bunal by which the result of the election should be ascertained, and vested in it the jurisdiction to determine whether any amendment or amendments proposed had been adopted, and gave to the certificate of the board such force and effect that upon filing the same the amendment or amendments so certified to have been adopted should be and become part of the constitution. . . . The concurrence of the board of state canvassers and the executive department of the government, in their respective official functions, place the subject beyond the cognizance of the judicial department of the government. 99 155 156 The position of the New Jersey supreme court was almost immediately reversed by the court of errors and appeals, and it is now the settled rule that, in the absence of specific and definite constitutional provisions which vest the final decision in some other officer or department, the judicial authority of the state extends over every step in the amending process. 157 The principle here is the same as that which 155 Bott v. Secretary of State, 62 N. J. Law, 107, 130. See also 61 N. J. Law, 163, and State v. Swift, 69 Ind., 523, 524. For a similar view with reference to another matter see Dennett's Case, 32 Me., 508 (1851). 186 Bott v. Wurts, 63 N. J. Law, 289. 157 It may be worth while to trace briefly the growth of judicial control over the amending process. In Luther v. Borden, 7 How., 1, 39 (1849), Chief Justice Taney said: "Certainly the question which the plaintiff proposed to raise by the testimony he offered has not heretofore been recognized as a judicial one in any of the state courts. In forming the constitutions of the different states after the declaration of independence, and in the various changes and alterations which have since been made, the political department has always determined whether the proposed constitution or amendment was ratified or not by the people of the state, and the judicial power has followed its decision." State v. McBride, 4 Mo., 303 (1836) was the first case to assert the judicial power to inquire into the validity of proposed amendments, and here the amendment was upheld, as also in Green v. Weller, 32 Miss., 650 (1856) and Dayton v. St. Paul, 22 Minn., 400 (1876). lies behind the judicial power to declare laws invalid; it may be stated thus: The constitution is the supreme law and the courts are the especial guardians of that law. Any act, whether it be of legislation, of executive power, or any step in the amending process, which in the opinion of the courts violates the constitution, may be rendered of no effect by the exercise of the judicial authority. The judicial control of the amending process has been discussed somewhat fully in three recent cases, in which the authorities are extensively reviewed. 158 The Mississippi constitution provides that "if it shall appear that a majority of the qualified electors voting shall have voted for the proposed change, alteration, or amendment, then it shall be inserted by the next succeeding legislature as a part of this constitution." It was argued with Miles v. Bradford, 22 Md., 170 (1864) denied the power. See also Brittle v. People, 2 Neb., 198, 214. Collier v. Frierson, 24 Ala., 100 (1854) is the only case before 1880 in which an amendment was declared invalid because improperly adopted. Hardly more than a half dozen cases involving the proper adoption of proposed amendments arose before 1880; up to 1890 probably not more than twenty such cases had come before the courts. Since 1890 cases have frequently arisen and the courts have exercised an effective supervision over all steps in the amending process. For the expression of a view that the question here considered is political, not judicial, see remarks by Judge Charles S. Bradley in Report of the American Bar Association, 1883, p. 32. 158 State v. Powell, 77 Miss., 543 (1900). Bott v. Wurts, 63 N. J. Law, 289 (1899). McConaughy v. Secretary of State, 106 Minn., 392 (1909). See also Koehler v. Hill, 60 Ia., 543; Gabbert v. R. R. Co., 171 Mo., 84; Kadderly v. Portland, 44 Ore., 118; Knight v. Shelton, 134 Fed., 423; Rice v. Palmer, 78 Ark., 432; Miller v. Johnson, 92 Ky., 589; McBee v. Brady, 100 Pac., 97 (Idaho). The cases already discussed concerning journal entry, publication, etc., and those cited in the subsequent discussion proceed upon the assumption that courts have authority to enforce the constitutional provisions regarding the amending process, and many of them discuss this subject, but it is deemed unnecessary again to refer to such cases here, especially as they are exhaustively reviewed in the three cases cited above. much plausibility that this language left the final decision as to popular adoption to the legislature. "It was argued that the rules prescribed by the constitution are all for the guidance of the legislature," and from the very nature of the thing the legislature must be the exclusive judge of all questions to be measured or determined by those rules . . . this section of rules, not only of procedure but of final judgment as well, confides to the separate magistracy of the legislative department full power to hear, consider, and adjudge that question. The legislature puts the question to the qualified electors. The qualified electors answer back to the legislature. "If it shall appear" to the legislature that its question has been answered in the affirmative, the amendment is inserted and made a part of the constitution. The governor and the courts have no authority to speak at any stage of this proceeding between the sovereign and the legislature, and when the matter is thus concluded it is closed, and the judiciary is as powerless to interfere as the executive.' But it was held that the question whether the proposition submitted to the voters constituted one, or more than one, amendment, whether the submission was according to the requirements of the constitution, and whether the proposition was in fact adopted, were all judicial, and not political questions." 159 The Mississippi court said: "Whether an amendment has been validly submitted or validly adopted depends upon the fact of compliance or non-compliance with the constitutional directions as to how such amendments shall be submitted and adopted; and whether such compliance has, in fact, been had, must, in the nature of the case, be a judicial question." The amendment which had been inserted into the constitution by the legislature was declared invalid by the court. 100 159 106 Minn., 407; 77 Miss., 551, 552, 567. 100 A Mississippi proposed amendment of 1902 which failed of adop After an exhaustive review of the authorities Judge Elliott of the Minnesota supreme court stated the present rule as follows: "The authorities are thus practically uniform in holding that whether a constitutional amendment has been properly adopted according to the requirements of an existing constitution is a judicial question. There can be little doubt that the consensus of judicial opinion is to the effect that it is the absolute duty of the judiciary to determine whether the constitution has been amended in the manner required by the constitution, unless a special tribunal has been created to determine the question; and even then many of the courts hold that the tribunal cannot be permitted to illegally amend the organic law. There is some authority for the view that when the constitution itself creates a special tribunal, and confides to it the exclusive power to canvass votes and declare the results, and makes the amendment a part of the constitution as a result of such declaration by proclamation or otherwise, the action of such tribunal is final and conclusive. It may be conceded that this is true when it clearly appears that such was the intention of the people when they adopted the constitution." It may be that the latter part of Judge Elliott's statement is too strong, but certain it is that with the courts there is a strong presumption against any construction of constitutional provisions which would deprive them of control over the amending procedure. It is assumed to be the duty of every court so to construe constitutions and laws as to give itself jurisdiction if possible and this rule may, when it seems necessary, be employed with reference to the amending process. 161 tion sought to amend the language quoted above so as to read “if it shall appear to the legislature." Language similar to that of the present Mississippi constitution will be found in the constitutions of Alabama, Kentucky, Maine, and Texas. 161 106 Minn., 409, 410. It may be said then that the courts exercise supervision over all steps of the amending process which are specified in the constitution of the state. Such supervision would ordinarily be somewhat easy as affects public acts which may be proved by external evidence, as, for example, the questions whether a proper journal entry was made, whether there was sufficient publication, whether a proposed amendment was properly submitted as merely one proposal, or whether the popular vote as canvassed showed a sufficient majority for the adoption of the proposal. But when the canvass itself is questioned and a recount of votes is asked, the question becomes a more difficult one, because involving the exercise of a function not ordinarily performed by courts. But the same principle applies, and in Michigan and Minnesota recounts have been had under judicial supervision. 162 Assuming then that whether an amendment has been properly proposed or adopted is a judicial question, it will next be well to discuss the attitude of the courts in passing upon such questions. The proper rule would seem to be that stated by the Colorado court in People v. Sours: "At the outset it should be stated that every reasonable presumption, both of law and fact, is to be indulged in favor of the validity of an amendment to the constitution when it is attacked after its ratification by the people." This liberal attitude has usually been taken, although in some cases it has been laid down that the amending process being presumably more important than the ordinary legislative function should have a stricter rule applied to it than " 163 162 Rich v. Board of State Canvassers, 100 Mich., 453 (1894). McConaughy v. Secretary of State, 106 Minn., 392 (1909). 163 31 Colo., 369, 376, 388, 390. See also Edwards v. Lesueur, 132 Mo., 410. |