The Bozeman courier. (Bozeman, Mont.) 1919-1954, 1923-09-05

different from the one now under consideration. 1t was intended to affect,
and only in a small manner, the work Of the Supreme Court It did not
reason, the subject at that time was not exhaustively discussed and con-
sdered. The question as it is nw presented is of tremendous Importance
extent to which formerly thew went in interferinp with the details Of iepis-
lation. The prerogatves of each branch of the government re o held
to be more sacred by the coordinate branches Of the government than they
were years ago.
Again it may be urged "The provisions of this constitution ire mandatory
and prohidtory, unless by express words they are declared to be otherwise"
fsec. 20 of Art. iii of the constitution. But ate fac of signing shall be
at once entered upon the journal" was not held to be mandatory in the case
of State '. Long. At page 8S1 of 30 Mont, in the case of State v Mckinney,
the Supreme Court says: while all the provisions of the constitution are
mandatory and prohibitory' vet the courts, bearing in mind that the legis-
lature is a coordinate branch of the government, and its action, if fan,
should be sustained, have given this section of the constitution a liberal
construction, So a not to interfere with Or impede proper legislative
functions"
The paramount thing in the matter o. amending the constitution is the
WILL OF THE PEOPLE, fairly and inteIigently expressed, after full
sion. "The two important vital elements in any constitutional amendment
are the assent of two thirds of the legislature and a majority of the popular
Of state snnnose vervtbing m entirely regnIar down 70 NC weaks bofore
the election at which the amendment is to be voted N, and som on opposed
to the amendment brides the publisher to issue his paper during the las. two
wee4s leaving the proposed amendment out; and yet the people of that parti-
cuar county, being already fully informed, vote inteTigently approving the
amendment along with the rest of the state, can that monkey-wrench thrown
into the machinery thwart the will Of the legislature and the will of the
people? But just where are re to draw the lines as to how much and how
fully the prescribed forms must be followed? Would it not be a safe rule
to say that a amendment has been regularly adopted when the legislature
has honestly and substantially endeavored to comply with all of the forms
required and the people, fully informed as to what they wanted, and unaware
OF any omissions have voiced their approval at the polls? 1t has been well
said. "a constitutional amendment is not in the nature of a criminal pro
ceedng, in which its opponents stand IS defendants in a criminal action.
entitled to avail themselves of any technical error Oh favorable mistake, but it
is rather a civil proceeding, in which technical errors and harmless mistakes
Many courts whose decisions command confidence and respect have adj
opted this commemorate trend of public opinion. In West v. State, so Fla.
l54 it a. conceded that the requirements Of the constitution as to the
cnteIng-of the proposed amendment Oh the journals of each house, together
with the yeas and nays, had not been complied with. 1t was held, however,
that such NONCOMPLIANCE did not invahdate the amendment, Oh the theory
that sin constitutional changes the popular voice is the paramount act; that
where proposed amendment to the constitution received the affirmative votes
of three ffths of all the members elected to each house, and such proposed
amendment is published and submitted to the vote of the people al required
and at the election is approved and adopted by a majority of the votes Of
the people cast thereon, then it bacomes a valid part Of the organic law
Notwithstanding the fact that the legislature may have failed to have such
proposed amendment entered at length upon the journals Of the two
respective houses" This view of the matter is also well stated in Green v
70 Md. 152. The same conclusion was arrived at in Oakland Paving Co. V
TOmdns, 70 Cal 5; in Nesbit v. People, 10 Colo. All; and in People e rel
Elder V. Sours, 81 Colo. 39.
A leading, well reasoned case on this subject, after being carefully con-
sidered from every viewpoint, is that of Constitutional Prohfbtory Amend
ment, "a Kan. 700. In this case the proposed amendment vas not entered at
length upon the journals as required by the constitution, but vas simply
described by its title, scope and object. In this decision, written by Justice
Brewer, We find this language and logic: "The two important, vital elements
in any constitutional amendment are the assent of two thirds of the legis
lature and a majority of the popular vote. Beyond these, other provisions
are mere machinery and forms. They may not be dsregarded because, by
thens certainty a to the essentials is secured; but they are not themselves
the essentials Take a strong illustration: The constitution requires that
the secretary of state shall cause the same to be published in at least one
three months preceding etc. Suppose a unanimous vote of both houses of tm
legislature, and a unanimous vote of the people in favor of a constitutions
amendment, but the secretary had omitted to publish in n county in which
a newspaper as published, would it not be a insult to common sens tt
hold that thereby the viii Of the legislature and people had been defeated
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 IN extreme case; but it only illustrates the principle"
constitution should not be extended and strained o Is to thwart and defea
the plainly expressed will of the people, because the mere machinery was
not operated in exact compliance with the directions in such limitations.