legislature, although as President Lowell has said the actual distinction upon which the judicial power is based has largely disappeared. Such, for example, with reference to form are those regarding title, reading of bills, etc.,240 and with reference to substance, those concerning special legislation, limitations upon the taxing power and indebtedness, etc. Where, as in Missouri and Oregon, the same processes may be used either for ordinary legislation or for amendments, these restrictions may be avoided by calling every measure an amendment, but the judicial control under state constitutional restrictions will be just as strong as before where the amending process is different from and more difficult than that for ordinary legislation.

We may, it would seem, in such cases, expect the courts to take the view already assumed with reference to amendments, that every specific constitutional requirement must be complied with, but that such requirements should be construed liberally.241 A case which arose in Oregon in 1906 shows pretty clearly that the state courts will inquire into the validity of referendum laws. In State v. Richardson 242 a local option law initiated by petition and approved

240 Similar to those regarding method of amendment but usually

more numerous.

241 William Allen White in the article above referred to (American Magazine, vol. 67, p. 413) says: "The Supreme Court of South Dakota, where the initiative and referendum prevails, upon petition for opinion as to the referred laws has always held that mere technical errors in non-compliance with the formulae of the statute do not hide the obvious intention of the people and have in consequence always held these referred laws valid." The present writer knows of no cases in which this question has squarely arisen in South Dakota. Mr. White evidently had in mind State v. Thorson, 9 S. D., 149; Lovett v. Ferguson, 10 S. D., 44, and State v. Herried, 10 S. D., 109, where the court said that amendments would not be set aside on technical grounds. The same view would undoubtedly apply to referred laws. 242 48 Ore., 309, 319 (1906). Stevens v. Benson, 50 Ore., 269, and

by the people was attacked as invalid because violating certain provisions of the state constitution with respect to local legislation and to the requirement that every act should embrace but one subject, and that such subject should be expressed in its title. The court upheld the law as valid but said: "The validity of laws adopted at the polls must be determined like enactments by the legislative assembly, by the test of the constitution as modified by the amendment thereto. . . . We think the assertion may safely be ventured that it is only the few persons who earnestly favor or zealously oppose the passage of a proposed law initiated. by petition who have attentively studied its contents and know how it will probably affect their private interests. The greater number of voters do not possess this information and usually derive their knowledge of the contents of a proposed law from an inspection of the title thereof, which is sometimes secured only from the very meager details afforded by a ballot which is examined in an election booth preparatory to exercising the right of suffrage. It is important, therefore, that the title of laws proposed in the manner indicated should strictly comply with the constitutional requirements." But the requirement would not have applied at all had the measure been called a constitutional amendment, as it might well have been. The reason for judical control had ceased but the judicial control remained. Palmer v. Benson, 50 Ore., 277 (1907) can hardly be considered cases in which the Oregon court has shown especial tenderness toward the initiative and referendum. Both decisions were favorable, but could hardly have been otherwise. In Stevens v. Benson, for example, the law provided a certain form for initiative petitions, and this form had not been fully complied with. But the statute itself expressly stated that its terms in this respect were not mandatory, and the statute had been passed simply in aid of the right of popular initiation, which existed by virtue of a self-executing constitutional provision independently of the statute.

The power of the courts over laws approved by the people may cease at some time, as President Lowell has suggested, but certainly this power will not be surrendered in the near future. For a while at least we may expect that judicial control over laws approved by the people will be almost if not as strict as over laws passed by legislative bodies certainly the control will be as strict as, if not stricter than, that now exercised over constitutional amendments approved by the people. But it must be said that the courts have probably now stretched to its furthest limit their power over legislation, and that there may soon come a saner and more reasonable judicial attitude toward state enactments. The approval of laws by the people may have some influence in making courts more cautious, and in bringing them back more nearly to their true function as interpreters rather than as makers of laws.

The Amending Process and Revision by Constitutional Conventions

The discussion heretofore has been based upon the general view that constitutional conventions are employed for the complete revision of state constitutions or for the framing of new constitutions, and that, where a general revision is not desired, the regular legislative machinery is used to initiate specific amendments. This view is, in the main, correct. Yet of course a constitutional convention when assembled may not make a general revision but may simply propose specific amendments.248 In the state of New

243 It lies within the discretion of a convention ordinarily as to whether its action shall be substituted (1) in the form of separate amendments, or (2) as a complete new constitution, or (3) as a new constitution but with separate provisions which may be voted upon independently. As between the first and second plans it may be said that the second is to be preferred if the changes are so great as to make submission as separate amendments confusing, or if the proposed

Hampshire specific amendments may only be proposed by a convention. However, where only a few changes are desired the convention is an expensive and cumbersome instrument, which will not often be employed except in case of necessity. On the other hand several constitutions make no provision for a convention, and in Rhode Island the ab

changes are such as to make it undesirable that some should be approved and others rejected. The New Hampshire convention of 17911792 first divided its proposals into a number of subjects "which were submitted separately to the approval of the citizens. Unfortunately the list of these subjects was far from short, there being seventytwo of them. Upon the vote twenty-six were rejected, forty-six were adopted. Of the latter, several were in contradiction with those provisions of the old constitution which still remained in force because of the rejection of the former, and the convention was compelled to do what it had thought possible to avoid. It took up again the work so badly mutilated by the people, removed its inconsistencies, and was finally paid for its trouble by a popular vote which gave the constitution the required two-thirds majority." Borgeaud, 143, 144. The submission of a complete constitution is the more customary procedure followed by conventions. See Jameson, 4th ed., 531-533; Borgeaud, 155-160; Oberholtzer, 118-120. The third method has been frequently employed where it was thought proper that some measure should be submitted independently of the whole constitution, and was used by North Dakota, South Dakota, and Washington in 1889, and by Oklahoma in 1907. See Arie v. State, 100 Pac., 23 (Okla., 1909). The Illinois convention of 1870 submitted eight propositions to the people, besides the question as to whether they approved the proposed new constitution. The Michigan constitution of 1850 was so worded as to present "a question of grave doubt as to whether a constitutional convention called under it had a right to submit a complete instrument and also at the same time, separate amendments embodying distinct issues which, upon adoption by the people, may become a part of such instrument." The convention clause of the constitution of 1908 was on this account so worded as "to provide a method for submitting special questions each presenting vital issues about which there might be great conflict of opinion to a vote of the electors, separate and apart from the instrument embodying the usual subjects regulated in a state constitution." Pamphlet submitting constitution of 1908, p. 66. For a discussion of the ordinance power of conventions

see pp. 104-117.

sence of such provision has been held to prevent the holding of a convention so that here the legislative process is the only one available for constitutional alteration.244

May not the legislative power of initiating amendments be used in such a manner as to propose a complete constitutional revision? This may be done where the legislature is not restricted as to the number or character of amendments

which it may propose, 245 but precedent is against the exercise of such power by a legislature, although in Rhode Island this is the only way of obtaining a complete constitutional revision. Two state legislatures have submitted to the people revised constitutions in the guise of amendments, but in both cases the legislative revisions were rejected. The Michigan legislature submitted a revised con

244 Where a constitution contains no provision for the legislative proposal of amendments it is well established that no such power exists. No effort has ever been made, so far as is known, upon the part of a legislature to submit a proposed amendment to the people unless such action was expressly authorized by constitutional provision, but the judicial attitude toward the amending process seems clearly to indicate that such action would not be given effect to by the courts. "The power to propose amendments . . . must be authorized by a special provision of the constitution. And when no such provision can be pointed out the power does not exist." Jameson, 4th ed., p. 622.

The pro

245 See pp. 132, 178 for a discussion of such restrictions. cedure above referred to may not be employed in New Jersey where the legislature may only propose “any specific amendment or amendments." Nor would it seem that complete constitutions may be proposed by the legislatures of any of the states whose constitutions require that each proposed amendment shall be submitted so that it may be voted upon separately. For dicta that legislatures may not propose complete constitutions see Livermore v. Waite, 102 Cal., 118, and Carton v. Secretary of State, 151 Mich., 340. The statement in the California case is clearly right as a construction of the California constitutional provisions, but under the Michigan constitution of 1850 the case was not so clear, and as suggested above, a complete constitutional revision was submitted to the people of Michigan by the legislature in 1874.