sion would in any case be ineffective? And, under similar circumstances, would it be proper for the courts to enjoin such submission? Under circumstances similar to those just referred to the California supreme court has declined to issue mandamus to compel submission,1o1 and in another case the court has actually restrained such submission.195 In Missouri the court was asked to enjoin the submission of an amendment but declined to do so because it found no reason for taking such action, although its attitude seems to indicate that it considered an injunction to be proper should it have found the proposal defective. The court said: "The power and jurisdiction of the judiciary to declare a proposal for an amendment to the constitution ineffectual, and to arrest its submission to the people, which we are now called upon to exercise, is coupled with far more serious responsibilities" than is the exercise of the power to annul a law.196 To the same effect is a dictum in the Idaho case of Holmberg v. Jones,197 where the court said: "The only irregularity is that it [the amendment] did not receive the votes of two-thirds of the members of the house. It cannot be questioned but that any voter of the state, by proper proceedings in the district court, or in this

104 Hatch v. Stoneman, 66 Cal., 633 (1885).

195 Livermore v. Waite, 102 Cal., 113 (1894). See also People v. Curry, 130 Cal., 82 (1900).

198 Edwards v. Lesueur, 132 Mo., 410, 441 (1896). But the language quoted above should be read in connection with the following statement: "We have not discussed the question whether the remedy by injunction is, in any event, available for the purposes contemplated in this case, because defendant has expressly waived that question, and requested a decision on the broader grounds which we have accordingly considered." For the use of the injunction in connection with the amending process see also State v. Laylin, 69 Ohio St., 1 (1903).

197 Holmberg v. Jones, 7 Ida., 752, 758.

court, could have obtained a writ of prohibition restraining the secretary of state from certifying the question of adopting such proposed amendment to the various county auditors. The official ballot could have been protected against the improper submission of such question, and could have been purged of the presence of such question thereon, by proper judicial proceeding."

The California rule has been expressly rejected in South Dakota and Colorado. In the South Dakota case of State ex rel. Cranmer v. Thorson,198 it was sought to restrain the submission to the people of a proposed amendment, upon the ground that the constitutional requirements had not been complied with. The court declined to act and said: "Power to amend the constitution belongs exclusively to the legislature and electors. It is legislation of the most important character. This court has power to determine what such legislation is, what the constitution contains, but not what it should contain. It has power to determine what statutory laws exist, and whether or not they conflict with the constitution, but it cannot say what laws shall or shall not be enacted. It has the power, and it is its duty, whenever the question arises in the usual course of litigation, wherein the substantial rights of any actual litigant are involved, to decide whether any statute has been legally enacted, or whether any change in the constitution has been legally effected, but it will hardly be contended that it can interpose in any case to restrain the enactment of an unconstitutional law. . . . If they [the courts] cannot prevent the legislature from enacting unconstitutional laws, they cannot prevent it and the electors from making ineffectual efforts to amend the constitution." In this case the court also said: "It has not been shown, nor can it

1989 S. D., 149 (1896).

be imagined, in what manner the relator will be injured by the contemplated action of defendant. If the legislature has proceeded properly, and its proposed amendment shall be ratified by the people, the relator will have no legal cause of complaint, because, as a good citizen of the state, he will be bound to cheerfully accept the lawfully expressed will of a majority of its sovereign electors. If, on the other hand, the action of the legislature was such as to render any answer to the question [submitted to the voters] inoperative, the constitution will not be modified, and no one will be affected. Any additional burden which might result to relator, as a taxpayer, by reason of submitting this question at a general election, is too trifling, fanciful and speculative for serious consideration. . . Having failed to show that he will be injured by the intended action of defendant, the relator is not entitled to have it enjoined, or its regularity investigated, in this action." In People ex rel. O'Reilly v. Mills,199 it was sought to enjoin the secretary of state of Colorado from publishing a proposed amendment as required by the constitution, before its submission to the people. In declining to issue an injunction the supreme court of Colorado said: "In amending the constitution the voters become the body which finally give vitality to proposed amendments or refuse to make a change by rejecting them. The exercise of this power is as much a step in passing and considering proposed legislation of this character as any the general assembly must take in passing ordinary statute laws. The judicial department can no more interfere with such legislation or the successive steps necessary to be taken to amend the constitution than it can with the general assembly in the passage of other laws, because the judicial cannot interfere with the functions of the legislative department."

199 30 Colo., 262 (1902).

The principle announced by the Colorado and South Dakota courts may be stated as follows: The courts have no power to interrupt the process of amendment before it is complete, to restrain a popular vote upon a constitutional proposal, even though they may be clearly of the opinion that the popular vote will be ineffective because of defects already apparent in the method of proposal. They must wait until the amending process is fully completed, and then pass upon the validity of the amendment if this question is properly presented in litigation before them. In accordance with this view it would seem that the courts should compel by mandamus administrative acts incident to the amending process; that is, the administrative acts should be treated as duties commanded by the constitution after the legislative proposal, which may be regarded as presumably valid and not subject to review in an ex parte proceeding. Under this view the courts may neither restrain the submission nor decline to compel it, because either of these is a direct interference with legislative action, the one positive in absolutely preventing submission, the other negative in that it does not enforce a purely ministerial duty in aid of the amending process.

The process

Theoretically this view is the better one. of amendment is a process of superior legislation, and the courts ordinarily decline to interfere with the processes of legislation, although they may always pass upon the validity of the completed product of such process. The question as to how far the courts shall depart from this principle in controlling the amending process is particularly important in view of the introduction of the referendum on ordinary legislation. In Oregon, for example, a measure may be initiated by the people or by the legislature and then submitted to the people for approval. The submission of laws for popular approval in Oregon and in

several other states makes such a popular vote an integral step in the process of ordinary legislation. But the courts at present decline to interfere with the process of legislation, and wait until the validity of a law is attacked before them. What is likely to be the attitude of the courts with reference to laws (and constitutional amendments) enacted by a popular vote? In theory the courts should not interfere to prevent submission, (even though the proposal be clearly defective and invalid), for this is a legislative act, and under the principle of the separation of powers the courts will not interfere with legislative acts. But heretofore it would have been necessary to interfere with the deliberations of a legislative body in order to restrain legislation, and such an action would be clearly indefensible. But with laws (and amendments) enacted after a referendum, there are several distinct steps in the legislative process, one of which, the act of submission, may be considered purely ministerial and may, in practice, be enjoined without interfering with the action of the ordinary legislative body of the state; that is, under a system of popular legislation it is easy for the courts, without seriously crippling a co-ordinate department of the government, to interfere and prevent a law's being. enacted. This practical difference will probably incline the courts to take the view of the California court rather than that held in South Dakota and Colorado. So in the states which have adopted the referendum, it is probable that the courts will restrain the submission of a law if they consider the proposed law defective. For example, if an Oregon law were proposed by initiative petition, but did not comply with the constitutional requirement concerning its title, we may expect that the courts should restrain the submission of the proposal to the people, on the ground that it is invalid, and that the popular vote would in any case be ineffective.