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 uniform 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 is 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 constitution.' 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 control 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.

99 161

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 present Mississippi constitution will be found in the constitutions of Alabama, Kentucky, Maine, and Texas.

161 106 Minn., 409, 410.

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 questions whether a proper journal entry was made, whether there was sufficient publication, whether a proposed amendment 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 supervision. 162

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 presumption, 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 legislative function should have a stricter rule applied to it than

" 163

162 Rich v. Board of State Canvassers, 100 Mich., 453 (1894). McConaughy v. Secretary of State, 106 Minn., 392 (1909).

163 31 Colo., 369, 376, 388, 390. See also Edwards v. Lesueur, 132 Mo., 410.

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to the passage of ordinary laws. 14 Judge Jameson advocated the policy of strict as opposed to liberal construction,165 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 requirement. 187 So too the Mississippi court in State v. Powell took a strict view as to what constitutes one or more than one amendment,168 and the Indiana and Wyoming courts have taken a strict view with reference to ambiguous language 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.169 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

184 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, 619.

165 Jameson, 617. See also J. W. Garner in American Political Science Review, i, 234.

166 Koehler v. Hill, 60 Iowa, 543.

167 Koehler v. Hill, 60 Iowa, 543; State v. Brookhart, 113 Iowa, 250. 188 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.

hered to would greatly restrict the legislative power of proposing amendments.170

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.171 Some, at least, of the cases construing strictly the amending clause, may be explained upon this ground.

But, as has already been suggested, the judicial construction of the amending clause has usually been liberal, and has resolved doubts in favor of the validity of amendments approved by the people.172 This liberal attitude is one with respect to the manner of compliance with constitutional requirements, 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 accident 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 invalidate 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 avoiding 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., I. May and Thomas Hardware Co. v. Birmingham, 123 Ala., 306.

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,' 178 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 ratification 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 ratified was not adopted, and said: "We entertain no doubt, that, to change the constitution in any other mode than by

173 A note in 10 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 operate 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, 101, 102 (Idaho). For an argument that constitutional requirements 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 unworkable) 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.