tion? And this leads to an examination of the meaning of the words "shall be entered in their journals." What, then, is the meaning of these words? In interpreting the meaning of the language of the constitution we adopt the same rule which obtains in interpreting statutes, agreements written or oral, and all written or spoken language. That rule is that we must presume and hold that the words have been employed in their natural and ordinary meaning, unless we find technical words or words of art employed. When such words are employed we must assume that they are used in their technical meaning. Such is the rule laid down by this court in Weill v. Kenfield, 54 Cal. 113, in the decision of which case all the court except Justice MYRICK concurred. In fact we think we are at liberty to say that all the members of this court concurred in the above rule as there laid down, for it cannot be supposed that Justice MYRICK would have dissented from a rule of law so long and so well established. See on this point Cooley, Const. Lim. 72, and cases there cited in notes. It is hardly necessary to say that the words "shall be entered in their journals" are not words having a technical meaning They are not words pertaining to any art or mystery. They are plain words in common, every-day use, both by the learned and unlearned, and plain in this respect. No forced or unnatural construction should be put on them, but they should be construed as having the meaning which men ordinarily attach to them. Said MARSHALL, C. J., in Gibbons v. Ogden, 9 Wheat. 188, of the federal constitution: "The framers of the constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have understood what they meant.

The learned Justice COOLEY, in commenting on these words, observes, (we cite them here as peculiarly applicable:) "This is but saying that no forced or unnatural construction is to be put upon their language; and it seems so obvious a truism that one expects to see it universally accepted without question; but the attempt is made so often by interested sublety and ingenious refinement to induce the courts to force from these instruments a meaning which their framers never held, that it frequently becomes necessary to redeclare this fundamental maxim. Narrow and technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves for themselves, and designed as a chart upon which every man, learned and unlearned, may be able to trace the leading principles of government." Cooley, Const Lim. pp. 72, 73. We must, then, in accordance with what is said above, construe the words "shall be entered in their journals" in their natural and ordinary sense. And first we remark that the words "shall be" are words of command. Such is their natural and ordinary meaning. They are not permissive or only directory to be heeded or not by the senate and assembly, but mandatory and peremptory, exacting compliance with and obedience to them, and prohibitory of any action conflicting with them. They are not only so by their common meaning, but are declared to be so by the language of the twenty-second section of article 1 of the constitution. The obedience commanded to the mandate of those words is not partial or simulated, but absolute and entire. This mandate should not be frittered away and rendered illusory by ingenious or subtle refinement, but regarded in its full and honest requirement.

The journals of the houses of the legislature are well-known books. They are required by a provision of the constitution to be kept. "Each house shall keep a journal of its proceedings," is the command of the paramount law. Section 10, art. 4. The contents of the journals are prescribed. They are the proceedings of the respective houses. They are not only required to be kept, but to be published, that the proceedings of each house shall be made known to the people, and that the restraint of publicity shall have its effect on the discharge of their solemn and responsible duties on each individual member of the two houses. The words "entered in" are to have their nat

ural and ordinary meaning. The word "entered" must be construed in connection with the preposition "in" and their journals. Whatever meaning we may attribute to the word "enter” or “entry,” taken by itself, in arriving at its meaning here we cannot dissociate it from the words used with it. We must arrive at the meaning of the word "entered" when connected with the words joined with it; that is, the context. We must look at all the words of an instrument to ascertain its meaning, (Cooley, Const. Lim. 70, 71;) we are not allowed to reject any. When a paper is directed to be entered in a book, the obvious meaning is that it should be transcribed therein. When a master directs his servant to enter a paper in a book, as when a merchant or a lawyer orders his clerk so to enter a written agreement in a volume kept for that purpose, a man of ordinary intelligence would interpret it as meaning that it should be copied into the book. A sufficient reason appears why he should so interpret the direction. Papers are copied into a book for permanent preservation that they may be in the future conveniently referred to. The object for so entering a paper in a book would not be attained unless the paper was copied or written out in full or at length in the book. A merchant would not regard his command to his clerk as obeyed if the clerk only numbered the paper, stated the file where it might be found, and inserted the number and file in the book. If such conduct were persisted in by a clerk, a dismissal from employment as an unfaithful servant would inevitably follow. Such an entry by the number of the paper and stating the file where it could be found would not attain one of the main objects of having it entered in a book, which is to preserve its entire text, so that in case of the loss of the paper an identical copy could be found.

The journals required by law to be kept are a record of the proceedings of the houses of the legislature, and so intended. They are, to all intents and purposes, records made in perpetuam memoriam rei there entered. The of ficial record of what is "done and passed" in a legislative assembly is called "The Journal." Cush. Leg. Ass. par. 415. The term "to keep a record" evidently means to make a permanent record of the daily proceedings. Pars. 423, Cush. Leg. Ass. supra, as also pars. 327, 415, 642, of same work. Officers are appointed by law to make the records. Pol. Code, §§ 245-261, inclusive. They are styled "records" in some of these sections. It is commanded by section 255 that "the minute clerk of the senate and the minute clerk of the assembly must keep a correct record of the proceedings of their respective houses;" by section 256 that "the journal clerk of the senate must record each day's proceedings in the journal, from which they must be read by the secretary each day of meeting, and then be authenticated by the signature of the president;" by section 257 the same provision is made as to the journal clerk of the assembly,- must record each day's proceedings in the journal." These journals are to be preserved by an officer designated by law and appointed for that purpose,-the secretary of state. Sections 261, 407, Pol. Code. These journals, or copies of them, properly certified, will be admitted in evidence in any court of justice in this state by virtue of the statute, (Code Civil Proc. §§ 1855, 1918,) and by the common law, (1 Greenl. Ev. 482; paragraph 427, Cush. L. & P.,) and perhaps the original journals, and the journals published under the requirement of the constitution, may come within the scope of judicial knowledge, (section 10, art. 4, Const.; Code Civil Proc. 1975. sub. 3)

66

As the journals of the senate and assembly are records, and intended to be such, the obvious meaning of entering a proposed amendment in the journals is to make such amendment a matter of record. Entering in the journals is the same as entering in or on the record. Why should it be entered for any other purpose? And when entered as a record, it has all the effect, and subserves all the purposes, of a record. The great purpose is to preserve in permanent and enduring form authentic and reliable evidence of the con

tents of the amendment proposed, that in the form which it appears on such record it may be submitted to the electors for ratification by their suffrages, and, when ratified, the evidence of what has been ratified may be preserved in an unmistakable, permanent, and enduring form. To furnish and preserve this evidence in a certain and more unmistakable form and manner, the entry must be made in the journal of each house. The journals should be regarded as matter of record, and when questions arise as to what is contained therein, they must be tried and determined by inspection of the record only.

The record in the journals is like other records, and, as Lord COKE declares, is a monument of so high a nature, and importeth in itself of such verity, that if it be pleaded that there is no such record, it shall not receive any trial by witnesses, jury, or otherwise, but only by itself. 3 Bl. Comm. 331. There is nothing here in conflict with what is said in Sherman v. Story, 30 Cal. 256; for there the question arose as to a statute of which it was contended it was not properly published, and the court held to determine this fact it could not look beyond the statute as it was enrolled, authenticated, and deposited with the secretary of state. Here the point arises as to a proposed amendment to the constitution, and the law as to enrollment, authentication, and deposit with the secretary of state does not embrace it. Koehler v. Hill, 60 Iowa, 554; S. C. 14 N. W. Rep. 738, and 15 N. W. Rep. 609.

No provision exists in the constitution which allows such proposed amendment to be entered on the journal of either house by an identifying reference. We cannot wipe out the requirements of the constitution by any such euphuism or any device of that character. The constitutional requirement is imperative and peremptory, and demands obedience. In Crosby v. Dowd, 61 Cal. 557, the judgment on foreclosure of a mortgage described the premises as to which the foreclosure was decreed by reference to certain deeds recorded in the recorder's office of Santa Clara county, and stating the books and pages in which they were transcribed, and the dates of their recordation. The property was sold under this judgment. The purchaser brought ejectment on the sheriff's deed executed to him upon the sale. This court held that the judgment did not describe the property sold, and that the purchaser could not, for that reason, recover. The judgment was held to be no judgment at all,-void. The judgment was a record, the description in which could not, as in a conveyance, be made good by evidence aliunde. The record must be tried by itself. Here was a case of identifying reference; yet the identifying reference was held of no avail. It was held insufficient in a judgment inter partes, but here we are called on to hold it sufficient in a matter where the constitution is most explicit in its requirements as to what shall go into the record.

If an identifying reference is here sufficient, the reference may as well be to a paper filed in the sheriff's office at San Francisco, or in the recorder's office of the county of Del Norte or San Diego, or in any public or private office in the state, or in any state. Concede the power to exist as claimed,—that is, to act by identifying reference,—and we see no limit to it. It is as unlimited as the sources of places of reference. The device of an identifying reference is of modern origin. It had its genesis in Kansas, in 1881, in the Prohibitory Amendment Cases, 24 Kan. 700, which were decided by the supreme court of that state at its January term in the year last mentioned. 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 reasoning 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. The provision in the constitution of Kansas is that the "proposed amendments, together with the yeas and nays, shall be entered in the journal." Article 14, § 1. The court said: "Is the failure to enter

this amendment at length on the journals fatal? It is well said by counsel that no change can be made in the fundamental law, except in the manner prescribed by that law." The case of Collier v. Frierson, 24 Ala. 100, is then cited as affirming the above rule, which it does. The court properly stated the conclusions reached in the Alabama case,-that "proceedings under a constitution to change that constitution must be in accordance with the manner prescribed by that constitution." "But this," said the court, "only brings us to the real question in this case." It then proceeds to state this real question in these words: "Is a proposition to amend the constitution in the nature of a criminal proceeding, in which the opponents of the change stand as defendants in a criminal action, entitled to avail themselves of any technical error, or mere verbal mistake, or is it rather a civil proceeding, in which those omissions and errors which work no wrong to substantial rights are to be disregarded ?”

The real question was stated above as follows: "Is the failure to enter this amendment at length on the journals fatal?" The question seems now to be changed. Is it in the nature of a criminal proceeding? or, rather, is it a civil proceeding? Certainly, it is a civil proceeding. But we are not aware that in either civil or criminal action that errors or mistakes which work no wrong to substantial rights are to be regarded. If the law, whether constitutional or statutory, declares technical omissions or errors or verbal mistakes a violation of a party's right, then such right is substantial, and errors, whether technical or otherwise, or originating in verbal mistakes, work wrong to substantial rights, and are to be regarded by courts of justice in any action, whether civil or criminal. This is the universal rule. If a defendant can only by the paramount law be prosecuted for a public offense on indictment found by a grand jury, he cannot be prosecuted by information which contains the same averments preferred by a prosecuting officer. The trial may be quite as fair and full, and as free from error in other respects, on his trial on an information as on an indictment, still the conviction on the trial by the former cannot stand; and this consequence cannot be put aside by pronouncing the proceeding by indictment mere machinery and form. It is a substantial right assured to him by the law of the land, to have the form or machinery of an indictment employed, and, though it is form or machinery, he has a substantial right to it, and no court will or can deprive him of it.

The court, after stating the real question above quoted, proceeds to remark: "Unhesitatingly we affirm the latter, [that is, that it is a civil proceeding.] The central idea of Kansas law, as of Kansas history, is that substance of right is grander and more potent than methods and forms." This is so under all systems of law, when occasions arise for its application. The court proceeds thus: "The two important vital elements in any constitutional amendment are the assent of two-thirds of the legislature and a majority of the popular vote. Beyond these, other provisions are mere machinery and forms. They may not be disregarded, because by them certainty as to the essentials is secured, but they are not themselves the essentials."

That the elements mentioned by the learned justice are important and vital cannot be doubted; but that they are the only important and vital elements cannot be conceded. The learned court here assumes, without any reason, that entering on the journals is not vital and important. The convention which framed the constitution of Kansas, and the people who adopted it, and made it their paramount law. thought otherwise. This is plainly apparent from their inserting other elements in their constitution. It would be a rash assertion, and one which no sound principle of constitutional law sustains, that the words, "such proposed amendments shall be entered on the journal," were inserted in the constitution of Kansas, to be observed or not as the legislature, or any other department of the government of that state, should think proper. If this is form and machinery, it is form and

* **

machinery established by the constitution. It is not unsubstantial and nonessential, but a part of the instrument which all officers are sworn to support, as much as any other portion of the constitution; for when an oath is taken to support the constitution, it embraces the whole instrument. These provisions may not be disregarded for the reason, says the court, that by them certainty as to essentials is secured. We can conceive of no stronger reason why they should be regarded by legislators and courts. The constitution makers inserted them for that reason. They. in effect, ordain and declare that no other mode or form or machinery is permissible to secure certainty in doing the act permitted. Declaring that those requirements are non-essential, is in effect saying that the convention which framed the constitution, and the electors which ratified their action, spent their time in framing and inserting in their organic and paramount law non-essential and unimportant provisions.

The court then proceeds to give an illustration of a case which never has occurred, and in all probability never will occur. It is a sufficient answer to say that the question put only proposes one difficulty to solve another to the solution of which it does not in any whit tend. Take the case of a failure by the secretary of state to publish in any paper whatever. What then would be the consequence?

The court says further: "The records of the proceedings of the two houses are made, not by the houses themselves, but by clerical officers. True, they are under the control of the respective houses, but in fact the records are made by clerks. May they defeat the legislative will? The constitution does not make amendments dependent upon their approval or their action. To insure certainty, and guard against mistake, journal evidence of the amendment and votes is prescribed, but this is mere matter of evidence, and not the substantial condition of constitutional change." This argument would have force if the clerks were not officers of the house, and under their control. If the houses of the legislature of Kansas were so impotent that they could not compel their clerks to do their duty and obey their commands, we must say that such argument would prevail; but we must presume that the houses in Kansas were able to have their commands obeyed, and if a clerk refused to obey, they would have the power to put some one in the position who would obey; especially as we are informed that the clerks "are under the control of the respective houses." The clerks are servants, and there is no probability that they will fail to perform the behests of their masters. If they are under the control of the houses, they are their servants, and the journals must be held to be made up by the houses. Qui facit per alium, facit per se.

The court speaks of the journal evidence as mere matter of evidence. We agree that journal evidence is evidence, and that of the highest character; but if the court means to say that it is mere matter of evidence, in the sense that any other evidence can be received than that of the journals, we cannot concur. In our judgment, the entry of the proposed amendment on the journal furnishes, unless, perhaps, in the case of its loss or destruction, the only evidence of the contents of the amendment proposed.

Again, "in constitutional changes," said the court, "the popular voice is the paramount act." "True, a popular vote without previous legislative sanction must be disregarded." When this is said, the whole question is conceded, for if the popular vote without legislative sanction must be disregarded, we can know of no legislative sanction except that given in the mode ordained by the constitution, of which the entry in the journals is a materialand essential part. If we can leave out a part of this mode, we can leave out the whole. If legislative sanction only is requisite, why may not that sanction be by a vote of a majority of the members elected to the two houses, instead of two-thirds? The history of the mode in which the amendment was proposed is given in the opinion, and it does not appear that the yeas