tional amendments.58 However, the supreme court of California has sought to establish a principle which would produce the same result. The constitution of California provides that: "Any amendment or amendments to this constitution may be proposed in the senate or assembly, and if two-thirds of all the members elected to each of the two houses shall vote in favor thereof, such proposed amendment or amendments shall be entered in their journals with the ayes and nays taken thereon; and it shall be the duty of the legislature to submit such proposed amendment or amendments to the people, in such manner. . . as may be deemed expedient." The supreme court of California held that the act of proposal was one of the legislature alone, independent of the governor, but that the provision for submitting an amendment required the governor's approval that the legislature alone might propose, but could not. alone submit its proposal to the people; the two steps are of course parts of one act-one is useless without the other -and the California court's position is absolutely indefensible; it would seem to be a judicial quibble invented for the purpose of defeating the submission of a proposal to which the court was opposed." A contrary position was taken by the court of appeals of Maryland in the case of Warfield v. Vandiver," although the dissenting judges argued in favor of the California doctrine.

58 The same is true of amendments proposed to the federal constitution. See Hollingsworth v. Virginia, 3 Dallas, 378, and Jameson, Constitutional Conventions, 4th ed., 586-592.

59 Hatch v. Stoneman, 66 Cal., 632 (1885).

80 Warfield v. Vandiver, 101 Md., 78 (1905). The same point was raised but dismissed in Commonwealth v. Griest, 196 Pa. St., 396, 413, 414, and in State ex rel. Morris v. Mason, 34 La. Ann., 590, 649-655. The Louisiana court clearly distinguishes between legislation, as such, and the proposal and submission of an amendment; where the provisions with reference to submission relate only to the amendment or

Acts

If it be true that the proposal of amendments is a function of the legislature, independently of the governor, then such power must be taken to carry with it full authority to determine how, within constitutional restrictions, the proposal shall be submitted to the people. Any other principle would leave the legislature helpless to exercise a power which it is conceded to possess. On the other hand there has been much legislation laying down rules to be followed in the submission of future amendments, and legislation of this character, should, without doubt, be subject to the governor's approval, as are other legislative acts. of this character would usually be followed by succeeding legislatures, but would seem to have no absolutely binding force. The legislative power to propose amendments is a continuing power and cannot be limited by some former legislative act, even though that act were one of ordinary legislation, enacted by the legislature with executive approval—that is, if an act were passed by the legislature, and approved by the governor, providing a certain form of ballot for the submission of amendments, it would seem to be within the power of the succeeding legislature, acting without the approval of the governor in submitting a proposed amendment, to provide for a different form of ballot for such amendment. In a recent Michigan case a point arose similar to the one here involved. An act was passed in 1905 regulating the manner of submitting amendments; an amendment was submitted by the legislature in 1907 in a manner different from that prescribed by the act of 1905, and its validity was contested on this ground. The supreme court of Michigan held that the legislature had amendments proposed at a given time, and cease to be in force when such amendment or amendments are adopted or rejected, they do not constitute legislation which is subject to the executive veto.

61

power to submit amendments to the people and to determine the method of submission; and that it was not restricted by any previous legislation. An opposing principle was, however, laid down in Nevada by the case of State v. Davis.62 The constitution of Nevada made it the duty of the legislature to submit amendments to the people "in such manner and at such time as the legislature shall prescribe." The legislature by an act of 1887 had established certain rules regarding the publication and distribution of proposed amendments, and these rules had not been complied with in the case before the court. The court held that it was the duty of the legislature to determine the manner of submission, and that such manner when determined was binding upon it. It held the amendments invalid which had been submitted in a manner different from that prescribed by the law of 1887, and said: “Whatever may be said of the policy of the law, the conditions imposed are within the proper province of the legislature, and being imposed, were indispensible to a valid adoption of the proposed amendments." The establishment by law of definite restrictions upon the amending power, in addition to the restrictions imposed by the constitution, might take the control of the amending process to a large extent out of the hands of the legislative bodies, in which such power is sought to be vested, and practically place it in the hands of the governor, without whose consent legal restrictions so imposed could not be removed. Such a result certainly was not contemplated and might possibly lead to a deadlock. The better view would seem to be that a legislative body in its proposal of amendments is bound only by

61 Murphy Chair Co. v. Attorney-General, 148 Mich., 563 (1907). See also Lovett v. Ferguson, 10 S. D., 44 (1897), and In re Denny, 156 Ind., III.

62 20 Nev., 220 (1888).

such restrictions upon this function as are contained in the constitution itself. One legislature may not impose restrictions upon the exercise of this, power by a succeeding legislature, by means of a law enacted with the approval of the governor. For example, in Arkansas there is a legislative act providing that proposed amendments shall be subject to the governor's veto; this requirement is one which is not laid down in the constitution, and may be ignored by any succeeding legislature, without being formally repealed.

63

With reference to restrictions in the constitution itself, it may be said that the legislature as a body for the proposal of amendments is bound only by the rules specifically laid down in the article of the constitution which regulates the amending process-that is, it is not bound by the requirements that its action as a regular legislative body be submitted to the governor nor by the numerous restrictions usually imposed as to the procedure on regular legislative bills. This point came out squarely in the Minnesota case of Julius v. Callahan.** Here it was contended that a constitutional amendment was invalid because the subject was not expressed in the title of the act of proposal, this being a constitutional requirement with reference to ordinary legislative acts, but the court said that the restrictions

63 Kirby's Digest, 1904, pp. 324, 325. This provision is apt to cause no practical difficulty because the majority required in Arkansas to overcome an executive veto is the same as that required to propose an amendment, but the same principle applies here equally as in cases where restrictions of a more burdensome character might be imposed. But in North Carolina provision is specifically made that submission of proposed amendments shall be in “such manner as is prescribed by law," and in Kentucky publication is to be had in a manner prescribed by law, so that in these cases rules laid down by the legislature would be binding until repealed.

64 63 Minn., 154 (1895).

imposed upon the legislature acting in its ordinary capacity did not apply to the proposal of amendments; that a formal act or statute was not necessary for such a proposal, but that a joint resolution of the two houses was sufficient. Whether the formal act of proposal be called a joint resolution or act (or by any other name) makes no differencethe ordinary constitutional rules controling legislative action do not apply to them unless such rules are expressly repeated in the amending clause of the constitution."5

Although the legislative proposal of amendments is an act different in character from ordinary legislation (and subject in many ways to different rules) still it is essentially a legislative act. In this connection a curious question arose in 1900 under the California constitutional provision that a special session of the legislature should have "no power to legislate on any subjects other than those specified in the proclamation" of the governor convening the special session. At a special session of the California legislature, in 1900 a constitutional amendment was proposed, although this was a subject not included in the governor's proclama

65 Nesbit v. People, 19 Colo., 441. Commonwealth v. Griest, 196 Pa. St., 396. State v. Dahl, 6 N. D., 81. In re Senate File No. 31, 25 Neb., 864. Edwards v. Lesueur, 132 Mo., 441. People v. Sours, 31 Colo., 379. Warfield v. Vandiver, 101 Md., 78 (1909). State ex rel. Morris v. Mason, 43 La. Ann., 590, 649-658. McBee v. Brady, 100 Pac., 97 (Idaho, 1909). In several cases the question has been raised as to the form in which amendments should be proposed but judicial expressions upon this subject have usually been dicta. The usual method, and that favored by the courts when they have expressed themselves is that by joint resolution. The Idaho court in McBee v. Brady suggested that the legislative proposal should indicate "the particular matter to be inserted or omitted as an amendment and the particular place the amendment is to be made,” but this was merely a suggestion; so also in this case the court suggested that matter not relating directly to the proposal or submission of the amendment should not be included in the resolution. Upon this subject see also Lovett v. Ferguson, 10 S. D., 44.