having weight in determining the question of constitutionality.

A question of great interest is that as to the attitude of the federal courts toward state constitutional amendments the validity of which may be assailed. This question has been raised in two cases in the inferior federal courts. The case of Smith v. Good 189 was an action upon a promissory note given for the purchase of liquors in violation of a prohibition amendment adopted in Rhode Island in 1886. It was contended by the plaintiff that the amendment was not legally adopted because not voted on by town meetings in several of the towns. The court said: "When the political power of the state declares that an amendment to the constitution has been duly adopted, and the amendment is acquiesced in by the people, and has never been adjudged illegal by the state court, the jurisdiction of a federal court to question the validity of such a change in the fundamental law of a state should clearly appear. . . . The very framework of the federal government presupposes that the states are to be the judges of their own laws; and it is not for the federal courts to interpose, unless some provision of the federal constitution has been violated. It is not pretended in this case that any federal question is raised." The action of the state officers in declaring the amendment to be adopted was held to be conclusive, and the validity of the amendment was not inquired into.

A precisely opposite position was taken in the later case of Knight v. Shelton.190 In this case a suit for damages

189 34 Fed., 204 (1888).

190 134 Fed., 423 (1905). Knight v. Shelton and Smith v. Good are, of course, easily distinguishable on the ground that in the first case no federal question was involved, while in Knight v. Shelton a federal question was raised as to the right to vote for members of Congress. But whether the plaintiff had been improperly deprived of such right

was brought against election judges because of their refusal to receive a vote in the election of a member of the federal house of representatives, and the defendant set up an Arkansas constitutional amendment of 1892, which required the payment of a poll tax in order to qualify a voter. The validity of this amendment was denied, but it had been declared adopted by the proper state authorities, and had never been passed upon by the state court. The federal court held that the amendment had not been adopted, because not approved by a "majority of the electors voting" at the election of 1892 as required by the state constitution.

In Knight v. Shelton the question was not raised as to the impropriety and possible inconvenience of a federal court's passing upon the validity of a state constitutional amendment as tested by the requirements of the state constitution. It happens that the Arkansas court has in a later case taken a view similar to that taken by the federal court,191 but suppose it had taken a contrary view, and should insist upon treating as valid an amendment which the federal court had declared invalid. We should then have the absurd situation of an amendment valid in the state courts and at the same time invalid in the federal courts, unless the federal courts should follow the state decision after it is rendered. The better rule would be, as stated in Smith v. Good, to leave the determination of such questions to the state courts, where no federal con

depended upon an amendment which had been acted upon by the state as valid for twelve years, and which had not been passed upon by the state court. The validity of this amendment depended not upon federal but upon state constitutional grounds. Federal courts have not assumed until recently the power to pass upon the validity of state enactments as tested by state constitutions.

191 Rice v. Palmer, 78 Ark., 432 (1906).

stitutional question is involved, and for the federal courts to follow the state decision. However, the position taken in Knight v. Shelton is probably the one which will prevail, for it is in line with the recent attitude of the federal courts in determining the constitutionality of state laws as tested by state constitutional principles, independently of state judicial action.192

Perhaps enough has been said to indicate the extent of judicial control over the amending process. It may now be worth while to inquire as to the manner in which such control is exercised. In most of the cases which have come before the courts, the validity of amendments has been denied in cases which have arisen after they have been submitted to the people and have been declared adopted, and it is, of course, always proper to attack an amendment in this manner. But the question has arisen several times as to the extent to which the courts may interfere and prevent the submission to the people of amendments which they consider to have been improperly proposed. It has already been said that the duties of executive officers with respect to publication and submission are ministerial in character and may be enforced by mandamus.19* These acts are necessary incidents to the amending process, and a mandamus in such cases is an aid to the amending process. But suppose, that upon the hearing for mandamus, the court should find that some essential requisite of a valid amendment had been omitted, may the court decline to issue the writ upon the ground that submission is improper because the amendment would be invalid even if approved by the people; that is, that the popular submis192 Prof. Henry Schofield in Illinois Law Review, iii, 195.

193 State ex. rel. Morris v. Mason, 43 La. Ann., 590. Commonwealth v. Griest, 196 Pa. St., 396 (1900). Warfield v. Vandiver, 101 Md.. 78 (1905).

sion would in any case be ineffective? And, under similar circumstances, would it be proper for the courts to enjoin such submission? Under circumstances similar to those just referred to the California supreme court has declined to issue mandamus to compel submission,194 and in another case the court has actually restrained such submission.195 In Missouri the court was asked to enjoin the submission of an amendment but declined to do so because it found. no reason for taking such action, although its attitude seems to indicate that it considered an injunction to be proper should it have found the proposal defective. The court said: "The power and jurisdiction of the judiciary to declare a proposal for an amendment to the constitution ineffectual, and to arrest its submission to the people, which we are now called upon to exercise, is coupled with far more serious responsibilities" than is the exercise of the power to annul a law. 196 To the same effect is a dictum in the Idaho case of Holmberg v. Jones,107 where the court said: "The only irregularity is that it [the amendment] did not receive the votes of two-thirds of the members of the house. It cannot be questioned but that any voter of the state, by proper proceedings in the district court, or in this

194 Hatch v. Stoneman, 66 Cal., 633 (1885).

195 Livermore v. Waite, 102 Cal., 113 (1894). See also People v. Curry, 130 Cal., 82 (1900).

196 Edwards v. Lesueur, 132 Mo., 410, 441 (1896). But the language quoted above should be read in connection with the following statement: "We have not discussed the question whether the remedy by injunction is, in any event, available for the purposes contemplated in this case, because defendant has expressly waived that question, and requested a decision on the broader grounds which we have accordingly considered." For the use of the injunction in connection with the amending process see also State v. Laylin, 69 Ohio St., 1 (1903).

197 Holmberg v. Jones, 7 Ida., 752, 758.

court, could have obtained a writ of prohibition restraining the secretary of state from certifying the question of adopting such proposed amendment to the various county auditors. The official ballot could have been protected against the improper submission of such question, and could have been purged of the presence of such question thereon, by proper judicial proceeding."

The California rule has been expressly rejected in South Dakota and Colorado. In the South Dakota case of State ex rel. Cranmer v. Thorson,198 it was sought to restrain the submission to the people of a proposed amendment, upon the ground that the constitutional requirements had not been complied with. The court declined to act and said: "Power to amend the constitution belongs exclusively to the legislature and electors. It is legislation of the most important character. This court has power to determine what such legislation is, what the constitution contains, but not what it should contain. It has power to determine what statutory laws exist, and whether or not they conflict with the constitution, but it cannot say what laws shall or shall not be enacted. It has the power, and it is its duty, whenever the question arises in the usual course of litigation, wherein the substantial rights of any actual litigant are involved, to decide whether any statute has been legally enacted, or whether any change in the constitution has been legally effected, but it will hardly be contended that it can interpose in any case to restrain the enactment of an unconstitutional law. . . . If they [the courts] cannot prevent the legislature from enacting unconstitutional laws, they cannot prevent it and the electors from making ineffectual efforts to amend the constitution." In this case the court also said: "It has not been shown, nor can it

1989 S. D., 149 (1896).