to be essential, and endorsement of a measure by a more or less representative party convention or by a party primary may be fairly said to represent the opinions of a large number of party members.138 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 persons voting at the election. For example, let us assume that in a Nebraska republican primary one hundred thousand 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 practically the whole republican vote, and the amendment would be carried, not because a majority of the party voters favored it, for the majority was evidently indifferent, but because of the action of a small minority. So that in effect we have the same result as in a state which does not re

188 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.

quire a majority of all persons voting at the general election. A similar result, with control by a still smaller minority, 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 cannot 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 majority 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 189-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 constitutional 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

139 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 proposal 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 cumbersome machinery. For a further discussion of popular votes upon proposed amendments, see pp. 275-278.

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 people.140 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," although 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 constitutional convention shall be “equal to one-fourth of the number 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 proposed amendments be approved by two-thirds of the qualified 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 Hampshire in 1903, five failed because they did not receive a

140 Lincoln, Constitutional History of New York, ii, 576-577.

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, 141

142

Still another question with reference to the majority required 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 amendment 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 language 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 affirmative, it becomes a part of the constitution." 148

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 Constitution 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., 700, 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., 1011 (Texas). The Texas constitution specifically lays down the same rule as that announced by the Kansas court.

Assuming that an amendment has been adopted by the people, when does it become effective as a part of the constitution? 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.144 In the absence of constitutional or legal provision, and where the constitution simply contains a statement that an amendment shall become 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 another rule is specified in the constitution or statute, and, reasoning by analogy, it has been argued that an amendment should become effective immediately upon its approval by the people, unless the constitution makes a dif

144 Where the constitution lays down one rule it is of course impossible 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 operative, yet, unless such time is incorporated in the amendment itself, the legislature has no authority to fix a time different from that prescribed by the constitution. In other words, if the amendment in its own terms fixes a time different from the constitution, and it is ratified, 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.