ized to speak for the people upon this subject, and to point out a mode for the expression of their will in the absence of any provision for amendment or revision contained in the constitution itself.1 1 Opinions of Judges, 6 Cush. 573. The first constitution of New York contained no provision for its own amendment, and Mr. Hammond, in his Political History of New York, Vol. I. c. 26, gives a very interesting account of the controversy before the legislature and in the council of revision as to the power of the legislature to call a convention for revision, and as to the mode of submitting its work to the people. In Collier v. Frierson, 24 Ala. 100, it appeared that the legislature had proposed eight different amendments to be submitted to the people at the same time; the people had approved them, and all the requisite proceedings to make them a part of the constitution had been had, except that in the subsequent legislature the resolution for their ratification had, by mistake, omitted to recite one of them. On the question whether this one had been adopted, we quote from the opinion of the court: "The constitution can be amended in but two ways: either by the people who originally framed it, or in the mode prescribed by the instrument itself. . . . We entertain no doubt that to change the constitution in any other mode than by 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. We scarcely deem any argument necessary to enforce this proposition. The constitution is the supreme and paramount law. The mode by which amendments are to be made under it is clearly defined. It has been said that certain acts are to be done, certain requisitions are to be observed, before a change can be effected. But to what purpose are those acts required or those requisitions enjoined, if the legislature or any department of the government can dispense with them? To do so would be to violate the instrument which they are sworn to support, and every principle of public law and sound constitutional policy requires the courts to pronounce against any amendment which is not shown to have been made in accordance with the rules prescribed by the funda mental law." See also State v. McBride, 4 Mo. 303; State v. Tufly, 19 Nev. 391, 12 Pac. 835; In re Const. Convention, 14 R. I. 649; Koehler v. Hill, 60 Iowa, 543, 14 N. W. 738, 15 N. W. 609. In the last case it is held that where a proposed amendment must be entered at length upon the journal, neither the enrolled resolution embodying it nor parol evidence can be received to contradict the journal; nor are the courts debarred from ascertaining the truth by the fact that a second general assembly passed the amendment as enrolled. But if the proposition is recorded in the Senate journal and amended in the House and the amendment is then recorded in the Senate, it is not a valid objection that the whole proposition is not recorded in one place in the Senate journal. In re Senate File, 25 Neb. 864, 41 N. W. Rep. 981. It is enough if the journal entry is by reference to the title. Thomason v. Ruggles, 69 Cal. 465, 11 Pac. 20. Where the constitution provided that amendments should be proposed by one general assembly, and approved and submitted to popular vote by a second, and seventeen amendments were thus approved together, and the second general assembly passed upon and submitted eight by one bill and nine by another, the submission was held sufficient and valid. Trustees of University McIver, 72 N. C. 76. Several propositions which in effect are but one amendment may be submitted to the people as one amendment. State v. Timme, 54 Wis. 318, 11 N. W. 785. A high license amendment and a prohibitory amendment may be submitted at one time. In re Senate File, supra. An amendment becomes effective when the votes are canvassed. The Governor need not make a proclamation. Sewall v. State, 15 Tex. App 56; Wilson v. State, id. 150. [A proposed amendment which has duly passed the legislature does not in Pennsylvania require to be passed upon by the Governor before it can be submitted to the people. Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 L. R. A. 568; State v. Dahl, 6 N. D. 81, 68 N. W. 418, 34 L. R. A. 97. IV. In accordance with universal practice, and from the very necessity of the case, amendments to an existing constitution, or entire revisions of it, must be prepared and matured by some body of representatives chosen for the purpose. It is obviously impossible for the whole people to meet, prepare, and discuss the proposed alterations, and there seems to be no feasible mode by which an expression of their will can be obtained, except by asking it upon the single point of assent or disapproval. But no body of representatives, unless specially clothed with power for that purpose by the people when choosing them, can rightfully take definitive action upon amendments or revisions; they must submit the result of their deliberations to the people who alone are competent to exercise the powers of sovereignty in framing the fundamental law for ratification or rejection. The constitutional convention is the representative of sovereignty only in a very qualified sense, and for the specific purpose, and with the restricted authority to put in proper form the questions of amendment upon which the people are to pass; but the changes in the fundamental law of the State must be enacted by the people themselves.1 Whether or not a proposed amendment has been duly adopted is a question for the courts, and where the Governor has under statute appointed a commission to determine the result of the popular vote upon the proposed amendment, the proceedings of such commission may be reviewed by certiorari, notwithstanding the Governor's proclamation that the amendment has been duly adopted. State v. Wurts, 63 N. J. L. 289, 43 Atl. 744, 45 L. R. A. 251. In voting on a constitutional amendment voters exercise a legislative function and courts cannot enjoin the Secretary of State from publishing notice of the election even though the amendment, if adopted, may be invalid. People v. Mills, - Col. 70 Pac. 322 (June 30, 1902).] 1 See, upon this subject, Jameson on the Constitutional Convention, §§ 415-418, and 479-520. This work is so complete and satisfactory in its treatment of the general subject as to leave little to be said by one who shall afterwards attempt to cover the same ground. Where a convention to frame amendments to the constitution is sitting under a legislative act from which all its authority is derived, the submission of its labors to a vote of the people in a manner different from that prescribed by the act is nugatory. Wells v. Bain, 75 Penn. St. 39. Such a convention has no inherent rights; it has delegated powers only, and must keep within them. Woods's Appeal, 75 Penn. St. 59. Compare Loomis v. Jackson, 6 W. Va. 613, 708. The Supreme Court of Missouri has expressed the opinion that it was competent for a convention to put a new constitution in force without submitting it to the people. State v. Neal, 42 Mo. 119. But this was obiter. [But if, after being accepted by the people, the convention modifies it and promulgates it as modified, and the constitution as promulgated is recognized as valid by the executive and legislative branches of the government, the modifications must be deemed valid. Miller v. Johnson, 92 Ky. 589, 18 S. W. 522, 15 L. R. A. 524.] Where proposed amendments are required to be submitted to the people, and approved by a majority vote, it is a mooted question whether a majority of those voting thereon is sufficient, when it appears that they do not constitute a majority of all who voted at the same election. See State v. Swift, 69 Ind. 505; and cases cited, post, 892-894. [That pub V. The power of the people to amend or revise their constitutions is limited by the Constitution of the United States in the following particulars: 1. It must not abolish the republican form of government, since such act would be revolutionary in its character, and would call for and demand direct intervention on the part of the government of the United States.1 2. It must not provide for titles of nobility, or assume to violate the obligation of any contract, or attaint persons of crime, or provide ex post facto for the punishment of acts by the courts which were innocent when committed, or contain any other provision which would, in effect, amount to the exercise of any power expressly or impliedly prohibited to the States by the Constitution of the Union. For while such provisions would not call for the direct and forcible intervention of the government of the Union, it would be the duty of the courts, both State and national, to refuse to enforce them, and to declare them altogether void, as much when enacted by the people in their primary capacity as makers of the fundamental law, as when enacted in the form of statutes, through the delegated power of their legislatures. 2 VI. Subject to the foregoing principles and limitations, each State must judge for itself what provisions shall be inserted in its constitution; how the powers of government shall be apportioned in order to their proper exercise; what protection shall be thrown around the person or property of the citizen; and to what extent private rights shall be required to yield to the general good.3 lication of proposed amendments with the statutes adopted at same session of legislature as that in which the amendments were proposed is a sufficient publication if made a sufficiently long time before election, see State v. Grey, 21 Nev. 378, 32 Pac. 190, 19 L. R. A. 134.] 1 Const. of U. S. art. 4, § 4; Federalist, No. 43. 2 Cummings v. Missouri, 4 Wall 277; Jefferson Branch Bank v. Skelly, 1 Black, 436; State v. Keith, 63 N. C. 140; Jacoway v. Denton, 25 Ark. 525; Union Bank v. State, 9 Yerg. 490; Girdner v. Stephens, 1 Heisk. 280; Lawson v. Jeffries, 47 Miss. 686, 12 Am. Rep. 342 Penn v. Tollison, 26 Ark. 545; Dodge v. Woolsey, 18 How. 331; Pacific R. R. Co. v. Maguire, 20 Wall. 36; Railroad Co. v. McClure, 10 Wall. 511; White v. Hart, 13 Wall. 646; New Orleans Gas Co. v Louisiana Light Co., 115 U. S. 650, 6 Sup. Ct. Rep. 252; Fisk v. Jefferson Police Jury, 116 U. S. 131, 6 Sup. Ct. Rep. 329; [Bier v. McGehee, 148 U. S. 137, 13 Sup. Ct. Rep. 580.] The fact that the constitution containing the obnoxious provision was submitted to Congress, and the State admitted to full rights in the Union under it, cannot make such provision valid. Gunn v. Barry, 15 Wall. 610. 3 Matter of the Reciprocity Bank, 22 N. Y. 9; McMullen v. Hodge, 5 Texas, 34; Penn v. Tollison, 26 Ark. 545; Matter of Oliver Lee & Co.'s Bank, 21 N. Y. 9. In the case last cited, Denio, J., says: "The [constitutional] convention was not obliged, like the legislative bodies, to look carefully to the preservation of vested rights. It was competent to deal, subject to ratification by the people and to the Constitution of the Federal government, And the courts of the State, still more the courts of the Union, would be precluded from inquiring into the justice of their action, or questioning its validity, because of any supposed conflict with fundamental rules of right or of government, unless they should be able to show collision at some point between the instrument thus formed and that paramount law which constitutes, in regard to the subjects it covers, the fundamental rule of action throughout the whole United States.1 How far the constitution of a State shall descend into the particulars of government, is a question of policy addressed to the with all private and social rights, and with all the existing laws and institutions of the State. If the convention had so willed, and the people had concurred, all former charters and grants might have been annihilated. When, therefore, we are seeking for the true construction of a constitutional provision, we are constantly to bear in mind that its authors were not executing a delegated authority, limited by other constitutional restraints, but are to look upon them as the founders of a State, intent only upon establishing such principles as seemed best calculated to produce good government and promote the public happiness, at the expense of any and all existing institutions which might stand in their way." 1 All the State constitutions now contain within themselves provisions for their amendment. Some require the question of calling a convention to revise the constitution to be submitted to the people at stated periods; others leave it to the legislature to call a convention, or to submit to the people the question of calling one; while the major part allow the legislature to mature specific amendments to be submitted to the people separately, and these become a part of the constitution if adopted by the requisite vote. When the late rebellion had been put down by the military forces of the United States, and the State governments which constituted a part of the disloyal system had been displaced, serious questions were raised as to the proper steps to be taken in order to restore the States to their harmonious relations to the Union. These questions, and the controversy over them, constituted an important part of the history of our country during the administration of President Johnson; but as it is the hope and trust of our people that the occasion for discussing such questions will never arise again, we do not occupy space with them in this work. It suffices for the present to say, that Congress claimed, insisted upon, and enforced the right to prescribe the steps to be taken and the conditions to be observed in order to restore these States to their former positions in the Union, and the right also to determine when the prescribed conditions had been complied with, so as to entitle them to representation in Congress. There is some discussion of the general subject in Texas v. White, 7 Wall. 700. And see Gunn v. Barry, 15 Wall. 610. When a constitution has been regarded by the people of a State as valid, and it has never been adjudged illegal by the courts, a Federal circuit court will not question its legal adoption. Smith v. Good, 34 Fed. Rep. 204. It has been decided in some cases that a constitution is to have effect from the time of its adoption by the people, and not from the time of the admission of the State into the Union by Congress. Scott v. Young Men's Society's Lessee, 1 Doug. (Mich.) 119; Campbell v. Fields, 35 Texas, 751. The Texas reconstruction constitution became operative before the State was admitted to representation in Congress. Peak v. Swindle, 68 Texas, 242, 4 S. W. 478. An amendment to the Minnesota original constitution adopted before formal admission of the State is valid. Any irregularity is healed by the admission, and the subsequent recognition of the validity of the amendment by the State. Secombe v. Kittelson, 29 Minn. 555, 12 N. W. 519. convention which forms it. Certain things are to be looked for in all these instruments; though even as to these there is great variety, not only of substance, but also in the minuteness of their provisions to meet particular cases. I. We are to expect a general framework of government to be designed, under which the sovereignty of the people is to be exercised by representatives chosen for the purpose, in such manner as the instrument provides, and with such reservations as it makes. II. Generally the qualifications for the right of suffrage will be declared, as well as the conditions under which it shall be exercised. III. The usual checks and balances of republican government, in which consists its chief excellence, will be retained. The most important of these are the separate departments for the exercise of legislative, executive, and judicial power; (a) and these are to be kept as distinct and separate as possible, except in so far as the action of one is made to constitute a restraint upon the action of the others, to keep them within proper bounds, and to prevent hasty and improvident action. Upon legislative action there is, first, the check of the executive, who will generally be clothed with a qualified veto power, and who may refuse to execute laws deemed unconstitutional; and, second, the (a) [Authority in one department of government to interfere with another will always be strictly construed. Where the constitution provides for sessions of the legislature to be held at the State capitol, "except in case of war, insurrection or pestilence, when it may by proclamation of the governor assemble for the time being elsewhere," it does not empower the governor to adjourn the Houses after they have convened, even though he declares a state of insurrection to exist; neither can he under his power to adjourn the legislature, in case of disagreement between the two Houses in regard to their adjournment, adjourn them to meet at a stated time at another place when there has been no disagreement between the two Houses. Taylor v. Beckham, Ky. —, 49 L. R. A. 258, 56 S. W. 177. See this case in Supreme Court of the United States, where the writ of error after discussion was dismissed on the ground that no deprivation of rights secured by the fourteenth amendment, without due process, was shown, nor was there any case made of a violation of the guaranty of a republican form of government. Taylor v. Beckham, 178 U. S. 548, 20 Sup. Ct. Rep. 890. Dissenting opinion of Harlan, J., 20 Sup. Ct. Rep. 1009. Where the legislature is empowered to remove judges for cause, but is required to give notice and opportunity to appear, this imports that the cause shall be one personal to the judge, and he cannot be removed merely to cut down expenses. But if his court is one which the legislature is authorized to ordain and establish, the legislature may abolish the court, and the judge's office and salary will thereupon cease. McCulley v. State, 102 Tenn. 509, 53 S. W. 134, 46 L. R. A. 567. That all the territory of one judicial district may be distributed among other districts or annexed to one district, and the judge thus deprived of office, see Aikman v. Edwards, 55 Kan. 751, 42 Pac. 366, 30 L. R. A. 149; but this cannot be done where the judge's term of office is fixed by the constitution. State . Friedley, 135 Ind. 119, 34 N. E. 872, 21 L. R. A. 634. Court will not enjoin any attempted exercise of legislative power by legislature. State v. Thorson, 9 S. D. 149, 68 N. W. 202, 33 L. R. A. 582.] |