166

to the passage of ordinary laws. 184 Judge Jameson advocated the policy of strict as opposed to liberal construction,165 and the supreme court of Iowa has adopted the view that "where the existing constitution prescribes a method for its own amendment, an amendment thereto, to be valid, must be adopted in strict conformity to that method." In Iowa where a proposed amendment is required to be entered on the journals of the two houses, the surpreme court has declared invalid two important amendments which were not entered "in full" although full entry was not specifically required, and thus resolved against the amendments approved by the people the doubt as to the proper meaning of the constitutional requirement. 167 So too the Mississippi court in State v. Powell took a strict view as to what constitutes one or more than one amendment,168 and the Indiana and Wyoming courts have taken a strict view with reference to ambiguous language in the constitutions of those states regarding the popular vote required, although the same language has been construed in a precisely opposite manner by the supreme court of Idaho.189 So too cases in Nevada and California have taken a very strict view which subjects the amending process to control by ordinary legislation, and which if ad

164 State v. Foraker, 46 Ohio St., 677. State v. Powell, 77 Miss., 576. Bott v. Wurts, 63 N. J. Law, 289. State v. Rogers, 56 N. J. Law, 480, 619.

165 Jameson, 617. See also J. W. Garner in American Political Science Review, i, 234.

186 Koehler v. Hill, 60 Iowa, 543.

187 Koehler v. Hill, 60 Iowa, 543; State v. Brookhart, 113 Iowa, 250. 168 State v. Powell, 77 Miss., 543.

169 State v. Swift, 69 Ind., 505. In re Denny, 156 Ind., 104. State ex rel. Blair v. Brooks, 99 Pac., 874 (Wyo.). Green v. State Board, 5 Ida., 130.

hered to would greatly restrict the legislative power of proposing amendments.170

In discussing the strict or liberal interpretation of the amending clause, it should perhaps be said that the same court may at one time be liberal and at another strict. The function of passing upon the validity of laws or proposed amendments is primarily political, not judicial, and where the opinion of a court happens to be opposed to a proposal it is usually not difficult to find some reason for declaring such proposal invalid. Some, at least, of the cases construing strictly the amending clause, may be explained upon this ground.

171

But, as has already been suggested, the judicial construction of the amending clause has usually been liberal, and has resolved doubts in favor of the validity of amendments approved by the people.172 This liberal attitude is one with respect to the manner of compliance with constitutional requirements, but substantial compliance with the steps laid down in the constitution is required. If a required step is

170 Hatch v. Stoneman, 66 Cal., 633. State v. Davis, 20 Nev., 220. Livermore v. Waite, 102 Cal., 113 (1894).

171 Where the constitutional requirements concerning amendment are numerous and specific, action by a great number of persons is usually necessary, and some flaw in the proceeding may usually be found if a careful search is made. For example, where publication is required in each county of a state it may easily be that through accident or design publication might be improperly made in one or more counties, and if a court desired to be strict this might be held to invalidate the amendment. See Prohibitory Amendment Cases, 24 Kan., 700; State v. Winnett, 78 Neb., 379, 387; Lovett v. Ferguson, 10 S. D., 56.

172 This appears clearly in the cases sustaining expedients for avoiding the constitutional provisions requiring a majority of all persons voting. State ex rel. Thompson v. Winnett, 78 Neb., 379. State v. Laylin, 69 Ohio St., 1. May and Thomas Hardware Co. v. Birmingham, 123 Ala., 306.

omitted, or is not even in substance complied with, no court has ever upheld the amendment, even though it may have been approved by the people. That is, the constitutional requirements are mandatory, not merely directory,13 and no court will overlook the entire disregard of even the less important of such requirements. For example, the Alabama constitution of 1819 required proposal by the legislature, publication, a popular vote, and then a subsequent ratification by the legislature. Eight amendments were proposed by the legislature of 1844-45, and were approved by the people, but one of them was by inadvertence omitted in the subsequent ratifying vote of the legislature. The court held that the proposed amendment which had not been ratified was not adopted, and said: "We entertain no doubt, that, to change the constitution in any other mode than by

173 A note in 10 L. R. A. (N. S.), 149, suggests that the courts sometimes treat immaterial constitutional requirements as directory, but even the most liberal cases have ordinarily declined to go as far as this. There is, however, a dictum to this effect in Commonwealth v. Griest, 196 Pa. St., 396, 416: “We think that the provision as to publication three months before the next general election, as prescribed in the first clause of article 18, should be regarded as merely a directory provision, where strict compliance with a time limit is not essential." In Holmberg v. Jones, 7 Ida., 752, 758, 759, the court intimated, obiter, that though two-thirds of the members of each house did not vote for a proposed amendment, if the measure had been put on the ticket without objection and approved by the people, an estoppel would operate to prevent a contest of its validity after popular approval, although objection might have been made at an earlier stage of the proceedings. This view is doubted in the later case of McBee v. Brady, 100 Pac., 97, 101, 102 (Idaho). For an argument that constitutional requirements with reference to amendment may be legally disregarded in case of necessity (that is, when amendments are urgently needed but the amending process operates with such difficulty as to be practically unworkable) see a pamphlet on Chicago and the Constitution, a report made to the Civic Federation of Chicago in 1902 by E. Allen Frost, Robert McMurdy, and Harry S. Mecartney, pp. 51-57. See also a similar suggestion in State v. Winnett, 78 Neb., 387.

a convention, every requisition which is demanded by the instrument itself, must be observed, and the omission of any one is fatal to the amendment.” 174 Similarly where the requirement of "full entry" on the legislative journals is not complied with,175 or where an "entry " is required but no reference whatever is made to the proposed amendment in the legislative journals,176 proposed amendments were held invalid even after approval by the people. Somewhat similar in character was the case of State v. Tooker,177 where a proposed amendment was held invalid where it had been published for only two weeks although the state constitution expressly required publication for three months before the election. It is now so well recognized that a proposed amendment will not be upheld unless all constitutional steps are complied with that it is customary, where some step has through inadvertance been omitted, for the executive officers not to take steps for the popular submission of such a proposal.178

174 Collier v. Frierson, 24 Ala., 100 (1854). See also State v. McBride, 4 Mo., 303.

175 Durfee v. Harper, 22 Mont., 354 (1899).

176 State v. Tufly, 19 Nev., 391. But see p. 148, note 50.

177 15 Mont., 8 (1894). The court in this case refers to the fact that the constituional provisions of Montana are expressly declared to be mandatory except when otherwise specified but the requirements would it seems have been mandatory in any case.

178 Commonwealth v. Griest, 196 Pa. St., 396. State ex rel. Morris v. Mason, 43 La. Ann., 590. A Mississippi proposed amendment was not submitted to the people in 1908 because it had not been published in conformity with the constitutional provisions. A secretary of state or other ministerial officer may, of course, defeat a proposed amendment by neglecting to comply with the constitutional requirements. But the duty of such officer may be enforced by mandamus. With reference to the Mississippi proposed amendment of 1908 the following quotation is of interest: "Section 273 of the State Constitution requires that public notice be given for ninety days preceding an elec

But where an effort has been made to comply with the constitutional requirements, and where such compliance has not been complete, the question presents itself to the court whether immaterial errors should be permitted to defeat the popular will as expressed upon an amendment adopted by the people, and upon this question the courts have usually taken a liberal attitude. So in the Kansas Prohibitory Amendment cases,179 Judge Brewer remarked that “omissions and errors which work no wrong to substantial rights are to be disregarded," and said further that: "The two important, vital elements in any constitutional amendment are the assent of two-thirds of the legislature, and a majority of a popular vote. Beyond these, other provisions are mere machinery and forms. They may not be disregarded, because, by them, certainty as to the essentials is secured. But they are not themselves the essentials." This statement has frequently been quoted with approval. A somewhat similar view was later expressed by the supreme court of South Dakota: "The action of the two houses and the will of the people, as expressed by their vote, should not be set aside or disregarded upon purely technical grounds, when no material requirement of the constitution has been omitted, and where the proceedings taken clearly manifest the intention of those bodies and the people to amend the fundamental law." 180

tion, at which the qualified electors shall vote directly for or against such change, alteration or amendment. That notice I failed to give. . . . I discovered my error about the 1st of September, but would not at that time attempt to make publication for it would not come within the time required by law. Had I done that the publication would not have been legal." Biennial Report, Secretary of State, 1907-09, p. 7.

179 24 Kan., 700, 710 (1881).

180 Lovett v. Ferguson, 10 S. D., 44; State ex rel. Adams v. Herried, 10 S. D., 109.