State constitutional amendments of this character, made necessary by judicial decisions, are of course binding upon state courts only as regards the power of these courts to declare laws invalid as in violation of state constitutions. The state courts are still free to declare state laws or state constitutional provisions invalid as in violation of the federal constitution; and if bound by definite provisions in state constitutions they are apt to base such decisions upon the federal constitution. If the highest court of a state declares a state statute or a state constitutional provision invalid, as a violation of the federal constitution, its decision is final, for there is no appeal to the United States Supreme Court from a state decision invalidating a state enactment as repugnant to the constitution or laws of the United States The state courts may on this account limit the powers of the states to a very great extent, in matters not already passed upon by the Supreme Court of the United States, and from their decisions there is now no appeal, although, of course, it is possible for the United States by act of Congress to permit appeals to the federal Supreme Court in such cases.

In matters with which the Supreme Court of the United States has had occasion to deal, the state courts are in legal theory bound by the interpretation which the federal tribunal has placed upon the federal constitution. States may, therefore, without fear of being overruled by their courts, enact into their constitutions any provisions which the federal Supreme Court has in its wisdom held proper and expedient, for if such a provision has been enacted in accordance with the proper forms, it can then properly be annuled neither upon federal nor upon state constitutional decision by the cumbersome process of amending the federal constitution, and the attempt is apt to prove unsuccessful because of the cumbersomeness of the amending machinery.

grounds. Thus the states may, if they find it necessary to overcome state judicial decisions, insert into their constitutions provisions establishing an eight hour day on public works, 216 or in mines," 217 a ten-hour day for females in laundries,218 but not a ten-hour day for both males and females in bakeries, 219 ,219 or a truck act applying to all employers. 220

The point which I wish to make is that if the highest state court declares a state law invalid as in violation of the state constitution such a decision is final. If, however, legislation upon the matter in question is then introduced into the state constitution, the state court, if it again holds the enactment invalid, must declare it to be so because of its repugnance to the federal constitution, and in the latter case the state court is in theory bound by the decisions of the Supreme Court of the United States interpreting the federal constitution with reference to the matter under consideration; the hands of the state court are tied if a similar enactment has already been upheld by the federal tribunal. For example, if an act establishing an eight-hour day in mines were held invalid as violating a state constitution, such legislation might then be introduced by amendment into the state constitution itself. The state court cannot then properly declare the eight-hour law for mines invalid as a violation of the federal constitution, because the Supreme Court of the United States has already held such a law not to be unconstitutional.” 221

218 Atkin v. Kansas, 191 U. S., 207. 217 Holden v. Hardy, 169 U. S., 366.

218 Muller v. Oregon, 208 U. S.,412.

219 Lochner v. New York, 198 U. S., 45.

220 Knoxville Iron Company v. Harbison, 183 U. S., 13.

221 The above example is an actual one. See In re Morgan, 26 Colo., 415; Holden v. Hardy, 169 U. S., 366; and Freund's Police Power,

The state courts thus possess what is practically an absolute veto on state statutory legislation, and on state constitutional provisions which have not already been approved in substance by the Supreme Court of the United States. By introducing legislation into their constitutions the states will, however, be free to act in the fields within which legislation has already been upheld by the Supreme Court of the United States. Only legislation which has been passed upon by the highest federal court may be safely introduced into state constitutions for the purpose of overcoming state judicial decisions.

Because of the fact that the amending process is free from many of the restrictions imposed upon ordinary legislation, and, to a certain extent also, because they have been directly approved by the people, amendments are less apt to be annuled by the state courts than are ordinary laws. Too much weight, however, must not be given to this distinction. The distinction between state statutes and state constitutions has already broken down to a very great extent, and state courts are practically as free to declare state constitutional provisions invalid, because repugnant to the federal constitution or to the state constitutional provisions regarding form of adoption, as are state and federal courts to declare state statutes invalid as repugnant either to the state or federal constitutions.

The function of annuling statutory or constitutional provisions is, it should be repeated, primarily a political and not a judicial function, and in many cases the result reached by the court depends more upon the opinion of the judges as to the wisdom of the measure under consideration than

sec. 155. But the state court still has power to declare the law invalid on federal grounds, and there is now no appeal from its

decision.

upon specific constitutional limitations. As a rule it would seem that courts have found reasons, sufficient at least for themselves, for annuling practically any constitutional amendment which they strongly desired to defeat. This result has ordinarily been accomplished either by the strict construction of the state constitutional provisions concerning the form of enactment, or by a strict construction of federal constitutional provisions,222 but the California court in Livermore v. Waite accomplished the same result in the absence of either state or federal restrictions.

Summarizing briefly the position of statutes and constitutional provisions before the courts, we may say that the judicial veto upon state legislation may be exercised: (1) By the federal courts, in declaring state statutes or constitutional provisions invalid as violating the federal constitution; a decision of this character by the highest federal court is conclusive upon the states, both as to statutes and constitutional provisions. (2) By the state courts, in declaring invalid a state law as in violation of the state constitution. Such a decision may be overcome by a state constitutional amendment adopted in accordance with all the forms prescribed by the particular state constitutions.223

222 The extent to which a court may go in declaring an amendment invalid as in violation of the federal constitution is shown in State ex rel. Johnson v. C. B. & Q. R. R. Co., 195 Mo., 228. See also Russell v. Croy, 164 Mo., 69.

223 Overlooking for the present the control by state courts over the form of amendment, and assuming amendments to have been validly adopted.

It may be well to discuss somewhat more fully the relations between the federal and state judicial powers to annul state legislation. Where a federal question is involved the power is possessed by both state and federal courts. If a state law or constitutional amendment is contested on federal grounds, and is sustained by a state court, an appeal may then be taken to the federal court and the law or amendment may there be annuled. Upon federal questions there are

(3) By the state courts, in declaring state statutes or constitutional provisions invalid as in violation of the federal constitution; and it is in precisely these latter cases that the state courts have the greatest control over state constitutional provisions, because a state decision adverse to a state enactment in such a case is final, there being no appeal to the Supreme Court of the United States. On this account the state courts should resolve every doubt in favor of a state enactment in such a case, and permit a final decision of the question of federal constitutional construction by the highest federal court. Professor Thayer stated very clearly the rule which should be followed in such cases: "As to

thus two grades of judicial supervision. With reference to state constitutional restrictions, such as those relating to the form of legislation, special legislation, taxing power, form of amendments, etc., there is ordinarily only one series of courts which exercises the judicial veto; the federal courts do not ordinarily hold state enactments invalid because of repugnance to state constitutions although this has been done in some cases. See Knight v. Shelton, 134 Fed., 423. Ordinarily it may be said then that if an enactment is contested on state constitutional grounds and is sustained by the state court such a decision would be conclusive; if contested in the state court on federal grounds and sustained, there may be an appeal to the federal court and a possible reversal of the state court's decision. Where a contest is on federal grounds there are two judicial checks, if a decision is favorable in a state court; where the contest is on state constitutional grounds, there is only one judicial check, the state courts, but the supervision exercised over legislation by state courts is stricter than that exercised by federal courts. However, with reference to the general guaranties of life, liberty and property, similar provisions will usually be found in both the state and federal constitutions. These state guaranties have, since the adoption of the fourteenth amendment, become mere surplusage, except in so far as they retard uniform judicial action by being interpreted more strictly by the state courts than similar federal provisions are interpreted by the federal courts. The need of state power to declare laws invalid on state constitutional grounds, as depriving of life, liberty, or property, or as depriving individuals of the equal protection of the laws, has entirely disappeared.