1883 it was proposed to require a majority of all the electors of the state to adopt an amendment; and in 1893 it was proposed that an amendment should not be deemed adopted unless the total vote for and against it should equal 70 per cent of the total vote cast for the members of assembly at the last preceding election." Neither of these proposals was adopted by the legislature for submission to the people.140 The Michigan constitution of 1908 permits the proposal of amendments by popular petition, but provides that the affirmative vote necessary to adopt amendments so proposed "shall not be less than one-third of the highest number of votes cast at the said election for any office," although amendments proposed by the legislature may be adopted by a majority of those voting thereon. Reference has already been made to the Kentucky requirement that the affirmative vote on the question of calling a constitutional convention shall be "equal to one-fourth of the number of qualified voters who voted at the last preceding general election.”

No trial has yet been made of the plan of requiring the vote of a certain fixed proportion of the qualified electors in order to carry an amendment. New Hampshire and Rhode Island have, however, employed another method of assuring that amendments shall not be adopted by too small a minority of voters. New Hampshire requires that proposed amendments be approved by two-thirds of the qualified voters voting thereon, and Rhode Island requires an affirmative vote of three-fifths of the electors voting upon proposed amendments. Even these requirements defeat many proposed amendments which would otherwise be adopted. Of the ten amendments submitted in New Hampshire in 1903, five failed because they did not receive a

140 Lincoln, Constitutional History of New York, ii, 576-577.

two-thirds vote, although a majority was cast for their adoption; Rhode Island proposals submitted in 1898 and 1905 received a majority vote, but failed for want of three-fifths. 141

Still another question with reference to the majority required upon constitutional amendments was raised in Kansas, and was settled by the supreme court of that state, in the following language: "Another argument is based upon the use of the plural in this clause: 'And if a majority of the electors voting on said amendments at said election shall adopt the amendments, the same shall become a part of the constitution.' Now it is said, that by computing the vote by precincts, it is apparent that more than twice 92,302 voters 142 voted on the two amendments, some on one and some on the other, and that before any one amendment is adopted, it must appear that a majority of all who voted on all the amendments, voted in the affirmative on the one. This does not commend itself to our judgment. A more correct interpretation grammatically of this language would be, that no single amendment could be adopted unless all were, there being no provision for adopting one out of several. But we think the clear intent is, that every amendment submitted shall stand upon its own merits, and that if a majority of those voting upon it is in the affirmative, it becomes a part of the constitution." 143

141 For earlier votes in which a similar result was had see Rhode Island Manual, 1909, pp. 134-138, and Colby's Manual of the Constitution of New Hampshire, 228, 238.

142 The vote on the prohibitory amendment was 92,302, with 84.304 against.

148 Prohibitory Amendment Cases, 24 Kan., 700, 721. See also Bott v. Secretary of State, 62 N. J. Law, 127, 129; 63 ibid., 300; and Itasca Independent School District v. McElroy, 123 S. W., 117; 124 S. W., 1011 (Texas). The Texas constitution specifically lays down the same rule as that announced by the Kansas court.

Assuming that an amendment has been adopted by the people, when does it become effective as a part of the constitution? A few constitutions provide specifically as to this matter; thus the constitution of Oregon specifically provides that an amendment shall be in force from the date of the governor's proclamation that it has been adopted. In the absence of a constitutional provision, the law or legislative resolution may be considered as controlling, if it specifies anything as to this matter.114 In the absence of constitutional or legal provision, and where the constitution simply contains a statement that an amendment shall become part of the constitution if it receives the required popular vote, the courts differ as to whether such an amendment becomes effective on the day of the election, at the time when the vote is canvassed, or at the time when the result of the popular vote is made public. A statute becomes effective immediately upon its passage, unless another rule is specified in the constitution or statute, and, reasoning by analogy, it has been argued that an amendment should become effective immediately upon its approval by the people, unless the constitution makes a dif

144 Where the constitution lays down one rule it is of course impossible for the legislative resolution to establish another. “Under the constitution, upon the ratification of an amendment, it becomes a part of the constitution, and while the legislature might propose an amendment which in itself provides for the time it would become operative, yet, unless such time is incorporated in the amendment itself, the legislature has no authority to fix a time different from that prescribed by the constitution. In other words, if the amendment in its own terms fixes a time different from the constitution, and it is ratified, then it becomes just as much a part of the constitution as the present provision with reference to the time an amendment ratified should become a part thereof, but in the absence of such time being incorporated in the amendment, the legislature has no power to change the provisions of the constitution." McBee v. Brady, 100 Pac., 97, 105. See also Hays v. Hays, 5 Ida., 154, and Kingsbury v. Nye, 99 Pac., 985.

ferent provision; but this analogy does not hold, for the passage of a statute by the legislature is itself a specific public act, easily known at the time when done, while the result of a popular vote is not known, until the vote has been canvassed and the result made public. The canvass of votes and announcement of the result are necessary and essential steps in the popular adoption of any measure and may be considered parts of such process because necessary parts of the election itself.145 Unless a constitution specifically provides otherwise, the better rule would seem to be that an amendment does not become effective in any case until the vote has been canvassed and the result announced. 146

145 Real v. The People, 42 N. Y., 270, 276. The canvass of the votes cast by the various boards of canvassers as required by law, and announcing the result and certifying the same as required by law, is as much a part of the election as the casting of the votes by the electors. The election is not deemed complete until the result is declared by the canvassers as required by law."

146 Many of the cases are reviewed in State v. Kyle, 166 Mo., 287. See also Wilson v. State, 15 Tex. App., 150; In re Joslyn's Estate, 117 Mich., 442; People v. Supervisors, 100 Ill., 495, and cases cited in Century Digest, x, 1236; Decennial Digest, iv, 1560, and in American and English Encyclopaedia of Law, vi, 909.

It may be well here to refer briefly to the question as to when a complete new constitution becomes effective. Where a proposed constitution is to be submitted to the people for approval it does not, of course, become effective until after such approval has been obtained. State v. Mayor, 32 La. Ann., 81. Territory v. Parker, 3 Minn., 240. When an established state forms a new constitution for itself, it is usual to provide in the new constitution as to the time when that instrument shall become operative, and as to the details concerning the transition of the state from the old to the new constitution. See Bilbrey v. Poston, 63 Tenn., 232. For this reason cases have not arisen with respect to such constitutions, and cases which have arisen have had to do with constitutions framed by territories when seeking admission to the union or by the southern states when seeking readmission under congressional reconstruction acts. With reference to territories the rule would seem to be that, while a territory does not become a state until all forms prescribed by Congress for admission

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In Mississippi and South Carolina, as has already been said, the popular vote is not the final step in the amending process, but a subsequent legislative action is necessary. In South Carolina a proposed amendment approved by the people, does not become effective unless "a majority of each branch of the next general assembly shall, after such an election [general election for representatives] and before another, ratify the same amendment or amendments.” In Mississippi a proposed amendment adopted by the people shall be inserted by the next succeeding legislature as a part of the constitution, and does not become effective unless so inserted. In these two states amendments become effective only after action by the legislature. The are complied with, yet if a constitution is adopted and acted upon (and admission subsequently obtained), such acts will be considered valid as those of at least a de facto government, and the constitution will thus be given effect to as from the date when it was ratified and began to be acted under, although really not a state" constitution until admission into the union is fully accomplished. Secombe v. Kittelson, 29 Minn., 555. Scott v. Detroit Young Men's Society's Lessee, 1 Doug. (Mich.), 119. Scott v. Jones, 5 How., 343. See an opposing dictum in Myers v. Manhattan Bank, 20 Ohio, 283. The congressional acts, under which the southern states were readmitted, required that these states adopt constitutions and that governments organized under such constitutions perform certain acts as a condition precedent to restoration. Hence, although the states had not acquired their full rights as states, and although the constitutions were subject to approval or disapproval by Congress still they did become effective for the purposes of organizing state governments as soon as they were ratified by the people. These constitutions were therefore held to have become effective, for certain purposes at least, at the time when they were ratified by the people; and the opposite contention that they were not effective until after congressional approval was rejected by the courts. In re Deckert, 2 Hughes (U. S.), 183. Pemberton v. McRae, 75 N. C., 497. Campbell v. Fields, 35 Tex., 751. Peak v. Swindle, 68 Tex., 242. State v. Williams, 49 Miss., 640. See also Foster v. Daniels, 39 Ga., 39. See an editorial on this subject in Central Law Journal, vol. 69, PP. 441-443, and discussion in Jameson, Constitutional Conventions, 4th ed., 197-200.