basis as ordinances of a purely legislative character which the conventions may have en- acted. Although it may be agreed that these conventions improperly exercised powers of a purely legislative charac- ter, sitll if the courts upheld constitutions promulgated by such conventions without popular approval, they would hardly dare annul legislative acts adopted by these bodies in the same manner; although they might interfere if a con- vention attempted to prolong its existence and exercise gov- ernmental powers after its constitutional functions had clearly ended.”® In states where conventions may promul- gate their work without popular approval, although their invasion of the purely legislative field may be deprecated, there seems to be nothing to prevent such action except the self-restraint and common sense of the convention itself. The same forces which practically compel conventions to submit their work to the people, in most of the states where they are not required by constitutional provisions to do this, will also keep them pretty definitely within their proper sphere, even where the courts may decline to interfere. 79 There have been only a few cases where conventions have, in time of peace, sought to prolong their existence after their work had been completed. For a discussion of this subject see Jameson, 476-489. CHAPTER IV THE AMENDMENT OF STATE CONSTITUTIONS Reference has already been made to the fact that our states have developed two methods of altering their con- stitutions, the first, through constitutional conventions chosen for the purpose; the second, by means of giving power to the regular legislative bodies to propose or adopt amendments. We have said that the convention as an instrument for constitutional revision was first developed during the revolutionary period, and that constitutional conventions were provided for in the first constitutions of Pennsylvania, Vermont, Georgia, and Massachusetts, and in the New Hampshire constitution of 1784. Six of the revolutionary constitutions contained no provision for alter- ation in any manner. The five above referred to contained provision for alteration only by means of conventions. Three of the revolutionary constitutions, those of Mary- land, Delaware, and South Carolina (1778), made pro- vision for constitutional amendment by legislative action. No one of the first state constitutions made provision for its alteration in more than one manner—those which considered the matter at all provided simply for one or the other methods here under consideration. But it soon be- came apparent that machinery would be needed both for the proposal of single amendments and for the revision of entire constitutions. Judge Jameson, speaking in 1887, said: “Of the one hundred and nineteen constitutions framed IIB AMENDMENT OF CONSTITUTIONS 11g by that number of conventions nine have contained no provision for their amendment or revision; twenty-nine have contained provision for their amendment or revision through the agency of conventions only; thirty-five through the agency of the general assemblies only; and forty-six for their amendment through the agency of either conven- tions or the general assemblies . . . These two modes. . . have kept pretty equal pace throughout the whole range of our constitutional history, some constitutions adopting the one mode and some the other; but for the first sixty years only four authorizing both modes, that of the United States of 1787, that of South Carolina, 1790, and those of Dela- ware of 1792 and 1831. During the period beginning in 1835 and ending in 1885, however, ten constitutions have provided for amendment by convention only, twenty-two in the legislative mode only, and forty-one in both modes, showing a growing conviction that the legislative mode has advantages which make its more general adoption seem desirable, and yet that it alone is not adequate to the exigencies of the times, but needs to have coupled with it a provision for a convention when the people should deem it necessary or expedient to make a general revision of the constitution.” * Of the seventeen constitutions adopted since 1887,” all but one (that of North Dakota) contain provision for alteration both by legislative proposal and by constitu- ‘Jameson, Constitutional Conventions, 4th ed., 550-551. See also Charles S. Bradley’s Methods of changing the Constitutions of the States, especially that of Rhode Island (Boston, 1885), appendix, pp. 78-82. Of constitutions adopted since the Revolution those of Penn- sylvania, 1790, and Virginia, 1830, 1851, 1864, contained no provision for alteration or amendment. 2Idaho, Montana, North Dakota, South Dakota, Washington, Wyo- ming, Mississippi, Kentucky, New York, South Carolina, Utah, Dela- ware, Louisiana, Alabama, Virginia, Oklahoma, Michigan. ° 120 REVISION OF STATE CONSTITUTIONS tional convention; the Oregon constitution of 1857 con- tained no specific provision for revision by convention, but such a provision was inserted into it by amendment of 1906. In all of the states except New Hampshire specific provision is now made for the amendment of state constitutions upon the initiative of the legislature. As already suggested in an earlier chapter, the convention system has been adopted almost as extensively, and although twelve of the state constitutions now in force make no specific provision for conventions, yet in a number of these states conventions have been held, and Rhode Island is the only one of them in which the view is officially declared against the holding of a convention. It may therefore be said that New Hamp- shire is the only state in which amendments may not be proposed by the legislature, and that Rhode Island is per- haps the only exception to the rule that conventions may be held for the revision of state constitutions. The amend- ment of constitutions by conventions really antedated the general use of the method of partial amendment through legislative action, although the two methods were intro- duced at the same time—the convention was more ex- tensively used at first, but its cumbersomeness for small changes * soon caused the states which employed it to adopt in addition or as a substitute the method of initiating pro- posed amendments in the legislature. The method of constitutional amendment through the regular legislative organs of the state had its origin in the South. The constitutions of Maryland (1776), Delaware (1776), and South Carolina (1778) made provision for partial amendment through legislative action. Delaware provided that certain parts of its constitution should not 8 The New York convention of 1801, for example, was called pri- marily for the purpose of determining the interpretation of one clause of the constitution of 1777. AMENDMENT OF CONSTITUTIONS I21 be subject to amendment and that “no other part of this constitution shall be altered, changed, or diminished with- out the consent of five parts in seven of the assembly, and seven members of the legislative council.”* The legisla- tive council was composed of nine members. In South Carolina (1778) it was provided that “no part of this constitution shall be altered without notice previously given of ninety days, nor shall any part of the same be changed without the consent of a majority of the members of the senate and house of representatives.” * For ordinary legis- lation sixty-nine members of the assembly, out of more than two hundred, formed a quorum, and less than half of the members of the senate were sufficient to act. These two constitutions established a distinction between con- stitutional and ordinary legislation, but the distinction was a very slight one. Constitutional changes might be adopted by a single legislature, but a larger majority was required for such action than for ordinary legislation. Maryland made a sharper distinction between constitu- tional amendments and ordinary legislation. The consti- tution of that state (1776) provided that no part of the constitution or bill of rights should be altered “ unless a bill so to alter change or abolish the same shall pass the general assembly, and be published at least three months before a new election, and shall be confirmed by the general assembly, after a new election of delegates, in the first session after such new election,” and that no part relating especially to the Eastern Shore should be altered without the concurrence of two-thirds of the members of both branches of the legislature.® 4Delaware constitution of 1776, Art. 30. 53 South Carolina constitution of 1778, Art. 44. 6 Maryland constitution of 1776, Art. 59. 122 REVISION OF STATE CONSTITUTIONS The Maryland provision was for some time copied, but those of Delaware and South Carolina were not imitated. South Carolina in 1790 and Delaware in 1792 copied the Maryland plan, and the South Carolina provision of 1790 represents pretty well this method of amendment: “ No part of this constitution shall be altered, unless a bill to alter the same shall have been read three times in the house of representatives and three times in the senate, and agreed to by two-thirds of both branches of the whole representa- tion; neither shall any alteration take place until the bill so agreed to be published three months previous to a new election for members to the house of representatives; and if the alteration proposed by the legislature shall be agreed to, in their first session, by two-thirds of the whole re- presentation in both branches of the legislature, after the same shall have been read three times, on three several days, in each house, then, and not otherwise, the same shall become a part of the constitution.” It was thought not to be sufficient to have constitutional amendments adopted, as in South Carolina in 1778 and Delaware in 1776, simply by an increased majority of a single legislature. So the Maryland plan for two succes- sive legislative actions was borrowed, but the older re- quirement that such action be had by increased legislative majorities was also retained. The people did not vote directly on a proposed amendment, but it was considered sufficient to have an amendment passed’ by two successive legislatures, by a vote greater than that required for or- dinary legislation. The people were presumed to have passed upon the amendment in the election of a new house of representatives, and if a proposed amendment were one of great popular interest, it would naturally have been made an issue in this election. This arrangement repre- sented a decided step in advance in popular control over AMENDMENT OF CONSTITUTIONS 123 amendments, as compared with that first adopted in Dela- ware (1776) and South Carolina (1778), and for a time was considered to give a sufficient popular participation in the adoption of constitutional amendments. Amending provisions somewhat similar to those of South Carolina (1790) were adopted in Delaware (1792, 1831, 1897), Georgia (1798), Missouri (1820), Arkansas (1836, 1864), South Carolina (1865), and Florida (1839). However, the growing democratic movement brought about a feeling that it would be desirable to have a more definite popular participation in the amendment of constitutions, and Dela- ware (1897) is the only state which still clings to an amending procedure without a popular vote of approval upon each proposed amendment. By the Alabama constitution of 1819 provision was made by which the people should vote directly upon proposed amendments—the earlier plan as used in Maryland and South Carolina was so altered that the people should vote directly upon amendments proposed by the legislature— but to the next succeeding legislature was left the determin- ation as to whether an amendment specifically approved by the people should be adopted into the constitution. The plan of submitting a proposed amendment to the people, but of giving to a second legislature the final decision of the matter has not been very extensively employed, and has been abandoned by Alabama and Texas, the two States in which it was first employed.’ South Carolina adopted this plan in 1868 and still retains it. The South Carolina constitution of 1895 provides that: “If the same [amend- ment or amendments] be agreed to by two-thirds of the members elected to each house, such amendment or amend- 7 Such provisions were contained in the Alabama constitutions of 1819, 1865, and 1867, and in the Texas constitutions of 1845, 1866, and 1868. 124 REVISION OF STATE CONSTITUTIONS ments shall be entered on the journals respectively, with the yeas and nays taken thereon; and the same shall be sub- mitted to the qualified electors of the state at the next gen- eral election thereafter for representatives ; and if a majority of the electors qualified to vote for members of the general assembly, voting thereon, shall vote in favor‘of such amend- ment or amendments, and a majority of each branch of the next general assembly shall, after such an election and be- fore another, ratify the same amendment or amendments, by yeas and nays, the same shall become part of the con- stitution.” The Mississippi constitution of 1890 also leaves the final determination with reference to an amendment to the legislature by providing that after an amendment has received the popular approval “then it shall be inserted by the next succeeding legislature as a part of this con- stitution.” An amendment approved by the people may thus be defeated by the legislature’s disobeying the con- stitutional order to insert it into the constitution.* However, with these exceptions the whole development has been toward confining legislative action simply to the proposal of amendments, the vote of the people being the final determination as to whether an amendment becomes or fails to become a part of the state’s fundamental law. The first suggestion for amendment upon the proposal of the legislature and after approval by the people was that con- tained in the draft of a proposed constitution for Virginia prepared by Jefferson in 1776; a similar provision was inserted into the proposed constitution which was re- jected by the people of New Hampshire in 1779: “ The general court shall have no power to alter any part of this constitution; but in case they should concur in any pro- ®Upon this subject see p. 196. Similar language appeared in the Mississippi constitutions of 1832 and 1868. AMENDMENT OF CONSTITUTIONS 125 posed alteration, amendment, or addition, the same being agreed to by a majority of the people, shall become valid.” ° The first constitution to take the final determination upon amendments from the legislature and to confide this power in the hands of the people was that of Connecticut in 1818. The Connecticut provision reads as follows: “ Whenever a majority of the house of representatives shall deem it necessary to alter or amend this constitution, they may propose such alterations and amendments, which proposed amendments shall be continued to the next general assembly, and be published with the laws which may have been passed at the same session; and if two-thirds of each house, at the next session of said assembly, shall approve the amendmetis proposed by yeas and nays, said amendments shall, by the secretary, be transmitted to the town clerk in each town in the state, whose duty it shall be to present the same to the inhabitants thereof, for their consideration, at a town meeting, legally warned and held for that purpose; and if it shall appear, in a manner to be provided by law, that a majority of the electors present at such meetings shall have approved such amendments, the same shall be valid, to all intents and purposes, as a part of this constitution.” Connecticut thus borrowed the amending procedure al- ready in use in a number of states, but added thereto a direct popular vote after the second legislative action. The reason for two legislative actions was to test popular senti- ment with reference to a proposed amendment, but the need for doing this ceased when the question was submitted to a direct vote of the people. This fact was not appreciated by the Connecticut convention, which borrowed the two ®Ford’s Writings of Jefferson, ii, 20, 30. New Hampshire Town Papers, ix, 841. Jefferson’s plan required the approval of a proposed change by county meetings in two-thirds of the counties. 126 REVISION OF STATE CONSTITUTIONS successive legislative steps from the Southern constitutions. The Maine constitution of 1819 is the first to dispense with two legislative actions, and to provide for the adoption of an amendment upon proposal by the legislature and subse- quent approval by the people. The amending provision adopted by Maine in 1819 reads as follows: “ The legis- lature, whenever two-thirds of both houses shall deem it necessary, may propose amendments to this constitution; and when any amendment shall be so agreed upon, a re- solution shall be passed and sent to the selectmen of the several towns, and the assessors of the several plantations, empowering and directing them to notify the inhabitants of their respective towns and plantations, in the manner pre- scribed by law, at their next annual meetings in the month of September, to give in their votes on the question whether such amendment shall be made; and if it shall appear that a majority of the inhabitants voting on the question are in favor of such amendment, it shall become a part of this constitution.” Since 1818 most of the states adopting new constitutions have followed either the Connecticut or Maine plans—have provided for the proposal of amendments either by two suc- cessive legislatures or simply by one legislature, with the amendment becoming effective upon the subsequent ap- proval of the people. A few states have since that date adhered to the plan of amendment by two successive legis- latures, without a popular vote, and a few also have clung to the system adopted into the. Alabama constitution of 1819, providing for a popular vote upon each amendment, but leaving to a succeeding legislature the determination of whether an amendment approved by the people should be- come effective. Delaware (1897) is now the only state which does not require a popular vote upon amendments. South Carolina and Mississippi are the only ones in which AMENDMENT OF CONSTITUTIONS 127 a popular vote of approval may be nullified by subsequent legislative action.'° Popular control over the adoption of amendments has, therefore, been almost fully established. But until re- cently the power to propose amendments had been left en- tirely in the hands of state legislatures. During the past few years, however, there has been a demand for a popular share in the proposal of amendments as well, and several states have adopted constitutional provisions permitting this to be done, although leaving undisturbed the legis- lative power of proposing amendments. An Oregon con- stitutional provision of 1902 permits the proposal of amend- ments to a vote of the people by a petition of eight per cent of the legal voters of the state; Oklahoma in 1907 provided that an amendment may be initiated by a petition of fifteen per cent of the legal voters of the state; and Missouri in 1908 adopted a provision permitting amend- ments to be proposed by a petition of eight per cent of the legal voters in at least two-thirds of the congressional dis- tricts of the state. The Michigan constitution of 1908 provides for the popular initiation of amendments, but per- mits the state legislature to prevent the submission of such proposals to the people if it wishes to do so. The Michi- gan provision reads as follows: “Amendments may also be proposed to this constitution by petition of the qualified electors of this state but no proposed amendment shall be submitted to the electors unless the number of petitioners therefor shall exceed twenty per cent of the total number of electors voting for secretary of state at the preceding 10It is of some interest to note that the Alabama convention of 1819 and’ the Missssippi convention of 1832, although not submitting their work to a popular vote, did provide in the constitutions which they drafted that proposed amendments should be submitted to a direct vote of the peoole. 128 REVISION OF STATE CONSTITUTIONS election of such officer. All petitions shall contain the full text of any proposed amendment, together with any exist~ ing provisions of the constitution which would be altered or abrogated thereby ... All petitions for amendments filed with the secretary of state shall be certified by that officer to the legislature at the opening of its next regular session; and, when such petitions for any one proposed amendment shall be signed by not less than the required number of petitioners, he shall also submit the proposed amendment to the electors at the first regular election there- after, unless the legislature in joint convention shall dis- approve of the proposed amendment by a majority vote of the members elected. The legislature may, by a like vote, submit an alternative or a substitute proposal on the same subject.” It is probable that this provision will result in the submission to the voters of Michigan of practically all proposed amendments petitioned for. The people, having gained control over the ratification of amendments, have thus assumed a large control over the proposal of amend- ments as well.** 11 No part of the amending clause of the Michigan constitution may be changed by means of an initiative proposal. An amendment proposed by popular initiative must, in order to be adopted re- ceive the affirmative vote of “not less than one-third of the highest number of votes cast at the said election for any office,” while amend- ments proposed by the legislature are required to obtain simply a majority of the votes cast upon their adoption or rejection. The initiative for the proposal of amendments was employed in Oregon in 1906 and 1908; five amendments were proposed in 1906 and six in 1908, with reference to the following subjects: In 1906. (1) Woman’s suf- frage. (2) Amendment of the constitution; referendum on laws for the holding of constitutional conventions. (3) Giving cities ex- clusive power to frame'and amend their charters. (4) Permitting state printing and compensation of state printer to be regulated by law. (5) Extending initiative and referendum to towns, cities, etc. Re- ferendum on sections or items of legislative acts. In 1908. (6) Wo- man’s suffrage. (7) Permitting cities and towns to regulate theaters, AMENDMENT OF CONSTITUTIONS 129 Along with this steady increase of popular control has gone a movement toward the simplification of the amending process. The general adoption of a method of constitu- tional amendment through legislative proposal was in itself the one important step toward greater ease in altering the state’s fundamental law. This method once adopted, the tendency has been to make its use easier. A feeling once existed that the constitution was an instrument embodying permanent and unchanging principles, and that it should therefore be altered infrequently ; as a corollary to this view numerous restrictions were placed upon the power of amend- ment. But now, since our state constitutions have come to be filled with legislative details which require frequent alteration, the view as to the unchangeable nature of con- stitutions has undergone a change. Frequent alterations are now necessary to bring the constitutional provisions into harmony with changing conditions, and this fact has made it necessary that machinery be devised for making such changes easily and promptly. Reference was made above to the fact that Connecticut in 1818 adopted the plan of requiring two legislative ac- tions before a proposed amendment should be submitted to the people. Maine in her constitutional provision of race-tracks, pool-rooms, sale of liquor, etc. (8) Single tax amend- ment—exemption from taxation of improvements on property. (9) Recall of elective officers. (10) Proportional representation. (11) Indictment by grand jury rather than prosecution on information. The proposals numbered one, six, seven, and eight were rejected by the people; the others were adopted. A proposal for a popular initiative upon laws and constitutional amendments was adopted by the Arkansas legislature in 1909, and will be submitted to the people in September, 1910. Arkansas Acts, 1909, p. 1238. A similar proposal adopted by the Nevada legislature in 1909 must be submitted to and approved by the succeeding legisla- ture before it may be acted upon by the people. Nevada Laws, 1909, D. 347. 130 REVISION OF STATE CONSTITUTIONS 1819 recognized that one legislative proposal is sufficient if the proposed amendment is to be submitted to the people for approval. The example of Maine, although adopted by Mississippi in 1832, was not followed immediately by other states, and this simpler amending process did not begin to be very widely used until after 1850. Michigan in 1850, Ohio in 1851, and Louisiana in 1852 permitted amendment upon the proposal of one legislature simply, and since that time this method has been the one most generally adopted into new constitutions. Of the seventeen constitutions adopted since 1885 all but three ** provide for action by one legislature only ; and Oregon by an amendment of 1906 made a similar provision. The recent development has been quite decidedly toward permitting action by one legis- lature rather than by two. In the states providing for only one legislative action it has usually been customary to re- quire such action to be taken by more than a majority of the legislature; of the thirty state constitutions to which amendments may now be proposed by one legislative ac- tion, six permit such proposal by a majority vote,’* seven require a three-fifths vote,** and ‘seventeen require a vote of two-thirds of the members of each of the two houses.’® Among the states which require the action of two successive legislatures for the proposal of amendments, the tendency has been to require a smaller majority of the legislative 12, North Dakota, 1889; New York, 1894; Virginia, 1902. 18 Arkansas (1874), Minnesota (1857, 1898), Missouri (1875), Okla- homa (1907), Oregon (1906), South Dakota (1889). 14 Alabama (1901), Florida (1885), Kentucky (1891), Maryland (1867), Nebraska (1875), North Carolina (1875), Ohio (1851). 15 California (1879), Colorado (1876), Georgia (1877), Idaho (1889), Illinois (1870), Kansas (1859), Louisiana (1898), Maine (1819), Michigan (1908), Mississippi (1890), Montana (1859), South Carolina (1895), Texas (1876), Utah (1895), Washington (1889), West Virginia (1872), Wyoming (1889). AMENDMENT OF CONSTITUTIONS 131 bodies for such proposals. The Connecticut provision of 1818 permitted the first legislative proposal to be made by a majority of the house of representatives, but required that the second legislative action be taken by two-thirds of each house. Massachusetts by an amendment of 1821 re- quired that both the first and second proposals be approved by a majority of the senators and two-thirds of the house of representatives. For a time some of the states followed the practice of requiring two-thirds or at least three-fifths of the legislative vote for the first and second legislative proposals; but since Pennsylvania in 1838 prescribed a simple majority of all members elected to each house, this has been the more general requirement. Of the fourteen states which now require two successive legislative pro- posals, ten prescribe that such proposals shall be by a ma- jority of the members elected to each house.** Of the other ‘four states reference has been made above to Connecticut and Massachusetts; Vermont by an amendment of 1870 re- quires that the first proposal be made by two-thirds of the members of the senate and a majority of the members of the house of representatives, but requires simply a majority of the members of each house for the second proposal.’ Tennessee (1870) permits the first proposal to be made by a majority of all members elected to each house, but re- 16Indiana (1851), Iowa (1857), Nevada (1864), New Jersey (1844), New York (1894), North Dakota (1889), Pennsylvania (1873), Rhode Island (1842), Virginia (1902), Wisconsin (1848). The New York constitution of 1821 required action by a majority of the members elected to the first legislature and by two-thirds of the members elected to the second legislature, but this was changed in 1846 to the requirement of a majority in each case. 17%In Connecticut, as has been suggested above, the first legislative action is by the house of representatives alone, without the concur- rence of the senate. In Vermont the proposal of amendment must originate in the senate, but the first legislative action upon it must be by both house and senate. 132 REVISION OF STATE CONSTITUTIONS quires a two-thirds vote for the second proposal. In this connection it may be worth while to mention that in Dela- ware, where a proposed amendment is not required to be submitted to a popular vote, an amendment is adopted when passed by two successive legislatures, if agreed to in each case by two-thirds of all members elected to each house. Although there has been a tendency to simplify the pro- cess of legislative proposal, there are two other respects in which there seems to be little if any tendency in recent years to make easier the amendment of state constitutions ; these are (1) the actual limitations in the constitutions as to the number, frequency, and character of proposals, and (2) the popular vote required for the adoption of amend- ments. Of the eleven constitutions now in force which impose limitations upon the proposal of amendments the greater number are of comparatively recent date.* New Jersey and Pennsylvania permit the proposal of amendments only once in five years, Tennessee once in six years, Vermont once in ten years.° The Illinois constitution provides that no amendment shall be proposed to more than one article of the constitution at the same session, and that the same article shall not be amended oftener than once in four years. The Colorado constitution of 1876 provided that the legis- 18 Arkansas (1874), Colorado (1876), Illinois (1870), Indiana (1851), Kansas (1859), Kentucky (1891), Montana (1889), New Jersey (1844), Pennsylvania (1873), Tennessee (1870), Vermont (1870). 18 The Pennsylvania restriction was also in the constitution of 1838. The Vermont constitutional commission in its report in Janu- ary, I910, recommends the adoption of a provision permitting amend- ments to be proposed at any session of the general assembly and pro- viding that the first proposal may be made by a majority rather than two-thirds of the members of the senate. Governor Fort, of New Jersey, in 1908 recommended that an amendment be adopted permitting the submission of amendments once in three years. AMENDMENT OF CONSTITUTIONS 133 lature should have no power to propose amendments to more than one article of the constitution at the same ses- sion, but this provision was amended in 1900 so as to per- mit the proposal of amendments to six articles at the same time. In Indiana, while an amendment agreed upon by one legislature is awaiting the action of the succeeding legislature, or of the electors, no additional amendment may be proposed; a similar provision of the Oregon con- stitution °° was repealed in 1906. Arkansas, Kansas, and Montana forbid the submission of more than three amend- ments at the same election; Kentucky forbids the submis- sion of more than two amendments, and provides that the same amendment shall not be submitted oftener than once in five years. The provisions in Florida, Kentucky and Texas ** that amendments may be submitted only at regular legislative sessions do not constitute serious restrictions upon the amending power, The present restrictions upon the proposal of amendments in Arkansas, Kansas, Mon- tana, and Colorado are so slight as to have little appreciable influence; but the limitations in Pennsylvania, New Jersey, Tennessee, Vermont, and Illinois are so strict as to prevent the ready adaptation of the constitutions to changed con- ditions. In Illinois amendments were proposed in 1892 and 1896, which would have released the legislature from some of the restrictions placed upon it by the constitution, but these amendments failed to be adopted. In a number of states the popular vote required for the adoption of an amendment makes the alteration of the constitution extremely difficult, and in these states there has been little tendency toward making the process of amend- ment easier. In all but thirteen states an amendment which 20 Kadderly v. Portland, 44 Ore., 118. 21 And a somewhat similar provision in Virginia, 134 REVISION OF STATE CONSTITUTIONS receives a majority of the votes cast upon the question of its adoption or rejection, is adopted. In eleven states *° an amendment to be adopted must receive a majority of all votes cast at the election in which it is submitted; that is, if at an election in Indiana 600,000 votes were cast for governor, a proposed amendment in order to be adopted must have received an affirmative vote of at least 300,001 ; because of the fact that more interest is ordinarily taken in candidates than in measures, proposed amendments usually fail in these states for the reason that not enough votes are cast for them to give such a majority as is constitution- ally required. Oregon in 1906 abolished the requirement that amendments to be adopted should receive a majority of all votes cast at the election when they were submitted ; but this requirement was adopted by Minnesota in 1898 and by Oklahoma in 1907. Mississippi in 1902 rejected a pro- posal that amendments should be considered to have ob- tained the popular approval when they received a majority of the votes cast upon their adoption or rejection. Rhode Island requires that a proposed amendment, in order to be adopted shall be approved by three-fifths of the electors of the state voting thereon, and in New Hampshire no amend- ment may be adopted unless approved by two-thirds of the electors voting thereon; in these states also, proposed amend- ments often fail of adoption because they do not receive the requisite majority.” Of the present state constitutions the provisions for specific amendment may be divided into six classes: (1) The proposal of amendments by a constitutional convention only. (New Hampshire, 1792). 22 Alabama, Arkansas, Illinois, Indiana, Minnesota, Mississippi, Ne- braska, Ohio, Oklahoma, Tennessee, Wyoming. 28 See p. 185 for a discussion of the efforts to amend in these states. AMENDMENT OF CONSTITUTIONS 135 (2) Amendment by the action of two successive legis- latures, without a direct popular vote. (Delaware, 1897). (3) Proposal by the legislature, with a popular vote upon the proposal, but with the final determination left with the legislature after the people have approved a proposed amend- ment. (Mississippi, 1890; South Carolina, 1895). (4) Amendments proposed by the legislature, and sub- ject to popular approval, but with the amending process subject to such restrictions as to make constitutional alter- ation difficult. Such restrictions are of three kinds. (a) The requirement of action by two successive legis- latures for the proposal of amendments. (Connecticut, 1818; Indiana, 1851; Iowa, 1857; Massachusetts, 1821; Nevada, 1864; New Jersey, 1844; New York, 1894; North Dakota, 1889; Pennsylvania, 1873; Rhode Island, 1842; Tennessee, 1870; Vermont, 1870; Virginia, 1902; Wis- consin, 1848). (b) Limitations as to the number, frequency, and char- acter of proposals. (Arkansas, 1874; Colorado, 1876, 1900; Illinois, 1870; Indiana, 1851; Kansas, 1859; Ken- tucky, 1891; Montana, 1889; New Jersey, 1844; Penn- sylvania, 1873; Tennessee, 1870; Vermont, 1870). (c) Requirements of a popular vote greater than that of a majority of all persons voting upon the amendment. (Alabama, 1901; Arkansas, 1874; Illinois, 1870; Indiana, 1851; Minnesota, 1898; Nebraska, 1875; Ohio, 1851; Ok- lahoma, 1907; Rhode Island, 1842; Tennessee, 1870; Wy- ‘coming, 1889. Here also should be classed Mississippi, 1890, and the New Hampshire requirement that an amendment receive two-thirds of the vote cast upon the question of its adoption or rejection.) (5) The unrestricted proposal of amendments by one legislative action merely, and their adoption by the vote of a majority of the persons voting thereon. (California, 136 REVISION OF STATE CONSTITUTIONS 1879; Florida, 1885; Georgia, 1877; Idaho, 1889; Louisi- ana, 1898; Maine, 1819; Maryland, 1867; Missouri, 1875 ;. Michigan, 1908; North Carolina, 1875; Oregon, 1906; South Dakota, 1889; Texas, 1875; Utah, 1895; Washington, 1889; West Virginia, 1872. The restrictions upon the legis- lative proposal of amendments in Colorado, Kansas, and Montana are so slight as to make it proper to class the con- stitutions of these states here rather than among those diffi- cult of amendment. South Carolina may also be classed with this group in so far as respects the proposal and popu-. lar vote upon amendments. ) (6) Those which, in addition to the legislative power of proposal, permit the popular initiation of constitutional amendments. (Oregon, 1902; Oklahoma, 1907; Michigan, 1908; Missouri, 1908. ) As has already been suggested the tendency is toward the easy amending process represented by the fifth type, and the development in quite recent years has been to make amend- ment still easier by giving the power of initiating amend- ments to the people. The group of states whose constitu-. tions are least flexible is that of subdivision (c) of the fourth type; but where, in addition to the requirement of a majority of all votes at an election, there are other re- strictions upon the amending process, the alteration of a constitution often becomes practically impossible. This is. true of Tennessee, where we have a combination of limita- tions—not only is a majority of all votes required to be cast for an amendment, but also amendments may only be proposed once in six years and the action of two successive legislatures is required for such proposal. So, but to a less extent than in Tennessee, the amending procedure of Illinois and Indiana is burdened by restrictions to such an. extent as to be practically unworkable. The requirement of proposal by two successive legis- AMENDMENT OF CONSTITUTIONS 137 latures, while it defeats many projects which would other- wise go to the people, cannot be said to interpose a serious obstacle in the way of constitutional alteration. Nor in fact, even in the cases of Vermont, Tennessee, New Jersey, Pennsylvania, and Illinois, do the restrictions upon the proposal of amendments interpose insuperable barriers. But when these provisions are combined with the require- ment of a popular vote which is ordinarily impossible to obtain except upon questions of the greatest importance, as is done in Tennessee, the amending process becomes almost useless.2* Even where the restrictions are not so stringent, but where two legislative actions are required and the legis- lative proposal of amendments restricted, the amending pro- cess is so slow and cumbersome as to prevent a ready ad- justment of the fundamental law to changing conditions. Almost all of our state constitutions are full of detailed pro- visions adopted to meet evils or defects apparent at the time when such constitutions were adopted. These provisions, under different circumstances, often prove a bar to progress and require prompt removal. Of course it is possible to argue that detailed provisions devised to meet temporary needs are out of place in the constitution, and should not 24In most of these states the difficulty of amendment by the legis- lative process is not balanced by ease of alteration through the assem- bling of a convention. In Illinois, Minnesota, Nebraska, Ohio, and Wyoming, a convention may not be called except after the affirmative vote of a majority of those voting at a general election. In Tennessee the question may be submitted at a special election, but must receive a majority of the votes cast at the election when it is submitted. In Oklahoma a convention may be called if a majority of those voting upon the measure should approve the legislative act providing for a convention; in Oxlahoma, therefore, it should not be difficult to as- semble a convention, if there were any strong sentiment in favor of such action, and the same is true of Tennessee, where the question could perhaps be carried without difficulty if submitted at a special election. 138 REVISION OF STATE CONSTITUTIONS be put there at all; but the fact is that the constitutions do contain such provisions, and that the present tendency is to increase rather than to reduce their number. As long as constitutions are filled with legislative details, many of which must necessarily be subject to frequent change, the instrument which does not take this fact into consideration and make provision for such change is defective. The hindrances to constitutional change which have been devised are of two kinds: (1) those which make any change difficult ; (2) those which make an actual change fairly easy, but which provide a method of change requiring a long time for its operation. The provisions requiring a popular vote larger than that of a majority of those voting upon the measure, belong to the first class; those requiring two legislative actions and permitting the proposal of amend- ments only at long intervals, belong to the second class. Simply the requirement of a long time to obtain an amend- ment forms, however, an important check upon constitu- tional change. Where the action of two legislatures is required to propose an amendment the time required is a very long one, as legislative sessions are now biennial in all but a few of the states; the plan of permitting proposal by one legislature reduces the time required for constitutional alteration by more than one half. In South Carolina and Mississippi a second legislative action is required after popular approval; in South Carolina where legislative ses- sions are annual this is apt not to produce a long delay, although the legislature has two years within which to act. Regular legislative sessions in Mississippi are quad- rennial and here the amending process is particularly slow; two amendments proposed by the legislature in March, 1900, were voted upon by the people in November, 1900, and were inserted into the constitution by legislative action AMENDMENT OF CONSTITUTIONS 139 in January, 1904.7 The plan of proposal by a single legis- lature with adoption by subsequent vote of the people ordin- arily permits an amendment to be made in two years less time than where two legislative actions are required; in most of the states the process of amendment even with proposal by a single legislature requires for its operation a period of nearly two years.*® The popular initiative as employed in Oregon reduces the time required for the adoption of an amendment to less than six months; initiative petitions must be presented at least four months before the election, and the measure proposed by petition becomes a part of the constitution upon its adoption by the people at such election. Mr. Bryce in his interesting discussion of flexible and rigid constitutions *” classes as flexible those constitutions which may be altered in the same manner as ordinary legis- lation; and as rigid those which may not be changed by the regular legislative processes, but for the alteration of which some different and usually more cumbersome ma- chinery has been devised; he therefore classes as rigid the constitutions of the states of the United States. Mr. 25 Mississippi laws, 1904, pp. 223, 225. A Mississippi proposed amendment of 1908 would have permitted action by the legislature upon amendments at the biennial special sessions, and would have reduced the time required for adoption by two years, but this proposal was not submitted to a vote of the people, because not advertised in accord- ance with constitutional requirements ; amendments may be inserted into the constitution at an extraordinary session of the legislature, if such a session is convened by the governor with power to take such action. 26 That is, if an amendment is proposed at a regular biennial session in the early spring of an odd year and is submitted at the regular election in November of the succeeding even year. An amendment to the Maine constitution adopted in 1908 requires that amendments be sub- mitted in the September following their proposal, and thus reduces the time required for the adoption of an amendment to less than one year. 27 Studies in History and Jurisprudence, 124-213. 140 REVISION OF STATE CONSTITUTIONS Bryce’s classification has been very properly criticized by Mr. A. Lawrence Lowell on the ground that in many countries where a distinction is made between the functions of constitution-making and ordinary legislation, such dis- tinction is so slight as to be of little value. “ From coun- tries which can change their fundamental constitution by the ordinary process of legislation we pass by almost im- perceptible degrees to those where the constitutional and law-making powers are in substantially different hands.” *° We may use the terms rigid and flexible here in their more commonly accepted sense, and refer to constitutions as flexible when they may be easily changed, and as rigid when they are difficult to change. It is of course true that constitutions alterable by the regular legislative processes will be easier to change than others, and should therefore be classed as flexible; but of constitutions not alterable by the ordinary legislative processes (and here we must class all constitutions of states in the United States except in so far as several of the states have adopted the initiative and referendum), some may be changed with ease and others may be altered only with great difficulty. The constitu- tions of Delaware, Oregon, California, and Louisiana, for example, are flexible in the sense in which that term is here used, while the constitutions of Tennessee, Illinois, and Indiana are rigid.?® 28 Lowell, Government of England, i, 3. For example, the Dela- ware (1776) and South Carolina (1778) amending provisions made a very slight distinction between constitutional alteration and ordinary legislation; and the Delaware constitution of 18907 makes less of a distinction than do the constitutions now in force in other states. For a discussion of the cases in which, through the introduction of the in- itiative and referendum, similar methods are being employed for con- stitution-making and for ordinary legislation, see p. 250. 2® Most of the constitutions of the New England and Middle Western States are rigid. See papers by J. A. Fairlie and Allen Johnson in AMENDMENT OF CONSTITUTIONS 141 In the amendment of state constitutions, except in Dela- ware, there are always two distinct steps, first, the pro- posal of the amendment, and second, its approval by the people. Many constitutions specify in detail the procedure in each of these steps, and determine the methods of bring- ing proposed amendments to the attention of the people who are to pass upon them finally. For example the Penn- sylvania constitution of 1873 provides: “Any amendment or amendments to this constitution may be proposed in the senate or house of representatives; and, if the same shall be agreed to by a majority of the members elected to each house, such proposed amendment or amendments shall be entered on their journals with the yeas and nays taken thereon, and the secretary of the commonwealth shall cause the same to be published three months before the next gen- eral election, in at least two newspapers in every county in which such newspapers shall be published ; and if, in the gen- eral assembly next afterwards chosen, such proposed amend- ment or amendments shall be agreed to by a majority of the members elected to each house, the secretary of the com- monwealth shall cause the same again to be published in the Proceedings of the American Political Science Association, 1908. It may be worth while to call attention to the fact that amendments are often more frequent in one state than in another, even though the amending process may be equally as easy in the one as in the other. For example, amendments are frequently proposed and adopted in California, Louisiana, and Missouri, but not so frequently in Maine and Maryland; so in New York amendments are frequently adopted, while in Massachusetts, whose amending process is equally as simple, amendments are infrequently made. Somewhat similarly, the Mexican constitution, whose amending process is comparable with that of the United States in cumbersomeness, has been frequently altered, while it seems to be the general view that our federal constitution cannot be amended except in times of national crises. The frequency or in- frequency of amendments depends to a great extent, of course, upon popular satisfaction or dissatisfaction with existing institutions, and also upon the conservatism of the population of a state or country. 142 REVISION OF STATE CONSTITUTIONS manner aforesaid; and such proposed amendment or amend- ments shall be submitted to the qualified electors of the state in such manner, and at such time at least three months after being so agreed to by both houses, as the gen- eral assembly shall prescribe; and, if stich amendment or amendments shall be approved by a majority of those vot- ing thereon, such amendment or amendments shall become part of the constitution. ... When two or more amend- ments shall be submitted they shall be voted upon sepa- rately.” Here we have seven distinct requirements: (1) Proposal.in senate or house. (2) Agreement upon the pro- posed amendment by a majority of the members elected to each house. (3) Entry of the proposed amendment upon the journals of each house with the yeas and nays thereon. (4) Publication by the secretary of state. (5) A second agreement by the two houses. (6) A second publication by the secretary of state. (7) Submission to and approval by a majority of the voters. The Pennsylvania require- ments are more elaborate than those now provided in most of the states. However, some of these steps are re- quired in all of the states, and it may be worth while to discuss in some detail the constitutional provisions now in force regarding the proposal, submission, and adoption of amendments. As to the legislative majority required for the proposal of amendments, reference has already been made to the provisions of all constitutions now in force. Most of the constitutions require that the legislative proposal be adopted by the vote of a majority, or three-fifths, or two-thirds (or other vote as the case may be) of all members elected to each of the two houses. In these states, therefore, there can be no question as to whether the majority required is a majority of a quorum or a majority of all elected mem- AMENDMENT OF CONSTITUTIONS 143 bers; °° the constitution itself specifies the latter rule. In several of the constitutions, however, the language either does not specify as to whether the majority must be one of all members elected to each house, or is not absolutely clear in the matter.** Vermont provides for the first pro- posal of amendment by a vote of two-thirds of the mem- bers of the senate and a majority of the members of the house, and that the second legislative action be by a “majority of the members of the senate and house of representatives,” and this language, it would seem, must be construed to require a majority of all members. Missis- Sippi requires two-thirds of “ each house of the legislature,” and similar language is used in the constitutions of Connec- ticut, Maine, Minnesota, and North Carolina. The lan- guage of the Mississippi constitution has been the subject of judicial construction. In Green v. Weller *? the court said that a vote of “two-thirds of each house” must be con- strued to mean only a vote of two-thirds of a quorum of each house; and a similar interpretation was given to the same language by the supreme court of Missouri in the case of State v. McBride.** The constitution of Massa- chusetts makes it plain that only the action of a quorum is required for the proposal of amendments by providing that both legislative actions in that state shall be taken by a “majority of the senators and two-thirds of the members of the house of representatives present and voting thereon.” Several states require that proposed amendments be read three times on three separate days before passage.** In a 30 See statement in Holmberg v. Jones, 7 Ida., 752, 757, 758. 31 Connecticut, Maine, Massachusetts, Minnesota, Mississippi, North Carolina, Vermont. 32 32 Miss., 650 (1856). 334 Mo., 303 (1836). 84 Alabama, ‘Louisiana, Mississippi, South Carolina, Tennessee, West Virginia. 144 REVISION OF STATE CONSTITUTIONS recent case in Louisiana objection was made to an amend- ment on the ground that it had not been read in full on three separate days in each house. The supreme court of Louisiana very sensibly took the view that the constitution of that state did not require a proposed amendment to be read in full on three separate days, and said: “ It seems evi- dent, then, that when the constitution prescribes legisla- tive readings it means the ordinary parliamentary reading by title, or in such other manner as the particular house shall direct.” *° Most of the constitutions require the entry of a pro- posed amendment upon the legislative journals, together with the ayes and nays. By most of the constitutions mak- ing this requirement ** the provision is simply that the amendment shall be entered upon the journals of the two houses, and this language has given rise to some judicial discussion as to what form of entry is necessary. Where the constitution specifies entry in full on the journals of the two houses, as is done in certain cases,®” there is of course no question; but where full entry is not specifically re- quired the question has often arisen as to whether the en- try of the proposed amendment in full upon the journals is necessary, or if a mere identifying entry or journal ref- erence is sufficient. 35 Saunders v. Board of Liquidation, 110 La., 313 (1903). 86 Arkansas, California, Delaware, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maryland, Massachusetts, Nebraska, Nevada, New Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming. Rhode Island requires that the ayes and nays be published with the proposed amendment, and in Alabama the vote upon a proposed amendment is required to be “taken by yeas and nays and entered on the journals.” 87 Colorado, Illinois, Kentucky, Montana. The language of the Missouri constitution seems to require full entry but is not clear. AMENDMENT OF CONSTITUTIONS 145 There is perhaps no question but that the constitutions which require journal entry intended to require a full entry of the proposed amendment, for legislative journals would ordinarily, as a matter of course, contain an entry of action upon amendments without any such requirement; the pro- vision seems to have been introduced for the very purpose of requiring full entry. But where a legislature has con- strued the language differently, and has not made a full entry, and the proposed amendment has been adopted by the people, the question properly presents itself to the court that the language is not perfectly clear, and that if pos- sible the view should be taken which would uphold the validity of such an amendment. And this in fact has been the more usual attitude of the courts.** 38 Where one constitution required entry in the journals and under it entry by title had been customary, the adoption of a new constitu- tion with the same provision would, it seems, be an approval of the liberal construction, for if the other rule had been desired, the framers of the new constitution could easily have inserted a specific require- ment of full entry. Journal entry in full is certainly not now of great practical importance, and this matter is one with reference to which the courts can well afford to be liberal. Of some interest is the report of a joint committee of the South Carolina legislature upon this subject in 1906. An amendment substi- tuting biennial for annual legislative sessions had been submitted to and adopted by the people in November, 1904. A joint committee was appointed to consider the question of the legislature’s ratifying the amendment. The committee recommended that the amendment be not ratified, and said that it had not been properly adopted because not entered on the journals of the two houses; entry had been by title only, and the constitution simply required that proposed amendments should “be entered on the journals.” In view of the cases discussed below, it may be questioned whether the supreme court of South Caro- lina would have taken a view as strict as that of the legislative com- mittee; it should be remembered also that it is entirely within the dis- cretion of the legislature of South Carolina as to whether it shall ratify an amendment adopted by the people and the proposed amendment in this case would probably not have been ratified, even if the journal 146 REVISION OF STATE CONSTITUTIONS In Iowa the stricter view is held. Here the constitu- tion requires simply that the proposed amendments shall be entered on the journals, but the supreme court of that state held that entry by title only was insufficient, and declared invalid constitutional amendments approved by the people, because the legislative entry was deemed insufficient.*° The more general judicial interpretation of such provisions has, however, been different. In California the court wavered for a while but finally held an identifying reference in the legislative journals to be sufficient; *° and the same view has been adopted by the courts of Maryland,*t Kansas,* South Dakota,** and Florida.** In a recent Michigan case the court said: ‘‘ We are impressed that those cases which require an entry of the resolution in full as passed have much the better of the argument,” but did not find it neces- sary to pass upon this question because it found the entry to be sufficient in either case. The supreme court of Nebraska has also taken the view that full entry is required, although its statement with respect to this matter was per- haps not necessary to the decision of the case before the court.** entry had been thought sufficient. The committee’s view, therefore, has little weight as a precedent. South Carolina House Journal, 1906, PP. 47-49. 39 Koehler v, Hill, 60 Iowa, 543 (1883) ; State v. Brookhart, 113 Iowa, 250 (1901), £0 People wv, Strother, 67 Cal., 624; Thomason v. Ruggles, 69 Cal., 465; Oakland Paving Co. v. Hilton, 69 Cal., 479; Oakland Paving Co. v. Tompkins, 72 Cal. 5; Thomason v, Ashworth, 73 Cal., 73. 41 Worman v, Hagan, 78 Md., 152. 42 Constitutional Prohibitory Amendment, 24 Kan., 700. 43 State v, Herried, 10 S. D., 109. 44 West v, State, 50 Fla., 154. 45 People v. Loomis, 135 Mich., 556. In re Senate File No. 31, 25 Neb., 864, 883-886. AMENDMENT OF CONSTITUTIONS 147 Where entry in full is required there is of course little room for argument, but even here where cases have arisen the Colorado court has been very liberal in its attitude. In Nesbit v. People ** it was found that the senate and house journal entries of a proposed amendment did not agree and that full entry was not correctly made, but the court decided to overlook this informality and sustain the amend- ment; and the same position was taken in the later case of People v. Sours.*? In the Michigan case of People v. Loomis, referred to above, the court, while leaning strongly to the view that entry in full was necessary although this was not specifically required, took the position that even if entry in full were required a slight informality in the entry would be overlooked; here an amendment had been proposed in the house and entered in full; the senate amended the proposal and entered it in full as altered; the house then adopted the senate amendments, but did not enter the amended proposal in full on its journals, and such entry was said to be sufficient to comply with a requirement of full entry.** In the Montana case of Durfee v. 4819 Colo., 441. 47 31 Colo., 369. In Colorado, where “full entry” is specifically re- quired, the rule as interpreted by the courts is more liberal than in Towa, where there is no such specific requirement. The Kansas and ‘Colorado courts have called attention to the fact that if the rule regarding journal entry is strictly construed an amendment may be defeated by the carelessness of a clerical employee, even after its ap- proval by the people. Constitutional Prohibitory Amendment, 24 Kan., 711. People v. Sours, 31 Colo., 382. In the Kansas case Judge Brewer said: “ The records of the proceedings of the two houses are made, not by the houses themselves, but by clerical officers. True, they are under the control of the respective houses, but in fact the records are made by clerks. May they defeat the legislative will? The con- stitution does not make amendments dependent upon their approval or their action.” 48 The facts in this case are almost parallel with those in Re Senate File No. 31, 25 Neb., 864, 883, 884. 148 REVISION OF STATE CONSTITUTIONS Harper,** full entry upon the journals of the two houses was not made although this was specifically required, and the proposed amendment was therefore held invalid. Similarly in Nevada, where an entry upon the journals was required, no entry whatever was made, and the proposed amendment was held invalid because of failure to comply with a specific constitutional requirement.°° The question has frequently arisen whether, under con- stitutions giving the governor the veto power over legis- lation, this executive power also extends to legislative acts proposing constitutional amendments. Several of the earlier constitutions ** specifically gave this power to the governor, but this practice did not continue, and the only constitutions now in force which contain provisions regard- ing the governor’s participation in the proposal of amend- ments are those of Kentucky, Delaware and Alabama; these constitutions expressly provide that the governor’s approval shall not be necessary. The practice, however, developed, and has in some cases continued of submitting for the governor’s approval resolutions or bills proposing constitutional amendments.** This practice still continues in Arkansas ** and in some other states. In Arkansas, such 4922 Mont., 354. 50 State vw. Tufly, 19 Nev., 391. In this case it is said that “no entry of the proposed amendment was made upon the journal of either house,” but it may be that the court considered “entry” to be equiva- lent to “full entry,” and meant simply that full entry had not been made. However, an examination of the journals shows no entry of any sort which can be identified as that of the amendment under considera- tion. 51 Delaware, 1792, 1831; Louisiana, 1845. 52 Jameson, Constitutional Conventions, 4th ed., pp. 492, 503. See also Green v, Weller, 32 Miss., 677. 53 Arkansas acts, 1903, p. 485. In Arkansas there is a statute which specifically provides that the governor shall have a veto over pro- posed amendments. As to the binding force of such a statute see PP. 152-154. AMENDMENT OF CONSTITUTIONS 149 submission to the governor, even if his veto power were formally recognized, would constitute no serious limitation upon legislative power, for the governor’s veto in that state may be overcome by the vote of a majority of all members elected to each house. In several of the states where it has been customary to submit proposed amend- ments to the governor for approval, conflicts have arisen between the legislative bodies and the governor; and in judicial proceedings resulting from such conflicts, the courts have held that no executive veto exists with reference to proposed amendments. A review of the judicial decisions upon this point will indicate the present situation. Perhaps the most interesting case involving the gov- ernor’s veto of proposed amendments is that of State ex. rel. Morris v. Mason.** Here the legislature of Louisiana proposed an amendment for the creation of a lottery; and in accordance with the practice in that state the proposal was submitted to the governor for approval. The governor vetoed the proposal; the legislature then denied that he had any constitutional power to do so, and the legislature’s position was upheld by the supreme court. The necessity of questioning the governor’s power was purely accidental in this case. When the proposal was passed, the lottery advocates had a sufficient majority in each house to overcome a veto without questioning its propriety, but before the governor’s veto was given the state senate had lost by death one member whose vote was necessary to overcome the veto. The lottery party thus found it necessary either to question the veto power or to lose all that they had sought to gain by corrupting the legislature. It may be worth noting that the proposed lottery amendment was defeated when submitted to the 5443 La. Ann., 590 (1891). 150 REVISION OF STATE CONSTITUTIONS people. Since the decision of State v. Mason, the practice has continued in Louisiana of submitting proposed amend- ments to the governor for approval, but such action is in no way necessary. So in Michigan the usual practice was to submit pro- posed amendments to the governor for approval, but this practice was departed from in 1907, and the supreme court of Michigan held that the governor’s approval was un- necessary.*° In cases which have arisen in North Dakota, Pennsylvania, and Nebraska a similar view has been taken.** In the Maryland constitution it is provided that each amendment shall be proposed by a separate “ bill,” and here it was contended with some plausibility that such a pro- posal should be subject to the governor’s veto power as well as other bills. In 1904 a proposed amendment was adopted by the legislature, but was not submitted to the governor, although it had been the practice to do this; however, the governor vetoed the proposal and declined to submit it to the people, but was required to do so by mandamus. The Maryland court said that the word “pill” was used in the amending clause simply to express a proposal or project, and not in the same manner as the word was used elsewhere in the constitution to refer to bills which should become law by legislative enactment and executive approval.°” The doctrine is well-established that executive approval is not required for the legislative proposal of constitu- 55 Murphy Chair Co. v. Attorney-General, 148 Mich., 563 (1907). 56 State v. Dahl, 6 N. D., 81 (1896); Commonwealth v. Griest, 196 Pa. St., 396 (1900); Im re Senate File No. 31, 25 Neb., 864 (1880); See also Koehler v, Hill, 60 Ia., 543, 558. 57 Warfield v, Vandiver, 101 Md., 78 (1905). AMENDMENT OF CONSTITUTIONS 151 tional amendments.°® However, the supreme court of California has sought to establish a principle which would produce the same result. The constitution of California provides that: “Any amendment or amendments to this constitution may be proposed in the senate or assembly, and if two-thirds of all the members elected to each of the two houses shall vote in favor thereof, such proposed amend- ment or amendments shall be entered in their journals with the ayes and nays taken thereon; and it shall be the duty of the legislature to submit such proposed amendment or amendments to the people, in such manner . . . as may be deemed expedient.” The supreme court of California held that the act of proposal was one of the legislature alone, independent of the governor, but that the provision for sub- mitting an amendment required the governor’s approval— that the legislature alone might propose, but could not alone submit its proposal to the people; the two steps are of course parts of one act—one is useless without the other —and the California court’s position is absolutely inde- fensible; it would seem to be a judicial quibble invented for the purpose of defeating the submission of a proposal to which the court was opposed.°® A contrary position was taken by the court of appeals of Maryland in the case of Warfield v. Vandiver,®® although the dissenting judges argued in favor of the California doctrine. 58 The same is true of amendments proposed to the federal consti- tution. See Hollingsworth v, Virginia, 3 Dallas, 378, and Jameson, Constitutional Conventions, 4th ed., 586-592. 59 Hatch v, Stoneman, 66 Cal., 632 (1885). 60 Warfield v. Vandiver, 101 Md., 78 (1905). The same point was raised but dismissed in Commonwealth v, Griest, 196 Pa. St., 396, 413, 414, and in State ex rel. Morris v. Mason, 34 La. Ann., 590, 649-655. The Louisiana court clearly distinguishes between legislation, as such, and the proposal and submission of an amendment; where the pro- visions with reference to submission relate only to the amendment or 152 REVISION OF STATE CONSTITUTIONS If it be true that the proposal of amendments is a function of the legislature, independently of the governor, then such power must be taken to carry with it full authority to determine how, within constitutional restrictions, the pro- posal shall be submitted to the people. Any other prin- ciple would leave the legislature helpless to exercise a power which it is conceded to possess. On the other hand there has been much legislation laying down rules to be followed in the submission of future amendments, and legislation of this character, should, without doubt, be subject to the governor’s approval, as are other legislative acts. Acts of this character would usually be followed by succeeding legislatures, but would seem to have no absolutely binding force. The legislative power to propose amendments is a continuing power and cannot be limited by some former legislative act, even though that act were one of ordinary legislation, enacted by the legislature with executive ap- proval—that is, if an act were passed by the legislature, and approved by the governor, providing a certain form of ballot for the submission of amendments, it would seem to be within the power of the succeeding legislature, acting without the approval of the governor in submitting a pro- posed amendment, to provide for a different form of ballot for such amendment. In a recent Michigan case a point arose similar to the one here involved. An act was passed in 1905 regulating the manner of submitting amendments; an amendment was submitted by the legislature in 1907 in a manner different from that prescribed by the act of 1905, and its validity was contested on this ground. The su- preme court of Michigan held that the legislature had amendments proposed at a given time, and cease to be in force when. such amendment or amendments are adopted or rejected, they do not constitute legislation which is subject to the executive veto. AMENDMENT OF CONSTITUTIONS 153 power to submit amendments to the people and to deter- mine the method of submission; and that it was not re- stricted by any previous legislation.** An opposing prin- ciple was, however, laid down in Nevada by the case of State v. Davis.°? The constitution of Nevada made it the duty of the legislature to submit amendments to the people “in such manner and at such time as the legislature shall prescribe.” The legislature by an act of 1887 had estab- lished certain rules regarding the publication and distri- bution of proposed amendments, and these rules had not been complied with in the case before the court. The court held that it was the duty of the legislature to determine the manner of submission, and that such manner when determined was binding upon it. It held the amendments invalid which had been submitted in a manner different from that prescribed by the law of 1887, and said: ‘“ What- ever may be said of the policy of the law, the conditions imposed are within the proper province of the legislature, and being imposed, were indispensible to a valid adoption of the proposed amendments.” The establishment by law of definite restrictions upon the amending power, in addi- tion to the restrictions imposed by the constitution, might take the control of the amending process to a. large extent out of the hands of the legislative bodies, in which such power is sought to be vested, and practically place it in the hands of the governor, without whose consent legal restric- tions so imposed could not be removed. Such a result certainly was not contemplated and might possibly lead to a deadlock. The better view would seem to be that a legis- lative body in its proposal of amendments is bound only by 61 Murphy Chair Co. v. Attorney-General, 148 Mich. 563 (1907). See also Lovett v. Ferguson, 10 S. D., 44 (1897), and In re Denny, 156 Ind., 111. 62 20 Nev., 220 (1888). 154 REVISION OF STATE CONSTITUTIONS such restrictions upon this function as are contained in the constitution itself. One legislature may not impose re- strictions upon the exercise of this power by a succeeding legislature, by means of a law enacted with the approval of the governor. For example, in Arkansas there is a legislative act providing that proposed amendments shall be subject to the governor’s veto; this requirement is one which is not laid down in the constitution, and may be ignored by any succeeding legislature, without being form- ally repealed.** With reference to restrictions in the constitution itself, it may be said that the legislature as a body for the pro- posal of amendments is bound only by the rules specifically laid down in the article of the constitution which regulates the amending process—that is, it is not bound by the re- quirements that its action as a regular legislative body be submitted to the governor nor by the numerous restrictions usually imposed as to the procedure on regular legislative bills. This point came out squarely in the Minnesota case of Julius v. Callahan.°* Here it was contended that a constitutional amendment was invalid because the subject was not expressed in the title of the act of proposal, this being a constitutional requirement with reference to ordin- ary legislative acts, but the court said that the restrictions 83 Kirby’s Digest, 1904, pp. 324, 325. This provision is apt to cause no practical difficulty because the majority required in Arkansas to over- come an executive veto is the same as that required to propose an amendment, but the same principle applies here equally as in cases where restrictions of a more burdensome character might be imposed. But in North Carolina provision is specifically made that submission of proposed amendments shall be in “such manner as is prescribed by law,” and in Kentucky publication is to be had in a manner prescribed by law, so that in these cases rules laid down by the legislature would be binding until repealed. 6463 Minn., 154 (1805). AMENDMENT OF CONSTITUTIONS 155 imposed upon the legislature acting in its ordinary capacity did not apply to the proposal of amendments; that a formal act or statute was not necessary for such a proposal, but that a joint resolution of the two houses was sufficient. Whether the formal act of proposal be called a joint resolu- tion or act (or by any other name) makes no difference— the ordinary constitutional rules controling legislative action do not apply to them unless such rules are expressly re- peated in the amending clause of the constitution.* Although the legislative proposal of amendments is an act different in character from ordinary legislation (and subject in many ways to different rules) still it is essentially a legislative act. In this connection a curious question arose in 1900 under the California constitutional provision that a special session of the legislature should have “no power to legislate on any subjects other than those specified in the proclamation ” of the governor convening the special session. At a special session of the California legislature in 1900 a constitutional amendment was proposed, although this was a subject not included in the governor’s proclama- 85 Nesbit v. People, 19 Colo., 441. Commonwealth v, Griest, 196 Pa. St., 396. State v. Dahl, 6 N. D., 81. In re Senate File No. 31, 25 Neb., 864. Edwards uv. Lesueur, 132 Mo., 441. People v. Sours, 31 Colo., 379. Warfield v. Vandiver, 101 Md., 78 (1909). State ex rel. Morris v. Mason, 43 La. Ann., 590, 649-658. McBee v. Brady, 100 Pac., 97 (Idaho, 1909). In several cases the question has been raised as to the form in which amendments should be proposed but judicial expressions upon this subject have usually been dicta. The usual method, and that favored by the courts when they have expressed themselves is that by joint resolution. The Idaho court in McBee v. Brady suggested that the legislative proposal should indicate “the particular matter to be inserted or omitted as an amendment and the particular place the amendment is to be made,” but this was merely a suggestion; so also in this case the court suggested that matter not relating directly to the proposal or submission of the amendment should not be included in the resolution. Upon this subject see also Lovett v. Ferguson, ro S. D., 44. 156 REVISION OF STATE CONSTITUTIONS tion. The secretary of state ignored the legislative pro- posal, and an action was brought to compel him to submit the proposed amendment to the people. The court said that the power to propose amendments is legislative in character, and that the proposal was therefore void, because not within the power of the special session.*° As already suggested, a number of states require the action of two successive legislatures for the proposal of an amendment. Under such a requirement it is necessary of course that each proposed amendment be approved in the same form by the two legislatures.°7 But where the first legislature makes several distinct proposals, each such proposal must stand alone, and any one of them may be approved or rejected by the succeeding legislature,** even though the first legislature may have included all of its proposals in one resolution. In Trustees of University of North Carolina v. McIver °° the first assembly proposed seventeen amendments in one bill, and the second assembly adopted only eight of the seventeen, framing them in eight 66 People v, Curry, 130 Cal., 82 (1900). 67 Koehler v. Hill, 60 Iowa, 543, 549, is based in part on the ground that the proposed amendment as entered in the senate journal of the first legislature did not agree with the entries in the journals of the two houses of the second legislature; these entries might have been said, therefore, to show that the action of the two legislatures was not the same. But the evidence in this case did show that both legis- latures acted upon the same proposal; the only defect was that one journal entry was not properly made. 68“ Where a constitution authorizes specific amendments thereof by the action of two successive general assemblies, and several amend- ments are proposed by one general assembly, and one or more of them are rejected by the next general assembly, those which have re- ceived the approval of both are valid as parts of the constitution, the proceedings being otherwise regular.” Jameson, Constitutional Con- ventions, 4th ed., p. 618. 6972 N. C., 76 (1875). AMENDMENT OF CONSTITUTIONS 157 separate bills. It was contended that the seventeen proposals must hang together, and that the second legislature must approve all or none, but the court held that each proposed amendment was independent, even when combined with others in a single bill, and that the action of the second assembly was a proper one. A similar position was taken by the supreme court of Rhode Island in an opinion ren- dered at the request of the senate of that state in 1909.7 Here the first legislature had proposed an amendment which really comprised three distinct subjects, and the court was of the opinion that these subjects might be separated and submitted separately by the second legislature. It said that the numbering and arrangement of sections were not of the substance of the amendment and might be changed, but that the proposals themselves “should still appear in the same form of words as they were in the original resolu- tion.” 7* The adoption of any other principle than that laid down in Trustees v. McIver would reduce materially the power of the second legislature. The constitutions which require two legislative actions evidently intended that the second legislature should be free to adopt or reject each specific proposal of the first, and did not contemplate that 70 In re Opinion of Supreme Court, 71 Atl., 798. ™1The language of the Rhode Island constitution provides that amendments shall “be published and submitted to the electors in the mode provided in the act of approval” by the second legislature, and justified the separation of one amendment into several proposals as was done here; in other states it would seem that a single proposed amendment might not be split up into several proposals by the second legislature, but that it would have to be acted upon as a whole both by such legislature and by the people. Reference is made by the Rhode Island court to legislative actions in that state in 1854 pre- cisely parallel with those in Trustees v. McIver: the first assembly proposed nine distinct articles of amendment in a single resolution; the succeeding assembly approved only five of the nine and submitted them separately to the people. 158 REVISION OF STATE CONSTITUTIONS the first legislature should attempt to bind the second to the adoption or rejection of a whole group of proposed amendments. To this point the discussion of the actual steps in the amending process has related to legislative action purely. It will now be well to consider some questions which relate to the submission of proposed amendments, and of these the most important are those relating: (1) To the publica- tion of legislative proposals. (2) To the form of submis- sion, especially with reference to the separate submission of each legislative proposal. (3) To the elections, whether general or special, at which such proposals must be sub- mitted; and (4) to the popular vote required for the adop- tion of proposed amendments. Publication of Proposed Amendments In all of the states except Indiana, North Carolina, Oklahoma, Oregon, and South Carolina the constitutions contain some provisions regarding the publication of pro- posed amendments. Mississippi requires that public notice be given for three months, Michigan requires that proposed amendments be published and posted, Connecticut and Minnesota provide simply for publication with the laws; while California, Illinois, Iowa, Kentucky, Massachusetts, Nevada,”? North Dakota, South Dakota, Tennessee, Wis- consin, and Virginia simply provide for publication with- out specifying how proposed amendments shall be pub- lished.** Of the fourteen states which require two legis- 72In Nevada, where publication for three months is required, pub- lication in the state laws was held sufficient in State v. Grey, 21 Nev., 378. 78 But Illinois, lowa, Kentucky, Mississippi, Nevada, North Dakota, South Dakota, Tennessee, Wisconsin, and Virginia do specify as to the time within which publication shall be made. AMENDMENT OF CONSTITUTIONS 159 lative actions for the proposal of amendments, eleven ™ require some form of publication after the first and before the second legislative action, but only two, Pennsylvania and Rhode Island, require publication both before the second legislative action and before the final submission of the proposal to the people. In the states which require pub- lication the more usual provision is that the proposals shall be published in at least one newspaper in every county of the state; Delaware requires publication in three newspapers of each county, Pennsylvania in two newspapers; Vermont requires publication in the “ principal newspapers of the state; Georgia in one or more papers in each congres- sional district. The period of publication specified in the constitutions varies from four weeks in Missouri and Colorado to six months in Arkansas, Ohio, and Tennessee, but three months is the period fixed by most of the con- stitutions. Where a constitution contains specific provisions regard- ing the publication of proposed amendments such provisions must be substantially complied with in order that amend- ments may be validly adopted. For example, the Montana constitution requires the secretary of state to publish pro- posed amendments for three months before the election at which they are to be submitted; the case of State v. Tooker ** involved proposed amendments which had been published for only two weeks, and the amendments were held invalid although ratified by a popular vote. As a rule where there has been substantial compliance with the con- 74 Connecticut, Iowa, Massachusetts, Nevada, New Jersey, New York, North Dakota, Tennessee, Vermont, Virginia, Wisconsin. In- diana requires no publication. 7515 Mont. 8 (1894). See also State v. Board of Commissioners of Silver Bow County, 34 Mont., 426 (1906), where a similar question ‘was sought to be raised. 160 REVISION OF STATE CONSTITUTIONS stitutional provisions, this is deemed sufficient.7* For ex- ample, the Nebraska constitution requires that a proposed amendment be “ published once each week in at least one newspaper in each county where a newspaper is published, for three months immediately preceding ”’ the election. In the case of State ex. rel. Thompson v. Winnett,’” the pub- lication of a proposed amendment in one county had been made for one week less than the time required, but the court held this defect to be immaterial, and not to defeat the proposed amendment. So in Missouri the constitution requires publication of an amendment in each county for four consecutive weeks before the election, and in Russell v. Croy ™ those opposed to the contested amendment urged that this requirement made necessary four publications in each county within twenty-eight days before the election. The court said: “If we must construe the constitution in this respect as strictly as appellants would have us con- strue it, and if we must say that four weeks there means twenty-eight days, then we must say that the four pub- lications called for must have occurred within the twenty- eight days next preceding November 6th, that is, from Tuesday, October the gth, to November the 5th, both in- clusive, not sooner than the one nor later than the other date. But in a county where the newspaper was not pub- lished on Tuesday, the publication could not begin on the gth, and if Saturday was the day of issue, the first in- sertion within the twenty-eight days next preceding the election would be on the 13th. If the officer had begun 76 For the judicial attitude in general upon this matter see State v. Grey, 21 Nev., 378 (1893), and Commonwealth v. Griest, 196 Pa. St, 396 (1900). See also Prohibitory Amendment Cases, 24 Kan., 700, 710. 1778 Nebraska, 379 (1907). 18 164 Mo., 69, 93, 95 (1901). AMENDMENT OF CONSTITUTIONS 161 to publish on the Saturday previous in order to cover the full limit of twenty-eight days, he would have compassed thirty-one days, but he would not have accomplished a publication once a week within the last twenty-eight days, and he would have fallen outside the constitutional line, if four weeks in that connection means twenty-eight days.” The court followed the executive department’s ruling that publication for the four weeks preceding the election means the four calendar weeks immediately preceding, so that publication upon any day within each of the four preceding weeks was sufficient. This was, of course, the only com- mon-sense rule and the only one possible of observation, when publication must be in weekly papers whose days of weekly issue vary, and from the attitude of the Nebraska and Missouri courts it is perhaps clear that in construing constitutional requirements of publication the courts take a liberal and sensible position.*® 79A secretary of state may defeat a proposed amendment by ne- glecting to publish it in conformity with the constitutional require- ments. This fact was vigorously urged by Judge Brewer in the Pro- hibitory Amendment Cases, 24 Kan., 710, as a reason for liberal construction of the constitutional requirements: “ Suppose a unanimous vote of both houses of the legislature, and a unanimous vote of the people in favor of a constitutional amendment, but that the secretary [of state] had omitted to publish in one county in which a newspaper was published, would it not be simply an insult to common sense to hold that thereby the will of the legislature and people had been de- feated? Is it within the power of the secretary, either through ignor- ance or design, to thwart the popular decision? Is he given a veto or can he create one? This may be an extreme case, but it only illus- trates the principle.” The duty of publishing a proposed amendment is of course ministerial, and may be compelled by mandamus. Com- monwealth v. Griest, 196 Pa. St., 396. State ex rel. Morris v. Mason, 43 La. Ann., 590. But as Judge Brewer suggested, publication might be improperly made through carelessness or design, and it would be difficult to detect such improprieties and to remedy them by an appli- cation for mandamus. Upon this point see also State v. Winnett, 78 Neb., 379, 387. In 1905 seven proposals of amendments were made 162 REVISION OF STATE CONSTITUTIONS As has already been suggested several constitutions make no requirements whatever regarding the publication of proposed amendments, several others do not specify the manner of publication or require only publication in the laws passed by the legislature; and of the fourteen states requiring two legislative actions for the proposal of amend- ments, eleven. provide for publication of the proposals in some manner after the first and before the second legis- lative action, but require no publication just before sub- mission to the people. Because in many cases such in- complete provision is made in the constitutions for in- forming the people with reference to proposals of amend- ment which are to be voted upon, statutes have been adopted in a number of states establishing further regulations con- cerning publication, and a brief discussion of such statutory provisions will be of some interest.*° A number of states have no statutory regulation of this matter, and in many others statutory provisions simply re- peat or paraphrase the language of the constitution. Such provisions, of course, have no interest for us here, but in many cases statutory enactments supplement the constitu- by the Idaho legislature; the proposing resolutions in all cases but one contained specific provisions concerning publication and the expense thereof; no effort was made by the secretary of state to publish and submit the proposals for which this provision was omitted. In Com- monwealth v. Griest, also, no provision was made for the expense of publication, but the court said here that it was the duty of the secre- tary of the commonwealth to publish in compliance with the constitu- ional terms, if the newspapers would undertake the publication—that is, to undertake to perform his duties as prescribed by the constitu- tion, but here the specific duty was imposed upon the secretary by constitutional provision. 80 These statutory rules are, as has already been suggested, in most cases not binding upon the legislature if it chooses to disregard them, but in practice they are, except in infrequent cases, followed until expressly repealed. AMENDMENT OF CONSTITUTIONS 163 tional requirements or establish rules where there are none provided by the constitution. In some cases, as in Arkansas, Florida, and Missouri, the rules supplementary to those laid down in the constitution relate to the posting of proposed amendments in public places in each county or polling district.** In Iowa, Nevada, New Jersey, New York, and North Dakota (states in which the constitutions require two legislative actions, and publication after the first but not after the second legislative action) statutes provide for the publication of proposed amendments just before the election at which they are to be voted upon. New Jersey in its provision for the special election of 1909 required publication in at least two newspapers of each county once each week for four weeks before the election. Iowa re- quires publication in one newspaper in each county ten days before the election, or posting in five public places if there is no newspaper. Nevada requires three publications in each county thirty days before the election; North Dakota two publications in one or more newspapers in each county just preceding the election, and that public notices be posted if there is no newspaper. New York requires publication in newspapers published in each county once a week for three months preceding the election.*? In Massachusetts also the constitution requires that pro- posed amendments be published after the first and before the second legislative action, but makes no provision for publication just before a proposed amendment is to be 81 Kirby’s Digest (Ark.), 1904, secs. 2785, 2786. Florida laws, 1905, p. 82. Missouri Annotated Statutes, 1906, vol. iii, secs. 7091, 7094, 7119. 82 Nevada Statutes, 1903, p. 204. Iowa Code, 1897, pp. 127-128, 402. New Jersey Laws, 1909, p. 392. North Dakota Revised Codes, 1905, secs, 634, 2294-2296. New York Consolidated Laws, 1909, ii, 953, iii, 2242. 164 REVISION OF STATE CONSTITUTIONS submitted to the people. Here it is provided by statute that proposed amendments shall be published in the annual volumes of acts and resolves. Each separate portion or sig- nature containing a law or a proposed amendment is printed in an edition of twenty-five thousand, and copies are sent to each city or town, to all local officers, and to others who may apply for them. The remaining copies are appor- tioned to the cities and towns, and are sent to the clerks thereof to be delivered to any person who may apply for them. There is no method of bringing proposed amend- ments directly to the attention of those who are to vote upon them.** The Rhode Island constitution requires that a proposed amendment shall be “ published,” before its submission to the people, and by statute provision is made that public acts of a general nature (a phrase which includes amendments ) shall be published in all the newspapers of the state; no special provision is made for the publication of proposed amendments.** The Mississippi constitution requires that “public notice’ of a proposed amendment shall be given three months before the election, and this requirement is supplemented by a statutory provision that publication shall be made two weeks before the election “ in the official news- paper in the respective counties of the state, or shall be posted in three public places” if the newspaper refuses to do the publishing at the price fixed by the law.** But the publication of a proposed amendment as an ad- vertisement in the newspapers for several weeks or months before an election accomplishes little toward bringing it directly to the attention of the voters or of informing them 88 Massachusetts Revised Laws, 1902, i, 9I. 84R, I. General Laws, 1806, p. 119. 85 Mississippi Laws, 1908, p. 140. AMENDMENT OF CONSTITUTIONS 165 as to the merit of the proposal. A legal advertisement is not the most effective method of reaching the general public. In addition the form of publication is in many cases such as to leave the reader ignorant of what change will be made by a proposed amendment. Of course when a pro- posal is of great importance, wide public attention will very likely be directed to it, and the public will be informed by printed and oral discussions. But the fact is that most proposed amendments are not with reference to matters likely to attract wide attention, but deal rather with matters of a local and often of a trivial character. Through the present methods employed in most of our states for the pub- lication of constitutional proposals, the public is left prac- tically uninstructed.*° The formal publication of proposed amendments in news- papers practically fails of its purpose, and this fact has led several states to try methods of bringing the ends aimed at in proposed amendments more directly to the attention of voters. In New York, for example, concurrent resolutions proposing amendments to the constitution are required to be published “in such a manner, by the use of italics and brackets, as to indicate the new matter added or the old matter eliminated.” *” A somewhat more effective method of informing voters regarding the purpose and probable effect of proposed amendments, is that provided in Minne- sota: “At least four months preceding such election, the attorney-general shall furnish to the secretary of state a statement of the purpose and effect of all amendments pro- posed, showing clearly the form of the existing sections, 86 Formal newspaper publication is not as effective now in bringing a proposal to the attention of the public as it was when this method was first adopted, and is more effective now in rural than in urban communities, 87 New York Consolidated Laws, iii, 2242. 166 REVISION OF STATE CONSTITUTIONS and of the same as they read if amended. Prior to the election, the secretary of state shall give three weeks’ pub- lished notice of such statement in each county in the state in which qualified newspapers are published and in not more than three newspapers in each county. .. . He shall also forward to each county auditor a number of copies of such statement, in poster form, sufficient to enable him to supply at least six of such copies for each election district of his county. The auditor shall furnish such copies to the town, village and city clerks, who shall give three weeks’ posted notice thereof, and cause one copy to be conspicuously posted at each polling place on election day.” ** Somewhat similar statutory provisions have been enacted in Illinois and Michigan; * in Illinois such a statement is simply required to be posted in public places within the election district; in Michigan the statement is to be posted in each election precinct, and the secretary of state is required three times to send copies of such statement to the several daily and weekly newspapers published within the state, sixty, thirty, and fifteen days before election, with the request that pub- licity be given to such statements. The Minnesota plan provides for presenting to the voters (by means of newspaper publication and by pos- ters) some intelligible statement regarding what is ex- pected to be the effect upon the fundamental law of a pro- posed amendment. It leaves unaltered the old method of publication, which is certainly to a great extent ineffective as a means of bringing a matter directly to the attention of voters. 88 Minnesota General Laws, 1907, p. 166. So far as can be discovered this plan has not proved of very great service in Minnesota, For sim- ilar plans employed in Switzerland see Lowell, Governmenis and Parties in Continental Europe, ii, 275, 276. 89 Michigan Public Acts, 1905, p. 34; Constitution of 1908, art. xvii, sec. 3. Hurd’s Revised Statutes of Illinois, 1908, pp. 146, 147, 988. AMENDMENT OF CONSTITUTIONS 167 Nevada in 1887 took a further step toward bringing pro- posed amendments directly to the attention of voters; pro- posed amendments were required to be published in one daily newspaper of general circulation, and it was made the duty of the clerk of each county “ to mail to every registered voter within his county a copy of the newspaper containing the proposed amendments.” °° A California statute of 1893 required sample ballots to be mailed to each voter be- fore the day of the election, and by an enactment of 1899 it was further provided: ‘‘ Whenever the legislature shall propose any amendment to the constitution of this state . or whenever said legislature shall subinit any proposition to a vote of the qualified electors of the state, the secretary of state shall duly, and not less than twenty-five days be- fore election, certify the same to the clerk of each county of the state; shall cause to be printed at the state printing office, in convenient form, one and one-half times as many copies of such amendment or proposition as there are re- gistered voters in the state, and at least thirty days before any election at which such amendment or proposition is to be voted on, shall furnish each county clerk in the state with one and one-half times as many such copies as there are registered voters in his county. The clerk of each county shall thereafter cause to be mailed to each voter a copy of such constitutional amendment or other proposition...” ™ Oregon adopted the initiative and referendum by a con- stitutional amendment of 1902, and by an act of 1903, for the purpose of carrying this amendment into operation, adopted the California plan of distributing proposed laws and constitutional amendments to the voters, but went a step further and provided that arguments for and against 90 Nevada Laws, 1887, p. 122. This law is not now in force. Laws of 1903, p. 204. 91 California Statutes, 1893, p. 304; 1899, p. 27. 168 REVISION OF STATE CONSTITUTIONS such proposals might be distributed at the same time as the text of the proposals themselves. The Oregon law of 1903 was modified in 1907. The general features of the Oregon legislation have been followed by Oklahoma in 1907, Mon- tana in 1907, and California in 1909; the Montana legisla- tion applies only to laws initiated by popular petition or upon which a referendum vote has been demanded, and not to proposed constitutional amendments.*” The essential part of the Oregon plan is worth quoting in full as set forth in the act of 1907: “ The secretary of state shall cause to be printed in pamphlet form a true copy of the title and text of each measure to be submitted, with the number and form in which the ballot title thereof will be printed on the official ballot. The person, committee, or duly authorized officers of any organization filing any petition for the initiative, but no other person or organiza- tion, shall have the right to file with the secretary of state for printing and distribution any argument advocating such measure. . . Any person, committee, or organization may file with the secretary of state, for printing and distribution, any arguments they may desire, opposing any measure. . . . Arguments advocating or opposing any measures referred to the people by the legislative assembly, or by referendum petition, at a regular general election, shall be governed by the same rules as to time, but may be filed with the secretary of state by any person, committee, or organization. .. . But in every case the person or persons offering such argu- ments for printing and distribution shall pay to the secre- tary of state sufficient money to pay all the expenses for paper and printing to supply one copy with every copy of the measure to be printed by the state; and he shall forth- ®2.Oregon General Laws, 1907, pp. 403-405. Oklahoma General Statutes, 1908, p. 781. Montana Laws, 1907, pp. 122, 124. California Statutes, 1909, p. 254. AMENDMENT OF CONSTITUTIONS 16g with notify the persons offering the same of the amount of money necessary. The secretary of state shall cause one copy of each of said arguments to be bound in the pamphlet copy of the measures to be submitted as herein provided. and all such measures and arguments to be submitted at one election shall be bound together in a single pamphlet. All the printing shall be done by the state. . . The title page of each argument shall show the measure or measures it favors or opposes and by what persons or organization it is issued. When such arguments are printed he [the sec- retary of state] shall pay the state printer therefor from the money deposited with him and refund the surplus, if any, to the parties who paid it to him. The cost of print- ing, binding, and distributing the measures proposed, and of binding and distributing the arguments, shall be paid by the state as a part of the state printing, it being in- tended that only the cost of paper and printing the argu- ments shall be paid by the parties presenting the same, and they shall not be charged any higher rate for such work than is paid by the state for similar work and paper. Not later than the fifty-fifth day before the regular general election at which such measures are to be voted upon, the secretary of state shall transmit by mail, with postage fully prepaid, to every voter in the state whose address he may have, one copy of such pamphlet; provided, that if the secre- tary shall, at or about the same time, be mailing any other pamphlet to every voter, he may, if practicable, bind the matter herein provided for in the first part of said pamphlet . or he may enclose the pamphlets under one cover. In the case of a special election he shall mail said pamphlet to every voter not less than twenty days before said special election.” °° 3 The Oregon law of 1903 provided that already printed arguments 170 REVISION OF STATE CONSTITUTIONS In Oregon arguments may be submitted by practically any person or organization which is willing to bear the cost of printing,** and the same is true with reference to laws submitted to the people of Montana. But in Oklahoma and California the arguments for and against each measure are official arguments. In Oklahoma for example: “Argu- ments shall be prepared for and against each measure to be submitted to a direct vote of the people of the state, the length of the arguments not to exceed two thousand words for each side,.in which one-fourth may be in answer to opponents’ arguments. For one side the arguments shall be prepared by a joint committee of the house and senate, and for the other by a committee representing the peti- tioners. Where the legislature submits a competing bill the argument against it shall be prepared by the committee that prepared the affirmative of the opposing bill. Where the legislature submits any other question the argument for the negative shall be prepared by a committee represent- ing the members in the legislature who voted against the substance of the measure.” °° In California “the author of such amendment and one member of the same house who voted with the majority on the submission of such amend- might be furnished to the secretary of state in sufficient number for distribution to all voters, and that such arguments should be sent to the clerks of the several counties for distribution to the voters by the local registration officers. The Montana law, similar to the Ore- gon enactment of 1903, provides that any person desiring to present an argument for or against a measure may submit to the secretary of state a printed argument in a sufficient number of copies to be dis- tributed to each qualified voter of the state; distribution in Montana is by county clerks who are required to mail the bound pamphlet con- taining the text of measures and arguments to each voter. 94 The limitation with reference to measures initiated by petition is not a serious one. 95 Oklahoma Laws, 1907-1908, p. 447. AMENDMENT OF CONSTITUTIONS 171 ment, and one member of the same house as the author who voted with the minority against the submission of such amend- ment, both of whom shall be selected by the presiding officer of such house . . . shall within one year after the adjourn- ment of the legislature prepare a brief statement showing the purpose of said amendment, and a comparative state- ment of the operation of the present section or article of the constitution, and the reasons advanced by the majority for its adoption, and the reasons advanced by the minority against its adoption, and any other reason why such amend- ment should be adopted, or be not adopted.” °° The Okla- homa and California provisions may be better adapted to keep down the bulk of the arguments, but the chances are that more careful and better arguments would be submitted un- der the Oregon and Montana plans. In California and Oklahoma the arguments are printed at the expense of State. The California arguments are to be sent by the secretary of state to the county clerks of each county and are mailed to the registered voters by the county clerks. In Oklahoma a mandatory primary election is held on the first Tuesday in August of each even-numbered year for the nomination by all political parties of candidates to be voted upon at the general election in the succeeding November; the text of measures to be voted upon, together with the arguments, bound together in a pamphlet, is distributed to voters at the primary election; copies not called for at this time are to be distributed by the election inspectors, in so far as is possible, within their respective precincts; in the case of special elec- tions the election inspectors are required to call a public meeting of the electors, and to distribute the pamphlet argu- ments in such other manner as they may find possible. The 96 California Statutes, 1900, p. 254. 172 REVISION OF STATE CONSTITUTIONS Oklahoma method of distributing measures, with the argu- ments for and against them, would seem to be cumbersome and unsatisfactory, especially when such measures are to be voted upon at a special election. The plan of distributing proposed constitutional amend- ments to the people, together with arguments for and against them, is new. California has just adopted it; the Montana law does not apply to constitutional amendments, although this was probably an oversight; Oklahoma. has held one election under the law of 1907—that of Novem- ber, 1908; °? Oregon has held two elections (June, 1904; June, 1906) under the law of 1903, and one (June, 1908) under the law of 1907. Oregon is the only state in which there is yet basis for judging the new plan. In 1906 ten measures were submitted to the people of Oregon—five proposed amendments and five laws—and but one of these, the equal suffrage amendment, was argued. At the elec- tion of 1908 nineteen measures were submitted (of which ten were proposed amendments), and arguments were sub- mitted upon thirteen of these proposals. The results seem to have been very satisfactory—great popular interest has. been taken in the elections, and the plan of bringing issues directly home to the voters has undoubtedly had some- thing to do with the interest shown in measures to be voted upon. Both in 1906 and 1908 a very large pro- portion of those voting for state officers have also voted upon the proposed measures; this, however, should not 97 Five measures were submitted to the people of Oklahoma in No- vember, 1908, three of which were proposed constitutional amend- ments. All of the measures were argued, but only sixteen pages were required to contain both arguments and the text of the proposals. Upon each of these measures a large popular vote was polled, although two of the proposed amendments which received a majority of the votes cast were not carried, because they did not obtain a majority of all votes cast at the election, AMENDMENT OF CONSTITUTIONS 173 perhaps be looked upon as necessarily an argument in favor of the plan; the referendum in Oregon is still new and many of the questions were important ones—these facts may readily explain the large popular vote. It is clear that the Oregon method is a more intelligent and effective one for the purpose of reaching the individual voter and in- forming him upon the measures submitted to him, than is the method of publishing the text of an amendment in local newspapers, without any explanation whatever. Professor George H. Haynes, in an article discussing the Oregon experiment, has called attention to two difficul- ties connected with it: (1) the failure to limit the number of pages of argument which may be submitted; (2) the cost of distributing the pamphlets. As to the first point it may be said that the Oklahoma and California laws, with their officially prepared argu- ments, and with the definite limitation of length in Okla- homa, are fairly well guarded against voluminous argu- ments. In Oregon, where there are no limitations except those imposed by the cost of printing, no difficulty has yet arisen. The arguments together with the text of measures in 1906 constituted about sixty pages, and the pamphlet issued in 1908 contained one hundred and twenty-eight pages, but nineteen measures were submitted in 1908, while but ten were voted upon in 1906. None of the arguments in the 1908 pamphlet were excessively long, and those submitting arguments may perhaps usually be relied upon to know that a long argument defeats its purpose. But common sense does not always rule, and some definite re- striction of the length of arguments seems desirable as a precautionary measure. Perhaps even more important than a restriction of the length of arguments would be a restric- tion as to the number of proposals to be submitted at any one election. Nineteen measures at one election are too many to submit even to the most intelligent electorate. 174 REVISION OF STATE CONSTITUTIONS As to the cost of the Oregon method Professor Haynes says: “ Had these pamphlets [for the 1906 election] been sent out by mail, as is to be done under the existing law, the postage on each would have been three cents, making a total of about $4,300 for placing them in the hands of all the voters of the state. It is evident, therefore, that the supplying of free text-books to voters is a somewhat costly enterprise.” The pamphlet sent out for the Oregon election of June, 1908, although it contained twice as many pages as were sent out in 1906, went for 3 cents postage, and the cost of mailing in 1908 was $3,750.°° But in considering the cost of the Oregon method, it must be remembered that the present method of advertising ®8 For an interesting discussion of the Oregon law see an article by Prof. George H. Haynes on The Education of Voters, Political Sci- ence Quarterly, xxii, 484. The Oregon law of 1907 made no provision for the preparation of a list of voters for the use of the secretary of state, and the cost of preparing such a list increased the expense of distributing the pam- phlets for the election of 1908. The total cost of printing and distribut- ing 125,000 pamphlets in 1908 was as follows: Papi?) S2cancwiscuwicanie te age gadnenegnetawsnds $2,226.50 PHONE. scsi aarstoen Shailelewe Hq saitewigeaan MADER 5,042.74 Binding’ .cceciguakeedooye senkeeweereaeeumed ene 1,433.45 Envelopes) ccswsawsseave-citieis shove. de edemaee concn 889.00 POSEABE: cas Goshieles cussed. dco e 8 edemendwemieats 3,750.00 letke HITG) csi esaveeg ts adowa keris eae Gadi’ 1,023.74 Registration lists ............. ccc e cee cue ee eee 1,101.55 IGAarla@e:, Gunaemscren ciemnnenennnistud vanmeeeees 52.15 Motal: saws .e2 stg svaicig Ninagatiowsauamen snes $15,519.13 Of this amount those submitting arguments paid $3,157.17 for paper and printing, so that the total expense of the state was $12,361.96. Biennial Report, Secretary of State of Oregon, 1906-1908, pp. 33a, 34a. The Oklahoma plan of distributing pamphlets avoids all expenses ex- cept those for paper and printing. In California sample ballots are mailed to each voter, and the additional cost of mailing the statements regarding proposed amendments should not be very great. AMENDMENT OF CONSTITUTIONS 175 proposed amendments is also expensive. In Missouri, for example, the cost of publishing proposed amendments in recent years has been as follows: TOOO! eta. dcicis Bs 13,615.75 1902 2 wcuwnees sees 24,051.28 LOOK veccunde dee 12,351.55 1906 .........00- 5,022.05 1908 .........4.. 21,168.05 This expense has been for the publication of proposed amendments alone, without arguments, and in a manner which does not bring the matter squarely to the attention of the voters; the cost in 1906 is very low because in that year only two short amendments were submitted. If it be assumed that there are now one million voters in Missouri the cost of mailing the text of amendments to the voters would not be more than ten thousand dollars, and the distribution of a pamphlet similar. to that used in Oregon in 1908, would involve an expenditure for postage of about thirty thousand dollars. The cost of printing would, of course, be greater under the Oregon plan, but if the text of the measures were distributed without argument, the cost of both printing and postage would probably be less than the cost of publication in the newspapers in 1902 and 1908. In Louisiana the publication of proposed amendments in the years 1904, 1906, and 1908 cost on an average more than twenty thousand dollars for each year. Assuming the Oregon method to have been employed in these years, with a pamphlet similar to the Oregon pamphlet of 1908, the rela- tive costs of distribution through the mails and of publica- tion would be as follows: 176 REVISION OF STATE CONSTITUTIONS Yeux SRNOE ! Heetera sulin? distributing thrower 1904 ...... 108,079 $17,699.30 $3,242.37 1906 ...... 107,731 21,240.00 3,231.97 1908 ...... 156,554 25,000.00 4,696.62 This comparison is based upon the assumption that the text of measures together with arguments upon the meas- ures should be distributed through the mails. A fairer comparison would be one between the cost of distributing the text of measures alone and that of publishing the text alone (as is done in Louisiana); this would reduce the postage charges to one-third of the figures given above. The cost of printing either the text of measures alone or the text with arguments, if borne by the state, must, however, be taken into consideration, as also other expenses incident to the plan of distribution through the mails; but in Louisiana the cost of printing and distributing the pam- phlets would probably be’ much less than that of publication in newspapers under the present system. Oregon and Louisiana may properly be brought into comparison here, as respects the relative cost of reaching the people, for the number of registered voters in each of the two states is approximately the same; and in them the number of meas- ures submitted to the people during the past few years is fairly comparable; Oregon has put the text of proposed amendments (and laws), together with arguments for and against them, into the hands of each voter at a cost less than that of Louisiana for the publication of the text alone in the newspapers of the state. Missouri now requires the publication of proposed amend- 9 The cost of publication for 1904 is taken from the auditor's reports; for 1906 and 1908 the figures are taken from the appropriation acts and represent the estimated cost of publication; in 1908 amend- ments were submitted at two elections so that the cost of distributing through the mails would be double that estimated above. AMENDMENT OF CONSTITUTIONS 177 ments in each county for four weeks; Louisiana, publica- tion for two months; as has already been suggested publi- cation for three months is the more usual requirement. Arkansas, Ohio, and Tennessee require publication for six months, Arkansas and Ohio specifying that publication shall be in a newspaper in each county. In Ohio it has been the custom to provide by law for publication in two news- papers of each county, one representing each political party, and also in the German newspapers of the state;*°° in view of these conditions it is perhaps to have been expected that the publication of five short proposals in 1903 should have cost seventy thousand dollars, and that the publication of two proposed amendments submitted in 1905 should have involved an expenditure of more than thirty-four thousand dollars.*°* The plan of distributing proposed amendments by mail is cheaper and more effective than that of publication in the newspapers of the state, but the new plan will probably not be adopted very quickly because many constitutions specifically require publication in newspapers, and ‘con- stitutional changes in this matter must come slowly.’” It is of course possible to require the distribution of proposed amendments to each voter personally, while also complying with a constitutional requirement of publication in the 100 Ohio Laws, 1902, p. 291; 1904, p. 484; 1908, p. 261. 101 Reports of Ohio State Auditor, 1904, p. 30; 1906, p. 31. 102 Governor Hughes of New York in his message of January 5, 1910, called attention to the fact that little interest is taken in pro- posed amendments and urged that means be devised to apprise voters of the nature of amendments submitted. He said: “The delivery of the text of the amendments at the time of registration in districts where personal registration is necessary, and suitable notification else- where, would be of no little advantage.” Similar statements were made by Governor Higgins of New York in 1906, and by Governor Hughes in 1908 and 1909. Bills embodying Governor Hughes’ sug- gestions were introduced in the New York senate and assembly during the session of 1910. 178 REVISION OF STATE CONSTITUTIONS newspapers. In Wyoming the constitution requires that proposed amendments be published for twelve consecutive weeks in at least one newspaper in each county, and a law of 1909 provides in addition that each proposal shall be printed on a slip or leaflet and be circulated by mail or otherwise among the electors;*** but this of course adds very much to the cost of publication. Where publication in newspapers is required, a large number of publications is hardly worth while; for attracting public attention publica- tion for one month would seem to be equally as effective as publication for six months. In Florida, however, a pro- posed amendment reducing the time of publication from three months to one month was defeated in 1906. Form of Submission The Illinois constitution provides that “the general as- sembly shall have no power to propose amendments to more than one article of this constitution at the same ses- sion,’ and in Kentucky ‘no amendment shall relate to more than one subject.” Colorado before 1900 had a pro- vision similar to that of Illinois but by amendment altered its constitutional provision to read so that “ the general as- sembly shall have no power to propose amendments to more than six articles of this constitution at the same ses- sion.” Colorado also requires “that if more than one amendment be submitted at any general election, each of said amendments shall be voted upon separately and votes thereon cast shall be separately counted the same as though but one amendment was submitted ;” and twenty-eight other states also require that where more than one proposed amendment is submitted, each proposal shall be submitted so that it may be voted upon separately.*°* These restric- 108 Wyoming laws, 1909, pp. 27-28. 104 Arkansas, California, Florida, Georgia, Idaho, Indiana, Iowa, AMENDMENT OF CONSTITUTIONS 179 tions have given rise to some judicial discussion as to what is “ one amendment ” or “ an amendment to more than one article” of the constitution. With reference to this matter the courts have ordinarily taken a liberal and common-sense view. In the Illinois case of City of Chicago v. Reeves ** an amendment adopted in 1904 was attacked as altering more than one article of the constitution. The court rejected this contention and said that the restriction “ was not intended to prevent im- plied amendments or changes which were necessarily worked in other articles of the constitution by the express amend- ment of a particular article of the constitution. Any other view would be so narrow as to prohibit the general assembly in many, if not in all, cases, from proposing amendments to a particular article of the constitution,” in as much as the several articles are closely interrelated and_inter- dependent. As to what may be considered one amendment the courts have in most cases pursued a liberal policy. A Wisconsin constitutional amendment of 1881 provided for the sub- stitution of biennial for annual legislative sessions, and also adjusted the legislative elections and salaries to the new biennal system. To the contention that this measure really Kansas, Louisiana, Maryland, Minnesota, Mississippi, Missouri, Mon- tana, Nebraska, New Jersey, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Utah, Washington, West Virginia, Wisconsin, Wyoming. Vermont requires the general assem- bly “to enact all such laws as shall be necessary to procure a free and fair vote upon each amendment proposed,” but this seems not to require the separate submission of each amendment. The Vermont Constitutional Commission in its report of January 6, 1910, said: “ We recommend that all amendments be submitted individually so that the rejection of one may not necessarily involve the rejection of the others.” 105 220 Ill., 274 (1906). See also Wilson v. Board of Trustees, 133 Til, 443. 180 REVISION OF STATE CONSTITUTIONS constituted more than one amendment the court replied: “ Such a construction would, we think, be so narrow as to render it practically impossible to amend the constitution. . . . Certainly no good could result from a separate sub- mission which is not equally as well and better accomplished by submitting them together as one amendment; and the separate submission might result in the absurdity of the ratification of the one and the rejection of the other. . . In order to constitute more than one amendment, the proposi- tions submitted must relate to more than one subject, and have at least two distinct and separate purposes not de- pendent upon or connected with each other.” *°° Similarly a recent amendment in Iowa which had for its object the substitution of biennial for annual legislative sessions, was attacked on grounds similar to the Wisconsin amendment, and the court replied: “If the amendment has but one ob- ject and purpose, and all else included therein is incident thereto, and reasonably necessary to effect the object and purpose contemplated, it is not inimical to the charge of containing more than one amendment.”* In Colorado an amendment adopted in 1902 provided (1) for the con- solidation of the city of Denver and the county of Arapahoe, and for the framing of a charter by the new municipal cor- poration, and also (2) for the framing of home-rule char- ters by all cities of the first and second classes within the state. These two matters were separate and independent, and might well have been submitted as two amendments, but the Colorado court decided: ‘“ That an amendment may embrace more than one subject. That if an amendment em- braces more than one subject, said subjects need not be separately submitted if they are germane to the general 106 State ex rel, Hudd v, Timme, 54 Wis., 318 (1882). 10T Lobaugh v, Cook, 127 Iowa, 181 (1905). AMENDMENT OF CONSTITUTIONS 181 subject of the amendment, and if they are so connected with or dependent upon the general subject that it might not be desirable that one be adopted and not the other.” *°** The view expressed by the Colorado court is a sound one, but there is room for difference of opinion as to whether the amendment under consideration did not violate the rule. A stricter view of this matter has been taken by the su- preme court of Mississippi. A proposed amendment sub- mitted to the people of that state in 1899 provided for the popular election of judges, and also contained rules re- garding the nomination and election of judicial officers. The supreme court declared that this measure was really four amendments in that it provided (1) for the popular election of judges of the supreme court, (2) for a similar method of choosing circuit judges, and (3) chancellors; and (4) for methods of nominating and electing these offi- cers. The court said: ‘“ Whether amendments are one or many must be solved by their inherent nature, by the con- sideration whether they are separate and independent each of the other so as that each can stand alone without the other, leaving the constitutional system symmetrical, har- monious, and independent on the subject.”*°* The test applied by the Mississippi court is too narrow; in many cases matters which might stand alone may, it would seem, properly be embodied in the same amendment if they re- late to the same subject and are designed to accomplish the same purpose; in the case under discussion the question of 108 People v. Sours, 31 Colo., 369 (1903). Upon this subject see also State ex rel. Morris v. Mason, 43 La. Ann., 590 (1891); State ex rel. Adams v. Herried, 10 S. D., 109 (1897); Gabbert uv. Chicago, Rock Island and Pacific Railway Co., 171 Mo., 84 (1902); Hubbard wv, Rail- road Co., 173 Mo., 249 (1903); State v. Board of Commissioners, 34 Mont., 426 (1906). 109 State v. Powell, 77 Miss., 543 (1900). 182 REVISION OF STATE CONSTITUTIONS electing judges by popular vote is one of this character, although, as the court says, it might be possible to provide separately for the method of choosing each grade of judges ; if the method of electing all judges be taken as one proper to be included in one amendment, certainly rules for the nomination and election of such judges are merely inci- dental to the main purpose of the proposal. The Missis- sippi decision can hardly be considered a sound one and is perhaps not entitled to very great weight in this connection, inasmuch as the amendment in question was also held to be invalid for other reasons. Yet this decision has recently been followed by the su- preme court of Idaho, which lays down a rule almost as strict as that of the Mississippi court. In the case of McBee v. Brady*® the Idaho court said: “The determination whether a proposed change in the constitution constitutes one or more amendments, it seems to us, depends upon whether the change as proposed relates to one subject and accomplishes a single purpose, and the true test should be, can the change or changes proposed be divided into subjects 110 yoo Pac. 97 (Idaho, 1909). Attention should also be called to Lozier v, Alexander Drug Co., 99 Pac., 808 (affirmed, Armstrong v. Berkey, 99 Pac., 921). Here was drawn in question an effort of the Oklahoma fegislature to submit to the people part of a law, and to have it become effective as a constitutional amendment if it should receive a sufficient popular vote; the part of the law submitted was to become a provision of the constitution if approved by a majority of the per- sons voting at the election, but was to be altogether repealed if it did not receive a majority of the votes cast upon the question of its adop- tion or rejection. An affirmative vote counted in favor of the proposal as an amendment, but no option was given to those who favored the measure as a law but were opposed to its incorporation into the con- stitution; a negative vote on the other hand counted not only against the measure as an amendment but for its repeal as a law. The court held that such submission was improper because the voter had no opportunity to vote independently for or against the law, or for or against the proposed amendment. AMENDMENT OF CONSTITUTIONS 183 distinct and independent, and can any one of which be adopted without in any way being controlled, modified or qualified by “the other? If not, then there are as many amendments as there are distinct and independent subjects, and it matters not whether the proposed change affects one or many sections or articles of the constitution.” With reference to the time of submitting proposed amend- ments and to the form of submission little need be said. Twenty-two states require submission at general elec- tions; *** two provide for submission at general elections, but expressly permit special elections to be ordered.’** The language of the Connecticut constitution seems to require submission to town meetings especially called for that pur- pose, and a similar provision is contained in the revised amending clause of Maine. New Jersey specifically re- quires that proposed amendments be submitted “ at a special election to be held for that purpose only.” The other state constitutions either make no provision whatever regarding the elections at which proposed amendments shall be sub- mitted, or expressly leave the matter within the discretion of the legislature.*** 111 Arkansas, Colorado, Florida, Georgia, Idaho, Illinois, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Montana, Ne- braska, North Carolina, Ohio, South Carolina, South Dakota, Utah, Washington, West Virginia, Wyoming. As to what is a general elec- tion see Westinghausen v. People, 44 Mich., 265; Chase v. Board of Election Commissioners, 151 Mich., 407; Tecumseh National Bank vw. Saunders, 51 Neb. 801; Commonwealth v. Griest, 196 Pa. St., 396, 415-418; In re Denny, 156 Ind., 104, 110. See also State v. Board of Examiners, 21 Nev., 67. 112 Oklahoma, Oregon. 118 Where such discretion is given it is customary for proposed amendments to be submitted at general elections. Such a requirement as that in New Jersey is unwise, because a large vote upon proposed measures usually cannot be obtained at special elections. New Jersey held special elections on proposed amendments in 1897, 1903, and Igo9. 184 REVISION OF STATE CONSTITUTIONS The Michigan constitution expressly provides that pro- posed amendments shall be submitted on “a ballot or ballots separate from the ballot containing the names’of nominees for public office.” A similar provision is made by statute in several other states.** The Michigan constitution also requires that the text of proposed amendments be printed in full on the ballot. Alabama requires that “the sub- stance or subject matter of each proposed amendment shall be so printed that the nature thereof shall be clearly indi- cated.” In practically all of the other states the constitu- tional provisions are of such a character as to make it neces- sary that the full text or a clear indication of the character of the proposal appear upon the ballot.*** These elections were held in September, and general state elections in the succeeding November. In the special election of 1897 the vote was more than half as large as that at the general election; in 1903 only a little more than twelve per cent of that at the general election; and in 1909 less than twenty per cent of that at the general election. Governor Fort of New Jersey in his message of 1908 recommended the adoption of an amendment providing that a vote might be had at general elections. 114 Tdaho Laws, 1905, p. 315. Maine Laws, 1905, ch. 135. Missouri Laws, 1909, p. 492. New York Consolidated Laws, 1909, ii, 978. South Dakota Laws, 1899, p. 88. Wyoming Laws, 1909, p. 27. Writing with reference to the operation of the Idaho law Hon. Burton L. French of Idaho says: “You will notice that at each of the three first elec- tions [1900, 1902, 1904] few persons comparatively speaking voted at all on the amendments, A better showing is made at each of the last two elections [1906, 1908]. The reason is because in the last two elec- tions constitutional amendments were submitted on separate slips [or ballots} which were handed to each voter at the time the ticket was handed to him, and as a result he was compelled at least to notice them. Under the former system, the constitutional amendment was submitted by being printed at the bottom of the ticket. It was easily overlooked.” 115 As to what is a sufficient indication of the character of a pro- posed amendment see Murphy Chair Company v. Attorney-General, 148 Mich., 563; State v, Winnett, 78 Neb., 379, 394; ‘Russell v. Croy, AMENDMENT OF CONSTITUTIONS 185 Popular Vote Required for the Adoption of Amendments Most of the states provide that a proposed amendment in order to be adopted shall receive simply a majority of the votes cast upon the question of its adoption or rejection,’ and the Kentucky constitution makes its meaning per- fectly clear in this respect by providing that “if it shall appear that a majority of the votes cast for and against an amendment . . . was for the amendment then the same shall become a part of the constitution.” In three states**” proposed amendments in order to be adopted must be ratified by “a majority of the electors” of the state, and in each of them this language has been the subject of judicial construction. In the case of State wv. Swift ** there was involved the validity of a proposed amendment which had been submitted in 1880 and had re- ceived an affirmative vote of 169,483 and a negative vote of 152,251; the total vote cast at the election was 380,471, and the total number of persons eligible to vote in 1877 was 164 Mo., 69, 95-97; Worman v, Hagan, 78 Md., 166; Lovett v. Fergu- son, 10 S. D., 45, 56; McBee v. Brady, 100 Pac., 97, 104 (Idaho, 1909) ; People v. Sours, 31 Colo., 360, 388; Lozier v. Alexander Drug Co., 99 Pac., 808 (Okla. 19090). The Oklahoma decision just referred to is very confused, but seems to imply that if the ballot title of a measure submitted to the people did not indicate clearly the character of the measure, the proposal would be invalid, although the full text of the measure had been distributed to every voter and even though it might be shown that the voters were not misled by such title. See also Armstrong v. Berkey, 99 Pac., 921. 116 See Bott v. Secretary of State, 62 N. J. Law, 107; 63 N. J. Law, 300; and Itasca Independent School District v. McElroy, 123 S. W., 117; 124 S. W., torr (Texas). See also State v. Barnes, 3 N. D., 319. 117 Tdaho, Indiana, Wyoming. The Oregon constitution had until 1906 a provison similar to that in these states, which was construed by the administrative officers to require a majority of all persons vot- ing at the election. 118 6g Ind., 505 (1880). 186 REVISION OF STATE CONSTITUTIONS 451,028. The court held that the proposed amendment was not adopted, because it had not received a majority of the votes cast at the election, and the judge delivering the opinion expressed his own view that in order to carry an amendment a majority of the electors, whether voting or not, was required. State v. Swift was affirmed in a later case, in which it was said that in the absence of a pro- vision for registration the number voting would be pre- sumed to be the number of qualified electors..° The language of the Wyoming constitution did not come before the courts until 1909, but before this date had always been construed by the administrative officers of that state to require a majority of all votes cast at the election. In the case of State ex rel. Blair v. Brooks **° there was involved the validity of a proposed amendment which had been submitted in 1908; at the election 37,561 votes were cast, and the amendment received an affirmative vote of 12,160; the negative vote was 1363. The court said that the term “electors” meant all persons entitled to vote and included “not only those who vote, but those who are qualified yet fail to exercise the right of franchise.” The proposed amendment was held not to have been adopted, inasmuch as it had not received even a majority of all votes cast at the election, and the court did not pass upon the question whether a proposal in order to be approved should have to receive the votes of a majority of the qualified electors. In Idaho the constitutional provision regarding the vote re- quired to carry an amendment was at first construed by the election officials in the. same way that the Indiana and Wyoming provisions have been construed by the courts of those states; the matter came before the supreme 11° J” re Denny, 156 Ind., 104 (1901). 12099 Pac., 874 (1909). AMENDMENT OF CONSTITUTIONS 187 court of Idaho in 1896, however, and the court took the opposite ground that a “ majority of the electors” meant “a majority of the electors voting upon the measure,” and said that any other construction of the language would make amendment practically impossible.*7* Before 1898 the Minnesota constitution required for the ratification of a proposed amendment “a majority of the voters present and voting”? and the Minnesota supreme court held this to mean “present and voting upon the proposed amend- ment,” and so avoided the necessity of an amendment’s obtaining a majority of all votes cast at the election.’7?7 A Minnesota amendment of 1898, however, changed this rule, and specifically requires “a majority of all the elec- tors” voting at a general election, for the adoption of a proposed amendment.’** In the states ** which, like Minnesota, require that a proposed amendment receive a majority of all votes cast in the election at which it is submitted, there is of course no room for doubt, and the courts when they have had occasion to pass upon proposals not receiving the requisite vote, 121 Green v. State Board of Canvassers, 5 Ida., 130 (1896). 122 Dayton v. City of St. Paul, 22 Minn., 400 (1876). Similar lan- guage in the Mississippi constitution of 1890 has received a contrary interpretation. 123 For the interpretation of language similar to that used in the present Minnesota constitution see State v. Stearns, 72 Minn., 200. 124 Alabama, Arkansas, Illinois, Minnesota, Mississippi, Nebraska, Ohio, Oklahoma, Tennessee. Tennessee requires a majority of all per- sons voting for representatives. North Carolina, which requires “a ma- jority of the votes cast,” should also probably be put into this class. In Arkansas, Illinois, Minnesota, Nebraska, North Carolina, and Ohio amendments must be submitted at a general election so that the majority required is a majority of the votes cast at a general election; the same is also true of Wyoming. Alabama, Mississippi and Oklahoma may amend their constitutions more easily at special than at general elections, but not so Indiana, Wyoming, and Tennessee. 188 REVISION OF STATE CONSTITUTIONS have uniformly held them not to have been adopted.’ To the states in which amendment is made difficult by the popular majority required should be added Rhode Island, which requires the approval of three-fifths of all those vot- ing upon an amendment, and New Hampshire, which re- quires that two-thirds of those voting on a proposal should favor it. In the group of states **° which require the approval of a majority of all persons voting at the election, constitutional amendment is extremely difficult. Persons voting at an election are usually more interested in the individual candi- dates than in the measures proposed, and for this reason many persons who vote for candidates will not vote at all upon measures. The number of votes cast upon proposed amendments in practically all cases falls very much short of the total vote cast at the same election. But, under the rule in these states abstention from voting upon a measure counts really as a vote against it, and no proposal stands much chance of adoption unless it has aroused a very great popular interest. For these reasons the plan of requiring a majority of all votes cast at a general election has made constitutional amendment practically impossible. Speaking of Nebraska’s experience, Judge Lobingier says: “In Nebraska in 1896 the electors were invited to vote on no less than twelve amendments to the constitution. The total vote for the office of governor in that year was 217,768, while on the very important amendment relating to the increase 125 State uv. Babcock, 17 Neb., 188. Tecumseh National Bank v. Saunders, 51 Neb., 801. State v. Foraker, 46 Ohio St. 677. State v. Powell, 77 Miss., 543. Rice v, Palmer, 78 Ark. 432. Railway Co. v. Kavanaugh, 78 Ark., 468. Knight v. Shelton, 134 Fed., 423. 126 Alabama, Arkansas, Illinois, Indiana, Minnesota, Mississippi, Ne- braska, Ohio, Oklahoma, Tennessee, Wyoming. AMENDMENT OF CONSTITUTIONS 189 in the number of supreme court justices, there was re- ported as having been cast only 122,475, or about sixty-one per cent of those cast for gubernatorial candidates. Indeed proposed amendments have been submitted in that state in all but two or three of the even years since 1881, and until the present decade only one of these was declared adopted, though the trend is manifestly toward greater popular in- terest and most of the rejected amendments received a ma- jority of the votes cast thereon, being lost by reason only of the constitutional requirement of a majority of all votes cast at the election.” A similar difficulty has been ex- perienced in all of the other states which make this re- quirement.”7* No amendment to the Indiana constitution has been adopted since 1881, although a number of pro- posals have been submitted and have received a majority of the votes cast upon the question of their adoption. In Wyoming proposals submitted in 1900 and 1908 failed of adoption for the same reason. Minnesota adopted by amendment in 1898 the rule that a proposed amendment, in order to be adopted, must receive a majority of all votes cast at a general election; of the thirteen proposals sub- mitted since that date, nine have failed of adoption under this rule, although they received a majority of the votes cast upon the proposals. It is interesting to note that in this group of states pro- posed amendments, which have failed not because of an adverse vote but because of abstention from voting, are frequently submitted several times in succession, in the hope that they may finally receive a sufficient vote. In 127 Lobingier, The People’s Law, p. 344. See also a letter of Charles B. Letton in the Omaha Bee, Oct. 5, 1902, and Nebraska Blue Book, 1899-1900, pp. 280-291. 128 For Illinois see Prof. J. W. Garner, in Proceedings of the Ameri- can Political Science Association, 1907, p. 171. 190 REVISION OF STATE CONSTITUTIONS Indiana a proposed amendment permitting the legislature to prescribe qualifications for admission to the bar, was. submitted to the people in 1900 and 1906, and will be sub- mitted again in 1910; there is no strong opposition to the proposal, but on the other hand there is no great public interest in it, and the chances are decidedly against its re- ceiving the required vote in 1910; in 1900 nearly sixty per cent of the voters expressed themselves upon this pro- posal, in 1906 less than nine per cent. In Arkansas the two proposals submitted in 1908 had each been submitted before and had failed because not enough votes had been cast upon the question of their adoption. A Minnesota proposal concerning the investment of school funds, to which there was no strong opposition, was submitted at three successive elections (1900, 1902, and 1904) before it received the required vote; and Minnesota has had a some- what similar experience with other proposals. The practical impossibility of obtaining for a proposed amendment a majority of all votes cast for candidates at the same election, has led several states in this group to devise methods of evading or at any rate of avoiding the difficulty presented by their constitutional provisions. Two plans have been employed for this purpose, and it will be of interest to discuss each of them briefly. The Alabama constitution of 1875 required that pro- posed amendments be submitted at a general election, and that in order to be adopted they should receive the vote of “a majority of all the qualified electors of the State, who voted for representatives.” 7° The legislature, in sub- mitting a proposed amendment to the people in 1898, pro- vided that the ballot should have printed on it the words 129 There were similar provisions in the Alabama constitutions of 1819, 1865, and 1867. AMENDMENT OF CONSTITUTIONS 1gI “For Birmingham Amendment,” and that “any elector desiring to vote for said amendment shall leave such words intact upon his ballot, and any elector desiring to vote against said amendment shall evidence his intention to so vote by erasing or striking out said words with pen or pencil. The leaving of said words upon the ballot shall be taken as a favorable vote, and the erasure or striking out of said words as aforesaid shall be taken as an adverse vote, upon said amendment.” Under this law the amend- ment was carried. Against this method it was contended that it made necessary a vote either for or against the amend- ment, and that it really made inaction a vote for the pro- posal, but to this the Alabama court replied that a voter had no constitutional right to a ballot which would per- mit him to abstain altogether from voting upon a measure, and that the depositing of the ballot was itself an affirma- tive action in favor of the amendment.*° Whatever may be the legal theory, the fact is clear that without such a ballot the inaction of an elector (that is, failure to mark the ballot) is practically a vote against the amendment (as each abstention decreases by just so much the possibility of its receiving a majority of all votes cast at the elec- tion),*** while under the Alabama statute inaction (that 180 May and Thomas Hardware Co. v. Birmingham, 123 Ala., 306 (1898). This plan could not be employed now in Alabama, for the Alabama constitution of 1901 specifically requires a different form of ballot. 181 This fact was clearly recognized by the Idaho court in Green v. State Board of Canvassers, 5 Ida., 130, 141, where one of the justices said: “The constitution and the statutes say: "All you electors who believe that equal right of suffrage should be extended to women stand up and be counted.’ Twelve thousand one hundred and twenty- six voters stand up, and are counted in the affirmative. The constitu- tion and statutes say with equal distinctness: ‘ All you qualified electors who believe that the equal right of suffrage should not be extended to women stand up and be counted.’ Six thousand two hundred and 192 REVISION OF STATE CONSTITUTIONS is, failure to mark the ballot) is counted as an affirmative vote. There is not, so far as can be seen, any objection to placing the burden upon those opposed to an amendment rather than upon those who favor it; and certainly there can be no objection to the voter’s being required to express himself either for or against a measure which is submitted to him for approval. There would seem to be no constitu- tional right to abstain from voting on an amendment when casting a ballot in an election at which an amendment is submitted. In connection with proposed amendments submitted to the people of New Jersey in 1897, a question arose some- what similar to one of those discussed in Alabama. In New Jersey, it may be remembered, proposed amendments are submitted at special elections and are adopted if they receive a majority of the votes cast at such election, so that no difficulty presented itself such as that in Alabama. Three proposals were submitted to the people of New Jersey in 1897, and the ballot provided by legislative act read: “For all propositions on this ballot which are not canceled with ink or pencil, and against all which are so canceled.” It was contended that submission in this form did not comply with the constitutional requirement that amendments should be submitted so that each might be voted on separately—that the “law compelled every voter who desired to vote for or against any proposed amendment eighty-two stand up and are counted. Eighteen thousand four hun- dred and eight votes in all cast upon the question. But, say the de- fendants, there were about ten thousand qualified voters in the state who did not vote at all on the question, that should be counted as hav- ing voted ‘No’. Why should they be counted in the negative? .... These electors either have no opinion on the subject, or they have none that they cared to express. Why should they be counted as hav- ing voted in the negative, when they did mot vote at all on the sub- ject?” See also an expression in State v. Laylin, 69 Ohio St., 14. AMENDMENT OF CONSTITUTIONS 193 to also vote for or against the two other propositions,” and that the voter had the right to remain neutral as to some amendments and to vote upon the others. The supreme court of the state took the ground that the voter had no such right; but the court of errors and appeals, without passing squarely upon the question, said: “ There is, in- deed, a sense in which, under such a law, the people could not vote for or against each amendment separately and distinctly—that is, they would be required to determine how they would vote on any amendment in conjunction with a determination as to how they would vote on each of the others. But in another and an important sense they could vote for or against each separately and distinctly —that is, a determination to vote for or against any one left them entirely free to determine how they would vote on each of the others.” *** Inasmuch as this was a special election the elector of course had discretion as to whether he should vote on all the proposals submitted or abstain altogether from voting. The ballot used in the New Jersey election of 1897 (somewhat similar to the Alabama ballot of 1898) made it easier to vote affirmatively than negatively upon the proposed amendments, a negative vote requiring a marking of the ballot, which was not necessary for an affirmative vote, but this matter was not considered by the New Jersey courts. The important point, for our 182 Bott v. Secretary of State, 62 N. J. Law, 107; 63 N. J. Law, 280, 301. Certainly it would have been improper so to submit proposals that one voting affirmatively upon one measure should also be required to vote affirmatively upon another. The elector must be free to declare him- self either for or against each proposal separately, but can hardly have any constitutional right to express himself upon one measure and to abstain from voting upon another measure submitted at the same time. Upon the question as to whether an affirmative vote on an amendment may be made dependent upon an affirmative vote on an- other measure see Lozier v. Alexander Drug Co., 99 Pac., 808. 194 REVISION OF STATE CONSTITUTIONS discussion, in these cases, is that as to whether a voter in casting his ballot has a constitutional right to abstain from voting upon a proposed amendment, as well as a right to vote either for or against it, but this question was left unsettled by the New, Jersey court of errors and appeals. Nebraska and Ohio have tried a method different from that employed in Alabama in order to obtain a sufficient vote to carry constitutional amendments. Nebraska in 1901 provided that: “A state convention of any political party may take action upon any constitutional amendment, which is to be voted upon at the following election, and said convention may declare for or against such amend- ment, and such declaration shall be considered as a portion of their ticket...’ Where a political party endorsed a proposed amendment, such endorsement was to be printed as a portion of the party ticket, and a straight party vote was counted for the amendment; and in the same manner if the party action were against the amendment a straight party vote would be counted against such amendment.*** This plan was copied by Ohio in 1902, and the Ohio law continued in force until 1908 when it was repealed for political reasons.*** The above-quoted Nebraska law remained in force until 1907, when a mandatory direct primary law was passed. By this law the convention method of acting upon amend- ments was abandoned, and it was provided that: “At the general primary election next preceding any general elec- tion at which any constitutional amendment shall by law be required to be submitted to the electors of the state. . . it shall be the duty of the county clerks to cause to be printed in the primary election ballots of all political parties 188 Nebraska Laws, 1901, p. 341. 134 Ohio Laws, 1902, pp. 352-353; 1908, p. 120. AMENDMENT OF CONSTITUTIONS 195 the question of such constitutional amendments... . and each elector may declare himself in favor of or against any such amendments .. . and if a majority of the electors of any party voting upon such amendment shall declare in favor of or against any such amendment, such declaration shall be considered as a portion of the ticket of such party.” **° Party action upon proposed amendments was optional under the law of 1901, but it was made com- pulsory in 1907. The counting of straight party votes for amendments when such amendments have been endorsed by the political parties, has been upheld by the courts both in Ohio and Nebraska. Under the statutes of both Nebraska and Ohio an elector might vote a straight party ticket and thus cast his ballot for his party’s action concerning the proposed amendments ; or might vote the straight party ticket in gen- eral, but vote on any proposed amendment in opposition to his party’s action (by so marking opposite the amendments on the printed ballot); or might decline to vote the party ticket, and cast his vote either for or against the amend- ment, or not vote on the amendment at all; but if his party had, let us say, endorsed the amendments, the voter must either cast his vote for the amendment or split his ticket. His inaction with reference to the amendment (that is, by not voting for or against it specifically) is counted for it if his party has endorsed the proposal, or against the amend- ment if his party has declared against it; so too, if several amendments are submitted at once, and his party has en- dorsed all or more than one of them, voting a straight party ticket casts a ballot for all such proposals. These laws were attacked on the ground that they did 185 Nebraska Laws, 1907, p. 217; 1909, p. 54. Cobbey’s Annotated Statutes, 1909, secs. 5808, 5819, 5837, 5895, 6956-6969. 196 REVISION OF STATE CONSTITUTIONS not permit the electors to vote on “ each amendment separ- ately,” as required by the constitutions of Ohio and Ne- braska. To this the Ohio court replied: “ The act of the general assembly . . . enables the elector to vote with or against his party, on each or all of the amendments, or to vote separately upon each and every proposed amendment, or not to vote at all if he so desires; ** and the Nebraska court said: ‘The voter may vote a straight party ticket if he desires, but he is not compelled to do so. He may vote a straight party ticket in general and make such ex- ceptions as he desires either as to the individual candidates or as to any proposed constitutional amendment.” *" The Nebraska and Ohio plans make it more difficult for a voter to abstain from voting upon a proposed amendment on which his party has taken action (for to do this he must decline altogether to vote a straight party ticket), and also make it difficult for him to vote against his party’s action (for to do this he must go to the trouble of splitting his ticket). As remarked by one of the counsel in the Ohio case this system has the result of making “ the indifferent voter support a constitutional amendment in favor of which his party has taken action.” But it can hardly be said that a voter in casting his ballot has a constitutional right to abstain altogether from voting upon a measure submitted to him; and if the law does permit him to abstain from expressing himself, he can make no objection if such ab- stention is made more difficult than an expression of opinion for or against the measure; nor would it seem that he could properly object if (as in Alabama in 1898, and in Ohio and Nebraska if a measure had party endorsement) to a negative vote being made somewhat more difficult than an affirmative vote. 186 Ohio ex rel, Sheets v. Laylin, 69 Ohio St., 1, 14 (1903). 187 State ex rel. Thompson v. Winnett, 78 Neb., 379 (1907). AMENDMENT OF CONSTITUTIONS 197 By the system of party endorsements Nebraska was able to amend its constitution once in 1906 and twice in 1908. In Ohio the plan was employed in the elections of 1903 and 1905, but the law was repealed in 1908, so as not to be available for the election of November, 1908. In 1903 five proposed amendments were submitted in Ohio; of the five two (relating to county representation and the liability of stockholders) were endorsed by both the re- publican and democratic parties, and received the vote of these two parties almost in full; one (conferring the veto power upon the governor) was endorsed by the republicans and opposed by the democrats, and was carried by the re- publican vote; upon the fourth amendment (that regard- ing taxation) the republicans, without endorsing, invited “careful consideration,” and the democratic endorsement was given; the straight democratic vote for the amendment was not sufficient to give it a majority of all votes cast at the election; a fifth amendment submitted at the same time received the endorsement of neither democrats nor republi- cans—upon this amendment only about 50,000 votes were cast out of a total vote at the election of nearly nine hundred thousand. Two amendments submitted in 1905 were carried by means of party endorsements. Only by means of the party endorsements was it possible to carry the amendments which were adopted in 1903 and 1905. In 1908, when the party endorsement was no longer em- ployed, three amendments were submitted, and although each of them received an overwhelming majority of the votes cast upon it, all of them were lost, because less than forty per cent of those voting at the election expressed themselves upon the amendments. The requirement that a proposed amendment receive a majority of all votes cast at a general election may there- fore be said to make the amending process practically un- 198 REVISION OF STATE CONSTITUTIONS workable, unless some method is employed of counting votes for or against proposed amendments where the voter him- self is too indifferent to mark such proposals upon his ballot. Such schemes, however valid they may be techni- cally, are really evasions of constitutional requirements, and practically nullify these requirements. But the strict constitutional plan, having proven unworkable, must per- mit of alteration by construction so as to allow necessary changes. Our constitutions contain much legislative mat- ter, devised to meet conditions existing when they were framed, and must be changed when conditions have al- tered. Of the methods of popular ratification most em- ployed—(1) by a majority of those voting on the measure, even though it be a minority of those voting on other mat- ters at the same time, (2) by a majority of those voting at the election when the proposal is submitted—the second has proven practically unworkable, without schemes for the counting of votes which practically nullify it; the first, on the other hand, often permits constitutional alterations by a small minority of the electors, and is objectionable for this reason. It is a question whether the second plan, aided by party endorsements or by the Alabama method of voting, is not better than final action by a minority. Under the Alabama plan an elector votes for an amendment unless he is definitely opposed to it; he is presumed to be for it rather than against it if he does nothing. Under the party endorsement plan the elector votes for his party action un- less he is definitely opposed to it. Both methods may be said simply to count those who really do not express any opinion of their own upon the proposal, but who do noth- ing about the matter because it is easier to do nothing. This is true of the Alabama plan. But the plan em- ployed in Nebraska and Ohio means more than this. Un- der our system of government political parties may be said AMENDMENT OF CONSTITUTIONS 199 to be essential, and endorsement of a measure by a more or less representative party convention or by a party pri- mary may be fairly said to represent the opinions of a large number of party members.“** This is especially true where, as in Nebraska since 1907, a referendum upon proposed amendments is required to be taken in the party primaries. The Nebraska plan does, however, permit a small party minority which is interested in a proposal to commit an indifferent party majority by means of the primary, for the party endorsement is that of a majority voting upon the question, not that of a majority voting at the primary; the result actually is the same as in the states which permit amendment by a majority of those voting on the question, irrespective of whether there is a majority of all per- sons voting at the election. For example, let us assume that in a Nebraska republican primary one hundred thou- sand votes were cast; and that on a proposed amendment only ten thousand votes were cast, of which a majority were favorable; an endorsement of such proposal would then go on the republican ticket, and would obtain prac- tically the whole republican vote, and the amendment would be carried, not because a majority of the party voters fav- ored it, for the majority was evidently indifferent, but be- cause of the action of a small minority. So that in effect we have the same result as in a state which does not re- 138 But measures may often be submitted which have little or no bearing upon party policies. Often, too, the parties may not care to commit themselves, and under the Ohio plan it was not necessary that they commit themselves although inaction would be equivalent to adverse action, but under the Nebraska law of 1907 some definite party action upon proposed amendments is compulsory. It is always possible, of course, for the dominant party to bring about the repeal of the law by which party endorsement is required, if it does not wish to commit itself in any way upon a pending measure, and this is what was done in Ohio in 1908. 200 REVISION OF STATE CONSTITUTIONS quire a majority of all persons voting at the general elec- tion. A similar result, with control by a still smaller minor- ity, might often be expected from the use of the convention plan of party endorsement. But this is simply to say that unless a question is one of great popular interest (and most proposed amendments are not such), a proposal can- not ordinarily be carried, even though practically unopposed, if it must obtain a majority of all votes cast at a general election. Except with reference to matters of great importance, it may therefore be said that the requirement of such a ma- jority makes constitutional alteration too difficult, when we take into consideration the fact that our state constitutions contain so many provisions which are not fundamental in character and which require frequent change. But the plan used by most of the states permits amendment by a minority **—in fact amendments are usually adopted by a minority of the people and often by a very small minority. There is a feeling and a very proper one, that constitutional alterations should not be made by so small a body of people —sometimes as few as one-tenth of the voters—and this. feeling has led to the proposal that no amendment should be carried unless it received a certain fixed proportion of the votes cast. So in New York: “ The possibility that a con- stitutional amendment might be adopted by a minority of the electors of the state led to a proposed increase in the vote required to make the amendment effectual... . In 189 The plan of permitting the adoption of proposed amendments if they receive a majority of the votes cast upon the question of their adoption or rejection, practically results in the adoption of any pro- posal to which there is no strong opposition, even though there may be little sentiment in favor of it. The Nebraska plan will, it seems, accomplish very nearly the same purpose, but by the use of more cum- bersome machinery. For a further discussion of popular votes upon proposed amendments, see pp. 275-278. AMENDMENT OF CONSTITUTIONS 201 1883 it was proposed to require a majority of all the electors of the state to adopt an amendment; and in 1893 it was proposed that an amendment should not be deemed adopted unless the total vote for and against it should equal 70 per cent of the total vote cast for the members of assembly at the last preceding election.” Neither of these proposals was adopted by the legislature for submission to the peo- ple.*° The Michigan constitution of 1908 permits the proposal of amendments by popular petition, but provides that the affirmative vote necessary to adopt amendments so proposed “ shall not be less than one-third of the highest number of votes cast at the said election for any office,”’ al- though amendments proposed by the legislature may be adopted by a majority of those voting thereon. Reference has already been made to the Kentucky requirement that the affirmative vote on the question of calling a constitu- tional convention shall be “ equal to one-fourth of the num- ber of qualified voters who voted at the last preceding general election.” No trial has yet been made of the plan of requiring the vote of a certain fixed proportion of the qualified electors in order to carry an amendment. New Hampshire and Rhode Island have, however, employed another method of assuring that amendments shall not be adopted by too small a minority of voters. New Hampshire requires that pro- posed amendments be approved by two-thirds of the quali- fied voters voting thereon, and Rhode Island requires an affirmative vote of three-fifths of the electors voting upon proposed amendments. Even these requirements defeat many proposed amendments which would otherwise be adopted. Of the ten amendments submitted in New Hamp- shire in 1903, five failed because they did not receive a 140 Lincoln, Constitutional History of New York, ii, 576-577. 202 REVISION OF STATE CONSTITUTIONS two-thirds vote, although a majority was cast for their adoption; Rhode Island proposals submitted in 1898 and 1905 received a majority vote, but failed for want of three-fifths.*** Still another question with reference to the majority re- quired upon constitutional amendments was raised in Kansas, and was settled by the supreme court of that state, in the following language: ‘Another argument is based upon the use of the plural in this clause: ‘And if a majority of the electors voting on said amendments at said election shall adopt the amendments, the same shall become a part of the constitution.’ Now it is said, that by computing the vote by precincts, it is apparent that more than twice 92,302 voters **? voted on the two amendments, some on one and some on the other, and that before any one amend- ment is adopted, it must appear that a majority of all who voted on all the amendments, voted in the affirmative on the one. This does not commend itself to our judgment. A more correct interpretation grammatically of this lan- guage would be, that no single amendment could be adopted unless all were, there being no provision for adopting one out of several. But we think the clear intent is, that every amendment submitted shall stand upon its own merits, and that if a majority of those voting upon it is in the affirma- tive, it becomes a part of the constitution.” *** 141 For earlier votes in which a similar result was had see Rhode Island Manual, 1909, pp. 134-138, and Colby’s Manual of the Constitu- tion of New Hampshire, 228, 238. 142 The vote on the prohibitory amendment was 92,302, with 84,304 against. 143 Prohibitory Amendment Cases, 24 Kan., 7oo, 721. See also Bott v. Secretary of State, 62 N. J. Law, 127, 129; 63 ibid., 300; and Itasca Independent School District v, McElroy, 123 S. W., 117; 124 S. W., torr (Texas). The Texas constitution specifically lays down the same rule as that announced by the Kansas court. AMENDMENT OF CONSTITUTIONS 203 Assuming that an amendment has been adopted by the people, when does it become effective as a part of the con- stitution? A few constitutions provide specifically as to this matter; thus the constitution of Oregon specifically provides that an amendment shall be in force from the date of the governor’s proclamation that it has been adopted. In the absence of a constitutional provision, the law or legislative resolution may be considered as controlling, if it specifies anything as to this matter.** In the absence of constitutional or legal provision, and where the constitution simply contains a statement that an amendment shall be- come part of the constitution if it receives the required popular vote, the courts differ as to whether such an amendment becomes effective on the day of the election, at the time when the vote is canvassed, or at the time when the result of the popular vote is made public. A statute becomes effective immediately upon its passage, unless an- other rule is specified in the constitution or statute, and, reasoning by analogy, it has been argued that an amend- ment should become effective immediately upon its ap- proval by the people, unless the constitution makes a dif- 144 Where the constitution lays down one rule it is of course im- possible for the legislative resolution to establish another. “ Under the constitution, upon the ratification of an amendment, it becomes a part of the constitution, and while the legislature might propose an amendment which in itself provides for the time it would become oper- ative, yet, unless such time is incorporated in the amendment itself, the legislature has no authority to fix a time different from that pre- scribed by the constitution. In other words, if the amendment in its own terms fixes a time different from the constitution, and it is rati- fied, then it becomes just as much a part of the constitution as the present provision with reference to the time an amendment ratified should become a part thereof, but in the absence of such time being incorporated in the amendment, the legislature has no power to change the provisions of the constitution.” McBee v. Brady, 100 Pac., 97, 105. See also Hays v. Hays, 5 Ida., 154, and Kingsbury v. Nye, 99 Pac., 985. 204 REVISION OF STATE CONSTITUTIONS ferent provision; but this analogy does not hold, for the passage of a statute by the legislature is itself a specific public act, easily known at the time when done, while the result of a popular vote is not known, until the vote has been canvassed and the result made public. The canvass of votes and announcement of the result are necessary and essential steps in the popular adoption of any measure and may be considered parts of such process because necessary parts of the election itself.**° Unless a constitution speci- fically provides otherwise, the better rule would seem to be that an amendment does not become effective in any case un- til the vote has been canvassed and the result announced.*** 145 Real v, The People, 42 N. Y., 270, 276. “ The canvass of the votes cast by the various boards of canvassers as required by law, and an- nouncing the result and certifying the same as required by law, is as much a part of the election as the casting of the votes by the electors. The election is not deemed complete until the result is declared by the. canvassers as required by law.” 146 Many of the cases are reviewed in State v. Kyle, 166 Mo., 287. See also Wilson v, State, 15 Tex. App., 150; In re Joslyn’s Estate, 117 Mich., 442; People v, Supervisors, 100 IIl., 495, and cases cited in Century Digest, x, 1236; Decennial Digest, iv, 1560, and in American and English Encyclopaedia of Law, vi, goo. It may be well here to refer briefly to the question as to when a complete new constitution becomes effective. Wihere a proposed con- stitution is to be submitted to the people for approval it does not, of course, become effective until after such approval has been obtained. State v. Mayor, 32 La. Ann., 81. Territory v. Parker, 3 Minn., 240. When an established state forms a new constitution for itself, it is usual to provide in the new constitution as to the time when that in- strument shall become operative, and as to the details concerning the transition of the state from the old to the new constitution. See Bil- brey v. Poston, 63 Tenn., 232. For this reason cases have not arisen with respect to such constitutions, and cases which have arisen have had to do with constitutions framed by territories when seeking ad- mission to the union or by the southern states when seeking readmis- sion under congressional reconstruction acts. With reference to ter- ritories the rule would seem to be that, while a territory does not become a state until all forms prescribed by Congress for admission AMENDMENT OF CONSTITUTIONS 205 In Mississippi and South Carolina, as has already been said, the popular vote is not the final step in the amending process, but a subsequent legislative action is necessary. In South Carolina a proposed amendment approved by the people, does not become effective unless “a majority of each branch of the next general assembly shall, after such an election [general election for representatives] and be- fore another, ratify the same amendment or amendments.” In Mississippi a proposed amendment adopted by the peo- ple “shall be inserted by the next succeeding legislature ” as a part of the constitution, and does not become effective unless so inserted. In these two states amendments be- come effective only after action by the legislature. The are complied with, yet if a constitution is adopted and acted upon (and admission subsequently obtained), such acts will be considered valid as those of at least a de facto government, and the constitution will thus be given effect to as from the date when it was ratified and began to be acted under, although really not a “ state” constitution until ad- mission into the union is fully accomplished. Secombe v. Kittelson, 29 Minn., 555. Scott v. Detroit Young Men’s Society’s Lessee, 1 Doug. (Mich.), 119. Scott v. Jones, 5 How., 343. See an opposing dictum in Myers v. Manhattan Bank, 20 Ohio, 283. The congressional acts, under which the southern states were readmitted, required that these states adopt constitutions and that governments organized under such constitutions perform certain acts as a condition precedent to restora- tion. Hence, although the states had not acquired their full rights as states, and although the constitutions were subject to approval or dis- approval by Congress still they did become effective for the purposes of organizing state governments as soon as they were ratified by the people. These constitutions were therefore held to have become ef- fective, for certain purposes at least, at the time when they were rati- fied by the people; and the opposite contention that they were not effective until after congressional approval was rejected by the courts. In re Deckert, 2 Hughes (U. S.), 183. Pemberton v. McRae, 75 N. C., 497. Campbell v. Fields, 35 Tex., 751. Peak v. Swindle, 68 Tex., 242. State v, Williams, 49 Miss., 640. See also Foster v. Daniels, 39 Ga., 39. See an editorial on this subject in Central Law Journal, vol. 60, PP. 441-443, and discussion in Jameson, Constitutional Conventions, 4th ed., 197-200. 206 REVISION OF STATE CONSTITUTIONS legislative function in Mississippi is made mandatory by the constitutional language, and it is a function really minis- terial in character, but the legislature’s action is, in fact, purely discretionary, because legislative action is not sub- ject to judicial control. Nor is the legislative action upon amendments in these states purely formal. In South Carolina an important amendment, substituting biennial for annual legislative sessions, was approved by the people in November, 1904, but failed because it was not ratified by the succeeding legislature.**’ An interesting question arose recently in Minnesota as to what text of a proposed amendment should control in case of discrepancies. Here an amendment concerning taxation was proposed by the legislature, and the amendment as passed by the legislature provided that its terms should not apply to “farm land.” The proposed amendment as printed in the session laws omitted the word “ farm” and this word was not employed in the synopsis of the pro- posed amendment prepared by the attorney-general for publication. The proposed amendment was referred to sim- ply by title on the ballot. The question was thus raised as to whether the amendment had been adopted with or without the word “farm.” Counsel for the state argued that the published text controlled, and that the word ‘“‘farm” must therefore to taken to have been omitted; on the other hand it was argued that in case of a discrepancy, the en- rolled bill prevails in the case of statutes, and that the same rule should apply to amendments. The court, while sug- gesting that the rule with reference to statutes might not apply, did not pass upon the question, because it found that 147Tt was urged in this case that the amendment had been im- properly proposed and would therefore not be a valid amendment even if ratified by the legislature. South Carolina House Journal, 1906, PP. 47-49. AMENDMENT OF CONSTITUTIONS 207 the omission of the word “ farm” made no change in the sense or purpose of the amendment, Judge Jaggard, in a concurring opinion, declared that “the enrolled bill con- trols.” **° It is to be seriously doubted whether the en- rolled bill, journal entry, or other evidence of legislative action, should control in such a case. The popular vote is the decisive factor in constitutional change, and if there were any important discrepancy between the enrolled bill and the measure submitted to the people, it would seem, on principle, that the measure which had received popular ap- proval should prevail. The question is not apt to present itself squarely, because if the discrepancy is great it will very probably cause the amendment to be held invalid as violating some specific constitutional requirement. Somewhat similar in character was a question which arose recently in South Carolina.“® An amendment re- garding municipal debts was submitted and adopted in 1900; as proposed the amendment purported to amend article iv, section 5 of the constitution, but this was an error for article x, section 5. The court declared that it was be- yond the judicial power to alter the language of the amend- ment and to declare that it intended to refer to article x, section 5, but upheld the amendment by saying that it im- pliedly repealed the conflicting provision of article x, sec- tion 5. Another interesting point is that as to the effect which will be given to two directly contradictory amendments if adopted at the same election. The Nebraska legislature in 1889 proposed two amendments, one providing for pro- hibition of the sale of liquor, the other providing for a license system. The idea was that these should be in the 148 State v, Twin City Telephone Co., 104 Minn., 270. 149 Bray v, City Council of Florence, 62 S. C., 57 (1901). 208 REVISION OF STATE CONSTITUTIONS nature of alternative provisions, and this method was em- ployed because no constitutional authority existed for the submission of competing measures. But this plan did per- mit each voter to vote either for or against both proposi- tions, and made it. possible that both proposals might be adopted by the people. The legislature for this reason asked the opinion of the state supreme court as to the con- stitutionality of the plan, and the view of the court was favorable. The court said: “Electors, in casting their ballots for or against a proposition are supposed to be, and as a rule are, governed by principle; hence, if one votes in favor of prohibition, it will be rare indeed that he will also vote in favor of license. So if he votes for license, he will not vote for prohibition. The proposed amendments pro- vide for different and contradictory modes of controlling the liquor traffic, but one of which can be effective if adopted. The propositions being independent, however, an elector may vote for one and against the other, or for or against both. If both should receive a majority of all votes cast, however, the amendments being irreconcilable, both would fail.” *°° Both proposed amendments failed, so that the question of conflict never arose. In agreement with the Nebraska opinion is a recent dictum of the Idaho supreme court: “ Where a section of the constitution is amended at the same time by two different amendments, and the amendments adopted are directly in conflict, and it is im- possible to determine which should stand as a part of the constitution, or to reconcile the same, both must fail.’ 15? But in this case one of the proposed amendments had al- ready been held invalid because improperly proposed, and 150 Jy ve Senate File No. 31, 25 .veb., 864, 879. 151 McBee v. Brady, 100 Pac., 97; Utter v. Moseley, 100 Pac., 1058 (1909). AMENDMENT OF CONSTITUTIONS 209 even had it been validly proposed there was no real con- flict between the two amendments, although the court did say that there was irreconcilable conflict. The view ex- pressed by the Nebraska and Idaho courts is clearly cor- rect, should two amendments adopted at the same time be in irreconcilable conflict. Judicial Control of the Amending Process In discussing the judicial attitude toward the amending process it may be well to devote brief attention to the ques- tion which has been frequently raised whether the proper adoption or rejection of an amendment is not a political question, and as such beyond judicial cognizance. In sev- eral cases courts have taken the view that they had no au- thority to interfere in such matters. This view is very well expressed by Judge Fisher’s dictum in Green v. Weller: “ But he was of opinion, that an amendment of the con- stitution having been submitted by the legislature to the people, voted upon, and accepted by them, and by the suc- ceeding legislature inserted in the constitution as part of that instrument, there is no tribunal in the government which can revise this action of the respective legislatures, and of the people . . . The question is not in its nature judicial but political, and hence the action of that body to which the power has been specially confided, must be con- clusive.”**? In Maryland the constitution provides that “if it shall appear to the governor that a majority of the votes cast . . . on said amendment or amendments, sever- ally, were cast in favor thereof,” the governor should issue his proclamation declaring the amendment adopted. This language has been held by the Maryland court to vest in the governor the final decision as to whether the people have adopted or rejected a proposed amendment. In the case 152 Green v. Weller, 32 Miss., 650; 33 Miss., 735 (1856). 210 REVISION OF STATE CONSTITUTIONS of Worman v. Hagan the court said: “And on his [the gov- ernor’s] proclamation that a proposed amendment has re- ceived a majority of the votes cast, it becomes ¢o imstanti a part of the constitution. There is no reference of the question to any other officer, or to any other department. It is committed to the governor without qualification or re- serve, and without appeal to any other authority. Most certainly no jurisdiction is conferred on this court to revise his decision.” *** This decision, it should be pointed out, rests upon the definite language of the Maryland constitu- tion, and related simply to the determination of the result of the popular vote.*** The New Jersey constitution con- tains no language similar to that of Maryland, but the su- preme court of New Jersey in a late case took the view that the canvass of votes upon a proposed amendment was beyond judicial cognizance. The court said: “ The legis- lature constituted the board of state canvassers the tri- 153 Worman v. Hagan, 78 Md., 152 (1893). See also Miles v. Brad- ford, 22 Md., 170 (1864). tee Worman v. Hagan was criticized by Judge Elliott in McConaughy v. Secretary of State, 106 Minn., 410, where the view is taken that even though a power is expressly conferred by the constitution upon another department or officer, the courts would still retain their con- trol, Judge Elliott said that the courts would not be deprived “ of their inherent power to determine the legality of the actions of officers” unless such power is in terms denied by the constitution. But if a power is expressly granted to another department does this not ex- clude the courts? The courts, it would seem, have no “ inherent powers” above the constitution, but derive all power from the con- stitution just as do other departments of government. The Oregon constitution contains a provision similar to that of Maryland, and would seem also to remove this question from judicial cognizance. The Connecticut and Minnesota constitutions provide that an amendment shall become part of the constitution “if it shall appear, in a manner to be provided by law” that a sufficient popular vote was cast in its favor, and here also this matter would seem to be beyond judicial con- trol, if Worman v, Hagan be considered an authority. AMENDMENT OF CONSTITUTIONS 211 bunal by which the result of the election should be ascer- tained, and vested in it the jurisdiction to determine whether any amendment or amendments proposed had been adopted, and gave to the certificate of the board such force and ef- fect that upon filing the same the amendment or amend- ments so certified to have been adopted should be and be- come part of the constitution. . . . The concurrence of the board of state canvassers and the executive department of the government, in their respective official functions, place the subject beyond the cognizance of the judicial depart- ment of the government.” **° The position of the New Jersey supreme court was almost immediately reversed by the court of errors and appeals,**® and it is now the settled rule that, in the absence of specific _ and definite constitutional provisions which vest the final decision in some other officer or department, the judicial authority of the state extends over every step in the amend- ing process.‘*" The principle here is the same as that which 155Bott v. Secretary of State, 62 N. J. Law, 107, 130. See also 61 N. J. Law, 163, and State v. Swift, 69 Ind., 523, 524. For a similar view with reference to another matter see Dennett’s Case, 32 Me., 508 (1851). 156 Bott v. Wurts, 63 N. J. Law, 280. 187 Tt may be worth while to trace briefly the growth of judicial control over the amending process, In Luther v. Borden, 7 How., 1, 39 (1849), Chief Justice Taney said: “Certainly the question which the plaintiff proposed to raise by the testimony he offered has not here- tofore been recognized as a judicial one in any of the state courts. In forming the constitutions of the different states after the declara- tion of independence, and in the various changes and alterations which have since been made, the political department has always determined whether the proposed constitution or amendment was ratified or not by the people of the state, and the judicial power has followed its de- cision.” State v. McBride, 4 Mo., 303 (1836) was the first case to assert the judicial power to inquire into the validity of proposed amend- ments, and here the amendment was upheld, as also in Green v. Weller, 32 Miss., 650 (1856) and Dayton wv. St. Paul, 22 Minn., 400 (1876). 212 REVISION OF STATE CONSTITUTIONS lies behind the judicial power to declare laws invalid; it may be stated thus: The constitution is the supreme law and the courts are the especial guardians of that law. Any act, whether it be of legislation, of executive power, or any step in the amending process, which in the opinion of the courts violates the constitution, may be rendered of no ef- fect by the exercise of the judicial authority. The judicial control of the amending process has been discussed some- what fully in three recent cases, in which the authorities are extensively reviewed.** The Mississippi constitution provides that “if it shall appear that a majority of the qualified electors voting shall have voted for the proposed change, alteration, or amend- ment, then it shall be inserted by the next succeeding legis- lature as a part of this constitution.” It was argued with Miles v. Bradford, 22 Md., 170 (1864) denied the power. See also Brittle v. People, 2 Neb., 198, 214. ‘Collier v, Frierson, 24 Ala., 100 (1854) is the only case before 1880 in which an amendment was de- clared invalid because improperly adopted. Hardly more than a half dozen cases involving the proper adoption of proposed amendments arose before 1880; up to 1890 probably not more than twenty such cases had come before the courts. Since 1890 cases have frequently arisen and the courts have exercised an effective supervision over all steps in the amending process. For the expression of a view that the ques- tion here considered is political, not judicial, see remarks by Judge Charles S. Bradley in Report of the American Bar Association, 1883, Pp. 32. 188 State v. Powell, 77 Miss., 543 (1900). Bott v. Wurts, 63 N. J. Law, 289 (1899). McConaughy v. Secretary of State, 106 Minn., 392 (1909). See also Koehler v. Hill, 60 Ia., 543; Gabbert v. R. R. Co.,, 171 Mo., 84; Kadderly v. Portland, 44 Ore., 118; Knight v. Shelton, 134 Fed., 423; Rice v. Palmer, 78 Ark., 432; Miller v. Johnson, 92 Ky., 589; McBee v. Brady, 100 Pac., 97 (Idaho). The cases already dis- cussed concerning journal entry, publication, etc., and those cited in the subsequent discussion proceed upon the assumption that courts have authority to enforce the constitutional provisions regarding the amend- ing process, and many of them discuss this subject, but it is deemed unnecessary again to refer to such cases here, especially as they are exhaustively reviewed in the three cases cited above. AMENDMENT OF CONSTITUTIONS 213 much plausibility that this language left the final decision as to popular adoption to the legislature. “It was argued that the rules prescribed by the constitution ‘are all for the guidance of the legislature,” and from the very nature of the thing the legislature must be the exclusive judge of all questions to be measured or determined by those rules . . this section of rules, not only of procedure but of final judg- ment as well, confides to the separate magistracy of the legislative department full power to hear, consider, and ad- judge that question. The legislature puts the question to the qualified electors. The qualified electors answer back to the legislature. “If it shall appear” to the legislature that its question has been answered in the affirmative, the amendment is inserted and made a part of the constitution. The governor and the courts have no authority to speak at any stage of this proceeding between the sovereign and the legislature, and when the matter is thus concluded it is closed, and the judiciary is as powerless to interfere as the executive.’ But it was held that the question whether the proposition submitted to the voters constituted one, or more than one, amendment, whether the submission was according to the requirements of the constitution, and whether the proposition was in fact adopted, were all judi- cial, and not political questions.” *°° The Mississippi court said: “ 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.” The amend- ment which had been inserted into the constitution by the legislature was declared invalid by the court.** 159106 Minn., 407; 77 Miss., 551, 552, 567. 160 A Mississippi proposed amendment of 1902 which failed of adop- 214 REVISION OF STATE CONSTITUTIONS After an exhaustive review of the authorities Judge Elliott of the Minnesota supreme court stated the present rule as follows: ‘ The authorities are thus practically uni- form in holding that whether a constitutional amendment has been properly adopted according to the requirements of an existing constitution is a judicial question. There can be little doubt that the consensus of judicial opinion is to the effect that it is the absolute duty of the judiciary to determine whether the constitution has been amended in the manner required by the constitution, unless a special tribunal has been created to determine the question; and even then many of the courts hold that the tribunal cannot be permitted to illegally amend the organic law. There is some authority for the view that when the constitution itself creates a special tribunal, and confides to it the exclusive power to canvass votes and declare the results, and makes the amendment a part of the constitution as a result of such declaration by proclamation or otherwise, the action of such tribunal ts final and conclusive. It may be conceded that this is true when it clearly appears that such was the intention of the people when they adopted the constitu- tion.” *** It may be that the latter part of Judge Elliott’s statement is too strong, but certain it is that with the courts there is a strong presumption against any construction of constitutional provisions which would deprive them of con- trol over the amending procedure. It is assumed to be the duty of every court so to construe constitutions and laws as to give itself jurisdiction if possible and this rule may, when it seems necessary, be employed with reference to the amending process. tion sought to amend the language quoted above so as to read “if it shall appear to the legislature.” Language similar to that of the pres- ent Mississippi constitution will be found in the constitutions of Ala- bama, Kentucky, Maine, and Texas. 161 106 Minn., 409, 410. AMENDMENT OF CONSTITUTIONS 215 It may be said then that the courts exercise supervision over all steps of the amending process which are specified in the constitution of the state. Such supervision would ordinarily be somewhat easy as affects public acts which may be proved by external evidence, as, for example, the ques- tions whether a proper journal entry was made, whether there was sufficient publication, whether a proposed amend- ment was properly submitted as merely one proposal, or whether the popular vote as canvassed showed a sufficient majority for the adoption of the proposal. But when the canvass itself is questioned and a recount of votes is asked, the question becomes a more difficult one, because involving the exercise of a function not ordinarily performed by courts. But the same principle applies, and in Michigan and Minnesota recounts have been had under judicial su- pervision,*® Assuming then that whether an amendment has been properly proposed or adopted is a judicial question, it will next be well to discuss the attitude of the courts in passing upon such questions. The proper rule would seem to be that stated by the Colorado court in People v. Sours: “At the outset it should be stated that every reasonable pre- sumption, both of law and fact, is to be indulged in favor of the validity of an amendment to the constitution when it is attacked after its ratification by the people.” *** This liberal attitude has usually been taken, although in some cases it has been laid down that the amending process being presumably more important than the ordinary legisla- tive function should have a stricter rule applied to it than 162 Rich v. Board of State Canvassers, 100 Mich., 453 (1804). Mc- Conaughy v. Secretary of State, 106 Minn., 392 (1909). 163 31 Colo., 369, 376, 388, 390. See also Edwards v. Lesueur, 132 Mo., 410. 216 REVISION OF STATE CONSTITUTIONS to the passage of ordinary laws.*** Judge Jameson ad- vocated the policy of strict as opposed to liberal construc- tion,?®* and the supreme court of Iowa has adopted the view that “where the existing constitution prescribes a method for its own amendment, an amendment thereto, to be valid, must be adopted in strict conformity to that method.” *** In Iowa where a proposed amendment is required to be entered on the journals of the two houses, the surpreme court has declared invalid two important amendments which were not entered “in full” although full entry was not specifically required, and thus resolved against the amendments approved by the people the doubt as to the proper meaning of the constitutional require- ment.*®* So too the Mississippi court in State v. Powell took a strict view as to what constitutes one or more than one amendment,*** and the Indiana and Wyoming courts have taken a strict view with reference to ambiguous lan- guage in the constitutions of those states regarding the popular vote required, although the same language has been construed in a precisely opposite manner by the supreme court of Idaho.**® So too cases in Nevada and California have taken a very strict view which subjects the amending process to control by ordinary legislation, and which if ad- 164 State v. Foraker, 46 Ohio St., 677. State v. Powell, 77 Miss., 576. Bott v. Wurts, 63 N. J. Law, 289. State v. Rogers, 56 N. J. Law, 480, 6109. 165 Jameson, 617. See also J. W. Garner in American Political Sci- ence Review, i, 234. 166 Koehler v. Hill, 60 Iowa, 543. 167 Koehler v. Hill, 60 Iowa, 543; State v. Brookhart, 113 Iowa, 250. 168 State v. Powell, 77 Miss., 543. 169 State v. Swift, 69 Ind., 505. In re Denny, 156 Ind., 104. State ex rel, Blair v. Brooks, 99 Pac., 874 (Wyo.). Green v, State Board, 5 Ida., 130. AMENDMENT OF CONSTITUTIONS 217 hered to would greatly restrict the legislative power of pro- posing amendments.1”° In discussing the strict or liberal interpretation of the amending clause, it should perhaps be said that the same court may at one time be liberal and at another strict. The function of passing upon the validity of laws or proposed amendments is primarily political, not judicial, and where the opinion of a court happens to be opposed to a proposal it is usually not difficult to find some reason for declaring such proposal invalid.*7* Some, at least, of the cases constru- ing strictly the amending clause, may be explained upon this ground. But, as has already been suggested, the judicial construc- tion of the amending clause has usually been liberal, and has resolved doubts in favor of the validity of amendments approved by the people.*** This liberal attitude is one with respect to the manner of compliance with constitutional re- quirements, but substantial compliance with the steps laid down in the constitution is required. If a required step is 170 Hatch v, Stoneman, 66 Cal., 633. State v. Davis, 20 Nev., 220. Livermore v, Waite, 102 Cal., 113 (1894). 171 Where the constitutional requirements concerning amendment are numerous and specific, action by a great number of persons is usually necessary, and some flaw in the proceeding may usually be found if a careful search is made. For example, where publication is required in each county of a state it may easily be that through acci- dent or design publication might be improperly made in one or more counties, and if a court desired to be strict this might be held to in- validate the amendment. See Prohibitory Amendment Cases, 24 Kan., 700; State v. Winnett, 78 Neb., 379, 387; Lovett v. Ferguson, 10 S. D., 56. 172 This appears clearly in the cases sustaining expedients for avoid- ing the constitutional provisions requiring a majority of all persons voting. State ex rel. Thompson v. Winnett, 78 Neb., 379. State v. Laylin, 69 Ohio St. 1. May and Thomas Hardware Co. v. Birming- ham, 123 Ala., 306. 218 REVISION OF STATE CONSTITUTIONS omitted, or is not even in substance complied with, no court has ever upheld the amendment, even though it may have been approved by the people. That is, the constitutional requirements are mandatory, not merely directory,’"* and no court will overlook the entire disregard of even the less important of such requirements. For example, the Alabama constitution of 1819 required proposal by the legislature, publication, a popular vote, and then a subsequent ratifica- tion by the legislature. Eight amendments were proposed by the legislature of 1844-45, and were approved by the people, but one of them was by inadvertence omitted in the subsequent ratifying vote of the legislature. The court held that the proposed amendment which had not been rati- fied was not adopted, and said: ‘ We entertain no doubt, that, to change the constitution in any other mode than by 173A note in Io L. R. A. (N. S.), 149, suggests that the courts sometimes treat immaterial constitutional requirements as directory, but even the most liberal cases have ordinarily declined to go as far as this. There is, however,:a dictum to this effect in Commonwealth v, Griest, 196 Pa. St., 396, 416: “ We think that the provision as to publication three months before the next general election, as prescribed in the first clause of article 18, should be regarded as merely a directory provision, where strict compliance with a time limit is not essential.” In Holmberg v. Jones, 7 Ida., 752, 758, 759, the court intimated, obiter, that though two-thirds of the members of each house did not vote for a proposed amendment, if the measure had been put on the ticket without objection and approved by the people, an estoppel would oper- ate to prevent a contest of its validity after popular approval, although objection might have been made at an earlier stage of the proceedings. This view is doubted in the later case of McBee v. Brady, 100 Pac., 97, Io1, 102 (Idaho). For an argument that constitutional require- ments with reference to amendment may be legally disregarded in case of necessity (that is, when amendments are urgently needed but the amending process operates with such difficulty as to be practically un- workable) see a pamphlet on Chicago and the Constitution, a report made to the Civic Federation of Chicago in 1902 by E. Allen Frost, Robert McMurdy, and Harry S, Mecartney, pp. 51-57. See also a similar suggestion in State v. Winnett, 78 Neb., 387. AMENDMENT OF CONSTITUTIONS 219 a convention, every requisition which is demanded by the instrument itself, must be observed, and the omission of any one is fatal to the amendment.” *** Similarly where the re- quirement of “full entry” on the legislative journals is not complied with,*"* or where an “entry” is required but no reference whatever is made to the proposed amendment in the legislative journals,*’* proposed amendments were held invalid even after approval by the people. Somewhat similar in character was the case of State v. Tooker,’ where a proposed amendment was held invalid where it had been published for only two weeks although the state constitution expressly required publication for three months before the election. It is now so well recognized that a proposed amendment will not be upheld unless all constitu- tional steps are complied with that it is customary, where some step has through inadvertance been omitted, for the executive officers not to take steps for the popular sub- mission of such a proposal.*7® 174 Collier v. Frierson, 24 Ala., 100 (1854). See also State vw. Mc- Bride, 4 Mo., 303. 175 Durfee v. Harper, 22 Mont., 354 (18909). 176 State v. Tufly, 19 Nev., 391. But see p. 148, note 5o. 17715 Mont, 8 (1804). The court in this case refers to the fact that the constituional provisions of Montana are expressly declared to be mandatory except when otherwise specified but the requirements would it seems have been mandatory in any case. 178. Commonwealth v. Griest, 196 Pa. St., 396. State ex rel. Morris v. Mason, 43 La. Ann., 590. A Mississippi proposed amendment was not submitted to the people in 1908 because it had not been published in conformity with the constitutional provisions. A secretary of state or other ministerial officer may, of course, defeat a proposed amend- ment by neglecting to comply with the constitutional requirements. But the duty of such officer may be enforced by mandamus. With reference to the Mississippi proposed amendment of 1908 the following quotation is of interest: “Section 273 of the State Constitution requires that public notice be given for ninety days preceding an elec- 220 REVISION OF STATE CONSTITUTIONS But where an effort has been made to comply with the constitutional requirements, and where such compliance has not been complete, the question presents itself to the court whether immaterial errors should be permitted to defeat the popular will as expressed upon an amendment adopted by the people, and upon this question the courts have usu- ally taken a liberal attitude. So in the Kansas Prohibitory Amendment cases,’”? Judge Brewer remarked that “ omis- sions and errors which work no wrong to substantial rights are to be disregarded,” and said further that: “ The two important, vital elements in any constitutional amendment are the assent of two-thirds of the legislature, and a ma- jority of a popular vote. Beyond these, other provisions are mere machinery and forms. They may not be dis- regarded, because, by them, certainty as to the essentials is secured. But they are not themselves the essentials.” This statement has frequently been quoted with approval. A somewhat similar view was later expressed by the su- preme court of South Dakota: “The action of the two houses and the will of the people, as expressed by their vote, should not be set aside or disregarded upon purely technical grounds, when no material requirement of the constitution has been omitted, and where the proceedings taken clearly manifest the intention of those bodies and the people to amend the fundamental law.’ **° tion, at which the qualified electors shall vote directly for or against such change, alteration or amendment. That notice I failed to give. . . . I discovered my error about the 1st of September, but would not at that time attempt to make publication for it would not come within the time required by law. Had I done that the publication would not have been legal.” Biennial Report, Secretary of State, 1907-00, Pp. 7. 179 24 Kan., 700, 710 (1881). 180 Lovett v. Ferguson, 10 S. D., 44; State ex rel. Adams v. Herried, to S. D., 109. AMENDMENT OF CONSTITUTIONS boy In the recent Colorado case of People vw. Sours,'®? the court took a very liberal attitude, saying that legislative action must be in substantial compliance with the constitu- tional requirements, but that technical objections would be brushed aside. Here a number of specific objections were made to an amendment approved by the people, of which perhaps the most important was that the constitution re- quired “full entry” of the proposed amendment upon the legislative journals but that the entry upon the house jour- nal did not agree with that on the senate journal. The court sustained the amendment, and said that “the dis- agreement between the two journals is a mere clerical mis- take, that the same bill in fact passed both houses, and that the entering by mistake upon the journal of the house of the half dozen words quoted does not violate the provision of the constitution requiring the proposal to be entered in full upon the journals of both houses.” The fact remains, however, that technically there was not a full entry of the proposed amendment on the journal of each house. In this case the Colorado court was also very liberal in its attitude regarding the requirement that each amendment shall be so submitted to the people that it may be voted upon separ- ately.**? 181 31 Colo., 369, 405. See also People v. Loomis, 135 Mich., 556 (1904). 182 As to the liberal attitude of courts see also Trustees of Univer- sity of N.C. v. McIver, 72 N. C., 76 (1875); Bray v. City Council of Florence, 62 S. C., 57 (1901); Kadderly v. Portland, 44 Ore. 118 (1903); Farrell v. Port of Columbia, 50 Ore., 169, 175 (1907). In Kadderly v. Portland the constitutional provisions were construed strictly with reference to two proposed amendments which had failed of adoption in order to uphold an amendment whiclh had actually been approved by the people; the decision, which may perhaps appear strict to the casual reader, was actually liberal in effect, and was intended to be so. Chase v. Board of Election Commisisoners, 151 Mich., 407 222 REVISION OF STATE CONSTITUTIONS Even where an amendment may have been adopted with- out substantial compliance with the constitution, long ac- quiescence in such a change may place it beyond judicial cognizance—the question as to whether an amendment was properly put into effect may have become by lapse of time, a political as distinguished from a judicial question. An amendment to the Colorado constitution was adopted in 1884 extending the legislative sessions from forty to ninety days. In 1894 a case arose in which a law was attacked as invalid because passed more than forty days after the commencement of the legislative session, it being contended that the amendment of 1884 was invalid, and that therefore any legislation after a forty-day term was invalid. The Colorado constitution requires that a proposed amendment be entered in full on the journals of each house, but this requirement seems not to have been even substantially com- plied with, with reference to the amendment of 1884; the amendment was not correctly entered in full and the house and senate entries did not agree. The court said that constitutional provisions are ordinarily mandatory, but that to overthrow this amendment would practically invalidate all laws passed by the five preceding legislatures, and that such action should not be taken because of the incorrect (1908), stretched the judicial power to its furthest point; the legis- lature of 1907 proposed an amendment and provided that it should be submitted to the people at the election of April, 1908, the constitution providing that proposed amendments should be submitted at “the next spring or autumn election” after their proposal, “as the legis- lature shall direct.” The court held that this language referred only to general elections—the spring election in the odd years and the autumn election in even years—and declined to issue mandamus to compel submission in April, 1908. Under these conditions it would seem that the proposal would be entirely ineffective, but the court expressed the view that the proposal should without any further legis- lative action be submitted at the next regular election; the amend- ment was submitted to the people in November, 1908, and was adopted. AMENDMENT OF CONSTITUTIONS 223 journal entries.** A somewhat similar case arose recently in Nebraska.*** An amendment submitted to the people in 1886 lengthened the sessions of the legislature, and increased the compensation of members of the two houses. The legis- lature of 1887 canvassed the vote and declared the amend- ment lost because not receiving a majority of all votes cast. Shortly afterward, however, the legislature by a special act provided for a recount of votes, and upon the recount the amendment was declared adopted. It was contended that a special act for this purpose was invalid, and that there- fore all proceedings under this act were inoperative, but the court held this not to be the case. The court said, in addition, that even if the legislative act were invalid the amendment should be sustained. “It seems to us clear that the question of the adoption, and the consequent validity of this amendment, depends upon the number of votes it received, and that after sixteen years it is too much to ask us to set it aside, not on the ground of any actual lack of votes, but on the ground of irregularity, informality and impropriety in the manner in which the vote was counted and the result declared.” A question of a somewhat similar character arose in the Minnesota case of Secombe v. Kittelson.*** ‘Bonds had been issued under a constitutional amendment of 1858, and it was here sought to restrain the payment of interest on such bonds upon the ground that the amendment was in- valid. The amendment was adopted after the constitution had been ratified by the people but before Minnesota was admitted to statehood, and it was contended that the con- stitution was not in force until admission, and could not therefore have been validly amended. The court said that 188 Nesbit v. People, 19 Colo., 441 (1894). 184 Weston v. Ryan, 70 Neb., 211 (1903). 185 29 Minn., 555 (1882). 224 REVISION OF STATE CONSTITUTIONS the theory at the time was that the constitution became operative as soon as adopted, that the government organ- ized under the constitution was a de facto government, that the amendment was ratified by the people and acted upon as valid, and that if this amendment were held invalid it would also be necessary to declare invalid all acts passed by the state legislature before the admission of the state into the union. The court declined to inquire too technically into irregularities in the submission of an amendment which had been adopted and acted upon as the fundamental law, and said: “ We doubt whether a precedent can be found in the books for the right of a court to declare void a con- stitution or amendment to a constitution, upon any such ground.” The question was held to be closed in this case because: “ First, such irregularities, if any, must be re- garded as healed by the subsequent act of congress admitting Minnesota into the Union. . . . Second, They must be deemed cured by the recognition and ratification of this amendment, as a part of the constitution, by the State after its admission into the Union.” The ratification referred to was a later amendment which repealed the amendment of 1858, but expressly protected all rights acquired under that amendment. Where an amendment essentially altering the operation or structure of a state government has been adopted and acted upon, the courts would probably in all cases treat the question of the validity of such an amendment as a politi- cal question not within judicial cognizance. The regular operations of government must not be interrupted, even though a constitutional alteration may have been im- properly made, and the courts find it expedient to avoid the decision of such questions.** In Koehler 186 Luther v. Borden, 7 Howard, 1, 40 (1849). See an approving reference to this case in Bott v. Secretary of State, 63 N. J. Law, 208, and in 60 Ia., 608, 614. AMENDMENT OF CONSTITUTIONS 226 v. Hill**’ it was said that “it is the duty of courts, in a ‘proper case, when an amendment does not relate to their own powers or functions, to inquire whether, in the adop- tion of the amendment, the provisions of the existing con- stitution have been observed, and, if not, to declare the amendment invalid and of no effect.” It is difficult to see why the court should have thus distinguished between amendments affecting the courts and other amendments. It is true in fact, perhaps, that the validity of an amendment increasing judicial power would much more easily be sus- tained by the courts than one decreasing judicial power, but the courts having asserted their complete control over the amending process, such control exists irrespective of the subject to which the amendment may relate. Several expressions in the cases discussed above would raise the inference that an amendment might be secure from judicial attack simply because it had been long acquiesced in and uncontested. This view can hardly be _ a proper one. In the cases above acquiescence was coupled with the fact that the amendments made essential changes in governmental organization, and such changes having been accomplished, were regarded as making the question a political one. But an amendment which did not make an essential change in the governmental organization—one the annuling of which would not disarrange the governmental ‘ machinery—may, it would seem, be attacked as invalid at any time, just as a law acted upon perhaps for years as valid, may be then held unconstitutional by the court.*** Mere lapse of time raises no presumption in favor of the validity of either a law or amendment, but long acquies- cence without contesting its validity may be considered as 187 Koehler v. Hill, 60 Ia., 543, 616. 188 Knight v, Shelton, 134 Fed., 423 (1905), held invalid an Arkansas amendment of 1892. 226 REVISION OF STATE CONSTITUTIONS having weight in determining the question of constitu- tionality. A question of great interest is that as to the attitude of the federal courts toward state constitutional amendments the validity of which may be assailed. This question has been raised in two cases in the inferior federal courts. The case of Smith v. Good **° was an action upon a promissory note given for the purchase of liquors in violation of a prohibition amendment adopted in Rhode Island in 1886. It was contended by the plaintiff that the amendment was not legally adopted because not voted on by town meetings in several of the towns. The court said: ‘ When the poli- tical power of the state declares that an amendment to the constitution has been duly adopted, and the amendment is acquiesced in by the people, and has never been adjudged illegal by the state court, the jurisdiction of a federal court to question the validity of such a change in the funda- mental law of a state should clearly appear. . . . The very framework of the federal government presupposes that the states are to be the judges of their own laws; and it is not for the federal courts to interpose, unless some provision of the federal constitution has been violated. It is not pre- tended in this case that any federal question is raised.” The action of the state officers in declaring the amendment to be adopted was held to be conclusive, and the validity of the amendment was not inquired into. ‘ A precisely opposite position was taken in the later case of Knight v. Shelton.*°® In this case a suit for damages 18934 Fed., 204 (1888). 190 134 Fed., 423 (1905). Knight v. Shelton and Smith v. Good are, of course, easily distinguishable on the ground that in the first case no federal question was involved, while in Knight v, Shelton a federal question was raised as to the right to vote for members of Congress. But whether the plaintiff had been improperly deprived of such right AMENDMENT OF CONSTITUTIONS 227 was brought against election judges because of their re- fusal to receive a vote in the election of a member of the federal house of representatives, and the defendant set up an Arkansas constitutional amendment of 1892, which re- quired the payment of a poll tax in order to qualify a voter. The validity of this amendment was denied, but it had been declared adopted by the proper state authorities, and had never been passed upon by the state court. The federal court held that the amendment had not been adopted, because not approved by a “ majority of the elec- tors voting” at the election of 1892 as required by the state constitution. In Knight v. Shelton the question was not raised as to the impropriety and possible inconvenience of a federal court’s passing upon the validity of a state constitutional amendment as tested by the requirements of the state con- stitution. It happens that the Arkansas court has in a later case taken a view similar to that taken by the federal court,’** but suppose it had taken a contrary view, and should insist upon treating as valid an amendment which the federal court had declared invalid. We should then have the absurd situation of an amendment valid in the state courts and at the same time invalid in the federal courts, unless the federal courts should follow the state decision after it is rendered. The better rule would be, as stated in Smith v. Good, to leave the determination of such questions to the state courts, where no federal con- depended upon an amendment which had been acted upon by the state as valid for twelve years, and which had not been passed upon by tthe state court. The validity of this amendment depended not upon fed- eral but upon state constitutional grounds. Federal courts have not assumed until recently the power to pass upon the validity of state enactments as tested by state constitutions, 191 Rice v. Palmer, 78 Ark., 432 (1906). 228 REVISION OF STATE CONSTITUTIONS stitutional question is involved, and for the federal courts to follow the state decision. However, the position taken in Knight v. Shelton is probably the one which will pre- | vail, for it is in line with the recent attitude of the federal courts in determining the constitutionality of state laws as tested by state constitutional principles, independently of state judicial action.**? Perhaps enough has been said to indicate the extent of judicial control over the amending process. It may now be worth while to inquire as to the manner in which such control is exercised. In most of the cases which have come before the courts, the validity of amendments has been denied in cases which have arisen after they have been submitted to the people and have been declared adopted, and it is, of course, always proper to attack an amendment in this manner. But the question has arisen several times as to the extent to which the courts may in- terfere and prevent the submission to the people of amend- ments which they consider to have been improperly pro- posed. It has already been said that the duties of executive officers with respect to publication and submission are min- isterial in character and may be enforced by mandamus.*** These acts are necessary incidents to the amending process, and a mandamus in such cases is an aid to the amending process. But suppose, that upon the hearing for manda- mus, the court should find that some essential requisite of a valid amendment had been omitted, may the court de- cline to issue the writ upon the ground that submission is improper because the amendment would be invalid even if approved by the people; that is, that the popular submis- 192 Prof. Henry Schofield in Illinois Law Review, iii, 195. 193 State ex. rel. Morris v. Mason, 43 La. Ann., 590. Commonwealth v. Griest, 196 Pa. St., 396 (1900). Warfield v. Vandiver, ror Md., 78 (1905). AMENDMENT OF CONSTITUTIONS 229 sion would in any case be ineffective? And, under similar circumstances, would it be proper for the courts to enjoin such submission? Under circumstances similar to those just referred to the California supreme court has declined to issue mandamus to compel submission,*** and in another case the court has actually restrained such submission.*°* In Missouri the court was asked to enjoin the submission of an amendment but declined to do so because it found no reason for taking such action, although its attitude seems to indicate that it considered an injunction to be proper should it have found fhe proposal defective. The court said: “ The power and jurisdiction of the judiciary to de- clare a proposal for an amendment to the constitution in- effectual, and to arrest its submission to the people, which we are now called upon to exercise, is coupled with far more serious responsibilities’ than is the exercise of the power to annul a law.*** To the same effect is a dictum in the Idaho case of Holmberg v. Jones,**" where the court said: “ The only irregularity is that it [the amendment] did not receive the votes of two-thirds of the members of the house. It cannot be questioned but that any voter of the state, by proper proceedings in the district court, or in this 194 Hatch v. Stoneman, 66 Cal., 633 (1885). 195 Livermore v. Waite, 102 Cal. 113 (1894). See also People wv. Curry, 130 Cal., 82 (1900). 196 Edwards v. Lesueur, 132 Mo., 410, 441 (1896). But the language quoted above should be read in connection with the following state- ment: “We have not discussed the question whether the remedy by injunction is, in any event, available for the purposes contemplated in this case, because defendant has expressly waived that question, and requested a decision on the broader grounds which we have accordingly considered.” For the use of the injunction in connection with the amending process see also State v. Laylin, 69 Ohio St, 1 (1903). 197 Holmberg v. Jones, 7 Ida., 752, 758. 230 REVISION OF STATE CONSTITUTIONS court, could have obtained a writ of prohibition restrain- ing the secretary of state from certifying the question of adopting such proposed amendment to the various county auditors. The official ballot could have been protected against the improper submission of such question, and could have been purged of the presence of such question thereon, by proper judicial proceeding.” The California rule has been expressly rejected in South Dakota and Colorado. In the South Dakota case of State ex rel, Cranmer v. Thorson,**® it was sought to restrain the submission to the people of @ proposed amendment, upon the ground that the constitutional requirements had not been complied with. The court declined to act and said: “Power to amend the constitution belongs exclu- sively to the legislature and electors. It is legislation of the most important character. This court has power to determine what such legislation is, what the constitution contains, but not what it should contain. It has power to determine what statutory laws exist, and whether or not they conflict with the constitution, but it cannot say what laws shall or shall not be enacted. It has the power, and it is its duty, whenever the question arises in the usual course of litigation, wherein the substantial rights of any actual litigant are involved, to decide whether any statute has been legally enacted, or whether any change in the constitution has been legally effected, but it will hardly be contended that it can interpose in any case to restrain the enactment of an unconstitutional law. . . . If they [the courts] can- not prevent the legislature from enacting unconstitutional laws, they cannot prevent it and the electors from making ineffectual efforts to amend the constitution.” In this case the court also said: “It has not been shown, nor can it 1989 S. D., 149 (1896). AMENDMENT OF CONSTITUTIONS 231 be imagined, in what manner the relator will be injured by the contemplated action of defendant. If the legis- lature has proceeded properly, and its proposed amend- ment shall be ratified by: the people, the relator will have no legal cause of complaint, because, as a good citizen of the state, he will be bound to cheerfully accept the law- fully expressed will of a majority of its sovereign electors. If, on the other hand, the action of the legislature was such as to render any answer to the question [submitted to the voters] inoperative, the constitution will not be modified, and no one will be affected. Any additional burden which might result to relator, as a taxpayer, by reason of sub- mitting this question at a general election, is too trifling, fanciful and speculative for serious consideration. . . Hav- ing failed to show that he will be injured by the intended action of defendant, the relator is not entitled to have it enjoined, or its regularity investigated, in this action.” In People ex rel. O’Reilly v. Mills,*** it was sought to enjoin the secretary of state of Colorado from publishing a pro- posed amendment as required by the constitution, before its submission to the people. In declining to issue an in- junction the supreme court of Colorado said: “ In amend- ing the constitution the voters become the body which fin- ally give vitality to proposed amendments or refuse to make a change by rejecting them. The exercise of this power is as much a step in passing and considering proposed legis- lation of this character as any the general assembly must take in passing ordinary statute laws. The judicial depart- ment can no more interfere with such legislation or the successive steps necessary to be taken to amend the con- stitution than it can with the general assembly in the pass- age of other laws, because the judicial cannot interfere with the functions of the legislative department.” 199 39 Colo., 262 (1902). 232 REVISION OF STATE CONSTITUTIONS The principle announced by the Colorado and South Dakota courts may be stated as follows: The courts have no power to interrupt the process of amendment before it is complete, to restrain a popular vote upon a constitu- ‘tional proposal, even though they may be clearly of the opinion that the popular vote will be ineffective because of defects already apparent in the method of proposal. They must wait until the amending process is fully completed, and then pass upon the validity of the amendment if this question is properly presented in litigation before them. In accordance with this view it would seem that the courts should compel by mandamus administrative acts incident to the amending process; that is, the administrative acts should be treated as duties commanded by the constitution after the legislative proposal, which may be regarded as presumably valid and not subject to review in an ex parte proceeding. Under this view the courts may neither re- strain the submission nor decline to compel it, because either of these is a direct interference with legislative action, the one positive in absolutely preventing submission, the other negative in that it does not enforce a purely min- isterial duty in aid of the amending process. Theoretically this view is the better one. The process. of amendment is a process of superior legislation, and the courts ordinarily decline to interfere with the processes of legislation, although they may always pass upon the valid- ity of the completed product of such process. The ques- tion as to how far the courts shall depart from this prin- ciple in controlling the amending process is particularly important in view of the introduction of the referendum on ordinary legislation. In Oregon, for example, a meas- ure may be initiated by the people or by the legislature and then submitted to the people for approval. The sub- mission of laws for popular approval in Oregon and in AMENDMENT OF CONSTITUTIONS 233 several other states makes such a popular vote an in- tegral step in the process of ordinary legislation. But the courts at present decline to interfere with the process of legislation, and wait until the validity of a law is attacked before them. What is likely to be the attitude of the courts with reference to laws (and constitutional amendments) enacted by a popular vote? In theory the courts should not interfere to prevent submission, (even though the pro- posal be clearly defective and invalid), for this is a legis- lative act, and under the principle of the separation of powers the courts will not interfere with legislative acts. But heretofore it would have been necessary to interfere with the deliberations of a legislative body in order to re- strain legislation, and such an action would be clearly in- defensible. But with laws (and amendments) enacted after a referendum, there are several distinct steps in the legis- lative process, one of which, the act of submission, may be considered purely ministerial and may, in practice, be en- joined without interfering with the action of the ordinary legislative body of the state; that is, under a system of popu- lar legislation it is easy for the courts, without seriously crippling a co-ordinate department of the government, to interfere and prevent a law’s being enacted. This prac- tical difference will probably incline the courts to take the view of the California court rather than that held in South Dakota and Colorado. So in the states which have adopted the referendum, it is probable that the courts will restrain the submission of a law if they consider the proposed law defective. For example, if an Oregon law were proposed by initiative petition, but did not comply with the con- stitutional requirement concerning its title, we may expect that the courts should restrain the submission of the pro- posal to the people, on the ground that it is invalid, and that the popular vote would in any case be ineffective. 234 REVISION OF STATE CONSTITUTIONS This rule would have the advantage of obtaining a judicial decision upon the validity of a law at the earliest possible moment, but it has the disadvantage of having such a ques- tion passed upon in an ex parte proceeding, and of extend- ing still further the judicial control over legislation. Yet, as has already been suggested, the judicial control over the processes of amendment and of popular legislation (by the referendum) will probably be established along the lines laid down by the California court. In Livermore v. Waite submission was restrained be- cause, in the opinion of the court, the proposed amendment was invalid in substance. Under this view it would seem that a court might restrain the submission of a referendum law or of a proposed amendment on the ground that it vio- lated the “due process of law” or “ equal protection of the laws” clauses of the federal constitution, or upon the ground that the proposal might for any other reason be in- valid in substance. But such a judicial position would hardly be taken, and the courts, if restraining sttbmission would probably do so, as a rule, only because of irregulari- ties in the form or process of proposal. The preceding discussion has related to the control of the courts over the form and process of amendment, and it will be well now to discuss the subject of judicial control over the substance and content of amendments. In the case of Livermore v. Waite *°° the supreme court of California re- strained the submission of an amendment changing the seat of government to San José, on condition that a capitol site and one million dollars should be donated by the new seat of government, and providing that the governor, secretary: of state, and attorney-general should approve the site. In restraining the submission of this proposal the court said 200 102 Cal., 113 (1894). AMENDMENT OF CONSTITUTIONS 235 that the legislature had no authority to propose an amend- ment which did not become effective immediately upon its adoption by the people, without being dependent upon the will of other persons. This restriction upon the amend- ing process was one discovered by the California court and was not based upon any provision of either state or federal constitutions. In a precisely parallel case which arose in Missouri only two years after the California decision, the Missouri court took the opposite view that whether the amendment became effective immediately upon popular rati- fication was immaterial.?* The California decision is in- defensible; it cannot be justified and can be explained only upon the view that the court had determined to prevent the submission of the amendment for removing the capitol, and could find no better reason to present for its action. The California decision aside, it may be stated somewhat broadly that, except as tested by specific limitations in state and federal constitutions, an amendment is not subject to judi- cial control as to its substance and content,—the courts have no right to determine what a constitution shall con- tain or the character of the amendments which may be en- acted.2°? The federal constitution is, of course, superior to a state constitution, and any amendment conflicting with the federal instrument is invalid. So too as to any specific limitations in state constitutions upon the subject matter of amendments. However, in the present state constitu- tions there are practically no restrictions 7°* upon the char- 201 Edwards v, Lesueur, 132 Mo., 410 (1896). 202 See also People v. Sours, 31 Colo,, 387-388; State ex rel, Cran- mer v. Thorson, 9 S. D., 149. 208 Such restrictions as there are really do not limit the amending process to any material extent. In Alabama “Representation in the legislature shall be based upon population, and such basis of repre- sentation shall not be changed by constitutional amendment.” In Michigan the amending clause of the constitution cannot be changed by an amendment initiated by popular petition. 236 REVISION OF STATE CONSTITUTIONS acter of proposed amendments, although such restrictions were more common in some of the earlier instruments, as in the Delaware constitution of 1776, the Arkansas con- stitution of 1836,? and the Mississippi constitution of 1868. Where, for example, a constitution expressly speci- fied that its bill of rights should not be subject to amend- ment, such a restriction while unwise in policy, would properly be subject to enforcement by the courts. “ There can be no doubt that any amendment proposed in violation of these provisions would be declared by the courts to be void, for neither would the legislature have the power to propose nor the people to adopt them. To decide otherwise would be to hold that the legislature can constitutionally do an act expressly forbidden by the constitution; and that the people by an unauthorized vote, a vote recommended in violation of the constitution ... can enact a valid con- stitutional amendment.” 7° It may be that the constitu- tional difficulty might in certain cases have been evaded by first abrogating the restriction by an amendment, and then adopting the desired change. But, as has been suggested, the state constitutions now in force contain practically no such restrictions, and amendments are therefore subject to judicial control, as tested by the state constitutions, with re- spect to their method of enactment only and not with re- spect to their content and substance.?” 204 State v. Cox, 8 Ark, 436 (1848), overruled by Eason v. State, ur Ark. 482 (1851). See a discussion of these cases in Jameson, Constitutional Conventions, 4th ed., 581-586. 205 Jameson, Constitutional Conventions, 4th ed., 581. 200 See dictum in Louisiana Ry. and Navigation Co. v. Madere, 50 So., 609 (Louisiana, 1909). Judge Jameson suggests (Constitutional Conventions, 4th ed., 429-430) that where legislative details have been inserted into a constitution, the courts might treat this as an infringement upon the regular legislative functions and hold such provisions invalid because not fundamental in character. Judge Jame- AMENDMENT OF CONSTITUTIONS 237 Constitutional Amendments and Ordinary Legislation It may be said therefore that in their method of enactment amendments are subject to judicial control as tested by the specific provisions of the state constitutions, and that in their content they are subject to a similar control as tested by the federal constitution. Ordinary statutes, on the other hand, while subject to the same control in their content, as tested by the federal constitution, are subject to state con- stitutional provisions both as to the method of their enact- ment 7°? and as to their content.2°* Amendments are, son expressed his view against any such position because “it would be in effect to permit our judiciary to annul the charters under which they act, under the pretext of striking from them provisions not properly fundamental,” and Oberholtzer (Referendum in America, pp. 89-90) takes the same view, The position suggested by Judge Jameson, if assumed, would vest in the courts arbitrary and unregu- lated discretion to control the substance of both constitutions and statutes, for under it a constitutional provision might be declared invalid as not truly fundamental in character, and laws might be annuled because in the opinion of the court they contained provisions which should properly be inserted into the constitution. Such a doctrine has no chance of being accepted; it has nothing to be said in its favor, and the power of the courts has already been pushed as far as it is apt to be pushed at present. In this connection tt is interesting to note that the Missouri court in the recent case of State ex rel, Johnson v. Chicago, Burlington, and Quincy Railroad Com- pany, 195 Mo., 228 (1905), actually discussed the question as to whether a validly adopted state constitutional amendment might not be held invalid as in violation of the state constitution. The court however held the amendment invalid on specious federal grounds. In People v. Sours, 31 Colo., 371, 391-304, the point was raised that a constitutional amendment must be an alteration of some existing provision of the constitution and must not add entirely new matter to the constitution. The court properly declined to limit in this manner the legislative power to propose amendments, 2073t may be well to suggest that as to method of enactment ordinary laws are subject to many more restrictions than are con- stitutional amendments, as, with reference to title, reading, passage, etc. There are more pitfalls to be avoided in passing a law which 238 REVISION OF STATE CONSTITUTIONS therefore, not subject to judicial control to as great an ex- tent as statutes. In fact most of the state statutes which are declared invalid by state courts are declared to be so because repugnant to state constitutional restrictions which do not apply at all to amendments—that is, upon restrictions as to the content of legislation, as tested by state constitu- tional provisions, or upon the specific restrictions as to the methods of ordinary legislation. The amending process is a process of superior state legis- lation. If a law is declared invalid by the state court, as in violation of the state constitution, the people may, if they are sufficiently interested, overrule the court by placing the substance of the invalidated law in the state constitution, either by an amendment or in connection with a general revision of the constitution.2° A tendency to overrule judicial decisions by constitutional alterations has been apparent in recent years. Thus in 1899 the supreme court of Colorado, upon arguments that are at least ques- tionable, held invalid as in violation of the constitution of that state a legislative act limiting a day’s labor in mines and smelters to eight hours. In 1902 a constitutional amendment was adopted by the people of Colorado. fixing eight hours as a working day in mines.7*° Montana in 1904 and Oklahoma in 1907 introduced into their constitu- courts will uphold than in enacting a valid constitutional amendment, that is, in matter of form. 208 The state constitutions are filled with restrictions upon the char- aoter of legislation which may be passed by legislatures, as with respect to special legislation, etc. The amending process is now almost entirely free from such restrictions. 209 Some of the matter in this and several succeeding paragraphs is taken from an article published by the present writer in the Political Science Quarterly, xxiv, 193. 210 I% re Morgan, 26 Colo., 415. See also Freund’s Police Power, sec, 155. AMENDMENT OF CONSTITUTIONS 239 tions provisions limiting a day’s labor in mines to eight hours. A series of decisions by the New York Court of Appeals, beginning in 1901, held unconstitutional state statutes regulating hours and conditions of labor on state and municipal public works.”** An amendment to the con- stitution of New York, adopted in 1905, provides that the legislature shall have power to “ regulate and fix the wages or salaries, the hours of work or labor, and make pro- vision for the protection, welfare and safety of persons em- ployed” by the state or any civil division thereof, or on public contracts. California in 1902, Montana in 1904, and Oklahoma in 1907 adopted constitutional provisions es- tablishing an eight-hour day upon state and municipal pub- lic works. California, after three unsuccessful attempts of its legislature to enact a primary election law which would meet judicial approval, in 1899 adopted a constitutional amendment upon this subect in order to overcome difficul- ‘ties raised by the court.” 47 Michigan in 1902 by constitu- tional amendment authorized its legislature to provide by law for indeterminate sentences, thus overcoming a decision of the supreme court of that state declaring such a law un- constitutional.?** New Hampshire in 1903 adopted a con- stitutional amendment specifically authorizing the taxation of franchises and inheritances, in order to overcome de- cisions of the supreme court of that state declaring such 211 People v. Coler, 166 N. Y., 1; People v. Orange County Road Construction Company, 175 N. Y., 84; People wv. Grout, 179 N. Y., 417. See also Cleveland v. Construction Company, 67 Ohio St. 197 (1902). 212, C. Meyer, Nominating Systems, pp. 196, 354. Marsh v. Han- ley, 111 Cal. 368; Spier v. Baker, 120 Cal., 370; Britton v Board, 129 Cal., 337. 218 People v, Cummings, 88 Mich., 249; In re Campbell, 138 Mich., 897; In re Manaca, 146 Mich., 697. 240 REVISION OF STATE CONSTITUTIONS taxes unconstitutional.*** This development will probably go further than it has yet gone, and we may reasonably expect provisions to be introduced into state constitutions regard- ing employers’ liability, hours of labor, payment of wages, -and other matters affecting social and industrial relations, where such provisions may be thought necessary to over- come judicial decisions of the states or may be thought de- sirable as measures of precaution against decisions which the courts might otherwise render. The narrow and il- liberal attitude of the courts in interpreting constitutional provisions has done something, and if continued will prob- ably do more, toward turning our constitutions “from fun- damental frames of government into statutory codes.” 7** 214 State v. United States and Canada Express Company, 60 N. H., 219; Curry v. Spencer, 61 N. H., 624. Journal of the New Hampshire Constitutional Convention of 1902, p. 506. 215 Learned Hand in Harvard Law Review, vol. xxi, p. 500. That this fact is coming to be appreciated may be seen from a quotation from a recent article in a popular magazine: “ However, just now the people are finding a way around the legislative veto of the courts. Z The voters are taking two methods of circumventing the legislative veto of the courts: First, by amending their state consti- tutions, or making new constitutions, and, second, by direct legislation or the modification of it known as the initiative and referendum. State courts are elective and therefore are afraid of majorities. They cannot declare constitutional amendments unconstitutional, and they handle laws adopted by a direct vote of the people with great care.” William Allen White in American Magazine, vol. 67 (1909), p. 412. Attention should be called to the fact that the discussion above relates simply to cases in which laws have been declared unconstitutional where their repugnance to the constitution is not clearly apparent. Many cases of course arise in which specific restrictions imposed by one constitution are later deemed unwise and are removed either by amendment or constitutional revision, but such cases are not in point here. The above discussion relates only to state cases, but a good illustration of the same condition is presented by the federal income tax situation, An income tax law, not clearly unconstitutional and perhaps almost clearly constitutional, was held invalid by the federal Supreme Court, and now an attempt is being made to overrule that AMENDMENT OF CONSTITUTIONS 241 State constitutional amendments of this character, made necessary by judicial decisions, are of course binding upon state courts only as regards the power of these courts to declare laws invalid as in violation of state constitutions. The state courts are still free to declare state laws or state constitutional provisions invalid as in violation of the federal constitution; and if bound by definite provisions in state constitutions they are apt to base such decisions upon the federal constitution. If the highest court of a state declares a state statute or a state constitutional provision invalid, as a violation of the federal constitution, its decision is final, for there is no appeal to the United States Supreme Court from a state decision invalidating a state enactment as repugnant to the constitution or laws of the United States. The state courts may on this account limit the powers of the states to a very great extent, in matters not already passed upon by the Supreme Court of the United States, and from their decisions there is now no appeal, although, of course, it is possible for the United States by act of Congress to permit appeals to the federal Supreme Court in such cases. In matters with which the Supreme Court of the United States has had occasion to deal, the state courts are in legal theory bound by the interpretation which the federal tri- bunal has placed upon the federal constitution. States may, therefore, without fear of being overruled by their courts, enact into their constitutions any provisions which the federal Supreme Court has in its wisdom held proper and expedient, for if such a provision has been enacted in ac- cordance with the proper forms, it can then properly be an- nuled neither upon federal nor upon state constitutional decision by the cumbersome process of amending the federal consti- tution, and the attempt is apt to prove unsuccessful because of the cumbersomeness of the amending machinery. 242 REVISION OF STATE CONSTITUTIONS grounds. Thus the states may, if they find it necessary to overcome state judicial decisions, insert into their con- stitutions provisions establishing an eight hour day on pub- lic works,?"* or in mines,” 7*" a ten-hour day for females in laundries,"** but not a ten-hour day for both males and females in bakeries,”* or a truck act applying to all em- ployers.?”° The point which I wish to make is that if the highest state court declares a state law invalid as in violation of the state constitution such a decision is final. If, however, legis- lation upon the matter in question is then introduced into the state constitution, the state court, if it again holds the enactment invalid, must declare it to be so because of its repugnance to the federal! constitution, and in the latter case the state court is in theory bound by the decisions of the Supreme Court of the United States interpreting the federal constitution with reference to the matter under consideration ; the hands of the state court are tied if a similar enactment has already been upheld by the federal tribunal. For ex- ample, if an act establishing an eight-hour day in mines were held invalid as violating a state constitution, such legislation might then be introduced by amendment into the state constitution itself. The state court cannot then properly declare the eight-hour law for mines invalid as a violation of the federal constitution, because the Supreme Court of the United States has already held such a law not to be unconstitutional.” 77+ 216 Atkin v. Kansas, 191 U. S., 207. 217 Holden v. Hardy, 169 U. S., 366. 218 Muller v. Oregon, 208 U. S.,4r12. 219Lochner v. New York, 198 U. S., 45. 220 Knoxville Iron Company v. Harbison, 183 U. S., 13. 221 The above example is an actual one. See Im re Morgan, 26 Colo., 415; Holden v. Hardy, 169 U. S., 366; and Freund’s Police Power, AMENDMENT OF CONSTITUTIONS 243 The state courts thus possess what is practically an ab- solute veto on state statutory legislation, and on state con- stitutional provisions which have not already been approved in substance by the Supreme Court of the United States. By introducing legislation into their constitutions the states will, however, be free to act in the fields within which legis- lation has already been upheld by the Supreme Court of the United States. Only legislation which has been passed upon by the highest federal court may be safely introduced into state constitutions for the purpose of overcoming state judicial decisions. Because of the fact that the amending process is free from many of the restrictions imposed upon ordinary legis- lation, and, to a certain extent also, because they have been directly approved by the people, amendments are less apt to be annuled by the state courts than are ordinary laws. Too much weight, however, must not be given to this dis- tinction. The distinction between state statutes and state constitutions has already broken down to a very great ex- tent, and state courts are practically as free to declare state constitutional provisions invalid, because repugnant to the federal constitution or to the state constitutional provisions regarding form of adoption, as are state and federal courts to declare state statutes invalid as repugnant either to the state or federal constitutions. The function of annuling statutory or constitutional provisions is, it should be repeated, primarily a political and not a judicial function, and in many cases the result reached by the court depends more upon the opinion of the judges as to the wisdom of the measure under consideration than sec. 155. But the state court still has power to declare the law invalid on federal grounds, and there is now no appeal from its decision. 244 REVISION OF STATE CONSTITUTIONS upon specific constitutional limitations. As a rule it would seem that courts have found reasons, sufficient at least for themselves, for annuling practically any constitutional amendment which they strongly desired to defeat. This result has ordinarily been accomplished either by the strict construction of the state constitutional provisions concern- ing the form of enactment, or by a strict construction of federal constitutional provisions,” but the California court in Livermore v. Waite accomplished the same result in the absence of either state or federal restrictions. Summarizing briefly the position of statutes and constitu- tional provisions before the courts, we may say that the judicial veto upon state legislation may be exercised: (1) By the federal courts, in declaring state statutes or con- stitutional provisions invalid as violating the federal con- stitution; a decision of this character by the highest federal court is conclusive upon the states, both as to statutes and constitutional provisions. (2) By the state courts, in de- claring invalid a state law as in violation of the state con- stitution. Such a decision may be overcome by a state con- stitutional amendment adopted in accordance with all the forms prescribed by the particular state constitutions.??? 222 The extent to which a court may go in declaring an amendment invalid as in violation of the federal constitution is shown in State ex rel, Johnson v. C. B. & Q. R. R. Co. 195 Mo., 228. See also Russell v. Croy, 164 Mo., 69. 228 Overlooking for the present the control by state courts over the form of amendment, and assuming amendments to have been validly adopted. It may be well to discuss somewhat more fully the relations between the federal and state judicial powers to annul state legislation, Where a federal question is involved the power is possessed by both state and federal courts. If a state law or constitutional amendment is contested on federal grounds, and is sustained by a state court, an appeal may then be taken to the federal court and the law or amendment may there be annuled. Upon federal questions there are AMENDMENT OF CONSTITUTIONS 245 (3) By the state courts, in declaring state statutes or con- stitutional provisions invalid as in violation of the federal constitution; and it is in precisely these latter cases that the state courts have the greatest control over state constitu- tional provisions, because a state decision adverse to a state enactment in such a ‘case is final, there being no appeal to the Supreme Court of the United States. On this account the state courts should resolve every doubt in favor of a state enactment in such a case, and permit a final decision of the question of federal constitutional construction by the high- est federal court. Professor Thayer stated very clearly the rule which should be followed in such cases: “As to thus two grades of judicial supervision. With reference to state constitutional restrictions, such as those relating to the form of legislation, special legislation, taxing power, form of amendments, etc., there is ordinarily only one series of courts which exercises the judicial veto; the federal courts do not ordinarily hold state enact- ments invalid because of repugnance to state constitutions although this has been done in some cases. See Knight v. Shelton, 134 Fed., 423. Ordinarily it may be said then that if an enactment is con- tested on state constitutional grounds and is sustained by the state court such a decision would be conclusive; if contested in the state court on federal grounds and sustained, there may be an appeal to the federal court and a possible reversal of the state court’s decision. Where a contest is on federal grounds there are two judicial checks, if a decision is favorable in a state court; where the contest is on state constitutional grounds, there is only one judicial check, the state courts, but the supervision exercised over legislation by state courts is stricter than that exercised by federal courts. However, with reference to the general guaranties of life, liberty and property, similar provisions will usually be found in both the state and federal constitutions, These state guaranties have, since the adoption of the fourteenth amendment, become mere surplusage, except in so far as they retard uniform judicial action by being interpreted more strictly by the state courts than similar federal provisions are interpreted by the federal courts. The need of state power to declare laws invalid on state constitutional grounds, as depriving of life, liberty, or property, or as depriving individuals of the equal protection of the laws, has entirely disappeared. 246 REVISION OF STATE CONSTITUTIONS how the state judiciary should treat a question of the con- formity of an act of their own legislature to the paramount constitution, it has been plausibly said that they should be governed by the same rule that the federal courts would apply. Since an appeal lies to the federal courts, these two tribunals, it has been said, should proceed on the same rule, as being parts of one system. But under the Judiciary Act an appeal does not lie from every decision; it only lies when the state law is sustained below. It would perhaps be sound on general principles, even if an appeal were al- lowed in all cases, here also to adhere to the general rule that judges should follow any permissable view which the co-ordinate legislature has adopted. At any rate, under existing legislation it seems proper in the state court to do this, for the practical reason that this is necessary in order to preserve the right of appeal.” ?** Actually, however, we find many of the state courts in such cases construing the federal constitutional provisions more strictly than does the federal Supreme Court, and limiting the action of the states so as often seriously to cripple them in the exercise of legislative powers clearly be- longing to the states. Where the highest federal court has not spoken state courts are legally free to take as arbitrary a view as they may wish in the interpretation of the federal constitution. Where the federal Supreme Court has spoken the state courts are legally bound to follow it in their inter- pretation of the federal constitution, but there is no way by which this legal duty may be enforced in favor of state enactments, because no appeal lies to the United States Su- preme Court if state enactments are declared invalid by the state court. In fact, state courts do not always follow the federal Supreme Court in their interpretation of the pro- 224 Thayer, Legal Essays, 37-38. AMENDMENT OF CONSTITUTIONS 247 visions of the federal constitution. Then, too, no two acts are apt to be precisely alike and a state court may hold invalid an act or constitutional provision if it varies in the slightest degree from a similar enactment upheld by the United States Supreme Court. Professor Schofield has stated the situation clearly: “ De facto the highest courts of the several states are, within the borders of their re- spective states, ultimate judicial expounders of the con- stitution and laws of the United States, and as such they have the de facto, though not the de jure, power to shut their eyes to, refuse to follow, and go directly against, decisions of the federal Supreme Court expounding the constitution and laws of the United States, subject to this important limitation however, namely: That, in the exer- cise of this de facto power, the courts of the several states confine their activity to pressing the screws of the limita- tions of the constitution and laws of the United States down on to their respective states tighter than the federal Supreme Court does.” *?° State courts are therefore, in practice, free to construe the federal constitution as they please so long as they exercise their power to invalidate rather than to sustain state laws or constitutional pro- visions. They have absolute and final power to annul any state constitutional amendment or provision on any federal ground which they may assign. Under these conditions it may well be expected that if a court is overruled by a con- stitutional amendment, such an amendment would then be held invalid on federal grounds, if the court cared to go to such lengths to defeat it. Certain it is that under the conditions just referred to the judicial control over amend- ments is almost as broad as over state statutes, the only 225 Illinois Law Review, iii, 303. See Professor Schofield’s note for Illinois cases of the character referred to. See also Im re Morgan, 2 Colo., 415, and People v. Williams, 18 N. Y., 131. : 248 REVISION OF STATE CONSTITUTIONS difference being that decisions with reference to the sub- stance of amendments must be based on federal grounds. What a court has lost through being overruled on state constitutional grounds may easily be regained by a decision on federal grounds. What a court would do, of course, if it feared being overruled by popular vote, would be to base its decision on federal grounds in the first place and thus completely tie the hands of the state.”° The absolute veto which state courts may exercise upon constitutional amendments has in at least one case been employed un- wisely if not arbitrarily.”?" 228 The only remedy for the state in this matter would be the amendment of the judiciary act so as to permit appeals from state courts where the decisions of such courts are against the validity of state acts attacked as opposed to the federal constitution. 227 State ex rel. Johnson v. Chicago, Burlington, and Quincy R. R. Co., 195 Mo., 228. It is unthinkable to suppose that the amendment here under discussion would have been held invalid by the federal Supreme Court on the federal grounds assigned by the state court for its decision. Before the fourteenth amendment state courts seem to have followed the rule laid down by Professor Thayer and to have taken a view favorable to state powers when such powers were ques- tioned on federal grounds. The strict attitude of the state courts has developed since the Supreme Court of the United States acquired under the fourteenth amendment a wide control over state legislation. No court likes to be overruled on appeal, and a state court, in case of doubt may often prefer to decide against a state law, thus settling the question finally rather than to decide in favor of the law and run the risk of being overruled on appeal by the United States Supreme Court. ‘Some recent New York decisions are precisely in point. In State v. Lochner, 177 N. Y., 145, the state court of appeals took a very liberal attitude toward legislation regulating hours of labor in bakeries and upheld the legislation, but was overruled by the Supreme Court of the United States in Lochner v, New York, 198 U. S., 45. In a later case of People v. Williams, 189 N. Y. (1907), 131, the state court took an extremely strict view and annuled state legislation re- garding the hours of labor of women, while the federal Supreme Court in Muller v. Oregon, 208 U. S., 412 (1908), decided but a short time afterward, took a broader view and held somewhat similar AMENDMENT OF CONSTITUTIONS 249 Perhaps enough has been said to indicate the present position of the courts with reference to state statutory and constitutional enactments. It will now be well to discuss briefly some recent developments with reference to the manner of enacting these two forms of state legislation. The distinction in substance between state constitutions and state statutes has to a large extent disappeared through the practice of embodying detailed legislative enactments in the constitution.”*° There is now quite a decided tendency in some states to break down the formal distinction between constitutions and statutes by employing the same methods for the enactment of state laws and the adoption of con- stitutional amendments. Since 1818 the really fundamental distinction between statutes and constitutional amendments has been that amend- ments were required to be voted on by the people, while statutes were infrequently submitted to a popular referen- dum. But the Delaware constitution of 1897 does not re- quire proposed amendments to be submitted to a popular vote. Virginia (1902) and Oklahoma (1907) have made important provisions of their constitutions subject to amend- ment by legislative act,?*° and similar provisions have not been uncommon in other constitutions. In fact a feeling is beginning to develop that.when constitutions contain so much of legislative detail, which requires frequent change, alteration in such matters should be left to the legislature state legislation valid. State courts cannot go beyond the United States Supreme Court in liberality toward state enactments and this almost necessarily means that they will be too cautious in order to avoid decisions which may later be overruled on appeal. 228 Oberholtzer, Referendum in America, chap iii. Dealey, Our State Constitutions, p. 9. 229 Virginia, secs. 155, 156 1, Oklahoma, Art. ix, sec. 35; Art. xii, sec. 3; Art xx, sec, 2. ‘Such alterations will, without doubt, be dealt with by the courts merely as ordinary statutes. 250 REVISION OF STATE CONSTITUTIONS and not be submitted to the people. Dr. Whitten has said: “Tf it seems desirable to include matters of detail in the constitution, special provision should be made for their amendment by a two-thirds vote of the legislature or by two suceeding legislatures without submission to the people . . . the compulsory referendum on all amendments to the con- stitution is most objectionable, since it burdens our elec- tions with votes on questions in which the people have no interest.” ?°° But as yet there is little tendency to reduce the popular participation in the amendment of state constitutions, and the distinction in form of enactment between constitutions and statutes is disappearing largely through the increased popular participation in ordinary legislation—through the use of the referendum upon ordinary statutes. South Dakota in 1898, Utah in 1900,”** Oregon in 1902 and 1906, Nevada in 1904, Montana in 1906, Oklahoma in 1907, and Maine and Missouri in 1908 have adopted the referendum for ordinary legislation. Nevada did not adopt the initia~ tive at all; Maine and Montana adopted the initiative for ordinary legislation, but specifically provided that it should not apply to constitutional amendments, and the South Dakota initiative also does not apply to constitutional amendments. Maine, Montana, and South Dakota therefore give less popular participation in the amendment of their constitutions than they do in the enactment of ordinary legis- lation. Maine and Montana make the proposal of amend- ments to the people more difficult than that of laws by re- quiring a two-thirds vote of the legislature for the submis- sion of amendments, and South Dakota by requiring “a 230 N. Y. State Library, Review of Legislation, 1901, p 29. For a further discussion of this subject see below, p. 289. 231 But the Utah amendment required legislation to put it into operation, and such legislation has not been enacted. AMENDMENT OF CONSTITUTIONS 251 majority of the members elected to each of the two houses.” **? In Nevada the legislative proposal of amend- ments to the people is made more difficult than that of ordin- ary laws by the requirement that amendments be adopted by two successive legislatures before being submitted to the people. But these slight differences do not obscure the fundamental fact that both laws and amendments are sub- jected to the same form of popular referendum. The three states of Oregon, Missouri, and Oklahoma ap- ply both the initiative and referendum to ordinary statutes and constitutional amendments. The initiative and referen- dum amendments of Oregon (1902) and Missouri (1908) permit the adoption of constitutional amendments and of statutes in precisely the same manner; both amendments and statutes may be proposed by the same number of initia- tive petitioners, and adopted by the same number of popular votes. In these states a measure may be called either a constitutional amendment or a law, at the discretion of those who propose it. The Oklahoma (1907) initiative and referendum provisions make a distinction between con- stitutional amendments and statutes by requiring a petition of fifteen per cent of the legal voters to initiate a constitu- tional amendment, while only eight per cent is required to propose measures of ordinary legislation; ** and by requir- ing upon constitutional amendments a vote of a majority of all the electors voting at the election,?** while laws passed 232 There are similar distinctions with reference to the legislative submission of amendments and proposed laws in Oregon, Oklahoma, and Missouri. 283 A proposed amendment which was rejected by Missouri in 1904 made a similar distinction between constitutional amendments and laws, by requiring a larger popular petition for the proposal of amend- ments. 284 The same rule applies to measures of ordinary legislation initiated by popular petition; the popular initiative, and the amend- 252 REVISION OF STATE CONSTITUTIONS by the legislature which are submitted to a popular referen- dum become effective “‘ when approved by a majority of the votes cast thereon.” It is clear, then, that a long step has already been taken toward employing the same methods for enacting both or- dinary statutes and constitutional amendments. What is apt to be the attitude of the state courts under these new conditions? Suppose, for example, that a measure should in Oregon be initiated by popular petition and approved by the people as a law although it might as well have been submitted as an amendment, would the state court be justi- fied in declaring such a law invalid as in violation of limita- tions contained in the state constitution? Such an atti- tude of the state court could of course be circumvented by calling all initiated measures (and all measures submitted to the people by the legislature), amendments, and if the courts preserved a strict attitude toward legislation, a great body of ordinary legislation might well be adopted as constitu- tional amendments. Again, the distinction in fact having ing process, are therefore practically worthless in Oklahoma. See pp. 188-190. In Lozier v, Alexander Drug Co., 99 Pac., 808, was involved an effort on the part of the Oklahoma legislature to submit a measure at the same time both as referendum law and as proposed amend- ment. If the measure received a sufficient vote it was to become a part of the constitution; if it received a majority of the votes cast upon its adoption or rejection it would have been continued in force simply as a law; and if a majority of the votes cast upon the measure were against its adoption it was to be repealed as law. The court held that such submission was improper and that the adverse vote actually cast therefor did not repeal the measure as a law, or have any effect whatever. The syllabus written by the court says: “ While a proposition to amend the prohibition article of the constitution . and a proposition for the approval or rejection or repeal of article 1 of the enforcing act... may be submitted at the same election, the two cannot be united in one proposition, so as to have one expres- sion of the voter answer both propositions.” AMENDMENT OF CONSTITUTIONS 253 disappeared, if the state judicial power over measures called laws really hindered popular action, the result would prob- ably be a constitutional amendment altogether denying such power to the courts. And this is what may naturally be expected in the states adopting the initiative and referendum, unless the courts treat laws approved by the people with great respect. This possibility was pointed out somewhat clearly by Mr. A. Lawrence Lowell some years ago. He said: “Our whole political system rests on the distinction between constitutional and other laws. The former are the solemn principles laid down by the people in its ultimate sovereignty ; the latter are regulations made by its represen- tatives within the limits of their authority, and the courts can hold unauthorized and void any act which exceeds those limits. The courts can do this because they are maintain- ing against the legislature the fundamental principles which the people themselves have determined to support, and they can do it only so long as the people feel that the constitution is something more sacred and enduring than ordinary laws, something that derives its force from a higher authority. Now, if all laws received their sanction from a direct popular vote, this distinction would disappear. There would cease to be any reason for considering one law more sacred than another, and hence our courts would soon lose their power to pass upon the constitutionality of statutes. The courts have in general no such power in Switzerland, where indeed the distinction between constitutional and other laws is not so clearly marked as in America.” ?*° In general one may agree with President Lowell, but it is hardly possible to assent to the statement that the distinction between state statutes and state constitutions forms the 285 Governments and Parties in Continental Europe, ii, 296-297; In- ternational Journal of Ethics, vi, 59 (1895-96). 254 REVISION OF STATE CONSTITUTIONS “keystone of our system” of government. In fact such a distinction has already been to a large extent destroyed by the state courts themselves. Then too, by the fourteenth amendment we have placed private rights under the pro- tection of the federal courts, and have to a large extent done away with any advantage which may have been derived from the state judicial power to declare state laws invalid upon either state or federal constitutional grounds.7** The power of state courts, in the protection of private rights, to annul state constitutional and statutory enactments may under present conditions be likened to a fifth wheel on the governmental coach—it performs no useful function in pro- tecting substantial rights, which is not already performed by the federal courts, and serves simply to retard a final and uniform settlement of questions of federal constitutional law, in so far as they affect the powers of the states. The judicial control over legislation is not in any case an un- mixed blessing, because it decreases legislative efficiency and as employed to the present time has often checked for many years needed reforms which the courts have been forced to accept in the end, but the state judicial power over legisla- tion when employed as frequently and as irresponsibly as 23@ The statement here is one with reference to the broader guar- anties of life, liberty, and property, which the courts have construed so as to give themselves discretionary control over all social and in- dustrial legislation. State constitutional guaranties of this character have been of no value since the fourteenth amendment. State restric- tions regarding the passage of laws, special legislation, tax and debt limitations, etc., are sufficiently definite not to afford the courts a wide range of discretion in declaring laws invalid. ‘So too as to the pro- vision in some constitutions that special laws shall not be employed when genera! laws can be made applicable, and that this question shall be one for the courts; the provision is a definite one which grants to the courts a certain amount of legislative power, and must be judged by its results, but it gives the courts no discretionary control over legislation of a general character. AMENDMENT OF CONSTITUTIONS 255 during the past thirty years, can hardly be considered an in- strument of very great value.”** In fact the referendum has in some cases been advocated because of the belief that it will weaken or destroy this very power.?*® But we should not infer from what has been said that the enactment of laws by the referendum will entirely destroy state judicial control over legislation, even when such con- trol is based upon state constitutional limitations.?** It has already been shown that amendments are subject to state constitutional provisions regarding the procedure of the amending process, and would be subject to limitations, if there were any, as to the substance of amendments. Now with reference to legislation there are numerous constitu- tional restrictions both as to form and substance, which will for some time at least probably be enforced by the courts against referendum laws just as against laws enacted by the 287“ The tendency of a common and easy resort to this great func- tion, now lamentably too common, is to dwarf the political capacity of the people, and to deaden its sense of moral responsibility. It is no light thing to do that.” Thayer’s John Marshall (1901), p. 107. When the courts assume the power to prevent or retard reforms of a social or industrial character, and thus to interfere in questions of policy, which have become more or less political in character, they necessarily lose in popular respect, and such has been the case in recent years. 288“ And the issue should be met candidly and the friends of the movement for direct legislation should admit frankly that the purpose of their cause is two-fold: First, to compel legislatures to act quickly and without evasion, and Second, to circumvent the veto of such courts as are elective, and hence dependent upon popular majorities, and to put whatever righteousness there is in a definitely registered expression of popular will before such courts as are not elective to stay them in their vetoes. For the veto power of the American courts over legislation—under the assumed right to declare legislation “ un- constitutional ”—is one of the most cruel and ruthless checks upon democracy permitted by any civilized people.” William Allen White in American Magazine, vol. 67, p. 412 (Feb., 1909). 289 Unregulated and unrestrained state judicial control upon federal grounds remains in any case unless the judiciary act be amended. 256 REVISION OF STATE CONSTITUTIONS legislature, although as President Lowell has said the actual distinction upon which the judicial power is based has largely disappeared. Such, for example, with reference to form are those regarding title, reading of bills, etc.,**° and with reference to substance, those concerning special legislation, limitations upon the taxing power and indebtedness, etc. Where, as in Missouri and Oregon, the same processes may be used either for ordinary legislation or for amendments, these restrictions may be avoided by calling every measure an amendment, but the judicial control under state con- stitutional restrictions will be just as strong as before where the amending process is different from and more difficult than that for ordinary legislation. We may, it would seem, in such cases, expect the courts to take the view already assumed with reference to amend- ments, that every specific constitutional requirement must be complied with, but that such requirements should be construed liberally.** A case which arose in Oregon in 1906 shows pretty clearly that the state courts will inquire into the validity of referendum laws. In State v. Richard- son 7? a local option law initiated by petition and approved 240 Similar to those regarding method of amendment but usually more numerous. 241 William Allen White in the article above referred to (American Magazine, vol. 67, p. 413) says: “The Supreme Court of South Dakota, where the initiative and referendum prevails, upon petition for opinion as to the referred laws has always held that mere technical errors in non-compliance with the formulae of the statute do not hide the obvious intention of the people and have in consequence always held these referred laws valid.” The present writer knows of no cases in which this question has squarely arisen in South Dakota. Mr. White evidently had in mind State v. Thorson, 9 S. D., 149; Lovett v. Ferguson, 10 S. D., 44, and State v. Herried, 10 S. D., 109, where the court said that amendments would not be set aside on technical grounds. The same view would undoubtedly apply to referred laws. 242 48 Ore., 309, 319 (1906). Stevens v. Benson, 50 Ore., 269, and AMENDMENT OF CONSTITUTIONS 257 by the people was attacked as invalid because violating cer- tain provisions of the state constitution with respect to local legislation and to the requirement that every. act should embrace but one subject, and that such subject should be expressed in its title. The court upheld the law as valid but said: “ The validity of laws adopted at the polls must be determined like enactments by the legislative assembly, by the test of the constitution as modified by the amend- ment thereto. .. . We think the assertion may safely be ventured that it is only the few persons who earnestly favor or zealously oppose the passage of a proposed law initiated by petition who have attentively studied its contents and know how it will probably affect their private interests. The greater number of voters do not possess this information and usually derive their knowledge of the contents of a proposed law from an inspection of the title thereof, which is sometimes secured only from the very meager details afforded by a ballot which is examined in an election booth preparatory to exercising the right of suffrage. It is im- portant, therefore, that the title of laws proposed in the manner indicated should strictly comply with the constitu- tional requirements.” But the requirement would not have applied at all had the measure been called a constitutional amendment, as it might well have been. The reason for judical control had ceased but the judicial control remained. Palmer v. Benson, 50 Ore., 277 (1907) can hardly be considered cases in which the Oregon court has shown especial tenderness toward the initiative and referendum. Both decisions were favorable, but could hardly have been otherwise. In Stevens v. Benson, for example, the law provided a certain form for initiative petitions, and this form had not been fully complied with. But the statute itself expressly stated that its terms in this respect were not mandatory, and the statute had been passed simply in aid of the right of popular initia- tion, which existed by virtue of a self-executing constitutional pro- vision independently of the statute. 258 REVISION OF STATE CONSTITUTIONS The power of the courts over laws approved by the peo- ple may cease at some time, as President Lowell has sug- gested, but certainly this power will not be surrendered in the near future. For a while at least we may expect that judicial control over laws approved by the people will be almost if not as strict as over laws passed by legislative bodies—certainly the control will be as strict as, if not stricter than, that now exercised over constitutional amend- ments approved by the people. But it must be said that the courts have probably now stretched to its furthest limit their power over legislation, and that there may soon come a saner and more reasonable judicial attitude toward state enactments. The approval of laws by the people may have some influence in making courts more cautious, and in bring- ing them back more nearly to their true function as inter- preters rather than as makers of laws. The Amending Process and Revision by Constitutional Conventions The discussion heretofore has been based upon the gen- eral view that constitutional conventions are employed’ for the complete revision of state constitutions or for the fram- ing of new constitutions, and that, where a general revision is not desired, the regular legislative machinery is used to initiate specific amendments. This view is, in the main, correct. Yet of course a constitutional convention when assembled may not make a general revision but may simply propose specific amendments.*** In the state of New 243 Tt lies within the discretion of a convention ordinarily as to whether its action shall be substituted (1) in the form of separate amendments, or (2) as a complete new constitution, or (3) as a new constitution but with separate provisions which may be voted upon independently. As between the first and second plans it may be said that the second is to be preferred if the changes are so great as to make submission as separate amendments confusing, or if the proposed AMENDMENT OF CONSTITUTIONS 259 Hampshire specific amendments may only be proposed by a convention. However, where only a few changes are de- sired the convention is an expensive and cumbersome in- strument, which will not often be employed except in case of necessity. On the other hand several constitutions make no provision for a convention, and in Rhode Island the ab- changes are such as to make it undesirable that some should be ap- proved and others rejected. The New Hampshire convention of 1791- 1792 first divided its proposals into a number of subjects “ which were submitted separately to the approval of the citizens. Unfortunately the list of these subjects was far from short, there being seventy- two of them. Upon the vote twenty-six were rejected, forty-six were adopted. Of the latter, several were in contradiction with those pro- visions of the old constitution which still remained in force because of the rejection of the former, and the convention was compelled to do what it had thought possible to avoid. It took up again the work so badly mutilated by the people, removed its inconsistencies, and was finally paid for its trouble by a popular vote which gave the constitution the required two-thirds majority.” Borgeaud, 143, 144. The submission of a complete constitution is the more customary procedure followed by conventions. See Jameson, 4th ed., 531-533; Borgeaud, 155-160; Oberholtzer, 118-120. The third method has been frequently employed where it was thought proper that some measure should be submitted independently of the whole constitution, and was used by North Dakota, South Dakota, and Washington in 1889, and by Oklahoma in 1907. See Arie v. State, 100 Pac. 23 (Okla., 1909). The Illinois convention of 1870 submitted eight propositions to the people, besides the question as to whether they approved the pro- posed new constitution. The Michigan constitution of 1850 was so worded as to present “a question of grave doubt as to whether a con- stitutional convention called under it had a right to submit a complete instrument and also at the same time, separate amendments embody- ing distinct issues which, upon adoption by the people, may become a part of such instrument.” The convention clause of the constitution of 1908 was on this account so worded as “to provide a method for sub- mitting special questions each presenting vital issues about which there might be great conflict of opinion to a vote of the electors, sepa- rate and apart from the instrument embodying the usual subjects regu- lated in a state constitution.” Pamphlet submitting constitution of 1908, p. 66. For a discussion of the ordinance power of conventions see pp. I04-II7. 260 REVISION OF STATE CONSTITUTIONS sence of such provision has been held to prevent the hold- ing of a convention so that here the legislative process is the only one available for constitutional alteration.”** May not the legislative power of initiating amendments be used in such a manner as to propose a complete constitu- tional revision? This may be done where the legislature is not, restricted as to the number or character of amendments which it may propose,”** but precedent is against the exer- cise of such power by a legislature, although in Rhode Island this is the only way of obtaining a complete con- stitutional revision. Two state legislatures have submitted to the people revised constitutions in the guise of amend- ments, but in both cases the legislative revisions were re- jected. The Michigan legislature submitted a revised con- 244 Where a constitution contains no provision for the legislative proposal of amendments it is well established that no such power exists. No effort has ever been made, so far as is known, upon the part of a legislature to submit a proposed amendment to the people unless such action was expressly authorized by constitutional provision, but the judicial attitude toward the amending process seems clearly to indicate that such action would not be given effect to by the courts. “ The power to propose amendments ... must be authorized by a special provision of the constitution. And when no such provision can be pointed out the power does not exist.” Jameson, 4th ed., p. 622. 245 See pp. 132, 178 for a discussion of such restrictions. The pro- cedure above referred to may not be employed in New Jersey where the legislature may only propose “any specific amendment or amend- ments.” Nor would it seem that complete constitutions may be pro- posed by the legislatures of any of the states whose constitutions re- ‘quire that each proposed amendment shall be submitted so that it may be voted upon separately. For dicta that legislatures may not pro- pose complete constitutions see Livermore v. Waite, 102 Cal., 118, and ‘Carton v. Secretary of State, 151 Mich., 340. The statement in the California case is clearly right as a construction of the California constitutional provisions, but under the Michigan constitution of 1850 the case was not so clear, and as suggested above, a complete constitu- tional revision was submitted to the people of Michigan by the legis- ature in 1874. AMENDMENT OF CONSTITUTIONS 261 stitution in 1874, and the Rhode Island legislature sub- mitted the same instrument twice, in two successive years, 1898 and 1899.7*° Judge Jameson has said as to the legislative method of proposing amendments: “It ought to be confined, it is be- lieved, to changes which are few, simple, independent, and of comparatively small importance. For a general re- vision of a Constitution, or even for single propositions in- volving radical changes as to the policy of which the popu- lar mind has not been informed by prior discussion, the employment of this mode is impracticable, or of doubtful expediency.” *7 Judge Jameson’s point is purely one as to expediency, and it is legally proper, it would seem, in the absence of specific constitutional restrictions, to propose to the people by the legislative process any constitutional al- teration short of a complete revision, or even a complete revision. With reference to this latter point, it may be argued, however, that if a constitution specifically provides two methods of alteration, the language employed with re- ference to the proposal of amendments by the legislative method may, when read with that concerning the conven- tion method, often be construed as an implied prohibition of complete constitutional revision by the legislative method.*** Leaving aside the constitutional question, it would seem clearly preferable that when possible complete revisions or even alterations of a very thorough character 248 A revised constitution in the form of an amendment was sub- mitted to and rejected by the people of Connecticut in 1907, but the revision so submitted was primarily a textual one, and is not precisely in point here though it may be cited as an example of the procedure referred to above. The Vermont constitutional commission in its re- port in 1910 submitted to the legislature a complete textual revision of the constitution, for its approval and submission to the people. 247 Jameson 4th ed., 562. 248 Jameson, 4th ed., 573-574. 262 REVISION OF STATE CONSTITUTIONS should be made by conventions expressly chosen for that purpose. Legislatures will usually have their time taken up with other matters and be unable to devote sufficient time to this subject, and the election of a body for the one pur- pose concentrates public attention upon questions of a con- stitutional character. The convention will ordinarily be able to do better work than the legislature because its at- tention will be confined to the one task of framing a con- stitution. Moreover, it has as a rule been possible to ob- tain for membership in conventions a higher grade of men **° than may usually be found in the ordinary legislative bodies, and this constitutes a practical reason of very great im- portance for not weakening the functions of conventions. State legislatures have, in a number of cases, realized their defects as bodies to give careful consideration to pro- posed constitutional alterations of an important character, and have created independent commissions, to consider and propose drafts of constitutional changes for the legislative consideration. This plan was followed in New Jersey in 1852, 1854, 1873, 1881, and 1894; in New York in 1872- 73, and 1890; in Michigan in 1873; in Maine in 1875; in Rhode Island in 1897 and in Vermont in 1908-1910. The commissions in Michigan and Rhode Island prepared com- plete constitutional revisions, which were approved by the respective legislatures, but rejected by the people in each state. Constitutional amendments were actually brought about through the recommendations of the New Jersey commission of 1876, the New York commission of 1872- 73, and the Maine commission of 1875.7°° 249 Bryce, American Commonwealth, 3d ed., i, 475, 667-670. Ober- holtzer, 97-98. Jameson, 4th ed., 561. Dealey, Our State Constitutions, p. 9. 250 In 1894 a joint committee of the two houses of the Louisiana legislature drafted a number of amendments, which were rejected by AMENDMENT OF CONSTITUTIONS 263 It may be worth while to discuss a little more fully the New York constitutional commissions of 1872-73 and 1890, as illustrating the use of commissions to aid legislative ac- tion in the proposal of amendments. The New York com- mission of 1872-73 was authorized by legislative act and was composed of thirty-two members, four appointed from each judicial district by the governor with the consent of the senate, “for the purpose of proposing to the legislature, at its next session, amendments to the constitution.” The next session of the legislature agreed to the proposals in substance, they were submitted to the people, and the greater part of them were approved. The commission of 1890 was brought about by a deadlock between the governor and legis- lature as to the calling of a constitutional convention which had been ordered by a vote of the people in 1886. The question of judicial reorganization was a pressing one, and an act was passed referring this question to a commission constituted in a manner very similar to that of 1872. The commission’s report was not considered by the legislature, because of the calling of a convention by legislative act in 1892, but was used by the constitutional convention of 189 4. 251 Commissions of this character are, of course, mere ad- the people in 1896 (Senate Journal, 1894, p. 111); and in 1901 a joint committee of the Georgia house and senate was appointed to prepare amendments to the constitution of that state (Georgia laws, Igol, p. 756), but these were merely legislative committees and not commis- sions acting independently of the legislative bodies even in drafting proposals. 251 Lincoln, Constitutional History of New York, ii, 469-473, 683- 725. For discussions of the use of commissions see Jameson, pp. 570- 575. Oberholtzer, 93-94; Dealey, 17-18. See also N. J. Laws, 1852, p. 546; 1854, p. 544; 1873, p. 844; 1881, p. 187; 1804, p. 556; Report of the Commission to Revise the Constitution of Rhode Island (Provi- dence, 1898); Report of Vermont Constitutional Commission (1910). 264 REVISION OF STATE CONSTITUTIONS visory bodies, constituted for the purpose of giving counsel to the legislature, and have no independent power of action. As a joint committee of the two houses of the legislature of New York said in 1873: ‘“ The responsibility of [for] the adoption or rejection of the amendments rests with the legislature, and not with the Commission that proposed them.” *°? To this statement should be added that of Mr. Lincoln with reference to the New York commission of 1890: “It should not be forgotten that the commission could do nothing directly to affect the constitution; for its work was subject to review and amendment by the legis- lature, and could not possibly reach the people until it had been approved by two legislatures.” ?** Judge Jameson makes the following objection to the use of constitutional commissions: “In no case, so far, has the report of a commission been adopted by the legislature with- out material modification. This dilemma, therefore, al- ways arises: The report of the commission must be exactly pursued by the legislature, or the benefit of their supposed superior wisdom and ability is lost; but if the legislature is bound by the commission’s report and to submit it to the electors without change, the function of the former would be merely a ministerial one; it would not be itself but the commission, that would recommend,—a transfer of function which the constitution certainly would not warrant. If it be supposed that the legislature has a constitutional right to discuss and to modify the amendment or system of amend- ments reported by the commission, the whole question of amending or of revising the constitution would be rele- gated to the body supposed, by the very act of appointing the commission, to be unfitted for that work.” "4 Stated in 62 Lincoln, Constitutional History of New York, ii, 469-473. 253 Ibid., ii, 683-725. 254 Jameson, 4th ed., 574. AMENDMENT OF CONSTITUTIONS 265 different language Judge Jameson’s criticism amounts to this: By seeking advice the legislature confesses its incom- petency to act, and advice is useless in such a case because the legislature has discretion to accept it wholly or in part, or to reject it. Stated in this way Judge Jameson’s ob- jection seems hardly to require an answer. The constitu- tional commission is useful under proper limitations as an adviser of the legislative bodies, but should not be em- ployed, as was attempted in Michigan, to make a complete constitutional revision through legislative proposal, al- though even this procedure may be considered more proper in a state like Rhode Island, so long as the view is held that a constitutional convention may not be convened.?” 2655 The Vermont constitutional commission in its report to the legis- lature in January, 1910, said: “In the first place, although the wording of the resolution [creating the commission] is broad enough to permit us to make any proposals we choose, in fact its spirit did not contem- plate that we were to attempt any general revision of the constitution. A general revision should be the work, if not of a constitutional convention, at least of a commission of general and very representa- tive character, and embodying the result of full, deliberate and open public discussion.” This commission submitted to the legislature sev- eral specific amendments, and a complete textual revision of the con- stitution, CHAPTER V THE WorRKING OF THE CONSTITUTIONAL REFERENDUM * Attention has already been called to the fact that the submission of proposed amendments is much more frequent in some states than in others.* This is due in part to re strictions upon the amending process. During the period 1899-1908, for example, no proposed amendments were submitted in Vermont, and the year 1900 was the only one in which a submission could have been had; so the con- 1 The discussion here is based mainly upon the experience of the states during the ten-year period, 1899-1908; it is not a study of the referendum in general, but simply an attempt to discover something as to the working of the compulsory referendum on constitutional questions. In an appendix are printed tables giving, so far as in- formation has been obtainable, the results of popular votes upon con- stitutional questions from 1899 to 1908. For some states information is available covering longer periods: the New York Red Book for 1910, pp. 317-319, gives the popular votes in New York from 1845 to 1905; the Michigan Manual for 1909, pp. 552-557, gives the votes for that state from 1850 to 1908; Dr. Edward M. Hartwell has collected in the Monthly Bulletin of the Statistics Department of the city of Boston, vol. xi, pp. 158-160, a complete record of constitutional refer- enda in Massachusetts from 1780 to 1907; in the Political Science Quar- terly, vol. xiii, pp. 1-18, Mr. Samuel E. Moffett gives a statement of constitutional referenda in California from 1879 to 1806, and the record in this state for 1898 may be found in the California Blue Book for 1899, pp. 244, 245. The Rhode Island Manual for 1909, pp. 130-140 gives votes upon all constitutional questions submitted to the people of ‘Rhode Island; Colby’s Manual of the Constitution of New Hampshire (1902), and the Official Vote of South Dakota, 1889-1908 (1908), give the votes in these states upon constitutional questions. 2It should be repeated here that in Delaware constitutional amend- ments are not submitted to a vote of the people. 266 THE CONSTITUTIONAL REFERENDUM 267 stitutional requirements of Pennsylvania, New Jersey, and Tennessee that proposals shall be submitted only at certain intervals, and the New Hampshire plan of permitting pro- posals only by means of a convention, cause a rather in- frequent proposal of amendments in these states. So too, in a number of the states where the adoption of amendments is rendered difficult by the popular majority required, amend- ments are not frequently proposed to a vote of the people, because of a feeling that such proposal is useless. This is probably the reason for rather infrequent proposals in IIli- nois, Indiana, and Wyoming. But that amendments are proposed more frequently in some states than in others cannot be explained by the relative ease or difficulty of adopting amendments. In Illinois, Indiana, and Wyoming few amendments were proposed during the period from 1899 to 1908, but during the same period thirteen amend- ments were proposed in Minnesota, whose constitution is equally as difficult to amend. During the same period only one amendment was proposed in Massachusetts and but four in Iowa, while fourteen were proposed in New York, whose amending procedure is equally as difficult as that of Iowa and Massachusetts. There is, however, some relationship between the fre- quency of proposed amendments and the age of the con- stitution under which a state is living. The proposal of amendments is comparatively infrequent in the New Eng- land States and in several states of the Middle West, and this, while due in part to the difficulty of amendment, may also be partly attributed to the conservatism of these states and to the fact that their constituions are older and less elaborate than the instruments adopted by other states in recent years; they contain fewer details of a legislative char- acter, which require frequent alteration. The use of the amending process is more common in the states with newer 268 REVISION OF STATE CONSTITUTIONS constitutions, and particularly in those whose constitutions cover a wide range of details not of a fundamental character. The state of California has been busily altering its con- stitution almost from the time when that instrument was adopted in 1879. Louisiana adopted a new and very ela- borate constitution in 1898, and two years later began a process of frequent and almost continuous amendment. Oklahoma adopted in 1907 a constitution which exceeds. that of any other state in elaborate detail, and in 1908 began efforts to amend this instrument—efforts which were unsuccessful because of the cumbersome amending procedure. adopted by this state. But although the frequency with which amendments are proposed in the several states bears. some close relation both to the relative ease or difficulty of adopting amendments, and to the simplicity or elaborate- ness of the instrument sought to be amended, yet the fact is. that of two states seemingly under similar conditions in these respects, proposals of amendment will be more fre- quent in one than in another. In many states there is frequent resort to the use of the amending process. During the decade, 1899-1908, four hundred and seventy-two constitutional questions were sub- mitted to the people of the several states. Of these fifty-- one were submitted in California, fifty in Louisiana, thirty in Missouri, twenty-two each in Oregon and Michigan, twenty-one in Florida, and seventeen each in Colorado and Texas. Ten or more amendments were submitted in each of the states of Georgia, Idaho, Kansas, Minnesota, New York, New Hampshire, Ohio, South Carolina, and South Dakota. That is, there was an average of one or more constitutional questions each year submitted in each of these states.* North Dakota and Utah, each with nine proposed 3 Reference has already been made to the fact that most amend- THE CONSTITUTIONAL REFERENDUM 269 amendments during this period; Wisconsin and New Jersey with eight; Montana, Tennessee, and West Virginia with seven; Connecticut, Rhode Island, and Washington, each with six, complete the list of states which made anything like frequent use of the amending procedure. The proposal of numerous constitutional amendments has been to a large extent a development of the past twenty years, but the amending process has been used most frequently during the last decade.* Yet in some states the proposal of amend- ments has been common before the decade here more im- mediately under consideration. In California thirty-five proposed amendments were submitted to the people be- tween 1883 and 1898. Between the years 1860 and 1898 sixty-two constitutional questions were submitted to the voters of Michigan. In New York thirty-eight such votes were had between the years 1854 and 1896. During the period, 1780-1907, fifty-nine constitutional referenda were had in Massachusetts. It has already been suggested that most of our state con- stitutions have come to be filled with legislative details which require frequent alteration. The amending process is the only means by which such alterations may be made. For this reason we find that the great body of proposed amendments relate to matters of detail, in which the public at large is not and cannot be very much interested. Of the four hundred and seventy-two questions submitted to the people during the decade, 1899-1908, perhaps not more than ments are now submitted at general elections in even-numbered years. Some are submitted at state elections in odd years, as in New York, but this is the less usual procedure. “J. B. Phillips, Recent State Constitution-Making, Yale Review, xii, 389. J. W. Garner in American Political Science Review, i, 245- 247. See also a paper by the present writer in Proceedings of the American Political Science Association, 1908, p. 149. 270 REVISION OF STATE CONSTITUTIONS sixty were fundamental in character, and a very large num- ber were of not more than purely local interest. Many of the proposals were local and special legislation of the worst type. A popular vote upon proposed amendments is of little value (1) if the questions are so trivial or so local in char- acter as not to be of interest to those to whom they are sub- mitted, or (2) if the questions are so complicated and technical that the average voter has no means of informing himself regarding them, or (3) if the questions are sub- mitted in such great numbers that the voter, even if he might possibly render a satisfactory judgment upon any one of them, cannot inform himself regarding the merits of all the measures upon which he must pass. Thanks to the rather strict constitutional provisions in many states, proposed amendments are not usually compli- cated in character, because each distinct proposal must be submitted separately. But many proposals are of a de- cidedly trivial character. In California, Louisiana, Michi- gan, and South Carolina, for example, a number of the amendments proposed during the ten years under consider- ation were of purely local interest. The exemption of par- ticular educational institutions from taxation in California and questions concerning the government and debts of New Orleans are not matters calculated to arouse great popular interest throughout the states of California and Louisiana. Nor was it to be expected that the people of Michigan should become at all excited over the establishment of a board of auditors for Genesee county or over increasing the salary of the circuit judge of that county. In South 5 See pp. 178-183. Issues of a somewhat complex character may, of course, be raised by the submission of complete constitutions to the people, but usually the question of adopting or rejecting a new constitution gives rise to issues of a rather distinct character. THE CONSTITUTIONAL REFERENDUM 271 Carolina between 1899 and 1908, four of the nine proposed amendments submitted to the people related to the extension of the debt limit of particular towns and cities; the people of the state at large could hardly be expected to have an opinion worth expressing as to whether the cities of Green- ville and Bennettsville, and the town of Gaffney, should be permitted to borrow more money than they were permitted to borrow by existing constitutional limitations. The voters of Missouri can hardly have had satisfactory basis for the decision that cities having more than one hundred thousand inhabitants should not be permitted to incur addi- tional indebtedness for the construction of subways. In North Dakota the voters of the state have been called upon to pass on such important questions as that of establishing an institution for the feeble-minded, and of changing the name of the state school for the deaf and dumb. Some of these cases are extreme ones, but a study of amendments proposed during the past ten years will show that they do not give a greatly exaggerated view of the present situation. When the proposals are not only local or trivial in char- acter but are also submitted in great numbers the difficulties of a voter are very much increased, if he should wish to express an intelligent judgment upon such questions. In 1906 the voters of California were asked to pass upon fourteen constitutional questions, and in 1908 upon fifteen questions. In Louisiana twelve proposals were submitted in 1906 and fifteen * in 1908. In 1908 the voters of Mis- souri passed upon eight proposed amendments, and ten such proposals were submitted to the people of Oregon.’ The 6 But five were submitted at one election and ten at another. In 1896 twenty proposals were submitted in Louisiana and twelve in Nebraska. 7 The voters of Oregon, in addition, passed upon nine laws, which were submitted at the same time. 272 REVISION OF STATE CONSTITUTIONS submission of questions in this manner would not impress itself as so important a fact were such action had infre- quently. Were the people called upon to pass on constitu- tional questions only at long intervals greater popular in- terest would be aroused, but when numerous measures are submitted at each biennial election the great body of voters must necessarily come to take less interest in them. The popular voting upon constitutional questions ceases to have the merit of novelty. Important questions are often sub- mitted but the public interest is dissipated, and the questions of importance are lost in the mass of trivial proposals. For the making of numerous proposals the state legisla- tures cannot be held entirely responsible. It is true, as Dr. Oberholtzer suggests, that legislatures sometimes submit as proposed amendments questions upon which they might themselves finally pass, and thus seek to evade responsibility for measures of a purely legislative character;* but this influence may be easily exaggerated. The principal reason for the frequent submission of such proposals is that our state constitutions are so detailed in their restrictions upon legislative action that a change in these details is often necessary to adjust governmental powers to new conditions. As Mr. Moffett has said with respect to California, the powers of the regular legislative organs have come to be so bound up by restrictions that the process of amendment is often the only means of enacting much legislation which is desired. ‘An end that would be reached in another state by an act of the legislature would be attained in California by tinkering the constitution.” ® Once the plan was inau- 8 Oberholtzer, Referendum in America, 158-163. ® Samuel E. Moffett in Political Science Quarterly, xiii, 4. The con- stitutional referendum has come to be a referendum upon measures properly of a legislative character, and to a large extent upon unim- portant details of legislation. Many of the laws submitted under the THE CONSTITUTIONAL REFERENDUM ye gurated of proposing amendments frequently, it came to be realized in many states how easily constitutional changes can be made, and the practice has grown more and more common.*® Amendments are easily proposed in the legis- lature, and their submission at regular general elections in- volves little additional expense. But in the proposal of amendments legislatures do not labor under a heavy burden of responsibility. The ques- tions are left for the people to decide, and legislators do not feel that their influence or standing are involved in the ‘character of measures proposed. Mr. Bryce and others * have spoken of the superior character, both in form and substance, of constitutional legislation as compared with or- dinary statutes, and there is still some basis for this state- ment as regards constitutions drafted by conventions; but neither in form nor substance can amendments proposed by legislatures be said to be superior to ordinary statutes. In many cases legislative action upon such proposals seems to be undertaken with less feeling of responsibility than is shown in the enactment of ordinary legislation. This is apt to be the case. In proposing amendments legislatures do not have upon them the responsibility for final action, and if a proposed amendment is adopted and works badly the blame can easily be shifted to the people who approved referendum in Oregon are more important measures than those sub- ‘mitted as constitutional amendments in other states. 10“ Tf the practice of recasting or amending state constitutions were to grow common, one of the advantages of direct legislation by the people would disappear, for the sense of permanence would be gone, and the same mutability which is now possible in ordinary statutes would become possible in the provisions of the fundamental law.” Bryce, American Commonwealth, 3d ed., i, 473. 11 American Commonwealth, 3d ed., i, 475-76. Oberholtzer, chap. iii, Dealey, Our State Constitutions, 9, 13, 14. Godkin, Unforeseen Tendencies of Democracy, 141-144. 274 REVISION OF STATE CONSTITUTIONS it by their votes.‘? Then, too, ordinary legislation is sub- ject to the check of executive disapproval, which does not apply to the proposal of amendments.** In many cases, therefore, it may be said that proposals of amendment are made without careful legislative consider- ation, and relate to matters of comparatively slight im- portance. These considerations are sufficient to explain the fact that proposed amendments ordinarily attract little public attention. Usually there is almost no newspaper dis- cussion of such proposals. The voter hardly knows that there are amendments to be voted upon until he reaches the polls, and after the election is over the result is hardly of sufficient interest to be reported. These statements do not, of course, hold true with reference to the few important measures which are submitted, but apply to the great bulk of proposed amendments. In some states plans have been devised during the past few years to make voters more familiar with such proposals, by distributing to each voter some time before the election, the text of proposed meas- ures; or the text together with arguments or explanations. In Oregon this plan has, it seems, provoked a much greater public interest, but it must be remembered that many of the measures submitted in this state during recent years were important ones, which would in any case have at- tracted public attention. The officially prepared arguments distributed in Oklahoma in 1908 were not of much value as 12 A proposed amendment concerning mortgage taxation was adopted by the people of Missouri in 1900, although it seems not to have been discussed either by the legislature or by the people. In 1902 an amendment was submitted to the people and adopted repealing the amendment of 1900, The amendment of 1900 had, however, already been declared invalid by the court. Russell v. Croy, 164 Mo., 60. 18 As to this matter see statement of Governor Gage, of California. New York State Library Bulletin, Governors’ Messages, 1903, p. 28. 14 See pp. 167-176. THE CONSTITUTIONAL REFERENDUM 275 a guide to the voters. The plan of placing the text of measures, together with arguments, directly in the hands of each voter may, however, be expected to accomplish some- thing toward arousing greater interest in proposed amend- ments. But for measures of great importance such methods are not badly needed, and it must be questioned whether any method of informing voters will prove effective with reference to questions which are of too trivial or too local a character to be of any general interest. Under the conditions just described it is to be expected that the popular vote upon proposed amendments should be small.* During the ten-year period from 1899 to 1908 the average vote upon proposed amendments was less than fifty per cent of that upon candidates.** Important meas- 15 For discussions of the popular vote upon proposed amendments see Oberholtzer, 166-169; J. W. Garner in American Political Science Review, i, 242-247, and in Proceedings of the American Political Sci- ence Association, 1907, p. 171. The Direct Legislation Record for March, 1897, contains a rather full account of popular votes on pro- posed amendments in 1896. 16 The basis of comparison used here is that with the vote for can- didates (for state offices where possible) at the same election or at the election immediately preceding the one at which the proposed amendments are submitted. Another comparison which is of some value is that between the total vote on measures and the whole num- ber of qualified voters in the state at the time. In California, for example, the number of persons voting at the election of 1906 was 311,175, while the total number of registered voters was 425,691. In Louisiana in 1902, there were 100,254 registered voters, with but 26,265 votes cast for candidates; in 1904 there were 108,079 registered voters with but 54,222 persons voting; in 1906 there were 107,731 registered voters with but 37,366 persons voting for candidates; and in 1908 there were 154,142 registered voters with 68,932 persons voting for candi- dates; if fifty per cent of those voting for candidates voted on pro- posed amendments this would mean that in 1902 less than one-eighth and in 1906 slightly more than one-sixth of the qualified voters voted on proposed amendments, and in 1904 and 1908 about one-fourth of the registered voters expressed themselves upon measures submitted to a 276 REVISION OF STATE CONSTITUTIONS ures usually polled large votes. The new constitutions of Alabama, Oklahoma, and Michigan; the suffrage amend- ments of North Carolina, Texas, Georgia, and Maryland; the biennial amendment of Iowa; the initiative and referen- dum amendments of Montana and Oregon, and other ques- tions of similar importance brought out a vote sufficient to show a real popular judgment upon the measures sub- mitted.‘7 In some states also large popular votes were polled upon almost all questions submitted during this period.*® Upon many questions of small importance it is rather remarkable that so many voters should have ex- pressed themselves—in South Carolina, for example, nearly two-thirds of those voting at the election of 1904 expressed popular vote. In Louisiana, Florida, and Mississippi, and in some of the other southern states the real contest for office is in the democratic primaries, and the vote at general elections is therefore slight. As a rule, in all of the states a larger proportion of the qualified voters vote in presidential election years than at any other time, but this, while affecting the proportion of qualified electors voting upon amend- ments, does not affect the relation between the number actually voting at the election and the number voting upon measures, Proposals submitted at special elections held for that purpose usually receive a very small vote, as in New Jersey in 1903 and 1909, but a compara- tively satisfactory vote was obtained at special elections in New Jersey in 1897 and in Texas in 1907. See Oberholtzer, 165-167. 17 The proposed constitution of Connecticut was very unsatisfactory and brought out a small vote. The Rhode Island proposed constitu- tion received a rather heavy vote in 1898, but comparatively few electors voted when it was submitted again in 189. Even on im- portant questions the vote is often small, as on the initiative and refer- endum amendments in Missouri, Nevada, and Utah. 18 Alabama, Arkansas, Idaho (1906, 1908), Illinois, Iowa, Kansas, Minnesota, Mississippi, North Dakota, Oklahoma, Oregon, South Caro- lina, South Dakota. For a partial explanation of the vote in Idaho and South Dakota, see p. 279. The large vote obtained in Nebraska in 1906 and 1908, and in Ohio in 1903 and 1905, were obtained by counting straight party votes for the proposed amendments. See D. 194. THE CONSTITUTIONAL REFERENDUM 277 themselves upon the question of exempting the city of Greenville from the municipal debt limit. In a number of other cases more than fifty per cent of those taking part in the election voted upon local or trivial questions in which they could have had no personal interest and upon which they could have had no real opinion of value.*® Yet in most cases the popular vote was small and upon many measures ridiculously so. About the same result is shown by the popular votes in Michigan between 1860 and 1908, and in New York be- tween 1846 and 1907. Upon constitutional referenda in Massachusetts between 1780 and 1907 a somewhat better showing is made, but here also many measures received but a small percentage of the vote cast for governor, and two amendments were adopted in 1860 by 3.3 per cent of those voting for governor in the same year.” In California be- tween 1884 and 1896 a fairly large popular vote was ob- tained upon proposals submitted to the people; ** the popular vote fell in 1898, rose again in 1900, declined much be- low fifty per cent in 1902, 1904, and 1906, but rose again 19Tt is a noticeable fact that when important and unimportant measures are submitted at the same election, the large vote brought out upon the one will often have an influence in producing a similar vote upon the other, and this may explain, to some extent at least, the fact referred to above. 20 Reference has already been made to the fact that, where a major- ity of those voting upon a measure are sufficient to carry it, any measure not strongly opposed will be adopted. Amendments were carried in Colorado and Montana in 1900, in Virginia in 1901, in Washington in 1904, and in Connecticut in 1905, although less than twenty per cent of the voters expressed themselves. Under such con- ditions the amending process becomes little less than a farce, although the requirement of a larger popular majority to carry measures would make it practically impossible to change many of the detailed provi- sions in the state constitutions. 21 Except in 1890 when one amendment was submitted and was prac- tically unopposed. 278 REVISION OF STATE CONSTITUTIONS slightly in 1908. This variation in the popular vote seem- ingly bore no very close relation to the character of the measures submitted. In Oregon in recent years the pro- portion of electors expressing themselves upon constitutional questions has been large, and this in spite of the fact that a great number of propositions have been submitted to the people.”* This is, it would seem, attributable partly to the fact that many of the questions submitted have been ones of great importance, and partly to the novelty of experiments which Oregon has been making with the initiative and re- ferendum and with methods of bringing the merits of pro- posals to the attention of the voters. Different results may perhaps be expected when the novelty has worn off, and when less important measures are submitted to the judgment of the people. Popular interest in candidates will, under ordinary cir- cumstances, be greater than that in measures. Except upon questions of very great importance it cannot be expected that a vote will be obtained equal to or greater than that upon candidates at the same election, but if a measure is important enough to be submitted to the people it should be possible to get a vote sufficient to represent a real popular judgment, but this is not obtained upon proposed amend- ments under present conditions.”* Having referred briefly to the proportion of votes upon proposed amendments it may now be worth while to call 22For the experience of Oregon see papers -by W. S. U’Ren and George A. Thacher in Proceedings of the American Political Science Association, 1907, and by Joseph N. Teal in Proceedings of the Na- tional Municipal League, 1909. 28Tt is not necessary that such a popular judgment be represented by a majority of all persons voting at a general election or by a ma- jority of all the electors of a state, but requirements of this character would be much less burdensome if only measures of a fundamental character were submitted to a popular vote. THE CONSTITUTIONAL REFERENDUM 279 attention to the character of the popular vote. Perhaps the most striking thing is the mental inertia of the elector who actually casts his vote upon questions with reference to which he has no real opinion. Both the proportion of votes cast and the character of such votes are determined to a large extent by this mental inertia. When proposed amend- ments are printed upon the official ballot, together with the names of candidates, they are overlooked by many voters, but attract the attention of others who will express them- selves upon such measures, even though they may not have known until seeing the ballot that amendments were being submitted and may have formed no judgment either for or against them except the snap judgment formed when mark- ing the ballot. Much voting upon unimportant measures is thus to a large extent planless and unintelligent. Where a separate ballot is employed for constitutional questions the attention of voters is attracted to a much greater extent. This fact is clearly brought out by the experience of Idaho; in the elections of 1900, 1902, and 1904 proposed amendments were printed at the bottom of the official ballots where they were easily overlooked; in the elections of 1906 and 1908 proposed amendments were printed upon separate ballots, copies of which were handed to each elector; having the ballot in his hand the elector naturally has suggested to him that something should be done with it, and the result is a larger vote; by this me- chanical device Idaho almost doubled the proportion of the popular vote upon proposed amendments. South Dakota adopted the separate ballot in 1899, and since that time has been able to obtain upon such measures a much larger proportion of the popular vote.** Votes obtained in this 24 But New York has had the separate ballot upon proposed amend- ments since 1896, and seemingly this has had no effect upon the popu- lar vote cast on constitutional questions. 280 REVISION OF STATE CONSTITUTIONS way are not entirely unintelligent because the voter, when his attention is attracted, may have a basis for intelligent action. But certainly the voting is more or less mechanical. With the one ballot for both candidates and measures a cer- tain amount of inertia must have been overcome to vote upon the measures; with the separate ballot for amend- ments, the fact that there is a ballot suggests voting and overcomes the mental inertia simply by a mechanical device, but there is no assurance of intelligent action as a result of the suggestion which has been given. Many of the votes are simply meaningless counters, just as are a number of the votes cast upon amendments under the Nebraska plan of counting straight party votes for or against proposed amendments. Another indication of popular inertia is the fact that, when several proposals of amendment are submitted to the people at the same time, all of such measures are apt to stand or fall together. An unpopular proposal will fre- quently carry down to defeat proposals which if submitted alone, might easily have been adopted; and a popular pro- posal will aid others submitted at the same time. Dr. Oberholtzer, writing in 1900, said upon this subject: “Tt is a strange result which has often been remarked upon, not only with us, but in Switzerland also, that when several propositions are voted on at the same time, they will all be treated alike, that is, approved in bulk, or rejected in the same way. The experience in Minnesota in 1898, when four amendments were submitted to the people, is more or less that of the entire country, when it appeared, to quote the rather picturesque language of a Western news- paper, ‘that most of the voters either let the whole batch slide, or voted for all four.’ We have the case, too, of Texas in August, 1887... when six separate amend- ments were referred to the people, one among them being THE CONSTITUTIONAL REFERENDUM 281 a proposition to prohibit the manufacture, sale or trade in intoxicating liquors. All together were carried down with the prohibitory law, against which there was a very large majority. Perhaps the other five, or four of them at least, would have been quite to the people’s mind under other circumstances.** In Pennsylvania in 1889, when two amendments were submitted, one to prohibit the liquor traffic and the other to make some harmless and apparently beneficial change in the conditions regulating the exercise of the suffrage, both were voted down by very large ma- jorities. In Louisiana in 1896, when the legislature at- tempted to amend the constitution of that state, by the method afterward adopted by the convention of 1898, prac- tically disfranchising the negroes, the people rejected not only this one amendment affecting the suffrage, but some twenty others as well, without reason or discrimination, and in Nebraska in 1896, the people disposed of ten amend- ments in the same thorough fashion. In this case the con- crete thing at which they were trying to vent their disgust was @ proposition of the legislature, that it should itself fix the rates of salaries of the various executive officers of the state, and otherwise enlarge its own powers. The honorarium of these officials hitherto had been definitely limited by the constitution.” In 1898 in California, when seven amendments and a proposition to call a convention were submitted to popular vote, only one amendment and 25In several cases during the past ten years proposals submitted at one election and defeated in California and Louisiana have been submitted again and adopted, although apparently there were no reasons for a change in the popular opinion. 26 Dr. Oberholtzer was mistaken as to the facts concerning the Nebraska election of 1896. Twelve proposals were submitted and all of them received a majority of the popular vote cast upon the ques- tion of their adoption or rejection, but were lost because not receiving a majority of all votes cast at the election. 282 REVISION OF STATE CONSTITUTIONS that a very important measure in reference to the executive department, was saved from the general débdcle. . . .” “Tn some instances this tendency produces quite a con- trary result. Thus a measure having popularity with the electors will sometimes exert an influence to help through a proposition to the passage of which the people are indif- ferent, or perhaps really hostile. In South Dakota in 1896, when a proposal was made to repeal a ‘ prohibition’ clause which had earlier been inserted in the constitution of the state, three other amendments were carried along, which, although of rather a colorless character, might not have fared so well had it been a question of enacting rather than rescinding the prohibitory liquor law. Some such influence would seem to have been at work, too, in Minnesota, in 1896, when it was proposed to tax the property of sleep- ing, drawing room and parlor car companies, telegraph and telephone companies, express companies, and insurance companies doing business within the state. The people were so much elated with the idea of getting a revenue out of these corporations, which earlier had seemed to be es- caping the tax gatherer, that five other propositions were approved at the same election, though by much smaller majorities.” ?7 Five amendments submitted to the people of Oregon in 1900 were rejected, among which was a harmless proposal repealing a provision of the constitution which excluded free negroes from the state; this proposal was defeated evi- dently not on its merits but because of the company in which it was found. Mr. F. N. Judson, speaking of the Missouri mortgage tax amendment of 1900, said: “ There was little discussion in the state during the campaign over the merits of the amendment and it seems to have been 27 Oberholtzer, 169-171. THE CONSTITUTIONAL REFERENDUM 283 carried on account of the vigorous campaign for certain other amendments submitted at the same election.” ?* Speaking with reference to the Missouri initiative and re- ferendum amendment of 1908, a supporter of that measure said: “ The powers that fought us relied on the idiosyn- crasies of the voters this time. When they found that our amendment was likely to be submitted by the legisla- ture, they hurriedly passed a very unpopular amendment to increase the salaries of the members of the legislature first, so as to have it at the head of the constitutional amend- ments and the first one the voter would see. Then they denounced this unmercifully as a salary grab by the legis- lature, thinking the voters would get started to vote No and would vote No all the way down the line—and I have no doubt that it had a powerful influence in the country in cutting down our majorities.” *° But although there is a tendency for popular or unpopular proposals to carry other measures with them to success or defeat, too much emphasis should not be laid upon this fact. As Dr. Oberholtzer says: ‘“‘ Nevertheless, it would convey an erroneous impression were we to leave the subject with- out calling attention to the many cases in which the people can say yes and no at the same breath and really with a knowledge, it would appear, of what those words mean. In November, 1898, three amendments were referred to popular vote in South Dakota, all of first-rate importance. one to introduce into the state’s political system the Swiss referendum and initiative (23,816 for, and 16,483 against), another to confer suffrage on women (19,698 for, and 22,983 against), a third to introduce a dispensary system by which the state would take charge of the liquor business 28 New York State Library Review of Legislation, 1901, p. 63. 29 Equity vol. xi, p. 23 (Jan., 1909). 284 REVISION OF STATE CONSTITUTIONS (22,170 for, and 20,557 against). The returns show there- fore that the people accepted two of the amendments, but rejected that one in reference to woman suffrage. Al- though only about one-half of the persons voting for can- didates at this election chose to vote upon the amendments, of those so doing there is a fair presumption that they re- corded their wishes with respect to the different subjects submitted to them. The people of California in 1894 voted on ten different amendments, approving of seven and dis- approving of three, among the latter being a foolish pro- position to move the capital of the state, and a proposition to increase the salaries of the members of the legislature, a project, as I have already noted, for which the people rarely evince any enthusiasm. In a word, not a little evi- dence is at hand to show that there is method often in what at first sight the casual onlooker might be tempted to call pure madness,” *° Although it would be impossible to say that the people always show wisdom in the proposals which they adopt or reject, still we must admit that they frequently show dis- crimination even upon relatively unimportant measures. It is the rule, rather than the exception, that when several proposals are submitted some are adopted and some re- jected. In the Missouri election of 1908, for example, the initiative and referendum amendment was adopted by a ma- jority of about forty thousand, and the proposed amendment increasing the compensation of members of the legislature was rejected by a similar majority;.of the eight proposals submitted at this election two were adopted and six re- jected. Similar cases occur at most of the elections at which several proposals are submitted. The people of the states have come to distrust their legis- 80 Oberholtzer, 171-172. THE CONSTITUTIONAL REFERENDUM 285 latures, and any proposals to increase the compensation of members of these bodies are usually voted down; such pro- posals are frequently submitted. The same attitude is or- dinarily taken toward the increase of salaries of state offi- cers. In California amendments increasing the salaries of legislators and of state officers were adopted after several proposals of a similar character had been rejected, and in Louisiana the salaries of several state officers were increased between 1899 and 1908. But the voters of Florida in 1906 rejected an amendment increasing the salaries of supreme and circuit judges, although such an increase seemed neces- sary in order to induce able lawyers to accept these posi- tions. In 1897 the voters of Michigan declined to in- crease the salary of the attorney-general of that state al- though the compensation of eight hundred dollars fixed by the constitution was notoriously inadequate; and the voters of South Dakota in 1904 and 1908 declined to increase the annual salary of their attorney-general beyond one thous- and dollars. Proposed amendments increasing the salaries of the governor and lieutenant-governor were rejected by the voters of Texas in 1908. It is a well-known fact that large salaries are opposed by voters when they have an opportunity to express themselves, and the judgment of a rural voter as to what is a large salary for executive or other governmental work is frequently not in agreement with that of persons better informed as to such matters. It is true, of course, that the efforts of legislators to increase their salaries have not in many cases been efforts which should succeed, and they were perhaps wisely checked by the electors. But the popular control over the salaries of state officers has often been exercised in a short-sighted manner, by refusing compensation sufficient to obtain effi- cient men for the service of the state. In summing up our experience with the constitutional 286 REVISION OF STATE CONSTITUTIONS referendum, what shall be said of its effectiveness as an in- strument of government? Dr. Edward M. Hartwell, after a careful study of constitutional referenda in Massachusetts has said recently: ‘‘ I must confess that the evidence that the voters of Massachusetts have shown wisdom, intelligence and discrimination in their votes on referenda is much more ample and convincing than I anticipated when I began this study. To my mind the conclusion of the whole matter is: that the referendum has proved to be a reasonably effec- tive instrument for determining the mind and will of the voters of Massachusetts upon constitutional questions.” ** Mr. Samuel E. Moffett, after discussing the constitutional referendum in California from 1884 to 1896, is much more enthusiastic in his conclusions: He says: “ The suspicious vigilance of the people never tolerates anything that ap- pears to cover a ‘job.’ Repeated efforts have been made to increase the pay and privileges of members of the legis- lature and other public servants, but always without suc- cess. The Southern Pacific Company, which always con- trols the legislature when it seems to be worth while, under- took in 1885 to secure a change in the methods of taxation, by which it would be taxed on its income instead of on its property. There was no trouble in getting a two-thirds vote of each house of the legislature in favor of the neces- sary amendment; but when the measure came before the people, only 9992 citizens, or just about the number of the employees of the corporation, voted in its favor, while 123,173 voted against it. . . Impatient reformers become disheartened because everything is not accomplished at once, but no general election passes, without the correction of some abuse in government or the achievement of some posi- 31 Referenda in Massachusetts, 1776-1907, National Municipal League Proceedings, 1900, pp. 352-353. See Political Science Quarterly, xx, 449. THE CONSTITUTIONAL REFERENDUM 287 tive advance. When the harness chafes long enough at any particular point to make the annoyance seriously felt, the people alter it until it is comfortable; and as no good piece of work of this sort is ever undone, the ultimate achievement of a perfect fit is only a question of time.” * But the perfect fit has not yet been achieved, and the constitutional referendum in California has not worked as well since 1896 as Mr. Moffett found it to have worked before that date. Perhaps all that can be said with refer- ence to its use in the several states, is that the constitutional referendum has in most cases proven a fairly effective in- strument for the expression of popular judgment upon im- portant questions, and that the people have often, if not usu- ally, defeated measures, even though relatively unimportant, which should have been defeated. It would be impossible to say that they have always acted wisely or even intelli- gently in adopting or rejecting measures submitted to them. And under present conditions the amending process is to a large extent ineffective because of the trivial character of many proposals submitted to the people. Governor Hughes in his annual message to the legisla- ture of New York on January 5, 1910, said: “ Our experi- ence at the last election with regard to the constitutional amendments submitted for adoption shows a lamentable lack of sense of responsibility on the part of our citizens with respect to changes in the fundamental law.” A some- what similar statement was made by Governor Gage of California in his message to the legislature of that state in 1903: ‘‘ Constitutional amendments are easily passed at each session of the legislature, for, unlike laws, the governor has neither the power of approval or of disapproval. When 82 the Constitutional Referendum in California, Political Science Quarterly, xiii, 17, 18. 288 REVISION OF STATE CONSTITUTIONS passed by resolution of the senate and assembly and sub- mitted to the people, comparatively few voters really under- stand the character and purpose of these amendments, when appearing by title and number on the ballot; hence, as a rule, the electors vote on them in a very perfunctory man- ner.” ** The supreme court of Colorado in People vw. Sours “ said: “It is hard to account for the apparent in- difference of the people on the occasion of submission to them of changes in their organic law. The indifference which prevails in Colorado prevails in other states, and it rarely occurs that a proposed amendment to the constitution receives the attention of more than one-half of those who vote for candidates for office.” Similar statements may be made with reference to almost all of the states in which frequent use is made of the amending procedure. The fact has come to be pretty clearly recognized that the constitutional referendum is working badly under pres- ent conditions, and methods of improving it are being sug- gested and tried. Oregon and several other states have un- dertaken to inform the voters more fully regarding meas- ures upon which they should vote, and this plan promises well, because the methods of informing voters are now ex- tremely defective. Nebraska, who must get a majority of all persons voting at a general election in order to carry any amendment, has adopted the plan of party endorse- ment, which is merely a mechanical devise for counting the votes of those who really do not care to express themselves upon proposed measures. Idaho and some other states have adopted the separate ballot for constitutional proposals, and thus bring out a larger vote. 83 New York State Library, Digest of Governors Messages, 1903, p. 28. 84 31 Colo., 388. THE CONSTITUTIONAL REFERENDUM 289 Of these methods, the plan of informing voters more thoroughly strikes somewhere near the root of the matter, and may accomplish something. But the difficulty lies still deeper. Any system is wrong which expects to obtain a popular judgment upon questions which are too trivial or too local for the voters to have any real opinion upon the matters submitted to them. The amending procedure in its operation has in many cases become a mere farce because of the triviality and multiplicity of questions sub- mitted. Upon unimportant matters a popular verdict is obtained which is worth little or nothing, and the amend- ing procedure is so cumbered with unimportant questions that matters of importance—matters upon which the people may have a real judgment — are obscured. The present system is defective. It cannot be expected that even im- portant measures, when submitted in such a manner as to be understood by the people, should as a rule receive a vote equal to that of candidates in a hotly-contested elec- tion, because the personal interests of voters cannot be aroused to such an extent upon proposed measures. All that can be hoped for is that the people be not overburdened, that the purpose of measures be well understood, and that the result of the popular voting be fairly representative of a real public opinion. These results are not obtained through the present operation of the amending procedure. What should be done to better the present situation? Speaking of the Alabama constitution of 1901, Dr. Robert H. Whitten said several years ago: “In a constitution so detailed in many parts there will be frequent need for amend- ments. In most of these the voters will have no interest and cannot be expected to vote on them intelligently, yet each amendment will have to receive a three-fifths vote of the Legislature, and a majority vote of all electors voting at the election. This will cumber the election machinery 290 REVISION OF STATE CONSTITUTIONS with votes on questions that might better be left to the legislature and will often prevent much needed changes. If it seems desirable to include matters of detail in the constitution, special provision should be made for their amendment by a two-thirds vote of the legislature or of two succeeding legislatures without submission to the people.” ** It has not been unusual for constitutions to contain provisions which were specifically made subject to alteration by state legislatures, at certain times or under certain conditions,** and what Dr. Whitten proposes is an extension of this practice. But if a provision is considered of sufficient importance to be inserted into the constitution, it may be thought unde- sirable to have such a provision alterable merely at the dis- cretion of the legislature, even though that body be acting by an increased majority. Some popular control should be maintained even over unimportant changes in the con- stitution. What may well be done, however, is to provide that unimportant constitutional changes may be made by a two-thirds vote of the legislature, but to permit a popular referendum upon such legislative action if a petition is presented signed by a sufficient number of voters. A popu- lar check upon legislative action would thus be retained, but the alteration of constitutional details would be made simpler and easier; the electorate would be freed from the burden of passing upon such changes, except in cases where there was assurance of rather wide popular interest in the matter.*” 35 New York State Library, Review of Legislation, 1901, p. 29. 38 As, for example, the Virginia constitution of 1902, secs. 155, 1561; the Oklahoma constitution of 1907, Art. ix, sec. 35, Art. xii, sec. 3, Art. xx, sec. 2; Maryland constitution of 1867, Art. xi. 37 Tf this were done there would be introduced a class of legislation somewhat intermediate between the constitution and ordinary statutes, THE CONSTITUTIONAL REFERENDUM 291 Putting in concrete form the suggestions for obtaining more effective popular action through the amending pro- cess, we may say: (1) Measures of fundamental importance—measures of a real constitutional character—should, as at present, in every case be subject to a popular vote. Upon such meas- ures the people should pass, and upon them they may bé presumed to have a real opinion. The compulsory refer- endum should be retained for all such constitutional pro- posals. (2) Upon matters of detail the legislature should be per- mitted to act by an increased majority, subject however to a popular vote should a sufficient number of the electors petition for such action.** Upon matters of small import- ance the optional referendum is a sufficient check on legis- lative action, and the less frequent votes upon trivial mat- ters will enable the electors to express a more intelligent judgment upon measures of real importance. Matters of purely local importance, which bear little or no relation to the policy of the state as a whole, should, of course, not be decided either by the legislature or by a state referendum. A number of questions submitted to the people of California, Louisiana, Missouri, and South Carolina during the past ten years might much better have been left to the particular cities or local districts directly concerned. and an interesting question would be raised as to the attitude of the courts toward such legislation, but as has already been suggested, the courts have already largely broken down the distinction between state constitutions and state statutes, 38 The distinction between important and relatively unimportant constitutional questions could in most cases be made without great difficulty. The compulsory popular vote might well be made the usual method of altering constitutions, and there could then be an enumera- tion of specific constitutional provisions which might be changed without a popular vote unless such vote was petitioned for. 292 REVISION OF STATE CONSTITUTIONS (3) Popular control over the proposal of amendments should be extended. Legislatures are not always respon- sive to the desires of the people in this respect, and it should be possible to initiate proposed amendments by popular petition. The popular initiative has already been intro- duced in several states, and its extension with respect to constitutional questions is desirable. The popular initiative is open to many objections, both theoretical and practical, but the people should have power independently of the legis- lature, to force changes in their constitutions when such changes are desired. Perhaps the greatest value which the initiative will have is not in the direct results which may come from its use, but in its influence in causing legisla- tures to act upon matters upon which action is desired by the people. (4) The plan of distributing the text of measures to each voter should be employed in preference to that of publica- tion in newspapers. The separate ballot for constitutional questions also has advantages in that it separates the voting upon measures rather distinctly from that upon candidates. These things however are but machinery, and are of little value unless the questions submitted to the people are of sufficient importance to attract the attention of the voters. The suggestions made above do not involve a decrease in popular influence upon constitutional changes. They do involve an attempt to concentrate attention upon fewer and more important measures, so that the popular vote may represent a real judgment and not merely an unintelligent and haphazard action. APPENDIX POPULAR VOTES UPON CONSTITUTIONAL QUESTIONS, 1899-1908 The votes upon amendments given in the following list have been obtained by correspondence with state officials or taken from official state publications. The list of amend- ments proposed has been checked with the annual lists given in the bulletins of the New York State Library, and with the statutes of the several states, and is probably complete for the period covered. Acknowledgment is made to the secretaries of state who have been kind enough to send information. Of the four hundred and seventy-two questions listed below, the popular vote has been obtained upon all but twenty-two. It has been impossible to obtain the popular votes upon three amendments submitted in Colorado in 1904 and 1906, and upon two proposals voted on in Kentucky in 1905 and 1907. The secretary of state of Georgia declined to furnish informa- tion regarding ten amendments submitted in that state, and the votes are not available in print; in Tennessee only the affirmative vote is returned, as no proposal is adopted unless the affirmative vote is more than one-half of the whole vote cast, so that upon the seven Tennessee proposals complete information is not available. The total state vote used for comparison with the vote upon amendments is, where possible, the vote cast for the highest state officer chosen at the election when the proposed amend- ment is submitted ; where no state officer is chosen at such an election the vote for President of the United States or for members of the national house of representatives is sometimes used ; where the amendments were submitted at special elec- tions the vote used for comparison has been that at the near- est general election (in most cases that at the nearest preced- 293 294 APPENDIX ing election). With the varying vote at different elections this necessary shifting of the basis of comparison vitiates the results to a certain extent, but mainly on the side of enlarging rather than diminishing the proportion of votes on constitu- tional questions ; it was first planned to indicate for each item in this table the precise total vote (whether for governor, president, etc.) used as a basis for comparison, but this was found not to be feasible. The total votes used have been taken from official reports where possible, but in some cases from the World Almanac, although votes taken from un- official sources have been examined in the effort to assure accuracy. The term “not adopted ”’ is used in the table be- low with reference to proposals which received a majority of the votes cast upon their adoption or rejection, but which were not carried because of constitutional requirements of a larger vote. 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constitutes “one amendment,” 179, 192, 193, 196, 216, 221; popu- lar majority required for adop- tion of, 185-202; time when it becomes effective, 203, 204; er- roneous and contradictory amend- ments, 206-209; popular vote re- quired to adopt, 185-202, 216; ju- dicial control over processes of, 209-236; no judicial control over substance of, 234-238; overruling of courts by, 238-243; relation between statutes and amendments, 237-258; relation between consti- tutional conventions and process of amendment, 258-262; working of popular referendum on pro- posed amendments, 266-292; fre- quency with which amendments submitted, 266-269; triviality of proposals, 269-271, 289, 291 Appropriation, of money for use of convention, 82, 83; power to ap- propriate money not usually pos- sessed by conventions, 82, 83, 103, 104 Arguments, for and against pro- posed amendments, distribution of, 167-178, 274, 288, 291 Arkansas, constitution of 1836 not submitted to people, 65; pop- ular majority required for adop- tion of amendments in, 190 Articles of confederation, popular approval of, in New Hampshire and Massachusetts, 8, note, 10, note, Ballot, for amendments, separate from that for candidates, 184, 270, ‘288, 292; requirement that full text of proposed amendment ap- pear upon ballot, 184; form of ballot designed to compel voting on amendments, 190-199 Bryce, James, discussion of flexible and rigid constitutions, 130 California, distribution of argu- ments on proposed amendments in, I70, 171 Colonies, government in, 1 Commissions, constitutional, note, 262-265 Connecticut, continuance of charter government in, 26; popular sub- mission of constitution of 1818, 64; popular approval of amend- ments under constitution of, 125 Constitutional convention: first sug- gested and employed in New ‘Hampshire, 5-7, 23; sentiment favorable to, in Massachusetts, 8, 9, 23; steps in development of, 21-25; provision for, in first con- stitutions of Georgia, Massachu- 345 39; 346 setts, and New Hampshire, 28, 29; definite establishment of, for constitutional révision, 38, 39; rule as to holding of, when con- stitutions contain no provision re- garding, 43-46; calling of conven- tions, at definite times or periods, 43, 50, 51; convening by legisla- ture, without a popular vote, 46, 47; popular vote, either at dis- cretion of legislature, or at defi- nite intervals, 47-51; legislative majority required for submission of question, 49; popular vote re- quired for assembling of conven- tions, 52-54; assembling of, made independent of legislature in sev- eral states, 55, 56; question whether convention may properly be assembled independently of or in opposition to existing state government, 60-62; popular sub- mission of proposed constitutions, 62-70; legal position of, 72-117; theory of conventional sover- eignty, 73, 74, 77 and note; to what extent independent of legis- latures, 79, 80; efforts by legisla- ture to control conventions, 81- 87; legislative requirement of popular submission of constitu- tion, 83-88; power to control its own proceedings, 88; limited powers of, 92, 93; control by courts over actions of, 83-103; implied restrictions upon conven- tions, 103; exercise of regular governmental powers by conven- tion, 104-117; legislative power possessed by conventions, 116; continuing in existence after the completion of their work, 117; relations between amending pro- cess and, 258-262; manner in which work of convention may be submitted to people, 258, note. ‘Constitutions: use of term consti- tution in colonial times, 2; dis- tinguished from statutes in meth- od of enactment, 3, 22; methods of alteration provided in first state constitutions, 27-29; prob- ably at first not thought legally binding upon legislatures, 30-37; popular participation in framing, Continental Congress, INDEX 71; development of methods of altering, 118-120; filled with mass of legislative details, 137, 138, 198, 267, 268, 269, 272; time when new constitutions become effec- tive, 204, note; disappearance of distinctions between state statutes and state constitutions, 243, 249- 258; question whether there may be a complete revision by process of amendment, 260-262 ‘Construction, of constitution with respect to constitutional changes, 95-103, 215-226 recommen- dations of, concerning establish- ment of independent governments in states, 3, 4, 10, 14, 15, 25 Contradictory amendments, 207-209 Council of censors, in Pennsyl- vania and Vermont, 27, 28, 34-36, 39-41 ‘Council of revision, in New York, 32; proposed in Virginia and Ver- mont, 33 ‘Courts, early history of power to declare laws unconstitutional, 373 control by, over proceedings and actions of conventions, 83-103, 108-117; control over amending process, 93, 209-236; overruling of, by constitutional amendments, 238-243; power of annuling laws and constitutional amendments, 242-248; control over referendum laws, 252-258 Declaration of independence, popu- lar approval of, in Massachusetts, 10, note, Delaware, formation of first con- stitution in, 14, 15; constitution of 1831 not submitted to people, 65; constitution of 1897 not sub- mitted to people, 67, 68; no con- stitution ever adopted by popular vote in, 70; convention of 1852- 53, 70; alteration of constitution of 1776 by legislative action, 120 Discussion, public, of proposals of amendment, 274 ‘Distribution of proposed amend- ments to voters. 167-178 Elections, submission of question of holding convention at general or special elections, 52; submis- INDEX 347 sion of constitutions at general or special elections, 69, note; submission of proposed amend- ments at general or special elec- tions, 183, 222, note; what is a general election,” 183, note. Enabling acts, congressional, for admission of territories as states, 59; and popular submission of constitutions, 64, note. Errors, in text of proposed amend- ments, 206, 207 Expenditure, popular vote upon pro- posed amendments involving, 285 Flexible and rigid constitutions, 136-140 Frankland, proposed constitution of 1785, 34, note. Franklin, adoption of constitution for proposed state of, 21 Georgia, revision of constitution of 1777, 42, 48 Governor, extent of power of ap- proval or disapproval over legis- lative acts with reference to as- sembling of conventions, 56, note; power over proposals of amend- ment, 148-154, 274, 287 Idaho, popular majority required a adoption of amendments in, I Illinois, popular submission of con- stitution of 1848, 65 Indiana, popular majority required for adoption of amendments in, 185, 189, 190 Initiative, with reference to vote upon question of holding a con- vention, 42, 54; in the proposal of constitutional amendments, 127, 128, 292; in the proposal of laws, 232 Injunction, use of, to restrain ac- tion by convention, 84, 94-96, 97, 102; to restrain submission of proposed amendments, 228-234 Jefferson, Thomas, draft of consti- tution for Virginia in 1776, 20, note, 271, note; draft of 1783, 27, 33, 39, note; proposal for popular vote upon constitution and amend- ments, 20, 124 Joint resolution, question whether the most proper form of pro- posing amendments, 155, note. Journal, printing of, 89; entry of proposed amendments in legisla- tive journal, 144-148, 216, 219, 221 Judiciary, see Courts, Kansas, proposed constitution of 1855, 61 Kentucky, popular submission of constitution of 1891, 67, 68, 85, 100 Legislatures: framing of constitu- tions by, during revolutionary period, 11-23; proposal for legis- lative framing of constitution in Rhode Island, 26; later cases in which proposed constitutions framed by legislatures, 39, note, 50, note; calling of conventions by, either after or without popu- lar vote, 46-51; action by, in most states necessary for assembling of convention after favorable vote by people, 55-59; control by, over constitutional conventions, 73-92; states in which convention independent of legislature, 73, 74; popular vote for convention as authorizing control by legis- lature, 74-77; subordination of amending process to legislature, 79; limitation of legislative con- trol over convention, 79, 80; ef- forts of legislatures to control conventions, 81-87; power of, to require popular submission of constitutions, 83-88; efforts of conventions to exercise regular legislative powers, 105-117; alter- ation of constitutions by, without a popular vote, 120-123, 126; ma- jority required to propose amend- ments, 130, 131, 142, 143; two successive legislative actions re- quired for proposal of amend- ments, 125, 129, 130, 136, 156-158; action of legislature, after popu- lar approval, 205; constitutional revision through amending pro- cess, 260-262; appointment of con- stitutional commissions by, 262- 265; responsibility of, for fre- quency and character of proposed amendments, 272-274; should be permitted to act without popular vote upon trivial amendments, 289-291 348 Legislation, may be introduced into constitution by convention, 116; by amending process, 238 Liberal construction, of constitu- tional provisions with respect to amendments and revision, 95-103, 215-226 Louisiana, constitution of 1898 not submitted to popular vote, 67, 68 Maine, single legislative action for proposal of amendments under constitution of 1819, 126; use of constitutional commission in, 262 Majority, popular, required for calling convention, 52-54; for adoption of proposed constitu- tion, 69, note; for adoption of proposed amendments, 133, 134, 185-202 Mandamus, to enforce ministerial duty in aid of amending process, I61, 219, note, 228-234 Mandatory requirements, for valid- ity of proposed amendments, 217- 221 Maryland, formation of first con- stitution in, 12, 13; struggle for constitutional reform in, 61; method of altering constitution of 1776, 120, 121 Massachusetts, resumption of char- ter by legislature in 1775, 25; formation of first constitution, 8- 10, 23, 25; provision for conven- tion in and judicial opinion with reference to holding of conven- tion, 43, 45 os Michigan, acceptance of conditions imposed by congress for admis- sion into union, 61; convention independent of legislative control in, 74; submission of constitution of 1908 by convention, 84; con- stitutional commission in, 260, 262, 265 Ministerial duties, with reference to submission of proposed amend- ments, enforcement by manda- mus, 219, 228, 232; omission of, as defeating proposal, 219, note. Minnesota, popular majority re- quired for adoption of amend- ments, 187, 189, 190 Mississippi, failure to submit con- stitution of 1890 to a popular INDEX vote, 67, 71; no constitution ever adopted by popular vote in, 65, 70; slavery convention of 1850- 51, 70, 77; legislative action upon proposed amendments necessary after popular approval, 124, 205 Missa convention of 1861-63, 66, I Nebraska, constitution of 1866 framed by legislature, 39, note, 590, note; popular vote required for adoption of amendments in, 188; party endorsement of pro- posed amendments in, 194-200 New England states, early devel- opment of constitutional conven- tion in, 25, 64 New Hampshire, formation of first constitutions in, 3-8, 23, 25; pro- vision for convention in constitu- tion of 1784, 43 New Jersey, formation of first con- stitution in, 19; use of constitu- tional commissions in, 262 New York, formation of first con- stitution in, 10-12; under consti- tution of 1894 convention inde- pendent of legislative control, 55, 74; convention of 1801, 77; use of constitutional commissions in, 262-264 North Carolina, formation of first constitution in, 13, 14 Oaths, binding conventions to ob- serve restrictions imposed by leg- islature, 81; to support existing state constitution, 81 Ohio, party endorsement of pro- posed amendments in, 194-200 Officers, question whether conven- tion delegates are, 81 Oklahoma, distribution of argu- ments on proposed amendments in, 170, 171, 274 Ordinances, power of conventions to pass, 108-117 Oregon, distribution of arguments on proposed amendments in, 168, 172, 173, 174, 274 Party endorsement, straight party vote cast for amendments under, 194-200, 288 Pennsylvania, charter of liberties, method of altering, 2, note, 15; council of censors in, 35, 40, 41; INDEX popular submission of constitu- tions in, 63, 65; judicial restraint of convention of 1873, 83-84 Political question, when question of adoption of constitution or amendment becomes political, 102, 222-226; is question of proper adoption of amendments a politi- cal question, 209-214 Popular vote: character of partici- pation in framing of first state constitutions, 5-21; upon ques- tion of calling conventions, 47- 54 57, 58; upon proposed con- stitutions, 62-70; power of legis- lature to require vote on pro- posed constitutions, 83-88; first proposal to require vote on amendments, 124; majority re- quired for adoption of amend- ments, 133, 134, 185-202, 216; ad- ministrative determination — re- garding, as conclusive, 209-211; recanvass of vote under judi- cial supervision, 215; form in which convention may submit its work to people, 258, note; propor- tion of voters voting on amend- ments, 275-278; character of popular vote, 278-287; popular vote unnecessary on amendments of a trivial character, 289-292 Primary election, party endorse- ment of proposed amendments in, 194, 195, 199 Publication of proposed amend- ments, 154, 158-178, 219 Reading, legislative, of proposed amendment, 143, 144 ; Reconstruction conventions, sub- mission of work to popular vote, 50, 66; powers exercised by, 106, 107 Referendum, upon question of hold- ing constitutional convention, 48- 54, 74-76; upon law under which convention is to be held, 57, 69, 92; judicial power to restrain submission of laws and proposed amendments, 228-234; upon sta- tutes, 250-252; as means of break- ing down judicial power to de- clare laws invalid, 252-258; work- ing of referendum on proposed amendments, 266-292 349 Restrictions upon proposal of amendments, 132, 133, 136-140 Rhode Island, continuance of char- ter government in, 26; proposal of legislature to frame new con- stitution in 1777, 26; judicial opinion that convention may not be held, 45; constitutional strug- gle in, 60; constitutional revision by amending process in, 259, 261, 262, 265 Secession conventions in South, submission of work to popular vote, 65; powers exercised by, Io5, 106 Social contract, theory of the, 2, 3 South Carolina, formation of first constitutions in, 17-19; constitu- tion of 1895 not submitted to popular vote, 67, 68; convention of 1832-33, 77; alteration of con- stitution of 1778 by legislative action, 121; legislative ratification of proposed amendments after popular approval, 123, 205 Southern states, reconstruction constitutions in, 59; submission of secession and reconstruction con- stitutions in, 65, 66; conventions during secession and reconstruc- tion periods, 105-107 Sovereignty, theory of conventional, 77 and note. Statutes, judicial control over re- ferendum for, 232, 233; judicial power of annuling, 238-248; rela- tions between statutes and con- stitutional amendments, 237-258; disappearance of distinctions be- tween. statutes and constitutions, 243, 249-258; referendum upon, as weakening judicial power to annul laws, 252-258 Suffrage, qualifications for exercise of, in voting upon questions of holding convention, for delegates to convention, and upon pro- posed constitution, 58 and note. ‘Territories, framing of constitu- tions in, 59; powers of conven- tions in, 107 Time, period of, required for adop- tion of amendments, 138, 139 Town meeting, New England, 25, 64 350 Unconstitutional legislation, judi- cial control over, not recognized when first constitutions framed, 31-37; disadvantage of judicial power with respect to, 254, 255 United States, bound by constitu- tion to support existing state gov- ernments, 62; question of ratify- ing constitution of, submitted to a popular vote in Rhode Island, 63; constitution binding upon state conventions, 93; attitude of federal courts with reference to validity of state amendments, 226- 228; state courts as interpreters of federal constitution, 241-248 Vermont, council of censors in, 35, 36, 41; use of constitutional com- mission in, 262, 265, note. Veto power, question whether ap- INDEX plicable to legislative resolutions regarding vote upon question of holding convention and to pro- visions for assembling of conven- tions, 56, note; whether applicable to proposals of amendment, 148- 154, 274, 287; power exercised by courts over laws and proposed amendments, 242-248 Virginia, formation of first consti- tution in, 19-21; constitution of 1829 submitted to people, 64; con- stitution of 1902 not submitted, 67, 68, 86, 100, Ior Written constitutions, reasons for, in the United States, 2, 3 Wyoming, distribution of text of proposed amendments in, 178; popular majority required for adoption of amendments, 186, 189