be imagined, in what manner the relator will be injured by the contemplated action of defendant. If the legislature has proceeded properly, and its proposed amendment shall be ratified by the people, the relator will have no legal cause of complaint, because, as a good citizen of the state, he will be bound to cheerfully accept the lawfully expressed will of a majority of its sovereign electors. If, on the other hand, the action of the legislature was such as to render any answer to the question [submitted to the voters] inoperative, the constitution will not be modified, and no one will be affected. Any additional burden which might result to relator, as a taxpayer, by reason of submitting this question at a general election, is too trifling, fanciful and speculative for serious consideration. . . Having failed to show that he will be injured by the intended action of defendant, the relator is not entitled to have it enjoined, or its regularity investigated, in this action." In People ex rel. O'Reilly v. Mills,199 it was sought to enjoin the secretary of state of Colorado from publishing a proposed amendment as required by the constitution, before its submission to the people. In declining to issue an injunction the supreme court of Colorado said: "In amending the constitution the voters become the body which finally give vitality to proposed amendments or refuse to make a change by rejecting them. The exercise of this power is as much a step in passing and considering proposed legislation of this character as any the general assembly must take in passing ordinary statute laws. The judicial department can no more interfere with such legislation or the successive steps necessary to be taken to amend the constitution than it can with the general assembly in the passage of other laws, because the judicial cannot interfere with the functions of the legislative department."

199 30 Colo., 262 (1902).

The principle announced by the Colorado and South Dakota courts may be stated as follows: The courts have no power to interrupt the process of amendment before it is complete, to restrain a popular vote upon a constitutional proposal, even though they may be clearly of the opinion that the popular vote will be ineffective because of defects already apparent in the method of proposal. They must wait until the amending process is fully completed, and then pass upon the validity of the amendment if this question is properly presented in litigation before them. In accordance with this view it would seem that the courts should compel by mandamus administrative acts incident to the amending process; that is, the administrative acts should be treated as duties commanded by the constitution after the legislative proposal, which may be regarded as presumably valid and not subject to review in an ex parte proceeding. Under this view the courts may neither restrain the submission nor decline to compel it, because either of these is a direct interference with legislative action, the one positive in absolutely preventing submission, the other negative in that it does not enforce a purely ministerial duty in aid of the amending process.

The process

Theoretically this view is the better one. of amendment is a process of superior legislation, and the courts ordinarily decline to interfere with the processes of legislation, although they may always pass upon the validity of the completed product of such process. The question as to how far the courts shall depart from this principle in controlling the amending process is particularly important in view of the introduction of the referendum on ordinary legislation. In Oregon, for example, a measure may be initiated by the people or by the legislature and then submitted to the people for approval. The submission of laws for popular approval in Oregon and in

several other states makes such a popular vote an integral step in the process of ordinary legislation. But the courts at present decline to interfere with the process of legislation, and wait until the validity of a law is attacked before them. What is likely to be the attitude of the courts with reference to laws (and constitutional amendments) enacted by a popular vote? In theory the courts should not interfere to prevent submission, (even though the proposal be clearly defective and invalid), for this is a legislative act, and under the principle of the separation of powers the courts will not interfere with legislative acts. But heretofore it would have been necessary to interfere with the deliberations of a legislative body in order to restrain legislation, and such an action would be clearly indefensible. But with laws (and amendments) enacted after a referendum, there are several distinct steps in the legislative process, one of which, the act of submission, may be considered purely ministerial and may, in practice, be enjoined without interfering with the action of the ordinary legislative body of the state; that is, under a system of popular legislation it is easy for the courts, without seriously crippling a co-ordinate department of the government, to interfere and prevent a law's being enacted. This practical difference will probably incline the courts to take the view of the California court rather than that held in South Dakota and Colorado. So in the states which have adopted the referendum, it is probable that the courts will restrain the submission of a law if they consider the proposed law defective. For example, if an Oregon law were proposed by initiative petition, but did not comply with the constitutional requirement concerning its title, we may expect that the courts should restrain the submission of the proposal to the people, on the ground that it is invalid, and that the popular vote would in any case be ineffective.

This rule would have the advantage of obtaining a judicial decision upon the validity of a law at the earliest possible moment, but it has the disadvantage of having such a question passed upon in an ex parte proceeding, and of extending still further the judicial control over legislation. Yet, as has already been suggested, the judicial control over the processes of amendment and of popular legislation (by the referendum) will probably be established along the lines laid down by the California court.

In Livermore v. Waite submission was restrained because, in the opinion of the court, the proposed amendment was invalid in substance. Under this view it would seem that a court might restrain the submission of a referendum law or of a proposed amendment on the ground that it violated the "due process of law" process of law" or "equal protection of the laws" clauses of the federal constitution, or upon the ground that the proposal might for any other reason be invalid in substance. But such a judicial position would hardly be taken, and the courts, if restraining submission would probably do so, as a rule, only because of irregularities in the form or process of proposal.

200

The preceding discussion has related to the control of the courts over the form and process of amendment, and it will be well now to discuss the subject of judicial control over the substance and content of amendments. In the case of Livermore v. Waite the supreme court of California restrained the submission of an amendment changing the seat of government to San José, on condition that a capitol site and one million dollars should be donated by the new seat of government, and providing that the governor, secretary of state, and attorney-general should approve the site. In restraining the submission of this proposal the court said

200 102 Cal., 113 (1894).

that the legislature had no authority to propose an amendment which did not become effective immediately upon its adoption by the people, without being dependent upon the will of other persons. This restriction upon the amending process was one discovered by the California court and was not based upon any provision of either state or federal constitutions. In a precisely parallel case which arose in Missouri only two years after the California decision, the Missouri court took the opposite view that whether the amendment became effective immediately upon popular ratification was immaterial.201 The California decision is indefensible; it cannot be justified and can be explained only upon the view that the court had determined to prevent the submission of the amendment for removing the capitol, and could find no better reason to present for its action. The California decision aside, it may be stated somewhat broadly that, except as tested by specific limitations in state and federal constitutions, an amendment is not subject to judicial control as to its substance and content,-the courts have no right to determine what a constitution shall contain or the character of the amendments which may be enacted.202 The federal constitution is, of course, superior to a state constitution, and any amendment conflicting with the federal instrument is invalid. So too as to any specific limitations in state constitutions upon the subject matter of amendments. However, in the present state constitutions there are practically no restrictions 203 upon the char201 Edwards v. Lesueur, 132 Mo., 410 (1896).

202 See also People v. Sours, 31 Colo., 387-388; State ex rel. Cranmer v. Thorson, 9 S. D., 149.

203 Such restrictions as there are really do not limit the amending process to any material extent. In Alabama "Representation in the legislature shall be based upon population, and such basis of representation shall not be changed by constitutional amendment." In Michigan the amending clause of the constitution cannot be changed by an amendment initiated by popular petition.