legislative function in Mississippi is made mandatory by the constitutional language, and it is a function really ministerial in character, but the legislature's action is, in fact, purely discretionary, because legislative action is not subject to judicial control. Nor is the legislative action upon amendments in these states purely formal. In South Carolina an important amendment, substituting biennial for annual legislative sessions, was approved by the people in November, 1904, but failed because it was not ratified by the succeeding legislature.147 An interesting question arose recently in Minnesota as to what text of a proposed amendment should control in case of discrepancies. Here an amendment concerning taxation was proposed by the legislature, and the amendment as passed by the legislature provided that its terms should not apply to "farm land." The proposed amendment as printed in the session laws omitted the word "farm" and this word was not employed in the synopsis of the proposed amendment prepared by the attorney-general for publication. The proposed amendment was referred to simply by title on the ballot. The question was thus raised as to whether the amendment had been adopted with or without the word "farm." Counsel for the state argued that the published text controlled, and that the word "farm" must therefore to taken to have been omitted; on the other hand it was argued that in case of a discrepancy, the enrolled bill prevails in the case of statutes, and that the same rule should apply to amendments. The court, while suggesting that the rule with reference to statutes might not apply, did not pass upon the question, because it found that 147 It was urged in this case that the amendment had been improperly proposed and would therefore not be a valid amendment even if ratified by the legislature. South Carolina House Journal, 1906, pp. 47-49. the omission of the word "farm" made no change in the sense or purpose of the amendment. Judge Jaggard, in a concurring opinion, declared that "the enrolled bill controls." 148 It is to be seriously doubted whether the enrolled bill, journal entry, or other evidence of legislative action, should control in such a case. The popular vote is the decisive factor in constitutional change, and if there were any important discrepancy between the enrolled bill and the measure submitted to the people, it would seem, on principle, that the measure which had received popular approval should prevail. The question is not apt to present itself squarely, because if the discrepancy is great it will very probably cause the amendment to be held invalid as violating some specific constitutional requirement. Somewhat similar in character was a question which arose recently in South Carolina. 149 An amendment regarding municipal debts was submitted and adopted in 1900; as proposed the amendment purported to amend article iv, section 5 of the constitution, but this was an error for article x, section 5. The court declared that it was beyond the judicial power to alter the language of the amendment and to declare that it intended to refer to article x, section 5, but upheld the amendment by saying that it impliedly repealed the conflicting provision of article x, section 5. Another interesting point is that as to the effect which will be given to two directly contradictory amendments if adopted at the same election. The Nebraska legislature in 1889 proposed two amendments, one providing for prohibition of the sale of liquor, the other providing for a license system. The idea was that these should be in the 148 State v. Twin City Telephone Co., 104 Minn., 270. nature of alternative provisions, and this method was employed because no constitutional authority existed for the submission of competing measures. But this plan did permit each voter to vote either for or against both propositions, and made it possible that both proposals might be adopted by the people. The legislature for this reason asked the opinion of the state supreme court as to the constitutionality of the plan, and the view of the court was favorable. The court said: "Electors, in casting their ballots for or against a proposition are supposed to be, and as a rule are, governed by principle; hence, if one votes in favor of prohibition, it will be rare indeed that he will also vote in favor of license. So if he votes for license, he will not vote for prohibition. The proposed amendments provide for different and contradictory modes of controlling the liquor traffic, but one of which can be effective if adopted. The propositions being independent, however, an elector may vote for one and against the other, or for or against both. If both should receive a majority of all votes cast, however, the amendments being irreconcilable, both would fail." 150 Both proposed amendments failed, so that the question of conflict never arose. In agreement with the Nebraska opinion is a recent dictum of the Idaho supreme court: "Where a section of the constitution is amended at the same time by two different amendments, and the amendments adopted are directly in conflict, and it is impossible to determine which should stand as a part of the constitution, or to reconcile the same, both must fail." 151 But in this case one of the proposed amendments had already been held invalid because improperly proposed, and 150 In re Senate File No. 31, 25 Neb., 864, 879. 151 McBee v. Brady, 100 Pac., 97; Utter v. Moseley, 100 Pac., 1058 (1909). even had it been validly proposed there was no real conflict between the two amendments, although the court did say that there was irreconcilable conflict. The view expressed by the Nebraska and Idaho courts is clearly correct, should two amendments adopted at the same time be in irreconcilable conflict. Judicial Control of the Amending Process In discussing the judicial attitude toward the amending process it may be well to devote brief attention to the question which has been frequently raised whether the proper adoption or rejection of an amendment is not a political question, and as such beyond judicial cognizance. In several cases courts have taken the view that they had no authority to interfere in such matters. This view is very well expressed by Judge Fisher's dictum in Green v. Weller: "But he was of opinion, that an amendment of the constitution having been submitted by the legislature to the people, voted upon, and accepted by them, and by the succeeding legislature inserted in the constitution as part of that instrument, there is no tribunal in the government which can revise this action of the respective legislatures, and of the people . . . The question is not in its nature judicial but political, and hence the action of that body to which the power has been specially confided, must be conclusive." 152 In Maryland the constitution provides that "if it shall appear to the governor that a majority of the votes cast . . . on said amendment or amendments, severally, were cast in favor thereof," the governor should issue his proclamation declaring the amendment adopted. This language has been held by the Maryland court to vest in the governor the final decision as to whether the people have adopted or rejected a proposed amendment. In the case 152 Green v. Weller, 32 Miss., 650; 33 Miss., 735 (1856). of Worman v. Hagan the court said: "And on his [the governor's] proclamation that a proposed amendment has received a majority of the votes cast, it becomes eo instanti a part of the constitution. There is no reference of the question to any other officer, or to any other department. It is committed to the governor without qualification or reserve, and without appeal to any other authority. Most certainly no jurisdiction is conferred on this court to revise his decision." 158 This decision, it should be pointed out, rests upon the definite language of the Maryland constitution, and related simply to the determination of the result of the popular vote.154 The New Jersey constitution contains no language similar to that of Maryland, but the supreme court of New Jersey in a late case took the view that the canvass of votes upon a proposed amendment was beyond judicial cognizance. The court said: "The legislature constituted the board of state canvassers the tri 153 Worman v. Hagan, 78 Md., 152 (1893). See also Miles v. Bradford, 22 Md., 170 (1864). 154 Worman v. Hagan was criticized by Judge Elliott in McConaughy v. Secretary of State, 106 Minn., 410, where the view is taken that even though a power is expressly conferred by the constitution upon another department or officer, the courts would still retain their control. Judge Elliott said that the courts would not be deprived “of their inherent power to determine the legality of the actions of officers" unless such power is in terms denied by the constitution. But if a power is expressly granted to another department does this not exIclude the courts? The courts, it would seem, have no “inherent powers" above the constitution, but derive all power from the constitution just as do other departments of government. The Oregon constitution contains a provision similar to that of Maryland, and would seem also to remove this question from judicial cognizance. The Connecticut and Minnesota constitutions provide that an amendment shall become part of the constitution "if it shall appear, in a manner to be provided by law" that a sufficient popular vote was cast in its favor, and here also this matter would seem to be beyond judicial control, if Worman v. Hagan be considered an authority. |