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.145 Unless a constitution specifically provides otherwise, the better rule would seem to be that an amendment does not become effective in any case until the vote has been canvassed and the result announced." 146 145 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 announcing 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 Ill., 495, and cases cited in Century Digest, x, 1236; Decennial Digest, iv, 1560, and in American and English Encyclopaedia of Law, vi, 909. It may be well here to refer briefly to the question as to when a complete new constitution becomes effective. Where a proposed constitution 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 instrument shall become operative, and as to the details concerning the transition of the state from the old to the new constitution. See Bilbrey 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 admission to the union or by the southern states when seeking readmission under congressional reconstruction acts. With reference to territories the rule would seem to be that, while a territory does not become a state until all forms prescribed by Congress for admission 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 before another, ratify the same amendment or amendments." In Mississippi a proposed amendment adopted by the people" 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 become 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 admission into the union is fully accomplished. Secombe v. Kittelson, 29 Minn., 555. Scott v. Detroit Young Men's Society's Lessee, I 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 restoration. Hence, although the states had not acquired their full rights as states, and although the constitutions were subject to approval or disapproval 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 effective, for certain purposes at least, at the time when they were ratified 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. 69, pp. 441-443, and discussion in Jameson, Constitutional Conventions, 4th ed., 197-200. legislative function in Mississippi is made mandatory by the constitutional language, and it is a function really ministerial in character, but the legislature's action is, in fact, purely discretionary, because legislative action is not subject 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.' 147 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 proposed amendment prepared by the attorney-general for publication. The proposed amendment was referred to simply 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 enrolled bill prevails in the case of statutes, and that the same rule should apply to amendments. The court, while suggesting that the rule with reference to statutes might not apply, did not pass upon the question, because it found that 147 It was urged in this case that the amendment had been improperly proposed and would therefore not be a valid amendment even if ratified by the legislature. South Carolina House Journal, 1906, pp. 47-49. " 148 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 controls." It is to be seriously doubted whether the enrolled 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 approval 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. 149 An amendment regarding 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 beyond the judicial power to alter the language of the amendment and to declare that it intended to refer to article x, section 5, but upheld the amendment by saying that it impliedly 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 prohibition 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. nature of alternative provisions, and this method was employed because no constitutional authority existed for the submission of competing measures. But this plan did permit each voter to vote either for or against both propositions, 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 constitutionality 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 provide 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 impossible to determine which should stand as a part of the constitution, or to reconcile the same, both must fail." 151 But in this case one of the proposed amendments had already been held invalid because improperly proposed, and 99 150 150 In re Senate File No. 31, 25 Neb., 864, 879. 151 McBee v. Brady, 100 Pac., 97; Utter v. Moseley, 100 Pac., 1058 (1909). |