181 the

In the recent Colorado case of People v. Sours,1 court took a very liberal attitude, saying that legislative action must be in substantial compliance with the constitutional requirements, but that technical objections would be brushed aside. Here a number of specific objections were made to an amendment approved by the people, of which perhaps the most important was that the constitution required "full entry" of the proposed amendment upon the legislative journals but that the entry upon the house journal did not agree with that on the senate journal. The court sustained the amendment, and said that "the disagreement between the two journals is a mere clerical mistake, that the same bill in fact passed both houses, and that the entering by mistake upon the journal of the house of the half dozen words quoted does not violate the provision of the constitution requiring the proposal to be entered in full upon the journals of both houses." The fact remains, however, that technically there was not a full entry of the proposed amendment on the journal of each house. In this case the Colorado court was also very liberal in its attitude regarding the requirement that each amendment shall be so submitted to the people that it may be voted upon separately 182

181 31 Colo., 369, 405. See also People v. Loomis, 135 Mich., 556 (1904).

182 As to the liberal attitude of courts see also Trustees of University of N. C. v. McIver, 72 N. C., 76 (1875); Bray v. City Council of Florence, 62 S. C., 57 (1901); Kadderly v. Portland, 44 Ore., 118 (1903); Farrell v. Port of Columbia, 50 Ore., 169, 175 (1907). In Kadderly v. Portland the constitutional provisions were construed strictly with reference to two proposed amendments which had failed of adoption in order to uphold an amendment which had actually been approved by the people; the decision, which may perhaps appear strict to the casual reader, was actually liberal in effect, and was intended to be so. Chase v. Board of Election Commisisoners, 151 Mich., 407

Even where an amendment may have been adopted without substantial compliance with the constitution, long acquiescence in such a change may place it beyond judicial cognizance the question as to whether an amendment was properly put into effect may have become by lapse of time, a political as distinguished from a judicial question. An amendment to the Colorado constitution was adopted in 1884 extending the legislative sessions from forty to ninety days. In 1894 a case arose in which a law was attacked as invalid because passed more than forty days after the commencement of the legislative session, it being contended that the amendment of 1884 was invalid, and that therefore any legislation after a forty-day term was invalid. The Colorado constitution requires that a proposed amendment be entered in full on the journals of each house, but this requirement seems not to have been even substantially complied with, with reference to the amendment of 1884; the amendment was not correctly entered in full and the house and senate entries did not agree. The court said that constitutional provisions are ordinarily mandatory, but that to overthrow this amendment would practically invalidate all laws passed by the five preceding legislatures, and that such action should not be taken because of the incorrect (1908), stretched the judicial power to its furthest point; the legislature of 1907 proposed an amendment and provided that it should be submitted to the people at the election of April, 1908, the constitution providing that proposed amendments should be submitted at "the next spring or autumn election" after their proposal, as the legislature shall direct." The court held that this language referred only to general elections-the spring election in the odd years and the autumn election in even years—and declined to issue mandamus to compel submission in April, 1908. Under these conditions it would seem that the proposal would be entirely ineffective, but the court expressed the view that the proposal should without any further legislative action be submitted at the next regular election; the amendment was submitted to the people in November, 1908, and was adopted.

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journal entries. 188 A somewhat similar case arose recently in Nebraska. 184 An amendment submitted to the people in 1886 lengthened the sessions of the legislature, and increased the compensation of members of the two houses. The legislature of 1887 canvassed the vote and declared the amendment lost because not receiving a majority of all votes cast. Shortly afterward, however, the legislature by a special act provided for a recount of votes, and upon the recount the amendment was declared adopted. It was contended that a special act for this purpose was invalid, and that therefore all proceedings under this act were inoperative, but the court held this not to be the case. The court said, in addition, that even if the legislative act were invalid the amendment should be sustained. "It seems to us clear that the question of the adoption, and the consequent validity of this amendment, depends upon the number of votes it received, and that after sixteen years it is too much to ask us to set it aside, not on the ground of any actual lack of votes, but on the ground of irregularity, informality and impropriety in the manner in which the vote was counted and the result declared."

A question of a somewhat similar character arose in the Minnesota case of Secombe v. Kittelson.185 Bonds had been issued under a constitutional amendment of 1858, and it was here sought to restrain the payment of interest on such bonds upon the ground that the amendment was invalid. The amendment was adopted after the constitution had been ratified by the people but before Minnesota was admitted to statehood, and it was contended that the constitution was not in force until admission, and could not therefore have been validly amended. The court said that 183 Nesbit v. People, 19 Colo., 441 (1894). 184 Weston v. Ryan, 70 Neb., 211 (1903). 185 29 Minn., 555 (1882).

the theory at the time was that the constitution became operative as soon as adopted, that the government organized under the constitution was a de facto government, that the amendment was ratified by the people and acted upon as valid, and that if this amendment were held invalid it would also be necessary to declare invalid all acts passed by the state legislature before the admission of the state into the union. The court declined to inquire too technically into irregularities in the submission of an amendment which had been adopted and acted upon as the fundamental law, and said: "We doubt whether a precedent can be found in the books for the right of a court to declare void a constitution or amendment to a constitution, upon any such ground." The question was held to be closed in this case because: "First, such irregularities, if any, must be regarded as healed by the subsequent act of congress admitting Minnesota into the Union... Second, They must be deemed cured by the recognition and ratification of this amendment, as a part of the constitution, by the State after its admission into the Union." The ratification referred to was a later amendment which repealed the amendment of 1858, but expressly protected all rights acquired under that amendment.

Where an amendment essentially altering the operation or structure of a state government has been adopted and acted upon, the courts would probably in all cases treat the question of the validity of such an amendment as a political question not within judicial cognizance. The regular operations of government must not be interrupted, even though a constitutional alteration may have been improperly made, and the courts find it expedient to avoid the decision of such questions. 186 In Koehler

186 Luther v. Borden, 7 Howard, 1, 40 (1849). See an approving reference to this case in Bott v. Secretary of State, 63 N. J. Law, 298, and in 60 Ia., 608, 614.

v. Hill 187 it was said that "it is the duty of courts, in a proper case, when an amendment does not relate to their own powers or functions, to inquire whether, in the adoption of the amendment, the provisions of the existing constitution have been observed, and, if not, to declare the amendment invalid and of no effect." It is difficult to see why the court should have thus distinguished between amendments affecting the courts and other amendments. It is true in fact, perhaps, that the validity of an amendment increasing judicial power would much more easily be sustained by the courts than one decreasing judicial power, but the courts having asserted their complete control over the amending process, such control exists irrespective of the subject to which the amendment may relate.

Several expressions in the cases discussed above would raise the inference that an amendment might be secure from judicial attack simply because it had been long acquiesced in and uncontested. This view can hardly be a proper one. In the cases above acquiescence was coupled with the fact that the amendments made essential changes in governmental organization, and such changes having been accomplished, were regarded as making the question a political one. But an amendment which did not make an essential change in the governmental organization-one the annuling of which would not disarrange the governmental machinery-may, it would seem, be attacked as invalid at any time, just as a law acted upon perhaps for years as valid, may be then held unconstitutional by the court. 188 Mere lapse of time raises no presumption in favor of the validity of either a law or amendment, but long acquiescence without contesting its validity may be considered as 187 Koehler v. Hill, 60 Ia., 543, 616.

188 Knight v. Shelton, 134 Fed., 423 (1905), held invalid an Arkansas amendment of 1892.