This rule would have the advantage of obtaining a judicial decision upon the validity of a law at the earliest possible moment, but it has the disadvantage of having such a question passed upon in an ex parte proceeding, and of extending still further the judicial control over legislation. Yet, as has already been suggested, the judicial control over the processes of amendment and of popular legislation (by the referendum) will probably be established along the lines laid down by the California court.

In Livermore v. Waite submission was restrained because, in the opinion of the court, the proposed amendment was invalid in substance. Under this view it would seem that a court might restrain the submission of a referendum law or of a proposed amendment on the ground that it violated the "due process of law" or "equal protection of the laws" clauses of the federal constitution, or upon the ground that the proposal might for any other reason be invalid in substance. But such a judicial position would hardly be taken, and the courts, if restraining submission would probably do so, as a rule, only because of irregularities in the form or process of proposal.

The preceding discussion has related to the control of the courts over the form and process of amendment, and it will be well now to discuss the subject of judicial control over the substance and content of amendments. In the case of Livermore v. Waite 200 the supreme court of California restrained the submission of an amendment changing the seat of government to San José, on condition that a capitol site and one million dollars should be donated by the new seat of government, and providing that the governor, secretary of state, and attorney-general should approve the site. In restraining the submission of this proposal the court said

200 102 Cal., 113 (1894).

that the legislature had no authority to propose an amendment which did not become effective immediately upon its adoption by the people, without being dependent upon the will of other persons. This restriction upon the amending process was one discovered by the California court and was not based upon any provision of either state or federal constitutions. In a precisely parallel case which arose in Missouri only two years after the California decision, the Missouri court took the opposite view that whether the amendment became effective immediately upon popular ratification was immaterial.201 The California decision is indefensible; it cannot be justified and can be explained only upon the view that the court had determined to prevent the submission of the amendment for removing the capitol, and could find no better reason to present for its action. The California decision aside, it may be stated somewhat broadly that, except as tested by specific limitations in state and federal constitutions, an amendment is not subject to judicial control as to its substance and content,-the courts have no right to determine what a constitution shall contain or the character of the amendments which may be enacted.202 The federal constitution is, of course, superior to a state constitution, and any amendment conflicting with the federal instrument is invalid. So too as to any specific limitations in state constitutions upon the subject matter of amendments. However, in the present state constitutions there are practically no restrictions 203 upon the char201 Edwards v. Lesueur, 132 Mo., 410 (1896).

202 See also People v. Sours, 31 Colo., 387-388; State ex rel. Cranmer v. Thorson, 9 S. D., 149.

208 Such restrictions as there are really do not limit the amending process to any material extent. In Alabama "Representation in the legislature shall be based upon population, and such basis of representation shall not be changed by constitutional amendment." In Michigan the amending clause of the constitution cannot be changed by an amendment initiated by popular petition.

acter of proposed amendments, although such restrictions were more common in some of the earlier instruments, as in the Delaware constitution of 1776, the Arkansas constitution of 1836,204 and the Mississippi constitution of 1868. Where, for example, a constitution expressly specified that its bill of rights should not be subject to amendment, such a restriction while unwise in policy, would properly be subject to enforcement by the courts. "There can be no doubt that any amendment proposed in violation of these provisions would be declared by the courts to be void, for neither would the legislature have the power to propose nor the people to adopt them. To decide otherwise would be to hold that the legislature can constitutionally do an act expressly forbidden by the constitution; and that the people by an unauthorized vote, a vote recommended in violation of the constitution can enact a valid constitutional amendment." 205 It may be that the constitutional difficulty might in certain cases have been evaded by first abrogating the restriction by an amendment, and then adopting the desired change. But, as has been suggested, the state constitutions now in force contain practically no such restrictions, and amendments are therefore subject to judicial control, as tested by the state constitutions, with respect to their method of enactment only and not with respect to their content and substance. 206

204 State v. Cox, 8 Ark., 436 (1848), overruled by Eason v. State, II Ark., 482 (1851). See a discussion of these cases in Jameson, Constitutional Conventions, 4th ed., 581-586.

205 Jameson, Constitutional Conventions, 4th ed., 581.

200 See dictum in Louisiana Ry. and Navigation Co. v. Madere, 50 So., 609 (Louisiana, 1909). Judge Jameson suggests (Constitutional Conventions, 4th ed., 429-430) that where legislative details have been inserted into a constitution, the courts might treat this as an infringement upon the regular legislative functions and hold such provisions invalid because not fundamental in character. Judge Jame

Constitutional Amendments and Ordinary Legislation

It may be said therefore that in their method of enactment amendments are subject to judicial control as tested by the specific provisions of the state constitutions, and that in their content they are subject to a similar control as tested by the federal constitution. Ordinary statutes, on the other hand, while subject to the same control in their content, as tested by the federal constitution, are subject to state constitutional provisions both as to the method of their enactment and as to their content. Amendments are,

207

208

son expressed his view against any such position because "it would be in effect to permit our judiciary to annul the charters under which they act, under the pretext of striking from them provisions not properly fundamental," and Oberholtzer (Referendum in America, pp. 89-90) takes the same view. The position suggested by Judge Jameson, if assumed, would vest in the courts arbitrary and unregulated discretion to control the substance of both constitutions and statutes, for under it a constitutional provision might be declared invalid as not truly fundamental in character, and laws might be annuled because in the opinion of the court they contained provisions which should properly be inserted into the constitution. Such a doctrine has no chance of being accepted; it has nothing to be said in its favor, and the power of the courts has already been pushed as far as it is apt to be pushed at present. In this connection it is interesting to note that the Missouri court in the recent case of State ex rel. Johnson v. Chicago, Burlington, and Quincy Railroad Company, 195 Mo., 228 (1905), actually discussed the question as to whether a validly adopted state constitutional amendment might not be held invalid as in violation of the state constitution. The court however held the amendment invalid on specious federal grounds. In People v. Sours, 31 Colo., 371, 391-394, the point was raised that a constitutional amendment must be an alteration of some existing provision of the constitution and must not add entirely new matter to the constitution. The court properly declined to limit in this manner the legislative power to propose amendments.

207 It may be well to suggest that as to method of enactment ordinary laws are subject to many more restrictions than are constitutional amendments, as, with reference to title, reading, passage, etc. There are more pitfalls to be avoided in passing a law which

therefore, not subject to judicial control to as great an extent as statutes. In fact most of the state statutes which are declared invalid by state courts are declared to be so because repugnant to state constitutional restrictions which do not apply at all to amendments—that is, upon restrictions as to the content of legislation, as tested by state constitutional provisions, or upon the specific restrictions as to the methods of ordinary legislation.

The amending process is a process of superior state legislation. If a law is declared invalid by the state court, as in violation of the state constitution, the people may, if they are sufficiently interested, overrule the court by placing the substance of the invalidated law in the state constitution, either by an amendment or in connection with a general revision of the constitution.209 A tendency to overrule judicial decisions by constitutional alterations has been apparent in recent years. Thus in 1899 the supreme court of Colorado, upon arguments that are at least questionable, held invalid as in violation of the constitution of that state a legislative act limiting a day's labor in mines and smelters to eight hours. In 1902 a constitutional amendment was adopted by the people of Colorado fixing eight hours as a working day in mines.210 Montana in 1904 and Oklahoma in 1907 introduced into their constitucourts will uphold than in enacting a valid constitutional amendment, that is, in matter of form.

208 The state constitutions are filled with restrictions upon the character of legislation which may be passed by legislatures, as with respect to special legislation, etc. The amending process is now almost entirely free from such restrictions.

209 Some of the matter in this and several succeeding paragraphs is taken from an article published by the present writer in the Political Science Quarterly, xxiv, 193.

210 In re Morgan, 26 Colo., 415. See also Freund's Police Power, sec. 155.