State ex rel. Postel v. Marcus

160 Wis. 354 | Wis. | 1915

Lead Opinion

The following opinion was filed January 12, 1915:

Mabshall, J.

Several questions are presented for solution in this case. If either were decided in respondent's favor it would be fatal to tbe appeal. The overshadowing and only one which, as will be seen, need be discussed, is whether the effort to amend sec. 1, art. Ill, of the state constitution, purporting to have been consummated in 1908, was' successful. If not, then, though it has seemed that full citizenship instead of mere declaration in that regard was a condition of capacity to exercise the right of suffrage and of eligibility under sec. 875, Stats., the fact has been otherwise, and the judgment must be affirmed.

While dealing with the subject suggested might be avoided at this particular time, it does not seem best to do so; but rather to face the situation and solve it. Much harm may come by uncertainty as to an important constitutional question being permitted to exist until affairs, public and private, shall have been adjusted to a condition apparently legitimately created by a legislative effort; — and that is most emphatically so when such condition rests on a purported but illegitimate change in the fundamental law. The policy and duty here is rather to embrace than to repel opportunity to remove such uncertainties.

No feature of the judicial function is of equal dignity with that which requires dealing with what is and what is not, really, a part of the constitution, of those things which may have been engrafted upon the original instrument. None requires an equal degree of care to reach a right conclusion and courage to pronounce it. The court may, and should, and must, on such great occasions, look to effects and consequences. Not do so with the thought of hesitation, much' less omission to do what duty to here-and to the public requires; but as an inspiration to reach the highest' attainable degree of certainty of the right being vindicated in the end.

The people, through their chosen instrumentalities and by subsequent direct approval, created the constitution. It was wisely conceived to’ be as necessary to the conservation of inherent rights as those rights are to a worth-while existence. In their wisdom, it' was thought, that it was of as much importance to have a delegated guardian to expound, apply, defend, and preserve their creation, — one independent of any other power but that of the creator, exerted in the particular way provided, — one as high up as possible above danger of being “swayed by fear, favor, affection, or hope of reward, by personal influence or public opinion,” — as to have such creation, itself. They made a supreme court to be such guardian, and provided for instrumentalities answerable only, except in a very narrow degree, to the sovereign, — the people.

So it happens that, upon being properly interrogated on the subject, it is as much the duty of this court, even after a proposed amendment to the constitution shall have apparently traversed the entire course from initiation to official publication as the law, and have been indorsed by a majority of the people, however large, to give judicial answer thereto of approval or nullification according to the facts.

Thus, as indicated, whether an effort to amend the constitution was effectual is a judicial, not a political, question. This coiwt ihferentially passed upon that matter in State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N. W. 785. Other courts have done so many times and the rule in that regard has been as clearly read out of our system as it could be if placed therein in the plainest language, looking thereto in its letter. Edwards v. Lesueur, 132 Mo. 410, 33 S. W. 1130; Gabbert v. C., R. I. & P. R. Co. 171 Mo. 84, 70 S. W. 891; Rice v. Palmer, 18 Ark. 432, 96 S. W. 396; Bolt v. Wurts, 63 N. J. Law, 289, 43 Atl. 144, 881; Secombe v. Kittelson, 29 Minn. 555, 12 N. W. 519; Oakland P. Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; Kadderly v. Portland, 44 Oreg. 118, 74 Pac. 710, 75 Pac. 222; Collier v. Frierson, 24 Ala. 100; State v. Swift, 69 Ind. 505; Trustees, etc. v. Melver, 72 N. C. 76; Sproule v. Fredericks, 69 Miss. 898, 11 South. 472; Crawford v. Gilchrist, 64 Fla. 41, 59 South. 963; Rich v. Board of State Canv. 100 Mich. 453, 59 N. W. 181; McBee v. Brady, 15 Idaho, 761, 100 Pac. 97; Ellingham v. Dye, 178 Ind. 336, 99 N. E. 1; State ex rel. McClurg v. Powell, 77 Miss. 543, 27 South. 927; McConaughy v. Secretary of State, 106 Minn. 392, 119 N. W. 408.

The gist of those decisions on the subject and decisions, in general, is quite tersely stated in Crawford v. Gilchrist, supra, thus:

“Under our system of constitutional government regulated by law, a determination of whether an amendment to the constitution has been validly proposed and agreed to by the legislature ... is necessarily required to be in a judicial forum where the constitution provides no other means of authoritatively determining such questions.”

Guided by the conception of duty indicated, it has been, with varying degrees of strictness, held by courts in general, and must be regarded as the written law by implication and the unwritten by long time universality of its declaration and application, that, unless the constitutional requirements shall have been satisfied as to manner of proposal and submission,— though a proposition to amend shall have run the full course of two legislatures, and been approved by a majority vote of the electors, and the change has been, by state agencies, placed in the official publication and recognized as having been legitimate for a considerable length of time, — the fundamental law remains the same, in fact, and it is the duty of the’court to so judicially declare, thus clearing away the cloud cast upon the constitution by the meaningless proceedings.

Doubtless it is true, as said in some cases, that the most important step in changing the constitution is a favorable vote by the electors. But that does not warrant the sovereign will being overruled as to any other step. Moreover, experience shows that, generally, exercise of the right reserved by the people to pass upon fundamental changes, is very difficult to secure, and that often a large proportion of the electorate gives no personal attention to the matter. It must be pre-snrned that such, difficulty was foreseen, and so, to meet' it, as far as practicable, tbe most careful provision was made by the people, not only to secure but to compel individual attention of legislators t'o, and participation by them in, considering every proposition to amend the constitution, — not only those of one legislature but of a second elected after opportunity by the people to know the purport of the proposal. It was, doubtless, supposed that the safeguards thus thrown around the matter would enable the people, upon their coming to the point of voting directly in respect to such a proposition, to have the benefit of that individual considerate judgment of the members of the legislature which they had provided should occur. So they, in effect, created a disability for themselves to efficiently pass upon a legislative proposition to change the state charter, in advance of the creation of the condition precedent they so carefully provided for their protection against danger of unwise attempts to change it.

A constitution which is to stand as the charter by which to test, to guard, and to afford practicable individual and collective enjoyment of, inherent rights, is not like a code of ordinary law. The distinction is well put in Jameson on Constitutional Conventions (4th'ed.) 84 — 86: .

“Ordinary laws áre enactments and rules for the government of civil conduct. . . . They are tentatory, occasional, and in the nature of temporary expedients. Eundamental laws . . . are expressions of the sovereign will in relation to the structure of the government. . . . Eundamental laws are primary, being the commands of the sovereign establishing the governmental machine, and the most general rules for its operation. Ordinary laws are secondary, being commands of the .sovereign, having reference to the exigencies of time and place resulting from the ordinary working of the machine. . . . Eundamental laws are either structural, or expressive of the settled policy of the state . . laid down in advance, for ages to come, whilst . . : ordinary laws are merely temporary expedients or adjustments.”

He might' well have added as an epitome of all: Eundamen-tal law is law made by the people in snch manner, at first, as they may determine to express sovereign will and, as to changes, made by them by the predesigned fundamental procedure. Ordinary written law is law made within constitutional restrictions by the legislature. The latter is necessarily subject to frequent changes to meet new conditions, or broaden or narrow old ones, which may be of a somewhat permanent or of quite a temporary nature. The former is, in the main, a direct sovereign declaration of principles evolved from long experience, conservative of, or necessary to, efficient vitality of the basic idea of human government and adaptable to conditions in prcesenti and so far into the future as human foresight can reach, thus rendering necessity for any change quite remote, and danger of any undue attempt in that regard likewise remote.

The danger1 mentioned was especially guarded against by the procedure designed to secure the most careful individual attention of the members of two legislatures to a proposal to amend the constitution before submitting it to the people, and to produce conviction in the minds of the voters before exercising their final judgment in the matter that the proposal had received that attention and, so, might well have reasonable doubts resolved in its favor.

That the people, until recent years, acted upon that theory is evidenced by the fact that but few attempts were made during the fifty years subsequent to the adoption of the constitution to amend it, and, in general, they were successful; while, latterly, another view has been taken, as shown by changes in great number' having .been acted upon by the legislature, no less than eighteen at the last session, and all which reached the ultimate step were disapproved at the polls. If that means that confidence in legislative consideration of such matters has been weakened, the record in this case shows sound basis for it; and to the end that there may be as efficient return to the safe methods which the framers of the constitution designed, the matter has been brought to the attention of the court none too soon.

Enough, perhaps, has been said to show a logical basis for the idea that the people created their own disability to pass by their votes upon a legislative proposal to amend the constitution in advance of its having reached the proper stage by a particular road.

The legislature in executing its function does not legislate, in a technical sense. The result does not need the approval of the governor. The duty is ministerial in character. There is good reason why the manner of procedure, so far as material — and the people must be presumed to have settled the question of what is material — must be followed. The power to make law, within fundamental limitations, is inherent in the division of the government formed for that purpose. It does not need any express grant, but does not include making or proposing fundamental law. The power to so propose is a special grant and must be exercised within the scope of the grant. Well said in Ellingham v. Dye, 178 Ind. 336, 99 N. E. 1, quoting with approval from Oakland P. Co. v. Hilton, 69 Cal. 479, 11 Pac. 3:

“The power given to the legislature is a grant of power. It has it not without the constitutional provision. The grant is given to be exercised in the mode conferred on the legislature by the constitution. It is so limited by the people acting in the exercise of their highest sovereign power. In such case, the mode is the measure of the power. Its action outside of the mode prescribed is as much a nullity as that of a board of supervisors of a city outside of the statute defining its power in regard to the grading of a street. The rule . . . is .just as applicable here, for the constitutional provision is a statute ordained by a people as part of its paramount law: . . . The legislature, acting outside of the constitution, is without jurisdiction and its action null.”

Much might be written, in a general way, leading up to and as a firm basis for consideration of the particular question we are called upon to decide; but, perhaps, enough has been said in a prefatory and basic way. Were the principles involved, or as treated by the courts, new, on account of their importance now, particularly, because of the possible results of our conclusion upon other attempts to change the fundamental law, we should feel justified in going much further.

We may say, in passing, that it is believed the possible results mentioned do not extend backward many years. Until confronted with the necessity for dealing with such a situation as the one here presented, and coming to appreciate the underlying principles of fundamental law and the importance of submitting to be ruled thereby, the idea that the people, by their own creation, deliberately put such disability upon themselves to change the result of their original effort that their favorable vote upon a legislative proposal cannot lift the bar unless such proposal reaches them in the prescribed way, seemed quite strange and, may be, to some, rather illogical; but the contrary is the fact, and will become manifest to one who examines the subject carefully. As said in Dllingham v. Dye, supra:

“The idea of the people thus restricting themselves in making changes in the constitution, is original, and is one of the most signal evidences that amongst us liberty means not giving rein to passion or to the thoughtless impulse; but the exercise of power by the people for the general good and, therefore, always under restraints of law.”

Perhaps there is no greater danger to worth-while liberty and equality than that of undigested, undemonstrated by experience, ideas of well-meaning innovators and idealists, being, unwittingly, attached to our system of government with the power of inseparability which inheres in fundamental law. The constitution has, in the judgment of its framers, within itself, the most efficient protection practicable against such danger; hut the most perfect instrumentality that human ingenuity can invent, is useless if not given proper direction to do its work by the contemplated human vitalizing force.

Prom 1882 to the attempt in question to change sec. 1, art. Ill, of the constitution, it, so far as relates to this case, was worded thus :

“Section 1. Every male person, of the age of twenty-one years or upwards, belonging to either of the following classes, who shall have resided in the state for one year next preceding any election, and in the election district where he offers to vote such time as may be prescribed by the legislature, not exceeding thirty days, shall be deemed a qualified elector at such election:

“1. Citizens of the United States.

“2. Persons of foreign birth who shall have declared their intentions to become citizens conformably to the laws of the United' States on the subject of naturalization.”

After such attempt sub. 2 took this form in the official publication :

“Persons of foreign birth who, prior to the first day of December, A. -D. 1908, shall have declared their intentions to become citizens conformable to the laws of the United States on the subject of naturalization, provided that the rights hereby granted to such persons shall cease on the first day of December, A. D. 1912.”

The recorded history of such change may be thus told: At the legislative session of 1905, a. resolution was introduced in the Assembly to amend such section and wás entered on the Assembly Journal thus :

“Jt. Res. No. 16, A.

“Joint resolution striking out paragraph 2 of section 1, article 3, of the constitution of the state of Wisconsin.

“Resolved by the assembly, the senate concurring, that section 1 of article 3, of the constitution of the state of Wisconsin, he amended by striking out paragraph 2 of said section.”

In due course, the resolution was reported by the committee to which it was referred with recommendation for passage of a substitute. The nature of the substitute was not entered upon the journal. In further proceedings to final action, that situation was not changed. In the various steps the journal record was confined to giving the number of the resolution, its origin, and reference thereto as a resolution “providing for an amendment to section 1 of article III of the constitution, relating to electors.” The original title was discarded after the first entry. Under the substitute title and the committee amendment, very materially changing the original proposition, the resolution was adopted in the Assembly by the requisite vote. Nothing in respect thereto except the substitute title was spread upon the record.

Upon the action of the Assembly being reported to the Senate, it was thus entered on the Senate Journal: “Jt. Res. No. 16, A. Joint resolution providing for an amendment to section 1 of article 3 of the constitution relating to electors.”

Further proceedings were recorded by similar or less definite journal entries. The finality was recorded under this journal entry: “Jt. Res. No. 16, A., was read a third time and concurred in. The ayes and noes being required, it was decided in the affirmative: Ayes, 22; noes, I; absent or not voting, 3,” followed by the vote in detail.

At the legislative session of 1907, a proposition purporting to be the one agreed upon before was again considered. The first step was recorded under this journal entry of Assembly proceedings: “Read first and second times and referred. Jt. Res. No. 47, A., by Mr. Schauer, to committee on Elections.” Further proceedings until the finality were recorded under a mere reference to “Jt. Res. No. 47, A.” In its course an amendment was proposed and adopted without any journal entry being made, except this: “Substitute Amendment No. 1, A., to Jt. Res. No. 47, A.”

Tbe last journal entry is as follows:

“Jt. Res. No. 47, A. Joint resolution to amend section 1 of article III of tbe constitution, relating to electors.

"Resolved by the assembly, the senate concurring, That subsection 2 of section 1, of article III of tbe constitution of tbe state of Wisconsin, be amended so as to read as follows: 2. Persons of foreign birth wbo, prior to the first day of December, 1908, shall have declared their intentions to become citizens conformable to tbe laws of tbe United States on tbe subject of naturalization, provided that tbe rights hereby granted to such persons shall cease on tbe first day of December, A. D. 1912.

“Was read a third time at length.

“Tbe question was, Shall the resolution be adopted ?

“The ayes and noes being required, it was decided in the affirmative: Ayes, 86; noes, 4; absent or not voting, 10. . . .”

The first record in the Senate is this: “Jt. Res. No. 47, A.,” with a statement,of the committee reference.

In due course and without any more suggestive journal entry, this appears: “Substitute amendment No. 1, S., was offered by Senator Martin and adopted. The question was, Shall Jt. Res. No. 47, A., as amended, be concurred in? The ayes and noes being required, it was decided in the affirmative: Ayes, 22; noes, none; absent or not voting, 11,” followed by a statement of the vote in detail.

Further record in the Assembly appeal's under various repetitions of “Jt. Res. 47, A.,” up to the last showing concurrence in the Senate substitute, no indication appearing of the nature thereof.

Does the procedure thus had satisfy sec. 1, art. XII, of the constitution which provides as follows:

“Any amendment or amendments to this constitution may be proposed in either house of the legislature, and if the same shall be agreed to by a majority of the members elected to each of tbe two bouses, such proposed amendment or amendments shall be entered on their journals, with the yeas and nays taken thereon, and-referred to the legislature to be chosen at-the next general election, and shall be published for three months previous to the time of holding such election; and if, in the legislature so next chosen, such proposed amendment or amendments shall be agreed to by a majority of all the members elected, then it shall be the duty of the legislature to submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe. . . .”

It is significant that if the proposition “shall be agreed to,” etc., it “shall be entered” on the journals of the two houses, “with the yeas and nays taken thereon.” That means that the proposition as agreed to must be so entered, and that the agreement is a condition precedent to the mandatory requirement as to entry on the journals. If entered at some time during the progress of the proceedings with such reference thereto on such associate or connecting entries as to show clearly that, as so entered, it was agreed to by a recorded yea and nay vote, it would doubtless be sufficient; but since the language seems to suggest association of the entry with the vote, the better way would be, even though the proposition were entered when introduced, to re-enter it in connection with the yea and nay vote. That is, really, the only absolutely safe way in case of changes having occurred after the introduction and, most especially, where the action of remodeling affords no information of the nature of the changes.

While the requirements at the second session do not include any express direction as to entering on the journals of the two houses, the proceedings otherwise being the same, the safe way, — the only really careful way, — is' to make the journal entries, regardless of the initiatory action, by recording the proposition in extenso, in connection with the record of the essential yea and nay vote, thus making a complete record of the proposition on the journals of the two houses at each session, in connection with tbe record of the yea and nay vote, in respect- thereto.

The course indicated would observe the constitutional command with technical accuracy. Why not so follow it in a matter of such dignity as that of taking administrative steps, pursuant to granted power, to enable the people, intelligently and with full assurance of the judgment of the legislature, to act on such- a very important matter as changing the fundamental law ? Nothing could evidence more plainly a growing want of appreciation of the need of constitutional restraints than progressive disrespect for, or negligence in respect to, the wise safeguards erected to secure a high degree of deliberation and care in making fundamental changes. When such progression reaches the point of treating the subject, so far as appears by the official history, with no more care than is devoted to the most ordinary legislation, it is well to open wide our sensibilities to that admonishment of the fathers: “The blessings of a free government can only be maintained ... by frequent recurrence to fundamental principles.”

¡■\ The words “entered on their journals” must mean entered as agreed to, — sometime, at least, at the first session, on the journals of each house. The legislative practice when the constitution was adopted was for each house to keep a journal history of its proceedings. The words “their journals” are too plain to be open to construction. Any attempt to do so by reading out of the language the meaning that an entry on the journal of one house is an entry “on their journals” because the two make but one legislature, and each branch has the benefit, day by day, of the journal of the other, would be an arbitrary way of evading the plain meaning the framers of the constitution had in mind.

We cannot well avoid concluding that, at the first session for acting upon a proposition of the kind under consideration, no efficient action can occur without entry of it, as agreed to, upon the journal of each house and, if a sufficient entry be made at first, in case of any change of 'the proposition, there must be an entry showing the nature thereof, so that, in the end, the journal will exhibit the amendment as finally agreed to by the yea and nay vote.

We are inclined to hold that the journal entries with the fulness suggested at the second session,' are not essential, because the express requirement for the first session is not repeated as to the second. However, the spirit of the initiative is so carried forward to the end, that we have no hesitancy in holding that the scrupulous care which.should be exercised in such a matter, ought to efficiently ‘admonish spreading the proposition, in extenso, on the journal of each house at each session, in connection with the yea and nay vote thereon.

■ In the great number of instances where the courts of this country have treated the subject under 'discussion, there is no feature so often and so fully discussed as that involved in the word “entered.” Many have held expressly or in effect, to a broad comprehensive meaning, .requiring full recording of the proposed amendment in such close connection with or relation to the yea and nay vote as to show the precise matter acted •upon. The following are illustrations: Koehler v. Hill, 60 Iowa, 543, 14 N. W. 738, 15 N. W. 609; McMillen v. Blattner, 67 Iowa, 287, 25 N. W. 245; State ex rel. Bailey v. Brookhart, 113 Iowa, 250, 84 N. W. 1064; Oakland P. Co. v. Hilton, 69 Cal. 479, 11 Pac. 3 (overruled later); Ellingham v. Dye, 178 Ind. 336, 99 N. E. 1; McBee v. Brady, 15 Idaho, 761, 100 Pac. 97; State ex rel. Stevenson v. Tufly, 19 Nev. 391, 12 Pac. 835; Kadderly v. Portland, 44 Oreg. 118, 74 Pac. 710, 75 Pac. 222; Prohibitory Amendment Cases, 24 Kan. 700; Worman v. Hagan, 78 Md. 152, 27 Atl. 616; Nesbit v. People, 19 Colo. 441, 36 Pac. 221; Oakland P. Co. v. Tompkins, 72 Cal. 5, 12 Pac. 801; State ex rel. Adams v. Herreid, 10 S. Dak. 109, 72 N. W. 93; Cudihee v. Phelps, 76 Wash. 314, 136 Pac. 367.

It will be seen upon examination that the decisions in Iowa bead those bolding tbat “entered” means spread in extenso; tbat tbe second Oakland Paving Company Oase in California, ratber leads as to tbe idea tbat entry of tbe title on tbe journals satisfies tbe constitutional requirement; and tbat tbe Kansas case goes to tbe length of bolding tbat substantially all requirements are directory except tbe one that there shall be a yea and nay vote on tbe proposition in each bouse at each of tbe two sessions, and tbat there shall be approval by a majority vote of tbe electors voting on tbe same. Only a few of tbe large number of cases at band have been cited. It is believed tbat substantially all to be found in tbe books have been examined.

Nothing further need be said to demonstrate tbat there is an irreconcilable conflict in tbe authorities. In each instance of tbe birth of a theory upon which an amendment to tbe constitution can be supported notwithstanding more or less looseness in respect to following tbe fundamental mandate as to procedure, a line of logic was adopted which met a difficult situation and made a troublesome precedent. In tbat way constitutions may easily be weakened or superseded by judicial construction or determination as to what is directory and what is mandatory, what is material and vital and what is immaterial and may be omitted. Tbat may be carried so far a¿ to not only weaken tbe fundamental law but breed disrespect for a constitutional system. ¡

If tbe legislature may disregard tbe letter of the fundamental law, in its most material particulars, and tbe court may ingeniously bend its provisions or say tbat it means one thing when, in its letter, it means another, and thus adapt it to a dangerous legislative tendency to regard its provisions lightly or not at all, — certainly, there is great danger' of its failing to fully accomplish tbe great purpose of tbe people in tbe beginning. Tbat purpose should be sturdily adhered to until tbe people see fit, in tbe way designed therefor, to indicate tbat something different is to prevail.

What right has tbe court to say tbat any part of tbe constitution is immaterial or directory, or that its plain reasonable words do not mean just wbat would be ordinarily supposed ? It seems that courts should presume the people meant just what they said in using the language: “If the same shall be agreed to . . . such proposed amendment or amendments shall be entered on their journals.” We have no more right to change it than the legislature. It would be much more unbecoming here to attempt it than for the legislature, purposely, or negligently, to overlook it.

It would extend this opinion to a very great length to take up and discuss, even a goodly part of, the decisions respecting the subject here dealt with. If we were entirely free to choose the position which seems to us most logical, with the plain letter of the constitution before us, we should incline to the declaration in State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N. W. 785: No amendment can be made to the constitution without complying with the provisions of sec. 1, art. XII, both in the passage of the amendment by the legislature and in the manner' of its submission.

True, the particular matters material now were not when the cited case was decided, but the principle involved is the same now as then. Adhering to that, as it seems we ought, we cannot follow Prohibitory Amendment Gases, 24 Kan. 700. Indeed, we quite agree with the expression of the Cali-fornia court, though later it was weakened there, somewhat, that “the reasoning by which the learned court reached the conclusion it did is not based on any sound legal principles, but contrary to them. Neither the argument nor the conclusion can command our assent or approval. The argument is illogical, and based on premises which are without any sound foundation, and rest merely in assumption.”

We must reason from these premises, which are recognized by all the eases in the first class and nearly all in the second, though they commonly quote the Kansas case without appearing, always, to appreciate the extent of it.

In proposing an amendment to the constitution the legislature does not exercise its legislative function. The authority given by the people to the legislature to propose amendments to the fundamental law is independent of its inherent power to make law. It is a grant of power, ministerial in character. Since the power rests in grant, and not inherency, it is measured as to extent by the terms of the grant.

The method provided by the constitution for executing the grant of power to propose amendments to the constitution,, is •with reasonable strictness, “binding upon the people and the legislature.”

It must be presumed that every feature of the grant of power to the legislature to propose amendments to the constitution, was deemed by the people in making such grant to be material, and neither the legislature nor the court has jurisdiction to ignore it.

The people featured the manner of executing the grant of power to propose amendments to the constitution, as they did, to secure deliberate individual legislative judgment with precise knowledge of the matter to be passed upon and for assurance that when they should come to act upon the matter at the polls they would have the benefit of such judgment for guidance.

Standing upon such premises the conclusion easily follows that the decision in State ex rel. Hudd v. Timme, supra, though the matter was then little discussed and no authority was cited, is sound.

To hold that a mere identifying reference which does not, on inspection, suggest the purport of an amendment, satisfies the mandate as to entry on the journals, is to emasculate the particular provision most effectually.

The word “entered” must have a sensible construction to carry out the intent with which it was used, not an unnatural one — under the circumstances, justified only because of its being within the broad scope of the word — to meet the necessities of a particular situation. Ear better that such a situation be judged as involving fatal infirmity tlian that a basic principié tbe people incorporated into the fundamental law be superseded and a bad precedent created, fruitful of future mischief.

With all proper deference to the eminent jurists who have held that an identifying journal reference to a proposed amendment satisfies the constitutional requirement, we cannot so hold. We could not as an original proposition, nor without overruling State ex rel. Hudd v. Timme, supra. If such a reference will suffice, what is the necessary scope of it? Will a mere resolution number or a title, neither of which the constitution requires, do?- If nothing special was intended by the language chosen to express a definite material matter, why was not the procedure left to be governed by ordinary legislative rules ? If a mere identifying journal reference, such as to number of the resolution, with, perhaps, a brief suggestion that the purpose is to ámend the constitution, or a particular part thereof, which might be made in the course of legislative consideration long in advance of the precise formulation agreed upon, why the particular language, “if (as) agreed to it shall be entered,” etc. ? Why select of the many meanings reasonably ascribable to the word “entered” the one which would often be meaningless as regards .the real purpose the creators of the constitution had in mind, yet would, in a sense, satisfy the term, in preference to one which would evidence the fact as to whether the members of the legislature had in mind in taking the requisite yea an,d nay vote, the precise proposition acted upon, such as “to inscribe, to enroll, to enter with particulars of an account ?” Webster, New Internat. Diet. “To cause to be inscribed or enrolled.” Cent. Diet. Thus, notwithstanding some holdings to the contrary, it seems clear that1 if the constitution is to be upheld according to the design of it, the step mentioned as to the particular matter must be followed with substantial accuracy. That, as indicated, requires an amendatory proposal, at tbe first legislative session to be, as agreed to, spread upon tbe journal of eacb bouse in snob connection as to evidence that, in snob form, it was tbe subject of a successful yea and nay vote. Not, necessarily, that it must be so recorded wben first suggested, but at some time before, or in connection with the record of tbe vote, so with reasonable definiteness, to connect tbe two matters.

Tbe result of tbe great labor devoted to tbe subject of bow best to amend a constitution without unduly weakening tbe necessary stability of tbe fundamental law, has been treated rather too lightly by some courts. They seem to have failed in appreciation of tbe fact that the method of amendment incorporated into most of tbe constitutions of this country is but a crystallization “of tbe accumulated wisdom of tbe ages.” No part of it was deemed otherwise than matter of substance. In Jameson’s Constitutional Conventions (4th ed.) § 529, it is well said that tbe problem of tbe constitution makers in this field is “one of tbe most difficult in our whole system, to reconcile tbe requisites for progress with tbe requisites for safety.” Tbe particular procedure by which the legislature, in lieu of a convention, is given power to propose fundamental law, indicates tbe sovereign conception of “tbe requisites for safety.”

In tbe light of such distinguished commendation of Mr. Jameson’s work as that of Judge Cooley and others of significant eminence, bis statement of tbe following, cited from tbe Iowa court with State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N. W. 785, as an illustrative authority, is entitled to a place here:

“Wben tbe existing constitution prescribes a method for its own amendment, an amendment thereto, to be valid, must be adopted in strict conformity to that method; and it is tbe duty of courts, ... to inquire whether, in tbe adoption of tbe amendment, tbe provisions of tbe existing constitution have been observed, and, if not, to declare the amendment invalid and of no effect.” § 574s.

Tbe learned, text-writer quoted from gives special attention to tbe fact that tbe legislature, in proposing to the people a change in tbe fundamental law, does not exercise legislative power. As before indicated, such power is strictly ministerial in character, — authority delegated by tbe people within precise limitations, — therefore it must be exercised within its prescribed scope and in the manner directed. That is apparent on principle and from the very nature of the matter. This court has not spoken on the subject prior to this, but in many other jurisdictions the subject has been treated, and the nature of the authority has been, all along, the guide to judicial footsteps. McBee v. Brady, 15 Idaho, 761, 100 Pac. 97; Oakland P. Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; Livermore v. Waite, 102 Cal. 113, 36 Pac. 424; Koehler v. Hill, 60 Iowa, 543, 14 N. W. 738, 15 N. W. 609; Collier v. Frierson, 24 Ala. 100; State v. Powell, 77 Miss. 543, 27 South. 927; State v. Cox, 8 Ark. 436; Edwards v. Lesueur, 132 Mo. 410, 33 S. W. 1130; Warfield v. Vandiver, 101 Md. 78, 60 Atl. 538; Miller v. Johnson, 92 Ky. 589, 18 S. W. 522. So exercise of this delegated ministerial power must be viewed as in other cases of like grants. Validity of activity is dependable upon keeping within the scope of the grant. A fundamental restraint upon legislative activity within the lawmaking field, is a limitation of power to make law. A delegation of authority to propose amendments, is a grant of power. The efficiency of every act under the latter is dependable upon the integrity of the grant being vindicated in performance.

Thus, we reiterate, it happens that the people, themselves, have no authority to pass upon the question of whether a legislative proposal shall be written into the fundamental law, unless it shall have been submitted to them in the manner they prescribed in exercise of their original right to create a form of government. It follows, logically, that it is of no avail for the people by their votes to approve a proposed change of the constitution, if it shall not have been submitted in such manner as they in their sovereign authority provided. Otherwise such approval, however emphatically pronounced, does not authorize writing the proposition into the basic law.

Referring back to the history of the proceedings in the particular case, fatal infirmity therein is plain. To restate in brief: The proposal at first was to strike out par. 2 of sec. 1 of art. III. Thereafter that was discarded and the body was materially changed. The new title did not disclose the nature of the proposal nor was the substitute entered. That condition persisted to the end. A like defective record appears on the Senate Journal. At the second session the proposal was first offered in the Assembly and read first and second times without any record of title or subject matter being made. After adoption of an amendment without any formal record showing how it changed the original proposition, the resolution was brought to a vote as a proposition to amend sec. 1, art. Ill, of the constitution relating to electors, and the proposal, in extenso, was entered, but it does not check up with any previous journal entry. In the Senate the proposal was amended and concurred in; but how, as finally agreed to, it conforms to anything which previously was voted on, does not appear of record.

It is thought that the situation described hardly satisfies even the so-called liberal rule, outside of the Kansas Prohibitory Cases. They, as we have seen, gave no greater dignity to the constitutional requirement as to the journal entries, than that of mere directory regulations.

Whether an amendment of the constitution purporting to have been adopted, actually incorporated into the published fundamental law, and acquiesced in for a great length of time, characterized by important public and private interests having grown up on the faith of its having been duly proposed and approved, — -would be proof against some such departures as those above indicated, need neither be now asserted or denied. A condition might well he imagined, created by long continued unquestioned, and supposed unquestionable state of the fundamental law and such adjustment of public and private matters thereto, that a judicial determination of invalidity would be fraught with calamitous consequences, calling into activity all the reserve power, so to speak, of the court to legitimately deal with it and prevent such penalty. The court reasoned along that line, successfully, in Prohibitory Amendment Gases, 24 Ran. 700, as a supplementary support for the main ground of the decision. The California court, after rejecting both grounds, in Oakland P. Co. v. Hilton, 69 Cal. 479, 11 Pac. 3, came very near, if not quite to the point of adopting the second ground, later, in Oakland P. Co. v. Tompkins, 72 Cal. 5, 12 Pac. 801. The first ground would seem to be the more logical in circumstances justifying its application.

It may be that principles exist appropriate for solution of such a situation as the one suggested. One would not care to venture, unnecessarily, the decision that there is none which would apply to the exigencies of such a case. The principles of justice which seem to have precise limitations as to all ordinary situations, are often expansible to cope with great emergencies to the end that the very safeguards created to conserve rights be not used so as to destroy them. It were better, it seems, to accord to words their common, ordinary meaning, and which in all fair probability was in mind in the particular instance, and let the natural consequences follow, of to lay hold of some principle broad enough to save the latter without sacrificing the former and usurping the functions of constitution making. The fact that calamitous consequences will follow from obedience to law, does not excuse its violation. A law without a penalty for its violation is of no more strength than a rope of sand.

We should say, as companion to the foregoing, that if the emergency course were efficiently open in any case of this sort, lapse of more time and a fundamental change affecting the form or essentials of the state government in far greater degree, and consequences of a much more serious nature, than in the particular case, would be required to justify resorting to any extraordinary application of principles to avoid the results of a manifest inefficient effort to amend the constitution.

It follows from what has been said that sub. 2, sec. 1, art. Ill, of the constitution, was not changed by the attempted amendment thereof, culminating in the vote on the proposal to that end at the November election, 1908. It is now as before, to wit: “Persons of foreign birth who shall have declared their intentions to become citizens conformably to the laws of the United States on the subject of naturalization.” Therefore respondent was eligible to the office in question when this action was commenced, and the judgment in his favor was properly rendered.

By the CouH. — The judgment is affirmed.

The following opinion was filed January 15, 1915:

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Concurrence Opinion

WiNsnow, C. J.

(concurring). I agree with the result reached for the following reasons: The people provided in the constitution that any proposed amendment to the constitution should be agreed to by two successive legislatures before being submitted to the people, and that it should be entered on the journals of both houses by the first of such legislatures. It cannot be said that this last requirement was supposed to be trivial or unimportant; it was one of the means deemed essential to insure the greatest publicity and prevent anything like railroading an amendment through. This was not done with the amendment under consideration. The amendment, therefore, was not adopted in the manner prescribed by the people. In holding that the command of the constitution must be obeyed, this court simply performs its plain duty.

On February 27, 1915, tbe court ordered that a rehearing be had in the action upon the following questions only:

1. In view of the history of constitutional amendments in the past, should it now be held that a constitutional amendment must' be spread at length in its final form upon the journals of hoth houses at the first session ?

2. If not, should it be held that it is sufficient that it be entered at length in its final form upon the journal of one house and so referred to on the journal of the other house as to be clearly identified ?

3. Is it sufficient if the journal entry in either of the above cases simply states the substance of the amendment ?

4. Can a journal entry of a proposed amendment by title only be considered sufficient in any event ?

It was further ordered, among other things, that the attorney general be invited to intervene and file a brief and participate in the argument as amicus cuños.

The cause was reargued on March 6, 1915.

Otto Kuenzli, for the respondent.

Upon the invitation of the court there was a brief by the Attorney General and Winfield W. Gilman, assistant attorney general, amici curiae, and oral argument by Mr. Gilman.

By request of the governor, B. B. Goggins and George Lines also appeared as amici curias, filed separate briefs, and argued the case orally.

On March 23, 1915, the decision of the court was announced as follows:

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Rehearing

Pee CueiaM.

Upon the argument of the rehearing ordered by the court, it is held:

. 1. That the amendment to sec. 1 of art. Ill of the constitution in question in this case was legally adopted.

2. That notwithstanding that fact the judgment in the present case was rightly affirmed, because the defendant within a reasonable time and before the entry of judgment in this case became a fully qualified citizen of the United States.

An opinion will be filed at an early date more fully setting forth the grounds of the court’s holding.

At the same time there was also filed the following memorandum, prepared by

Marshall, J. The court, by a majority of the justices consisting of the Chief Justice, Justices Siebecher, KebwiN, and BaeNes, having announced a decision to the effect that, in a legislative proposal of an amendment to the constitution the proposition need not, necessarily, be spread, even in substance, on the journal of either house at either session, — I dissent therefrom and adhere to the decision first rendered to this extent:

The constitution as administered so long that the manner thereof should be regarded by force of practical construction to indicate the intent of the framers of the fundamental law, requires a proposal to amend the constitution to be entered in substance on the journal of the house of origin at the first session and be referred,to upon the journal of the other house in such manner as to clearly connect such substantial entry with such reference; that an entry by mere number or number and title is not sufficient nor is an entry in extenso necessary but that a proposal which does not at least conform as regards the journal history to the indicated necessity cannot become a part of the fundamental law; so the instant proposal did not become such.

An opinion at some future time will be filed by one, at least, of the justices concurring in the foregoing.

I am authorized to say that Justices TimliN and ViNje concur with the writer in the foregoing memorandum.

The following opinions were filed April 13, 1915:

WiNsnow, C. J.

The importance of the constitutional question in this case, and the possible adverse effect of the decision upon tbe validity of many other important amendments to tbe constitution, led us, in tbe absence of a motion for re-bearing by tbe defeated party, to order a rebearing of our own motion, in wbicb tbe attorney general was invited to participate on bebalf of tbe state. Our object was that we might assure ourselves that we were right, or that we might ascertain and correct our error, if error there was, before tbe case passed beyond our control. “A man should never be ashamed to own be has been in tbe wrong, wbicb is but saying in other words that be is wiser today than be was yesterday.”

Tbe reargument has now been bad and it is but fair to tbe counsel who participated in it to say that we have gained much light from tbe briefs and arguments presented. Tbe chief proposition under discussion on tbe rehearing was the proposition declared in tbe former opinion to tbe effect that, unless tbe supposed amendment in its final form be entered at large at some time during tbe first session upon tbe journals of both bouses, it cannot be held to have been legally adopted, notwithstanding all other required steps be taken in accordance with tbe commands of tbe constitution.

Is this proposition sound ?

As an original question, we still think that such was probably tbe intended meaning of the words used in sec. 1 of art. XII of tbe constitution. That section says that if tbe proposed amendment be agreed to by a majority of tbe members elected to each of tbe two bouses it “shall be entered on their journals, with tbe yeas and nays taken thereon.”

In view of tbe evident desire to give publicity and accuracy to tbe proposed amendments and prevent an amendment from sailing under false colors or passing without complete knowledge of its provisions, it seems very reasonable to suppose that tbe word “entered” here was intended to mean entered at length. This, however, is not its necessary meaning. If so, it would never be necessary to say entered at length, or at large, or in extenso, as we frequently do where we wish to leave no doubt as to our meaning. It may be admitted that it is most frequently used in this latter sense. Webster’s International Dictionary gives tbis definition: “To inscribe, enroll, to record; as to enter a name or a date in a book, or a booh in a catalogueOf course, tbe entry of a book in a catalogue means that tbe title is entered, — not tbe book copied at length, and so also a book is said to be “entered” under tbe copyright laws of tbe United States when its title page has been filed in tbe proper office. A judgment- is “entered” in tbe circuit court journal by noting only memoranda of its contents. Sec. 2901a, Stats. Other examples of the use of tbe word in tbe sense of a mere memorandum will readily occur to any one.

So tbe word is plainly one not absolutely certain and fixed in its meaning, but a word which is most frequently used in one sense but not infrequently in another sense, and hence is open to construction. In considering tbe proper meaning to be attached to such words, tbe principle is familiar that preponderant weight will frequently be given to tbe practical construction given to them for a long series of years by those departments of tbe government which have been charged with the duty and responsibility of administering or giving effect to them. This proposition has been applied in the construction of another command of this very section of the constitution. State ex rel. Hudd v. Timme, 51 Wis. 318, 11 N. W. 785.

It is to this question that we have devoted our attention upon this re-examination of the case: Have the legislative and executive officers of the government in administering this section of the constitution given a practical construction to the words in question which is now entitled to controlling weight ?

This question was not raised or passed upon in the trial court. The judgment there was based upon grounds which will be later considered, and went upon the assumption that the amendment was legally adopted. It is true that the respondent’s attorney raised the question in this court in support of tbe judgment and printed in bis brief excerpts from the journals of the two houses showing the failure to spread the amendment at large on the journals of the houses. No-attempt was made by the appellant, however, to meet the proposition by showing how the word “entered” had been practically construed in the past, and it seems that no adequate examination of the question was made here. Such examination has now been made, however, and we are in possession of its results.

Erom that examination it appears that of the twenty-five amendments to the constitution which have been proposed and supposedly duly adopted since the organization of the state, only six have been entered at large upon the journals of both houses at the first legislative session; twenty-two out of the twenty-five were entered at large on the journal of the house where they respectively originated; two were entered in substance as first introduced, i. e. the substance of the proposal was briefly stated; and one was not entered either at large or in substance but only by number in both journals.

The amendment which is now before its was one of the two above referred to as entered in substance in the form in which it was first introduced. It was introduced in the Assembly February 8, 1905, the journal entry being as follows:

“Jt. Res. No. 16, A.

“Joint resolution striking out paragraph 2 of section 1, article 3, of the constitution of the state of Wisconsin.

“Resolved by the assembly, the senate concurring, That section 1 of article 3, of the constitution of the state of Wisconsin, be amended by striking out paragraph 2 of said section.

“To committee on Judiciary.”

Turning to the original resolution as found in its appropriate envelope filed with the secretary of state at the close of the session, we find it to read as follows:

“Joint resolution No. -. Resolved, by the Assembly, the Senate concurring, that Section 1 of Article 3 of the constitution of tbe State of Wisconsin be amended by striking out paragraph 2 of said section.”

On May 11th it appears by the Assembly Journal that it was reported back by the committee with substitute amendment. The substitute was not entered at large on the journal, but, again consulting the original documents in the envelope above referred to, we find it there indorsed on the outside, “Sub. for joint resolution No. 16, A., providing for an amendment to Section 1 of Article III of the constitution relating to electors.” It reads as follows:

“Substitute for joint resolution No. 16, A., providing for an amendment to Section 1 of Article III of the constitution relating to electors.

“Resolved by the Assembly, the Senate concurring, that Subsection 2 of Section 1 of Article III of the constitution of the State of Wisconsin be amended so as to read as follows: 2. Persons of foreign birth who, prior to the first day of December, A. D. 1908, shall have declared their intentions to become citizens conformable to the laws of the United States on the subject of naturalization, provided that the rights hereby granted to such persons shall cease on the first day of December, A. D. 1912.”

It further appears by the Assembly Journal that this substitute (referred to by number and title only) was, on May 16th, ordered engrossed and read a third time, on May 22d adopted by yea and nay vote entered on the journal, and on May 26th messaged to the Senate. At the time of its adoption it was entered on the journal by number and title only, thus: “Jt. Res. No. 16, A. Joint resolution providing for an amendment to section 1, of article 3 of the constitution, relating to electors.”

It appears by the Senate Journal that it was there entered by number and title only and was concurred in by aye and no vote entered on the journal June 13, 1905, and messaged to the Assembly as concurred in June 14, 1905.

Here ends the history of the resolution at the first session. It was not entered at large or in substance npon tbe journal of either bouse in tbe form in wbicb it was finally passed, but only by number and title.

In 1907 tbe resolution as passed at tbe previous session was introduced in tbe Assembly as joint resolution No. 47, A., on February 13th. It bad tbe same title as in 1905, but tbe word “conformable” appeared as “conformably,” tbe Roman numeral III was changed to 3, and two or three other slight inaccuracies appeared, not affecting in any way tbe meaning, such as tbe use of a capital letter instead of a small letter and tbe insertion of tbe word “Section” before tbe figure 2 at tbe beginning of tbe proposed subsection.

Tbe resolution was referred to tbe committee on Elections, was reported back March 25th for passage with amendments (simply correcting tbe immaterial variances above noted), and adopted by yea and nay vote April 10, 1907, at wbicb time it was entered in tbe Assembly Journal at large in its final form. It was messaged to tbe Senate April 11th and entered by number and title only. On June 11th tbe following wa^ adopted by tbe Senate as'a substitute amendment and entitled “Sub. Amd. No. 1, S., for Jt. Res. No. 47, A.:”

“Joint Resolution

“To amend Section 1 of Art. Ill of tbe constitution relating to electors.

“Whereas at tbe biennial session of tbe legislature for tbe • year 1905 an amendment to tbe constitution of this state was proposed and agreed to by a majority of tbe members elected to each of tbe two bouses, wbicb proposed amendment was in tbe following language:”

[Here follows tbe joint resolution exactly as passed in 1905.]

“Therefore resolved by tbe Senate, tbe Assembly concurring, that the foregoing proposed amendment to tbe constitution be and tbe same is agreed to by this legislature.”

This so-called substitute was entered on tbe Senate Journal by number and title only, and adopted by.a duly recorded yea and nay vote on June 11th and messaged to the house, where it was again entered by number and title and concurred in by yea and nay vote.

The substitute really added nothing and changed nothing. The fact is that the identical resolution adopted by both houses in 1905 was re-adopted by both houses in 1907. There is no claim that it was not properly submitted to the people and properly adopted at the general election in 1908. So it is certain that the only defect in -the proceedings which can be claimed to exist is the failure to enter the resolution at large in its final form on the journals of the two houses at the session of 1905.

Is this a defect, and, if so, is it fatal in a case where the resolution is accurately referred to by number and title upon both journals and where its contents are made entirely certain by reference to the original records as filed in the office of the secretary of state? This is the question which we must fairly meet.

We are all of opinion that, in view of the legislative history of the constitutional amendments in the past, it should not now be held that entry at large upon the journals of both houses is imperative. All agree that there has been a long continued practical construction of the word “entered” by the legislative branch of the government, which forbids such a holding at the present time, consequently the court recedes from its former position upon this question. All are not agreed, however, as to the effect of this legislative practical construction. I have been authorized by the majority of the justices to express as best I may their views upon this question, and these views, by reason of the fact that they are held by the majority, become the views of the court.

The constitution requires that the proposed amendment, if agreed to by a majority of the members elected to each of the two houses, “shall be entered on their journals.”

The constitution makers recognized that each house had its own journal because they industriously used the plural. They made absolutely no distinction between the two journals. What was required to be-entered upon one journal was required to be entered upon the other. If the word entered means “entered at large,” it means entered at large upon both of the journals alike, and the entry at large upon one does not fulfil the command any more than entry at large upon neither. Remembering this, it becomes at once evident that there has been, since the adoption of the constitution, a practical agreement by the legislative department of the government that the word “entered” does not mean entered at large, but entered by number, title, or by such other descriptive reference as makes identification certain. In nineteen cases out of the twenty-five the legislature has practically said, “We construe this command as not requiring entry at large.” These nineteen cases begin in 1865 and run down to the very last amendments adopted. They include some of the most important amendments which have been made to the constitution, amendments which have entered into the very warp and woof of our state government, like the amendments abolishing the compulsory grand jury system, prohibiting special legislation on various subjects, increasing the membership of this bench, providing for the taxation of incomes, authorizing the expenditure of state money for improvement' of highways, limiting the powers of municipal corporations as to the incurring of indebtedness, and the like.

Now it does not seem to the court that it is logical to say that because the great majority of these amendments were in fact entered at large upon the journal of the house in which they respectively originated, therefore the legislature has practically construed the word entered to mean “entered at large upon the journal of the house of origin.” As before pointed out, what the constitution commands as to one house it commands as to the other, and so plainly that no one could mistake it. Apparently there were just two constructions possible: (1) entry at large on both, journals; (2) entry by title, number, or other definite and certain reference on both journals. No intermediate construction was logically possible, and consequently, when legislature after legislature has deliberately said that entry by title and number in one house is sufficient, it has at the same time and by the same act said that entry by title and number in both houses is sufficient.

To say that because, in the majority of instances, the resolution was entered at large in the house of origin, although not in both houses, the legislature therefore must have construed the command of the constitution to apply only to the house of origin, is to convict the legislators of the past of inability to understand plain English language, for the constitution says nothing which can be logically so construed.

We deem it our duty to give their acts a construction which vindicates them from such an implication. The entry at large on the journal of the house of origin would be natural enough without any command on the subject, especially in the case of a brief amendment. It is in no sense a disobedience of the constitution whatever the construction of the word “entered,” and that fact deprives such an entry of great significance. The failure to enter it at large upon the journal of the other house, however, is vastly significant because, if the legislature understood that “entered” meant “entered at large,” then they must also have understood that the failure to enter it at large in the journal of the second house meant disobedience of the constitution. It should always be kept in mind that practical construction can only be resorted to when words are used which are fairly capable of two meanings, — not when words can have but one meaning. The word “entered” may properly be the subject of practical construction, because it is capable of two meanings. The words “their journals” are not open to construction, practical or otherwise, because they can have but one meaning, i. e. the journals of both houses, and cannot be made to mean anything else. A practice which attempts to make them mean the journal of one bouse is to our minds not practical construction but practical destruction.

We reach the conclusion that ever since the adoption of the constitution the legislative and executive branches of the government, as well as the people themselves, have construed the word “entered” as meaning simply entered by title, number, or brief description in such manner as to make identification certain; that this is a permissible and not unusual meaning of the word; and that such meaning must now be held to be controlling under the well established principles of practical construction;

The conclusion which we have thus reached as to the practical construction given to the words for half a century and more and the controlling effect of such construction at the present time renders unnecessary any consideration or discussion of the authorities, many of which are cited in the first opinion in this ease, in which is discussed the meaning of the word “entered” occurring in similar clauses of other constitutions and in most of which cases the question is considered ■ as an original proposition, free from the considerations which seem compelling to us in the present case.

It is not out of place, however, to call attention to the fact that the construction given to the word by the legislature has many potent considerations in its favor, and not the least of these is the fact that in the only other clause of the constitution which prescribes what notation shall be made upon the journal on reception by the legislative body of a written document, namely, the reception of a veto message from the executive (sec. 10 of art. Y), it is provided that the house “shall enter the objections at large upon the journal.” The industrious inclusion of the words “at large” in this provision seems to clearly show that the constitution makers well understood that the word “entered” alone might rightly be construed as meaning entering by title or other intelligible reference only. If they had that understanding and used the word in one place with the addition of the words “at large” and in another place without such addition, the argument is strong that they meant by the first named provision that the entry must be at large, and by the second that it need not necessarily be so.

There are other considerations of a more general nature, however, which are entitled to greater weight.

In prescribing the methods to be followed in amending the constitution the makers of that instrument evidently had two fundamental objects in mind, namely: (1) that there should be no amendment which was not the result of deliberate reflection on the part of legislature and people, and (2) that there should be no possibility of sneaking an amendment through without accurate knowledge of its contents.

They wished to safeguard the constitution — not to petrify it. They did not aim to make an amendment impossible or unnecessarily difficult, but they did aim to guard against haste and immature thought. They desired that it should be the result of deliberate reason rather than of sudden and temporary emotion or passion. To effect this result they deemed it best that two legislatures should approve it before its submission to the people.

The requirements that the proposed amendment be entered on the journals and that the yeas and nays should also be entered are subsidiary requirements in the sense that they do not themselves constitute the ends sought to be attained, but only the proof that those ends have been accomplished. Remembering this fact and remembering also that every joint resolution receives a number upon its introduction, is at once printed, and is laid in printed form on the desk of every member of the house of origin, together with a copy of the journal, on the following day, may it not be logically argued that every substantial constitutional requirement has been complied with if the resolution be entered on the journal by number and title only ? In connection with this inquiry it is to be remembered also that' not only tbe original resolution but all of the amendments and substitutes are preserved by the chief clerk in an appropriate envelope, that every action taken is noted on the outside of the resolution, and that all these papers are ultimately filed in the office of the secretary of state and carefully preserved. With these safeguards it seems that the possibility of mistake or fraud is practically nonexistent, and that entry by number or title or descriptive reference is just as effective a method of preserving proof that the desired fundamental requirements have been complied with as entry at large.

Whether these arguments and considerations would be absolutely controlling were the question an original one without historical background we need not now determine. Taken in connection with the legislative history of more than half a century we can entertain no doubt as to our duty.

This conclusion does not, however, necessarily result in a reversal of the judgment in this case.

The defendant was at the time of the election a voter and eligible to hold the office in question, and remained so until December 1, 1912. The trial court held that he was entitled to a reasonable time after that date in which to become a full citizen before he could be. ousted, and that he had made his application and received his citizenship papers at what appeared to be his earliest opportunity after the constitutional amendment became effective. We are unable to say that the court was in error as to the fact that the defendant made his application to become a citizen at the earliest reasonable opportunity.

It appears to be the law that when an officer, eligible at the time of his election, becomes ineligible under some legal or constitutional provision during his term, he will be allowed a reasonable time in which to remove the ineligibility before his office can be deemed vacant. State ex rel. Att’y Gen. v. Messmore., 14 Wis. 163; State ex rel. Ives v. Choate, 11 Ohio, 511. This holding seems reasonable and just, especially in a case like the present where the incumbent has the same capacity and fitness to perform his official duties as before.

The judgment therefore remains a judgment of affirmance as before.

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Concurrence in Part

Viwje, J.

{dissenting in fart). I concur in the affirmance of the judgment on the grounds stated in the majority opinion, but I dissent from the construction given the constitution to the effect that it is sufficient to enter an amendment by title or number only in the journals of both houses. We all agreed when the case was first decided that the plain intent of the language of the constitution required the entering of the proposed amendment in full upon the journals of both houses at the' first session. Such is still the construction which we all agree should be placed upon the language were it not for a different one given it by the legislature ever since the adoption of the constitution, and the jeopardy in which it would place other amendments. Owing to such practical construction and the serious consequences to other amendments that might result from an adherence to our original interpretation, we all agree that we must permit the legislative construction to control. What is that construction ? Out of twenty-four amendments adopted, omitting the one under consideration, sis were entered at large as passed upon the journals of both houses at the first session; twenty-two out of the twenty-four were entered at large as passed upon the journal of the house of origin, and one more was so entered in substance, leaving only one entered by number in both journals. It would seem from this record of the passage of constitutional amendments that the practical legislative construction requires at least the entry at large or in substance of the proposed amendment in the journal of the house of origin at the first session. To require less than this is to give a meaning to the constitution that is justified neither by its language nor by usage. The amendment tinder consideration as passed was not entered upon the journal of either house in full or in substance. It was entered only by number and title.

Is there an impelling necessity which requires it to be declared valid though not properly entered? This state and many states of the Union for over half a century have permitted resident aliens who have taken out their first papers to vote and to hold office. No substantial harm would result to the state or to any resident thereof if such policy were continued till the constitution could be lawfully modified to accord with the amendment now held valid. Therefore, since the construction now given the constitution by the majority cannot be justified on the ground of either necessity, original interpretation, or legislative usage, it has, in my judgment, no sound judicial basis on which to rest.

I content myself with this brief statement because I understand that one or both of my brethren who dissented will in a separate opinion or opinions cover the ground more fully.

The following opinions were filed April 15, 1915:

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Dissenting Opinion

Maeshall, J.

(dissenting). I do not dissent from an af-firmance of the judgment, but do from the method of it. I cannot recognize that there has been a rehearing, strictly so called. None was proper for reasons stated in Hocks v. Sprangers, 113 Wis. 123, 135, 87 N. W. 1101, 89 N. W. 113. I adhere to the. decision that the purported amendment to the constitution is not a part of the fundamental law. Perhaps a modification of the reasons therefor is within the spirit of Hocks v. Sprangers, but to give the late proceeding the cast of a technical rehearing and practically reverse the former judgment as upon such, though affirming it in fact, exceeds what this court has many times said it has the power to do, after the time fixed therefor in the statute, as was the case here. Whether the many previous decisions on the subject are wrong and the term “want of power” should, at most, he read as, ought not to exercise power, may admit of some question. If so, the matter should be met in a considerate way and, perhaps, a new doctrine be promulgated. In my judgment it rather takes from the dignity of the court to cast practice of fifty years aside with an appearance of the court being confronted with some great emergency, — some overruling necessity of saving public and private interests from impending disaster, — which moved it with strong hand to a desired result. I am not conscious of there having been any such emergency. There was none in fact, as I shall endeavor to show, though there might have been such supposed, but that will appear so infirm that there is danger of the mere supposition being regarded as a pretext to shrink behind, as was suggested by Justice Paiive in Kneeland v. Milwaukee, 15 Wis. 454, is sometimes the resort of courts.

I must pause to say, I cannot doubt, but what my brethren were convinced of there being some peril impending which warranted the novel action, and that they did their duty as they saw it, regardless of its unpleasantness. It is judicially noble to hold the desire to be right high above any effect upon personal reputation for stability. For that the majority are entitled to all honor. I am pleased to accord it notwithstanding the somewhat radical nature of my dissent. If it be a fact that the majority were impelled to the result indicated in the opinion from thought of necessity, though none, not the slightest, existed, and no call, at best, for more than a! modification of the reasons for holding the amendment not a part of the constitution, the result has almost a pathetic cast. I may, possibly, be wrong about this; but with the highest respect for my associates I feel in duty bound to write as I have and shall. It is more for the future than the present. Upon the calm level of the years to come we may safely rest for vindication if right and must suffer criticism if wrong.

No one will venture to say but what the logic by which the purported amendment was condemned is supported by tbe great weight of judicial and text-book authority, and would never have been departed from as an original matter. That is freely confessed in leading opinions elsewhere. Sufficient on that are cited in the first opinion here. Many might be added.

The duty of upholding the constitution according to the intent of its framers has always been supposed to be one of the very highest character. Ready and wide departures from it to satisfy the calls of practical construction have been condemned by most eminent jurists and text-writers. Where indulged in at all it has, in general, been minimized to the actual necessities of the case and the strict limitation of the practice. So much so that duty in that regard is a part of the unwritten law. One of the most eminent writers upon constitutional law thus forcibly pointed out the error and danger of lightly dealing with mandatory words of the constitution to accord with legislative practice:

“In all we have said upon this subject we have assumed the constitutional provision to be mandatory. . . . The fact is this: that whatever constitutional provision can be looked upon as directory merely is very likely to be treated by the legislature as if it was devoid even of moral obligation, and to be therefore habitually disregarded. To say that a provision is directory seems, with many persons, to be equivalent to saying that it is not law at all. That this ought not to be so must be conceded; that it is so we have abundant reason and good authority for saying. If, therefore, a constitutional provision is to be enforced at all, it must be treated as mandatory. And if the legislature habitually disregard it, it seems to us that there is all the more urgent necessity that the courts should enforce it. And it also seems to us that there are few evils which can be inflicted by a strict adherence to the law, so great as that which is done by the habitual disregard, by any department of the government, of a plain requirement of that instrument from which it derives its authority, and which ought, therefore, to be scrupulously observed and obeyed.” Cooley, Const. Lim. (6th ed.) 179.

That may well be read in connection with this by another eminent writer, cautioning against departing from the ordinary meaning of words in a constitution in order to accomplish a particular result:

“As the constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words they employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.”

In connection with the foregoing, we must call, more pointedly, attention to the peculiar circumstances under which the first position of the court has been radically overruled.

It is frankly admitted that, as an original proposition, the first opinion is right. No one doubted, when the case was. decided, but what it was demanded by the meaning the framers of the constitution probably intended to express by the words they used and the meaning the people attributed thereto when they adopted the fundamental law. If there were anything not fully understood and appreciated it was the legislative practice. No one would venture to say that the first opinion was not written with strict fidelity to the decision agreed upon, nor that there was not full opportunity to consider it, nor that it was not unqualifiedly approved. So solicitous was the Chief Justice to have the vital point made perfectly plain and significant that he thought best to make the position of the court emphatic by stating it concisely, stripped of all discussion, which he did in a separate opinion. That was followed by the decision in the forestry case (State ex rel. Owen v. Donald, ante, p. 21, 151 N. W. 331) which had been previously argued, where the principles stated in this case were reaffirmed. True, there was a special defect which was unquestionably fatal and on which the cause turned' as to the amendment feature, but all the questions involved here were fully discussed by counsel in that case.

The forestry case was decided some forty-two days after the opinion in this case was filed and after the time for a rehearing had expired, and such opinion had been published in the advance sheets of the Northwestern Reporter, and specially published by the legislature. Yet no question was raised here but what it was right. It was, in the main, grounded on the decision in State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N. W. 785, with which no one will venture to-say it was not in harmony.

It was fully appreciated by the writer, and I think by some other of the justices, that there might be other purported additions to the fundamental law which would not stand the stated test of validity, though, if so, it was not, for a moment, thought that they could be disturbed to great public detriment in case of their having been actually agreed upon by both houses of the legislature, adopted by the people, and acquiesced in without 'question for a considerable term of years. That was stated, suggestively but advisedly, in the opinion, with numerous well considered authorities at hand to vindicate it, if necessary. It was supposed, at least, by some of us, that settled principles of law properly applied would efficiently stand guárd to prevent any calamitous consequences following a firm, logical, sensible, efficient vindication of the fundamental law substantially in the spirit of its adoption by the people and that it were better to resort to them than to override the evident purpose of the people in adopting it. That was most emphatically said. There was ample conception of such principles and consciousness of courage to apply them so far as necessary. There, as said in Kneeland v. Milwaukee, 15 Wis. 454, “the constitution was made for the safety and protection of the people and not to be used as an instrument of destruction.” A practice, originating in error, may, under some circumstances, come to have the force of law with the limitations herein mentioned. In. that light, springing from our conceptions of legal logic and the doctrine of our own and other courts, the decision deliberately, considerately, and fearless of personal consequences was rendered, though not without most-earnest consideration of whether public interest's would be imperiled by thus taking the constitution as it was believed by all was intended, and if so, whether there was room, on principle, for some more liberal view.

After all, by groundless, inconsiderate, but confident and persistent declarations from the outside, largely, I think, ab inconvenienii} it came to be thought by some, that the decision, practically, nullified most of the amendments which had been supposed to have been made to the constitution, and that even all the positions on our own bench but three were jeopardized. Such and the most dire consequences were suggested would probably follow from the decision, partieularly as regards the court itself. I confess that such notion seemed to me so ..groundless, in view of well recognized saving principles, that I did not take it seriously. It seemed so baseless that I supposed the winds would pass by, reason resume its customary sway, and all would come to appreciate that the constitution, as it was intended, had been vindicated; that designed original dignity had been given to it; that the people of our commonwealth who sensed its importance to life, liberty, safety, and happiness, and so loved and cherished it, would feel a greater sense of security than before and would have greater confidence than ever in the competency, the ability, the disposition, and the courage of their tribunal charged with the duty to protect it in all its integrity to fill the full measure of its great function.

In view of the foregoing that the condition was created here leading the court, on its own motion, to institute and direct the proceeding which has resulted, as we see, puzzles the mind. I, perhaps, am not in a proper state to survey the wreck of the stately work the court wrought at first, or appreciate the idea which came up out of the ruins. I do not say this in any spirit of conscious superiority of judicial judgment. I feel no such. I have such confidence in the collective judgment of my four associates who have spoken in the opinion by my Brother Winslow, that, notwithstanding my firm conviction that they are wrong, and it is reinforced by the judgment of my Brothers Timlin and Vinjb, I should not write as I have and shall, were I not, seemingly, compelled by duty to do so and thus round out the history of this unfortunate case. All will be recorded. The future will judge between the adverse views. I am content with that. If those which are controlling are as clearly wrong as I believe them to be, they are mortal and truth will rise again. Error cannot long withstand the assaults of logic, especially when it hinges upon so slender a thread as does the majority opinion in this case.

What has been said will be seen not to be beside the subject properly treatable in such an opinion as this, when it is appreciated that it is written to picture the novelty, as eviden-tiary of error, in the result dissented from. It must be confessed that it is without precedent, but that does not count for much if,.on principle, it is justifiable. This court has been accustomed to ignore mere precedent, and none too much when there is a right to be vindicated and a real necessity for action. I have not been wanting in progressive spirit along those lines, as what I have written for the court and otherwise will amply show. But was there a right to be vindicated in this case, and if so, was there a dire necessity for doing it in a manner and under circumstances which, as I think, reflect unfavorably upon judicial dignity, stability, and regularity, and otherwise weakens the court by the appearance of not only reaching for opportunity to recede; but improving it, and in the retrogression, passing the starting point and, unnecessarily, barriers where it could easily and logically have reformed its lines and, impregnably and with real dignity, intrenched itself ?

This court, on another memorable occasion, gave most emphatic expression to requirement for overwhelming necessity to justify it in changing a decision, undoubtedly right from an original standpoint, as the first opinion here is confessed to be. There was such a change in Kneeland v. Milwaukee, 15 Wis. 454. The court reached a conclusion, somewhat by balancing the consequences of going forward against those of going backward. The agony of the situation was most intense because of the great public peril apprehended. Justice Paine confessed that duty, in the ideal sense, required a judge to declare according to his convictions, regardless of effects and consequences; yet that, even the judicial mind is so apt to shrink before supposed disastrous results as to, consciously or unconsciously, take refuge in some plausible pretext, which would otherwise have been considered insufficient, justly subjecting courts to the criticism of being guilty of usurping lawmaking functions and declaring the law to be as judges think it should be rather 'than as they think it is in-fact. He declined to yield to any such influence at first, but was overwhelmed by the necessities of the case at last, seeing no other way to avoid supposed calamitous consequences. His associate, Chief Justice Dixon, with most pathetic reluctance took the initiative, protesting that if the first decision which had been relied upon had been made a matter of record, he would not be intimidated by the menace of public calamity into changing it so long as he believed it to be right. The court finally did change such decision and returned to the earlier unrecorded determination though firmly believing it, res in-tegra, to be wrong. That retrogression happened upon the theory that, because of the calamitous consequences which would otherwise occur the court was justified in regarding the long practice under the decision, founded in error, to have the force of law and be beyond the power of any but the lawmaking power to change it. The long struggle which so resulted, the extreme reluctance with which it was approached, the spirit of overwhelming necessity which was a constant exciter, and the sense of humiliation, mixed with a high order of courage which characterized the end, inculcated the lesson that a decision believed to be right from an original standpoint, should never be changed upon ground of mere expediency, and not changed upon the pretext of wrong without some fairly sound basis therefor, and then only so far as justified by the necessities of the case.

Now what is the real logic of the retrograde in this case? That ought to be made plain. The majority would not have assumed such responsibility without being impelled to it from a sense of duty. Notwithstanding suggestions to the contrary, there is no one here, and it is thought no reputable number anywhere, who believes personal consequences cut any figure. What were the real reasons? We have no way of knowing but from the opinion. We have carefully read it, and reread it to that end, hoping to give due credit thereto.

It is suggested that the court made a mistake in the first decision and, inferentially as it seems, that it made a mistake' in State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N. W. 185, to which I have referred. Mistake of what, — not one of law, evidently, in the strict sense of the term, since it is confessed that, res integra, the first decision is right; that the meaning attributable to “entered on their journals” is the natural ordinary one. If not a mistake of law, then it must be one of fact, or of mixed law and fact, which the court committed.

If there was a mistake of fact, what was its nature and in what particular did it consist? Was it in not going deeper, into the legislative practice, as bearing on the question of whether the particular words are ambiguous and, if so, in not appreciating legislative construction? If not,.was it in respect to the history of the particular amendment ? If .not that, then was it in respect to the weight of authority elsewhere, and state of our own decisions ? If not that, could it have been in the meaning the people attributed to the particular term when they adopted the constitution ? If neither of those suggested ox some or all of them, was it in not stretching some old principle to the cast of a new one, ex necessitate, to guard against some real or imagined great peril, with the thought that the result was justified by the exigency ? One must determine these propositions to justly conclude upon the relative merits of the adverse judicial positions.

If the mistake is of the first kind, then this query is suggested: Why was the full legislative practice given in the final pronouncement not stated ? Why was the omitted part overlooked or not appreciated, and did that turn the scales which were so evenly balanced ?

If practical construction is the rule in such a very important matter, all must agree that the entire practice should be understood and referred to. The circumstantial facts and all of them, should be established beyond a reasonable doubt, and all be consistent with the theory adverse to the original meaning of the mandatory words of the constitution, or the latter should prevail. That is the established rule and the-only safe one to go by in dealing with the fundamentals. In. the end, the former decision, which no one will venture to say is not right from an original standpoint, should not be disturbed further than necessary to harmonize with the practice.. That is the logical scope of the rule of practical construction. It should be strictly limited to the reason for it, especially in dealing with the fundamental law.

It will be noted that the majority opinion mentions the fact that practically all the twenty-five propositions to amend the constitution which were, in form, adopted by the people,, were entered in full, or substantially so, in the journal of the-house of origin at the first session of the legislature and that one fourth of them were so entered in both journals. Why point solely to the twenty-five when that gives but a mere-minor item of the whole ? By much labor the legislative history of all proposals to amend the constitution, from its origin ".o date, found in over a hundred journals and covering some 300 such, incidents was completed. It was thus shown that about ninety-two per cent, of the proposals prior to 1897 were entered like the twenty-five and most of those which were not were evidently thought to be inconsequential or were inadvertently not entered. Who will suggest that the history of the hundreds which failed are of any less importance on the question of legislative understanding than that of those which did not ? Looking at the whole, could a word-picture of a legislative idea be much more perfect? If practice may be so long continued and uniform as to turn words out of their ordinary orbit and satisfy the calls for an original meaning in harmony therewith, then it seems the rule has been clearly misapplied in this case.

Another fact, within our reach, might well have been stated in the effort to find a sound basis in the practice for departure from the intent the people purposed embodying in the constitution. The particular section, • as phrased, originated in Michigan as a part of its constitution of 1835. It was adopted from there with the existing practice. That had been uniformly, to enter a proposal to amend the constitution, at least, in'full on the journal of the house of origin at the first session. In that is seen a clear explanation of the practice adopted and followed, persistently and consistently here, for over half a century. It would seem that if the provision in question is open to practical construction, and there ever could be a practice so long continued and convincing as to make a rule of law, this seventy years of history ought to be so regarded.

The idea adopted by the majority that the term “entered on their journals” points to both as plainly as to either, and that the practice of not following the entirety in practice made a rule of displacement for the whole, seems to me strikingly illogical. I am utterly unable to understand it. If it is not a novelty in practical construction, or if it is not really outside of the rule, then I confess ignorance of what such construction means. “Entry on. their journals” points as plainly to an entry showing the full nature of the proposal as it does to both journals. That seems to be conceded. Why then should not “entry on their journals” so far as uniform practice goes, be held to be required, if the practice is to prevail at all ? As well might the entire constitution be cast into the discard because some part of it has been ignored in practice, as to'hold that the entire requirement for entry on the journals may be regarded as directory because, in practice, only part has been followed.

Some significance was given on the argument and is in the decision to the circumstance that, in sec. 10, art. V, of the constitution, it is provided that in case of an executive veto the bill shall he returned to the house of origin’with the objections, and that such objections shall be entered “at large upon the journal,” — the idea being that the word “entered” in the amendment provision was considerately used in a narrower sense than “entered at large on” in the veto provision. Probably that suggestion would not have been made, or if made considered, if it had been appreciated, as the fact is, that the requirement in the veto provision, as in our constitution, was adopted from the constitution of Michigan and adopted there from the constitution of the United States of which it formed a part from the beginning. Thus it will be seen, that it is hardly possible the difference in the two expressions came about from any idea that “entered” in the amendment provision should be taken other than in its ordinary sense.

There is much reason why the stronger expression was used as to the veto provision. It was doubtless appreciated that a veto message might be very long, that members might need to refer thereto often, and that merely filing it with the clerk, or entering it according to the clerk’s notions of its substance, would come far short of satisfying the necessities of the case. So, ex industria, the term “entered at large” was used. A. proposal to amend tbe constitution, was customarily a concise declaration of a principle requiring but a few words. In that case, “entered on tbeir journals” did not need any explanatory or emphasizing clause to indicate the intent, especially in framing the constitution in the light of the history for fifteen years in Michigan.

The second suggested ground of mistake which one unfamiliar with the case might indulge in, must be rejected. A full history of the amendment is given in the opinion by my Brother WiNsnow; but it is only a repetition of what can be found in the first opinion and was iterated and reiterated, again and again, before the case was first closed. The amendment was not entered at all at the first session, except by number and a very meager title which did not disclose the substance of the proposal. That was understood all along. The original papers were produced at first and'the whole matter fully understood and placed upon the record.

The mistake could not have been in respect to the weight of authority elsewhere, nor the position of this court taken in State ex rel. Hudd v. Timme, which has been cited time and again by courts and text-writers to support the doctrine of the first opinion. I understand that no one questions but what the general trend of authority elsewhere, as to the meaning the people probably intended is as stated in the former opinion.

If it were otherwise, I would take time t'o reduce the matter to a demonstration.

With the concessions expressly and inferentially found in the majority opinion, I must conclude that the real mistake thought to have been made was in not taking the practice of the legislature as. indicating the purpose of the people in adopting the constitution, and extending that so out of its scope as to make of the whole constitutional provision, a mere directory requirement. The danger, — the real wrong involved in that, — is well stated in the quotations from eminent text-writers found, in the opening pages of this opinion. If that was the idea it was not even justified, if that were possible, by the necessities of the case, as we shall see.

It does not seem best to spend time with the suggestion that “entered” might be regarded as having a narrower meaning than spread in full or in substance. That is beside the case in face of the fact that the common ordinary meaning is as indicated in the first opinion and the view of all that it was probably used in that' sense in the fundamental law. To refer to meanings confessed to be foreign to the thought of those who made and adopted the constitution, as justification for holding that only a constructive entry was intended, and hardly that, I think will be regarded as an indication of weakness- and not worthy of being referred to as even one of those “plausible pretexts” spoken of by J"ustice PatNe in the Knee-land Case, in which the judicial mind is sometimes wont to take refuge in the endeavor to escape from real or spectral disastrous results.

Thus we have shown that, while the rule of practical construction is relied on, the real premises were only partly stated, and the rule itself was not applied according to the reason of it. There was not read out of language found to be ambiguous a meaning sanctioned by practice, but the practice departure, was laid hold of for a ground of rejecting the coneededly intended meaning, then there was a return to the latter for a requirement of some sort of an entry on each journal, and then both the practice meaning and the confessed originally intended meaning were rejected by a process of reasoning which is far from satisfying. If such a course is permissible, to my mind a written constitution may easily be recast to suit not only disregard of it, but notions of what might well take its place. Seemingly, the majority has said: the meaning of the words “entered on their journals” shall be neither the common ordinary nor the uniform practice meaning; but shall be a meaningless or mere directory requirement, because the practice meaning has uniformly been different from tbe ordinary one. I do not think there is anything in the rule of practical construction or established principle which warrants such an excursion to a resting place far' beyond the boundaries of the reason for such rule. If there were .the excuse of necessity to prevent disastrous results, I could understand it if I did not approve of it. But no such necessity existed.

Not one of the twenty-five amendments to the constitution of any great public importance would have failed of judicial approval had the limit of the practice been taken as the limit of departure from ordinary meaning. By such restraint, the fundamental intent would have been essentially left efficient. Furthermore, if practical construction had been applied in its integrity, and anything of consequence had been left unguarded, the doctrine of estoppel would have effectually restrained any efficient attack upon it. If that had been appreciated at the beginning of this unfortunate controversy, I think the constitution would have been saved in all its integrity. The following authorities amply bear this out: Kneeland v. Milwaukee, 15 Wis. 454, 512, 519; Nesbit v. People, 19 Colo. 441, 452, 36 Pac. 221; Secombe v. Kittelson, 29 Minn. 555, 12 N. W. 519; People ex rel. Elder v. Sours, 31 Colo. 369, 14 Pac. 167; People v. Maynard, 15 Mich. 463; Bingham, v. Mills, 17 Ohio, 445, 448; Essex v. Pacific Mills, 96 Mass. (14 Allen) 389, 398; VanNada v. Goedde, 263 Ill. 105, 114, 104 N. E. 1072; Stuart v. Laird, 1 Cranch, 299; Dodd, Rev. of State Const. 222. The writer had most all these authorities and the general principle well in mind when the first opinion was written, particularly the unqualified in-dorsement of it in the Kneeland Case. Hence his inability to appreciate why the after condition which was so slow in developing should have been aroused at all.

I will now rest this matter confident that the judgment of the future will be that, if the first opinion should be modified at all, there is no warrant for it in practical construction or even in the dernier resort of necessity, beyond bolding as I indicated, with concurrence of Justices TimliN and ViNje, when this case was decided, that is:

The constitution, — as administered so long that the manner thereof should be regarded by force of practical construction to indicate the intent of those who made it, requires a proposal to amend it to be entered, at least in substance, on the journal of the house of origin at the first session, and be referred to upon the journal of the other house in such manner as to clearly connect such substantial entry with such reference; that an entry by mere number or number and title is not sufficient nor is an entry in externo necessary; but that a proposal which does not, at least, conform, as regards the journal history to the indicated necessity, cannot' become a part of the fundamental law; so the instant proposal did not become such.

To that extent I was willing to bend to the views of the majority, thinking there was a sound basis for it and hoping, thereby, that the court might avoid making a decision on so important a matter by such a division that, even the stability of the result, would necessarily be regarded as very uncertain.

I still think that the better way would be to adhere to the first opinion. I feel confident it were better for the court and] for the people if that could remain unchanged. Its soundness as an original matter no one doubts, as before indicated. I would stay by it firmly and so uphold the constitution in all its integrity and dignity, and in the spirit of Marbury v. Madison, 1 Cranch, 137. It is the very sheet anchor of our life, liberty, and happiness. The people made it. We are sworn to support it as they made it until they see fit, in the manner they designed therefor, to change it. As we and those who come after us prove inefficient to do that by taking undue liberties with its language, it will be weakened and the respect for the court itself be lessened. We would make a serious mistake by being deluded into thinking otherwise from noisy approval or criticism of the hour, indicating popular desire for the fundamental law to be administered as those in.prce-senti would like it, instead of as the people who made it intended. There may be, at times, popular unrest with fundamental restraints and wandering away from their safeguards; but in all such cases there.will be return, for only in that can the safety which a constitutional system, in form, guarantees be realized. It may be that I may carry my veneration for the constitution too far, but I do not think so. Eor that, on the calm judgment of the future I may trust. I freely confess that I believe most of the ills we suffer from are attributable to failure to heed it and that the sure pathway to avoidance of them is that which returns to it. In respect to the particular matter the legislature may easily do so, and doubtless will, to the extent of entering a proposal to amend the constitution in full on the journal of the house of origin at the first session and efficiently refer thereto in the other house. I venture to suggest that is not only the best policy, but the only safe-one, since the result is such that a single incident might change it.

I have endeavored in this opinion to keep within the scope of the concurrence of Justices TimliN and YiNje with my views, but responsibility for the manner of treating the matter is personal. Doubtless one or both of my brethren will write to some extent on the subject.

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Concurrence in Part

TimliN, J.

(dissenting in part). I agree to the affirmance of the judgment appealed from. The unanimous concurrence of all members of this court in such affirmance demonstrates that there is no question of constitutional law involved in this case and that all said concerning such question is obiter dictum. Whether the. amendment in question was legally adopted or not, in no way affects the decision of this case. I took part in the first decision made, and since that time I have bad read over to me the briefs of counsel upon rehearing, the opinion of the court by the Chief Justice, and the dissenting opinions of Justices Marshall and ViNJE. I do not concur in the majority opinion so far as it attempts to interpret the constitution, and perhaps it would be better to end this dissent with that brief statement; or to dispose of the whole matter by striking out from all of the opinions all discussion or attempted decision of points of constitutional law not necessarily involved in the case. But the majority opinion takes high ground respecting our dirty to correct today the errors of yesterday, and I am thereby encouraged to hope that this court may in the future, with like courage, again correct the errors of toddy, if convinced of such errors; and in suggesting that the majority opinion was the result of panic I do not wish to be understood as imputing to my associates of the majority lack of moral or physical courage, but only that their consideration of imaginary calamitous consequences destroyed that mental equipoise necessary for correct interpretation. If the discussion of such question is to appear, I think I will add a few a prioñ arguments to show the fallacy lurking in the majority opinion. I am well aware that it is quite possible to

“Discuss a thing till all men doubt it And write about it — and about it.”

Over-discussion and mind strain often produce inability to go straight to the question, and have a tendency to cause the mind to hover around it or about it.

Questions of interpretation are often of the utmost importance and sometimes profoundly affect the course of history and the interests of millions of people. The great war of the Rebellion involved a question of the interpretation of the federal constitution relative to the right of a state to secede from the Union. The unprecedented war now devastating Europe would not have occurred at present had Germany placed upon the articles of the Dreibund the same interpretation as did Italy. Instances of this kind might be multiplied. Lieber mentions some in bis thought-suggesting work on Hermeneutics. The various creeds which have divided and distressed mankind in the past rested upon diverse interpretations of sacred or authoritative writings. Not only do great cataclysms usually involve questions of interpretation, but like questions are present in the slower encroachments of tyranny or the equally disastrous encroachments which break down the securities of prosperity and property and inaugurate a state of disorder and anarchy.

Casuists find other and more underlying causes, mostly economic, for these disturbances and changes. Certain it is that behind the differences of interpretation lies a self-interest or other motive which suggested that interpretation or confirmed the interpreter in his belief of its accuracy. In this strife we see each, of the contending parties justifying his inconsistent position by pointing to the same paragraph in the same instrument. The assured and uncompromising attitude of the disputants in such controversy shows the disastrous effect of bias or other mental disturbance upon true interpretation. No other form of mental activity is more susceptible to disturbances of this kind and upon none is the effect of such disturbance more disastrous. Only the tranquil and impartial mind can interpret correctly. To approach a question of interpretation with any bias in favor of a particular outcome is fatal to correct interpretation.

“Whoever, unable to doubt, and eager to affirm, shall establish principles, proved, conceded and-manifest (as he thinks), and according to the unmoved truth of these shall reject or receive others as repugnant or favorable; he shall exchange things for words, reason for insanity, the' world for a fable, and shall be incapable of interpreting.” Francis Bacon.

So also if we begin with rules of interpretation, treating such rules as authoritative verities, and from this starting point proceed in the’work of interpretation, we shall hardly arrive at the truth.

In the first opinion in this case it was said arguendo that the action of the legislature in proposing amendments to the constitution was ministerial. I desire to withdraw from that statement whatever of implied assent of mine there may he. I do not think it is helpful to so classify the nature of the act performed by the legislature in proposing amendments to the constitution or that it is correct to call such act ministerial. The operation consists in considering and understanding the mischief to be remedied, selecting words and sentences appropriate for that purpose, and bringing many different minds into harmony with the notion that there is a mischief, that it ought to be remedied, and that the language employed is adequate for that purpose and is not too broad so as to involve other injurious consequences. This is precisely the process employed in the- enactment of any statute. It might be considered that the final act of agreement by -the legislature in the latter case completes a rule of action, while in the former further approval of other authority is necessary to give the writing this quality. But this is at best a debatable point, for according to some the process of statute making is not complete until the act has received executive approval, either by silence for the specified time or by express approval. We need not go far back in the history of England to reach a time when statutes were enacted by petition of the Parliament granted by the king. It was thought that the only substantial difference between this mode and that employed at present was that in the former the executive could grant part of, and deny part of, the petition, while in the procedure by bill he must approve or disapprove all. A faint echo of this conflict will be found in sec. 17, art. IV, of our state constitution. Besides this, there is no such logical or scientific classification of official acts. It does not follow that because departments of government upon historical grounds or with reference to their chief function may be so classified, a given act must be either wholly judicial, legislative, executive, or ministerial. I reject this test because in employing it we are reasoning from the nonexistent or unknown to another unknown. I begin with the simple truths that we know.

Sec. 1, art. Nil, Const., is as follows:

“Any amendment or amendments to this constitution may be proposed in either house of the legislature, and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, w'ith the yeas and nays taken thereon, and referred to the legislature to be chosen at the next general election, and shall be published for three months previous to the time of holding such election; and if, in the legislature so'next chosen, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the legislature to submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe; and if the people shall approve and ratify such amendment or amendments by a majority of the electors voting'thereon, such amendment or amendments shall become part of the constitution; provided, that if more than one amendment be submitted they shall be submitted in such manner that the people may vote for or against such amendments separately.”

At the biennial session of the legislature in 1905 an amendment to sec. 1 of art. Ill of the state constitution was proposed in the Assembly. This was a resolution merely striking out par. 2, sec. 1, art. Ill, of the existing constitution, and it was numbered 16, A., and entitled a joint resolution striking out the paragraph above numbered, and it was, when introduced and before agreed upon, entered at length on the Assembly Journal in the form above set forth. This resolution was by the Assembly referred to a committee thereof, and that committee reported a substitute resolution materially different and reading as follows:

“Resolved by the Assembly, the Senate concurring, that subsection 2 of Article III of the constitution of the state of Wisconsin, be amended so as to read as follows:

“ ‘2. Persons of foreign birth who, prior to the first day of December, 1908, shall have declared their intentions to become citizens conformable to the laws of the United States on the subject of naturalization, provided that the rights hereby granted to such persons shall cease on the first day of December, 1912/ ”

This substitute, after being reported by the committee, was-agreed to by the requisite majority in the Assembly and then sent over to the Senate and thereafter agreed to by the requisite majority of the Senate. It was never entered upon the journal of either house of the legislature of 1905, either in extenso or in substance as agreed to or after having been agreed upon. The most descriptive reference thereto was as follows: “Jt. Res. No. 16, A. Resolution providing for an amendment to section 1 of article III of the constitution.”' In what manner this amended sec. 1, art. Ill, could not be known from the journals, nor whether it enlarged the electorate or diminished it, or qualified or disqualified a particular person or a class. The exact nature of the proposed amendment could of course have been ascertained from the files in the office of the secretary of state, assuming the permanence and integrity of such filed manuscript. This amendment was submitted to the legislature of 1901 as “A Jt. Res. No. 47, A. Joint resolution to amend section 1 of article III of the constitution, relating to electors.” This last number and title was entered in the journals of the legislature of 1907,. and after the resolution was agreed upon the resolution was entered at length in the Assembly Journal for that session with the ayes and noes stated.

When the first decision in this case was approved unanimously by this court and filed, the opinion of the court was. written by Justice Marshall with a concurring opinion by Chief Justice Wiuslow. I think it is nowhere expressly stated in either of these opinions that the word “entered” found in art. XII of the constitution could be satisfied only by a verbatim record or a record in extenso of the proposed amendment, although that conclusion is inferable from the language used. This different proposition is, however, stated positively and decided both in the opinion of the court and in the concurring opinion, viz. that a mere reference on the journal to the proposed amendment by number and title, in a case where the title itself did not disclose the substance of the .amendment, would be insufficient. If any constitutional question was then involved that was all that was necessary to the •decision and consequently all that could.have been conclusively •decided. The rest was in any view obiter dictum. For there was there presented a case where the substitute resolution constituting a proposed amendment to the constitution, after having been agreed upon or as agreed upon, was not entered in •either journal at the first session otherwise than by reference to the number and title of the resolution proposing the amendment in question, and this title did not disclose the nature •of the amendment.

The question of the effect of construction by co-ordinate •constitutional departments of government was not considered. The somewhat cognate question of acquiescence, long persisted in, was not seriously argued or fully considered, although the opinion by Justice Maksiiall does contain a statement showing that this last question is not concluded by the •decision but reserved for future adjudication when it arises. It was not thought then, and I understand it is not now thought, that there'is in the attempted amendment of sec. 1, .art. Ill, any question of long acquiescence or of such alteration in the framework of government, or in the financial affairs of the state, or in the property or personal rights of citizens, as might preclude full and fair inquiry concerning the interpretation of the constitution as written.

The first impression made upon the reader by art. XII is that which it made upon this court in the original opinion by Justice Maeshall, approved by the whole court. In interpretation the first impression made by ,a writing is an important factor, because the writing is then being tested in the same manner that the writer expected and in the same manner that the writer prepared the writing to be received. Proceeding a little farther, we perceive that an amendment to be effective must have been agreed upon by each of the two houses constituting the first legislature, by each of the houses constituting the second legislature, and later on by the people at an election. Eailure to obtain the consent of the designated body in either of the three instances would be fatal to the amendment. This I consider self-evident, but if authority is necessary the forestry case (State ex rel. Owen v. Donald, ante, p. 21, 151 N. W. 331) is here in point. A considerable interval of time must elapse between the first approval by the first legislature and the second approval by the second legislature,- and also between the latter and the approval by the electorate. When properly adopted the amendment displaces the existing fundamental law, which is always a serious thing, and for the future overrides and controls the power of the legislature, the executive, and the judiciary, which is also a serious matter. It is self-evident that the remainder of the constitution and all future statutes must be measured against the amendment, and thus the exact words of the amendment become of the greatest importance in such case, so that the amendment must be approved by each of the three several tribunals in the same words or it cannot be said to have received the approval of two legislatures and of the electorate. There was therefore a reason for preserving an authentic and unimpeachable record.

I consider it obvious that the writers of the constitution were afflicted with no inability to express their ideas. The instrument itself shows this, and it was written by a capable body of men at a time when constitution making was -quite common in this country and was much discussed. Within thirty years prior to the writing of our constitution in 1847, the states of Ohio, Indiana, Illinois, and Michigan had been carved out of the great Northwest Territory and had each adopted a constitution. If my memory is not at fault, some of the older states had within this time adopted new constitutions. The section of our constitution in question relating to amendments was exactly like the corresponding section in the Michigan constitution. There was nothing to incline the constitution makers to intentional ambiguity, hut rather the contrary. Neither are we now attempting to apply the section in question to something unforeseen by the writers, or something- not in contemplation of the writers. The writers of the constitution were as familiar with parliamentáry procedure and with the other parts of that same constitution as were the seven judges of this court on January 12, 1915, when, unshaken by panic, they recorded their first and unbiased impressions of the correct interpretation of this section. The writers of the constitution knew and we knew that every act, bill, or resolution malees its first appearance in the form of a manuscript, which is put upon file and given a number and title, and they knew and we knew that a resolution is only agreed upon after the introduction of this preliminary manuscript, and after it has received its number and title, and after it has been referred to a committee by such number and title at least once, and after such committee has reported upon it by number and title, and after the legislative body has agreed in that report or in some substitute for that report. The title might contain a statement covering substantially all there is in the resolution, or it might be as irrelevant to the contents of the latter as the name of an English inn. When two or more different amendments are proposed to the same section of the same article of the constitution, the title without the number would not identify at all. They knew and we knew that the constitution required each house of the legislature to keep a journal of its proceedings (see. 10, art. IV). Also to have a chief clerk (sec. 6, art. XIII) ; also to enact no law except by bill, which means a filed statement in writing (sec. II, art. IV). It was known that the secretary of state was required to also keep a record of the official acts of the legislature (sec. 2, art. VI). By expressly providing for another record in the case of proposed amendments, it wa’s intended and understood the record of the secretary of state was not sufficient. It was also known that hills are referred to by number and title and that the title does not always express the subject or all subjects covered by the bill (sec. 18, art. IV).

Notwithstanding these provisions we are presented with the additional requirement found in art. XII, sec. 1, to the effect that if any amendment or amendments to this constitution shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on (not in) their journals, with the yeas and nays taken thereon. It seems to me plain that the amendment is required to be entered only if the same shall be agreed to by a majority of the members elected. Therefore it is not to be entered until so agreed to. It could not be so agreed to until long after it received its number and title and was introduced and referred and amended and reported upon and whatever else might be necessary to reach an agreement. Hence, the requirement that it be entered could not be satisfied by the number and title of the resolution, because this requirement that it be entered relates to a resolution which already had a number and title and which in the nature of things could not in the earlier stages of its existence be referred to or identified except by either a number or title or both, or by reading it at length every time it was mentioned. So we may see at this distance along the path of interpretation, not necessarily what' the word “entered” means, but that it does not mean referred to in the journal by number and title, but something more than that. The filed manuscript with its number and,title was manifestly not considered a sufficiently certain and permanent record of the proposed amendment. Such manuscripts are liable to be lost or substituted, or altered between terms of the legislature, and have, not the permanency of the written journal record required by law to be kept. Such was evidently the intention of the writers of the constitution. This is quite as plain in this respect as any registry statute which provides that a book of record be kept and requires that the filed instrument, bill of sale, judgment, mortgage, registry, etc., be entered therein.. I think, where the purpose of the requirement is to preserve a record of the contents of the filed instrument, no such statute could be satisfied by merely noting the number and title of the filed instrument in the record in cases where the title did not disclose the contents of the instrument or the substance of such content's. Indeed, this is a much stronger case for recording in extenso because of the necessity of subsequently approving it in the same terms, and because of the words “if agreed upon.” These words not only import a duty arising long after the instrument has received a title and number, but furthermore apply to an instrument subject to change and expected to be changed in the process of arriving at agreement and after title and number are bestowed upon it.

I thus arrive at a conclusion in accord with the decided point in the first decision in this cause and also in harmony with a decided point in the majority opinion upon rehearing. That is to say, that the constitution as written did require the proposed amendment to be entered on their journals, otherwise and more explicitly than hy a mere reference to number and title. Eor all this consideration of the legislative procedure with reference to other amendments is immaterial if the constitution as written was satisfied by a mere reference to number and title.

Arriving at this point, we find that collateral inquiries and relevant doubts diminish, and the question under investigation narrows itself, and if the premises are correct the question of interpretation remaining can only be: Would the constitution as written require the amendatory resolution as agreed upon to be entered in substance or in extenso on “their journals ?” No other inquiry is here possible. I invite criticism of this last statement.

Now, between entering a resolution in extenso ow a book and entering it in substance there is only a difference in degree. Under any fair interpretation of a requirement that a resolution be entered on a book in substance, that command would be complied with by entering it in extenso. A requirement that a resolution be entered in extenso would also be complied with in most cases by entering it in substance, because this would be the legal equivalent of an entry in extenso when all of the material or substantial portions of the resolution were entered. Cases might be imagined where such requirement could only be complied with by following the statutes or resolution verbatim, or nearly so. Eor illustration,, if a title or an immunity or a burden were created, provided, or upon condition, that an instrument or resolution be recorded in extenso, there would be a reason for distinguishing between an entry in substance and an entry in ex-tensoj but that is not the case here. If we grant that the entry in substance contains all the material portions of the instrument, it would follow that a requirement that it should be entered in externo is satisfied, because the law would consider substance instead of mere words.

The difference between entering a resolution in extenso and entering it in substance is merely one of words, because entering a resolution of this kind in substance means so entering it that no material word is omitted from the entry, and no one can read the entry in substance without being informed of all the substantial portions of the resolution itself. And an entry of this kind would answer all the purposes of art. XII.

Eew constitutional provisions can be considered directory in the same sense that certain statutes are said to be directory, but it is not impossible to frame directory constitutional provisions. So sentences may be constructed and words used in such collocation that the omission of’ one or more of such words will not alter the meaning. There may also be found in state constitutions declaratory provisions which have no effect, as that the state could enact no law impairing the obligation of contracts. This adds nothing to the-federal provision on that subject, and is of the same nature as a declaration that, until changed by authority, the common law shall be in force in'the state. Other provisions are merely declarative or hortatory, like see. 22 of art. I, and we are all familiar with the constitutional provisions which have been called “mere glittering generalities.”

It would ordinarily be quite difficult to enter an amenda-tory resolution in substance “on their journals” without entering it in extenso, but that has no bearing upon the question we are considering. If we investigate the instances in which an entry in substance did not comply with the" requirement that the instrument be entered in extenso, we will find that they are cases in which the instrument was not entered in substance but some of the substance was omitted from the entry. Granting that the instrument is entered in substance we have the legal equivalent of an entry in extenso. So that we may say that a requirement that an instrument be entered in substance is 'satisfied by an entry in extenso, and, conversely, a requirement that an instrument be entered in extenso is satisfied by an entry of all of the material or substantial provisions thereof.

1. The reason for the requirement in question argues in favor of an entry in extenso in both journals, and unqualified by other considerations would settle this question of construction.

2. The fact that art. XII uses the language “entered on their journals,” while sec. 10, art. Y, of the same constitution, relating to veto messages, requires that the objections there mentioned be “entered at large upon the journal,” is an argument in favor of the view that the requirements of art. XII would, he complied with by an entry in substance.

3. The long continued practice of the legislature of entering the amendatory resolution in extenso in the journal of the house of origin with a number and title, and in the journal of the other house only by such number and title, indicates an understanding that a substantial compliance was sufficient.

4. The last two, taken with the consideration that for purposes of certainty the entry in substance, properly understood, is the equivalent of the entry in extensoare, I think, sufficient to turn the scale in favor of the latter interpretation.

5. An entry in extenso, with an identifying number and title connected with such entry in one journal, together with an entry by reference to this same number and title in the journal of the other house, is an entry in substance. Id cerium est quod cerium reddi potest.

Right here I might note a curious discrepancy between the views of counsel who challenged the correctness of the first decision herein and those of this court in the majority opinion on rehearing. Mr. Lines argued that the words “entered in their journals” required no record in extenso on the journal, but were satisfied by an entry indicating the substance of the amendatory resolution, basing this argument in part upon the more specific requirement relating to veto messages contained in the same constitution and found in sec. 10, art. V. The last mentioned section requires the legislative house receiving the veto message to “enter the objections at large upon the journal.” lienee he argues that art. XII, merely using the word “entered,” did not require an entry at large.

Mr. Lines’s argument may be thrown into syllogistic form as follows:

- Eirst. Art. XII does require an entry upon “their journals,” but not an entry at large.

Second. It is therefore complied with by an entry in substance.

Third. A reference in the journal to the number and title of the amendatory resolution on file constitutes an entry in substance.

The counsel gives a semblance of logic to his argument, the fallacy of which will be pointed out later.

Now, the majority opinion upon rehearing discards the major premise and finds that the constitution as written requires the amendatory resolution to be entered in extenso in the journal of each house. The majority opinion thereby destroyed the semblance of logic found in the argument of Mr. Lines, and brought the court in direct conflict with the rule of constitutional law announced in Lawrence University v. Outagamie Co. 150 Wis. 244 (136 N. W. 619), and authorities cited on pages 252, 253. Eor if the true reading of the constitution as written was that the amendatory resolution must be recorded in extenso in the journal of each house, and if, as I thini I have shown, the reference to number and title was not considered sufficient, then the legislature could not by long continued practice place a meaning upon art. XII contradictory of and in violation of the command of the constitution. Assuming the correctness of the major premise of counsel’s argument his conclusion fails, first, because if a substantial entry only is required, the legislature by long continued practice established, not that a mere reference to title and number constitutes a substantial entry, but that an entry in extenso of the amendatory resolution, with a given number and title, in the journal of the house of its origin, together with an identifying reference to the same number and title in the journal of the other house of the legislature, constituted a substantial entry in each journal, — in the one by entering in extenso, accompanied by a given number and title, and in the other by an entry giving the same number and title. This was what was done except in one case and except in cases where there was an entry in extenso on both journals, and this was the practice, and it negatives rather than supports the proposition that a mere reference to the amendatory resolution by number and title is sufficient.

I understand that twenty-four amendments to the constitution only were adopted prior to the amendment in question or since the birth of this state. Six were entered in extenso on both journals and eighteen on the journal of the house of origin in extenso, so we may say that twenty-three of them were entered as above stated. That is to say, the resolution m extenso, or its substance, in the house of origin, with a given number and title, and in the other house either in ex-tenso or by reference to this same number and title. This preserves the certainty required quite as well as if it had been recorded in both journals, except in the case of destruction of one of the journals. It also, in the journal in which the amendatory resolution was not entered in extenso, conformed to the common-law rule regarding “Id cerium, est quod cerium reddi potestWhy the majority opinion rejected the major premise of counsel is apparent. If they conceded that the constitution as originally written would be complied with if the amendatory resolution was entered in substance “on their journals,” then they would have to admit that by long legislative practice an entry in substance was understood to mean an entry in extemo in the journal of the house of origin, with an identifying number and title, and an entry on the journal of the other house by such number and title. This would-have saved all the constitutional amendments except the one in question here, and would have removed all cause for panic, if not all panic.

There is in the majority opinion, by reference to the constitutional amendment increasing the number of justices in the supreme court, a suggestion of “sauve qui peut/J but I am loath to believe that this alone was sufficient to account for the aberration of the majority. In the last mentioned case the title gave the whole substance of the amendatory resolution, and therefore such resolution was entered in substance. The counsel mentioned began his argument right, but I think erred, first, in ignoring the, fact that art. XII, in effect, forbade the entry on the journal of the amendatory resolution merely by number and title; second, in failing to conclude from bis premises that the long established practice which would tend to determine what was a substantial entry must be ascertained from what the legislature did, and not by rejecting all that they did in favor of an item that they omitted to do. It is well that a majority of a court of last resort, while they may conclusively determine the cause, cannot conclusively determine what is logical or what is not logical.

The majority opinion is in my estimation subject to*this weakness: After having determined that, as written, the constitution requires the amendatory resolution to be entered in extenso on the journal of each house, it holds that a failure to •enter such resolution in extenso on the journal of one house, ■although entered in extenso on the journal of the house of ■origin, and referred to, as I have said, in the journal of the other house, was to disregard in part, and as to that one house, the constitutional requirements. This having been persisted in for a long time, I think in eighteen of the twenty-four ■amendments, the legislature may now and from henceforth abandon its practice of partially complying with the constitution as written, and need not comply with it at all.

It seems to me very plain that this is putting upon the constitution a construction which the majority opinion concedes that the constitution as written will not bear, and which the legislature never put upon it, except in adopting the amendment in question in this cause, and which is contrary to the construction which the legislature did put upon this art. XII of the constitution; because recording the resolution in extenso in one journal and referring to the number, and title in another would never sanction a practice of recording it in neither journal, unless we are prepared to say that a partial •disregard of constitutional provisions long persisted in by a ■department of government authorizes a further and total disregard of such provisions. With all respect to the majority ■opinion, this reads to me like a reductio ad absurdum.

Case Details

Case Name: State ex rel. Postel v. Marcus

Court Name: Wisconsin Supreme Court

Date Published: Jan 12, 1915

Citation: 160 Wis. 354

Court Abbreviation: Wis.