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.” 174 Similarly where the requirement of "full entry" on the legislative journals is not complied with,175 or where an entry " is required but no reference whatever is made to the proposed amendment in the legislative journals, 178 proposed amendments were held invalid even after approval by the people. Somewhat similar in character was the case of State v. Tooker,177 where a proposed amendment was held invalid where it had been published for only two weeks although the state constitution expressly required publication for three months before the election. It is now so well recognized that a proposed amendment will not be upheld unless all constitutional steps are complied with that it is customary, where some step has through inadvertance been omitted, for the executive officers not to take steps for the popular submission of such a proposal.178

174 Collier v. Frierson, 24 Ala., 100 (1854). See also State v. McBride, 4 Mo., 303.

175 Durfee v. Harper, 22 Mont., 354 (1899).

176 State v. Tufly, 19 Nev., 391. But see p. 148, note 50.

177 15 Mont., 8 (1894). The court in this case refers to the fact that the constituional provisions of Montana are expressly declared to be mandatory except when otherwise specified but the requirements would it seems have been mandatory in any case.

178 Commonwealth v. Griest, 196 Pa. St., 396. State ex rel. Morris v. Mason, 43 La. Ann., 590. A Mississippi proposed amendment was not submitted to the people in 1908 because it had not been published in conformity with the constitutional provisions. A secretary of state or other ministerial officer may, of course, defeat a proposed amendment by neglecting to comply with the constitutional requirements. But the duty of such officer may be enforced by mandamus. With reference to the Mississippi proposed amendment of 1908 the following quotation is of interest: "Section 273 of the State Constitution requires that public notice be given for ninety days preceding an elec

But where an effort has been made to comply with the constitutional requirements, and where such compliance has not been complete, the question presents itself to the court whether immaterial errors should be permitted to defeat the popular will as expressed upon an amendment adopted by the people, and upon this question the courts have usually taken a liberal attitude. So in the Kansas Prohibitory Amendment cases,' 5,179 Judge Brewer remarked that "omissions and errors which work no wrong to substantial rights are to be disregarded," and said further that: "The two important, vital elements in any constitutional amendment are the assent of two-thirds of the legislature, and a majority of a popular vote. Beyond these, other provisions are mere machinery and forms. They may not be disregarded, because, by them, certainty as to the essentials is secured. But they are not themselves the essentials." This statement has frequently been quoted with approval. A somewhat similar view was later expressed by the supreme court of South Dakota: "The action of the two houses and the will of the people, as expressed by their vote, should not be set aside or disregarded upon purely technical grounds, when no material requirement of the constitution has been omitted, and where the proceedings taken clearly manifest the intention of those bodies and the people to amend the fundamental law." 180

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tion, at which the qualified electors shall vote directly for or against such change, alteration or amendment. That notice I failed to give.. I discovered my error about the 1st of September, but would not at that time attempt to make publication for it would not come within the time required by law. Had I done that the publication would not have been legal." Biennial Report, Secretary of State, 1907-09, p. 7.

180 Lovett v. Ferguson, 10 S. D., 44; State ex rel. Adams v. Herried, 10 S. D., 109.

181 the

In the recent Colorado case of People v. Sours,1 court took a very liberal attitude, saying that legislative action must be in substantial compliance with the constitutional requirements, but that technical objections would be brushed aside. Here a number of specific objections were made to an amendment approved by the people, of which perhaps the most important was that the constitution required “full entry" of the proposed amendment upon the legislative journals but that the entry upon the house journal did not agree with that on the senate journal. The court sustained the amendment, and said that "the disagreement between the two journals is a mere clerical mistake, that the same bill in fact passed both houses, and that the entering by mistake upon the journal of the house of the half dozen words quoted does not violate the provision of the constitution requiring the proposal to be entered in full upon the journals of both houses." The fact remains, however, that technically there was not a full entry of the proposed amendment on the journal of each house. In this case the Colorado court was also very liberal in its attitude regarding the requirement that each amendment shall be so submitted to the people that it may be voted upon separately.1

182

181 31 Colo., 369, 405. See also People v. Loomis, 135 Mich., 556 (1904).

182 As to the liberal attitude of courts see also Trustees of University of N. C. v. McIver, 72 N. C., 76 (1875); Bray v. City Council of Florence, 62 S. C., 57 (1901); Kadderly v. Portland, 44 Ore., 118 (1903); Farrell v. Port of Columbia, 50 Ore., 169, 175 (1907). In Kadderly v. Portland the constitutional provisions were construed strictly with reference to two proposed amendments which had failed of adoption in order to uphold an amendment which had actually been approved by the people; the decision, which may perhaps appear strict to the casual reader, was actually liberal in effect, and was intended to be so. Chase v. Board of Election Commisisoners, 151 Mich., 407

Even where an amendment may have been adopted without substantial compliance with the constitution, long acquiescence in such a change may place it beyond judicial cognizance the question as to whether an amendment was properly put into effect may have become by lapse of time, a political as distinguished from a judicial question. An amendment to the Colorado constitution was adopted in 1884 extending the legislative sessions from forty to ninety days. In 1894 a case arose in which a law was attacked as invalid because passed more than forty days after the commencement of the legislative session, it being contended that the amendment of 1884 was invalid, and that therefore any legislation after a forty-day term was invalid. The Colorado constitution requires that a proposed amendment be entered in full on the journals of each house, but this requirement seems not to have been even substantially complied with, with reference to the amendment of 1884; the amendment was not correctly entered in full and the house and senate entries did not agree. The court said that constitutional provisions are ordinarily mandatory, but that to overthrow this amendment would practically invalidate all laws passed by the five preceding legislatures, and that such action should not be taken because of the incorrect (1908), stretched the judicial power to its furthest point; the legislature of 1907 proposed an amendment and provided that it should be submitted to the people at the election of April, 1908, the constitution providing that proposed amendments should be submitted at "the next spring or autumn election" after their proposal, "as the legislature shall direct." The court held that this language referred only to general elections-the spring election in the odd years and the autumn election in even years-and declined to issue mandamus to compel submission in April, 1908. Under these conditions it would seem that the proposal would be entirely ineffective, but the court expressed the view that the proposal should without any further legislative action be submitted at the next regular election; the amendment was submitted to the people in November, 1908, and was adopted.

journal entries. 183 A somewhat similar case arose recently in Nebraska. 184 An amendment submitted to the people in 1886 lengthened the sessions of the legislature, and increased the compensation of members of the two houses. The legislature of 1887 canvassed the vote and declared the amendment lost because not receiving a majority of all votes cast. Shortly afterward, however, the legislature by a special act provided for a recount of votes, and upon the recount the amendment was declared adopted. It was contended that a special act for this purpose was invalid, and that therefore all proceedings under this act were inoperative, but the court held this not to be the case. The court said, in addition, that even if the legislative act were invalid the amendment should be sustained. "It seems to us clear that the question of the adoption, and the consequent validity of this amendment, depends upon the number of votes it received, and that after sixteen years it is too much to ask us to set it aside, not on the ground of any actual lack of votes, but on the ground of irregularity, informality and impropriety in the manner in which the vote was counted and the result declared."

A question of a somewhat similar character arose in the Minnesota case of Secombe v. Kittelson.185 Bonds had been issued under a constitutional amendment of 1858, and it was here sought to restrain the payment of interest on such bonds upon the ground that the amendment was invalid. The amendment was adopted after the constitution had been ratified by the people but before Minnesota was admitted to statehood, and it was contended that the constitution was not in force until admission, and could not therefore have been validly amended. The court said that 188 Nesbit v. People, 19 Colo., 441 (1894). 184 Weston v. Ryan, 70 Neb., 211 (1903). 186 29 Minn., 555 (1882).