even had it been validly proposed there was no real conflict between the two amendments, although the court did say that there was irreconcilable conflict. The view expressed by the Nebraska and Idaho courts is clearly correct, should two amendments adopted at the same time be in irreconcilable conflict.

66

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 question 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 several cases courts have taken the view that they had no authority 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 constitution having been submitted by the legislature to the people, voted upon, and accepted by them, and by the succeeding 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 conclusive." 152 In Maryland the constitution provides that "if it shall appear to the governor that a majority of the on said amendment or amendments, severally, 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).

votes cast

of Worman v. Hagan the court said: "And on his [the governor's] proclamation that a proposed amendment has received a majority of the votes cast, it becomes eo instanti 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 reserve, and without appeal to any other authority. Most certainly no jurisdiction is conferred on this court to revise his decision." 153 This decision, it should be pointed out, rests upon the definite language of the Maryland constitution, and related simply to the determination of the result of the popular vote.154 The New Jersey constitution contains no language similar to that of Maryland, but the supreme 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 legislature constituted the board of state canvassers the tri

153 Worman v. Hagan, 78 Md., 152 (1893). See also Miles v. Bradford, 22 Md., 170 (1864).

154 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 control. 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 exclude the courts? The courts, it would seem, have no "inherent powers" above the constitution, but derive all power from the constitution 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 control, if Worman v. Hagan be considered an authority.

bunal by which the result of the election should be ascertained, 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 effect that upon filing the same the amendment or amendments so certified to have been adopted should be and become 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 department of the government." 155

The position of the New Jersey supreme court was almost immediately reversed by the court of errors and appeals,156 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 amending process. The principle here is the same as that which

157

155 Bott 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, 289.

157 It may be worth while to trace briefly the growth of judicial control over the amending process. In Luther v. Borden, 7 How., I, 39 (1849), Chief Justice Taney said: "Certainly the question which the plaintiff proposed to raise by the testimony he offered has not heretofore been recognized as a judicial one in any of the state courts. In forming the constitutions of the different states after the declaration 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 decision." State v. McBride, 4 Mo., 303 (1836) was the first case to assert the judicial power to inquire into the validity of proposed amendments, and here the amendment was upheld, as also in Green v. Weller, 32 Miss., 650 (1856) and Dayton v. St. Paul, 22 Minn., 400 (1876).

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 effect by the exercise of the judicial authority. The judicial control of the amending process has been discussed somewhat fully in three recent cases, in which the authorities are extensively reviewed. 158

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 amendment, then it shall be inserted by the next succeeding legislature 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 declared 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 question here considered is political, not judicial, see remarks by Judge Charles S. Bradley in Report of the American Bar Association, 1883, p. 32.

158 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 discussed 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 amending 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.

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 judgment as well, confides to the separate magistracy of the legislative department full power to hear, consider, and adjudge 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 judicial, and not political questions." 159 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 amendment which had been inserted into the constitution by the legislature was declared invalid by the court. 160

159 106 Minn., 407; 77 Miss., 551, 552, 567.

100 A Mississippi proposed amendment of 1902 which failed of adop