The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1904-07-04
HE MISSED FIRE.
Mr.. Coleman Clarly Wrong in
Constitutional Opinion.
Evidently Has Forgotten Deci-
sion of Supreme Court.
POINT WAS RAISED.
Justice BreWerH ED Prohibitory
Amendment Good.
Exactly Contrary to Position
Of Attorney General.


proposition to submit the prohibitory
amendment was never published in
the legislative journals of the legisla-
ture of 1879, the legislature that SUBJ
mitted the proposition, has brought
to light a supreme court decision
which seems to nulIify the opinion
rendered last week by Attorney Cen
eral Coleman regarding the proposed
constitutional amendments which the
last legislature voted to submit
Mr.. Coleman says that since two
of these propositions were not proper
ly published in the legislative journals
they cannot be legally submitted.
This opinion was in reply to an in
quiry from Secretary of State Burrow
asking if he should have these propo-
sitions published in each county in the
state, as required by the constitution,
and place them upon the official ball
lot.
The supreme court in 1881 passed
upon the legality of the prohibitory
amendment on this very sort of a
the attorneys who sought to knock
out the amendment made the same
argument which appears in Mr.. Cole
mans opinion. They contended that
since the proposition to submit the
prohibitory amendment was not pub
lished in either legislative journal it
was not properly submitted. The Su-
preme court, however, says such pub
lication is not an essential. 1t fact,
it would be difficult to find an amend
ment to the constitution which has
been submitted according to Mr.. Cole
mans opinion.
The opinion in question was written
by Justice Brewer, now on the bench
of the United States supreme court,
and was concurred in by all the court
test case, involving several cases in
made. and
opinion is given in the 24th Kansas re-
port. On page 7O9 is the following:
Upon the journal of neither house
does this amendment appear; it is sim
ply described as Senate joint resolu-
tion No. 8, proposing an amendment to
art. XIV of the constitution of the
state of Kansas, relating to the manu-
facture and sale of intoxicating liquors,
by adding section 10 to said article.
This article XIV is entitled 'Miscellane-
ouS, and nothing in it, prior to this
proposed section 10, refers to the manu-
facture or sale of intoxicating liquors.
.. Upon these facts all the
questions as to form and method arise.
1t is insisted, first, that the proposed
amendment was never legally submit
ted to the people, inaSmuch as 1T does
not appear in full upon the journal
THE constitution provides that the
proposed amendments, together with
the yeas and nays. shall be entered ON
the Journal Is the failure to enter
this amendment at length on the jour
nails fatal? It is we'll said by counsel,
that no change can be made in the fun
damental law, except in the manner
prescribed by that law. In the case of
Collier VS.. Frierson, "a Ala. 100 the
court says: I'VE entertain no doubt
that to change the constitution in any
other mode than by convention, every
requisition which is demanded by the
instrument itself must be observed, and |
the omission of any one is fatal to the
ont hat "a ira fnS
enforces this proposition. The consti- |
tuition of Alabama required, in order to |
work an amendment, that the propo- |
sition be approved by two-thirds of one
legislature popular vote-and then
by two-thirds of the next legislature. |
This last approval was wanting, and |
the court held that the constitution had
not been amended. In other words, |
change that constitution must be in |
accord with the manner prescribed by |
that constitution.
But this only brings us to the real
question in this case: Is a proposition /
to amend the constitution in the nature |
ponents of change stand as defendants In |
a criminal action, entitled to avail them |
selves of any technical error or mere
proceeding in which those omissions and |
errors which work no wrongs to substan- |
tial rights are to be disregarded? Unhes- |
itatingly we affirm the latter.
THE central idea of Kansas law. as |
right is grander and more potent than |
methods and forms. The two important. |
are the assent of two-thirds /
of the legislature, and a majority of the /
popular vote Beyond these, other pro- |
visions are mere machinery and forms. |
They may not be disregarded, because by /
them certainty as to the essentials is Sc /
cured. But they are not themselves the |
Take a strong illustration: The con-
requires that the secretary of /
state shall cause the same to be publish
ed in at least one newspaper in each |
county of the state where a newspaper /
is published for three months preceding;
etc. Suppose unanimous vote of both |
houses of the legislature and unani- |
nous vote of the people in favor of a con,
stitutional amendment, but that the sec |
county in which newspaper was pub |
lished, would it not be simply an insult /
will of the legislature and people had |
been defea ted? Is it within the power of
the secretary. either through ignorance or
design, to thwart the popular decision
Is he given a veto, or can he create one? /
This may be extreme case, but IT
only illustrates the principle. The rec
are made, not by the houses themselves,
but by clerical officers. True. they are
but in fact the records are made by
clerks May they defeat the legisla tive
Will? The constitution does not make
proval or their action. To insure GER
tainty and guard against mistake, journal
evidence Of the amendment and votes
is prescribed, but this is a mere matter
of evidence and not the substantial con-
dition of constitutional change. In Leav-
Kas So. law was upheld, although the
signature of the presiding officer of the
senate was never affixed to it as the con-
stttution prescribes. and although the |
yeas and nays were not entered the
journal of the senate on its concurrence
in certain. slight amendments made by