and nays were entered on the journals. The numbers, not the names, were so entered. But, clearly, this was not sufficient. The meaning is that the names of those voting yea and those voting nay shall be so entered. The names are required to be given for one reason, among others, that they may be known and held to accountability by those they represent. This is not attained by the giving the numbers of those voting yea and nay, respectively. Another reason is that the names may be counted, so that it may be seen by all that the two-thirds vote was given.

Another reason given by the Kansas court for holding the amendment adopted and ratified, is that amendments so proposed had been previously adopted and recognized as a part of the constitution. In other words, as the legislature had frequently violated the constitution, a subsequent violation should be held to be no violation. Frequent violations of the constitution, in our judgment, instead of inducing courts to hold such violations lawful, is the strongest reason that courts should so exercise their power as to put an end to them. This is the highest duty of courts, and one from which they should not shirk, and which they cannot evade. The Kansas case substantially holds that the provision as to entry on the journals is directory only,that it is not a mandate which is required to be obeyed. This is a dangerous rule to sanction in the interpretation of constitutions,-one wholly repudiated by this court, and which is forbidden by our present law. Article 1, § 22, Const. Finally, the judgment of the learned and able court of Kansas is in conflict with all the judgments of other able and learned courts and jurists on this question.

In 1883 two questions were submitted by the house of representatives of the legislature of Massachusetts to the judges of the supreme judicial court of that state for their opinion. One of these questions, numbered second on the list, was: "Can any specific and particular amendment or amendments to the constitution be made in any other manner than that prescribed in article 9 of the amendments adopted in 1820?” The judges who answered the questions were LEMUEL SHAW, SAMUEL PUTNAM, S. S. WILDE, and MARCUS MORTON, gentlemen whose fame as great jurists and lawyers is acknowledged in all lands where the principles of the common law are studied and administered. The great Chief Justice SHAW every where stands among the ablest of able judges. Their answer was that such amendments could only be adopted in the mode prescribed in the constitution of the state. They said: "We presume, therefore, that the opinion requested applies to the existing constitution and laws of the commonwealth, and the rights and powers derived from and under them. Considering the questions in this light, we are of opinion, taking the second question first, that under and pursuant to the existing constitution there is no authority given by any reasonable construction or necessary implication by which any specific and particular amendment or amendments of the constitution can be made in any other manner than that prescribed in article 9 of the amendments adopted in 1820. Considering that previous to 1820 no mode was provided by the constitution for its own amendment, that no other power for that purpose than in the mode alluded to is any where given in the constitution, by implication or otherwise, and that the mode thereby provided appears manifestly to have been carefully considered, and the power of altering the constitution thereby conferred to have been cautiously restrained and guarded, we think a strong implication arises against the existence of any other power under the constitution for the same purposes." See Opinion of Judges, 6 Cush. 574.

In 1854 a similar question came before the supreme court of Alabama in Collier v. Frierson, 24 Ala. 108. That able court said: "The constitution can be amended in but two ways: either by the people, who originally framed it, or in the mode prescribed by the instrument itself. If the last mode is pursued, the amendments must be proposed by two-thirds of each house of

the general assembly; they must be published in print at least three months before the next general election for representatives; it must appear from the returns made to the secretary of state that a majority of those voting for representatives have voted in favor of the proposed amendments; and they must be ratified by two-thirds of each house of the next general assembly after such election, voting by yeas and nays, the proposed amendments having been read, at each session, three times, on three several days, in each house. Const. Ala. Clay, Dig. 40. We entertain no doubt that to change the constitution in any other mode than by a convention every requisite which is demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment. We scarcely deem any argument necessary to enforce this proposition. The constitution is the supreme and paramount law. The mode by which amendments are to be made under it is clearly defined. It has been said that certain acts are to be done-certain requisitions are to be observed-before a change can be effected. But to what purpose are these acts required, or these requisitions enjoined, if the legislature, or any other department of the government, can dispense with them? To do so. would be to violate the instrument which they are sworn to support; and every principle of public law and sound constitutional policy requires the courts to pronounce against every amendment which is shown not to have been made in accordance with the rules prescribed by the fundamental law." In this case it was distinctly held that every requisition which is demanded by the constitution must be observed to change the constitution, and the omission of any one of them is fatal to the proposed amendment. Observe the reasoning, that these prerequisites are a part of the constitution, and the disregard of them by any department of the government "would be to violate the instrument which they are sworn to support."

In State v. McBride, 4 Mo. 303, decided at the April term, 1836, of that court, it was held that "the general assembly, acting itself under a power granted by the constitution, can only change the constitution in the manner prescribed to it." In this case it appeared that the constitution of Missouri authorized the general assembly, at any time, to propose such amendments to the constitution as two-thirds of each house shall deem expedient. The court held, in the case cited, that it would look into the proceedings of the legislature to see that all prerequisites had been complied with, and that the proposed amendments had been adopted by the two-thirds vote required.

In Wells v. Bain, 75 Pa. St. 39, (1874,) it is held that when a convention to frame amendments to the constitution is sitting under a legislative act from which all its authority is derived, the submission of its labors to a vote of the people in a manner different from that prescribed by the act is nugatory. In Wood's Appeal, 75 Pa. St. 59, (1874,) it is held that such a convention as the one above mentioned has no inherent rights. It has delegated powers only, and must keep within them.

In Wells v. Bain, supra, the court said: "The words in such manner as they may think proper,' in the declaration of rights, embrace but three known recognized modes by which the whole people-the state-can give their consent to an alteration of an existing lawful frame of government, viz.: (1) The mode provided in the existing constitution; (2) a law, as the instrumental process of raising the body for revision, and conveying to it the powers of the people; (3) a revolution. The first two are peaceful means through which the consent of the people to alteration is obtained, and by which the existing government consents to be displaced without revolution. The government gives its consent, either by pursuing the mode provided in the constitution, or by passing a law to call a convention. If consent be not so given by the existing government, the remedy of the people is in the third mode,-revolution."

The questions under consideration have been recently (1883) very fully considered by the supreme court of Iowa, in the case of Koehler v. Hill, 60 Iowa, 543; S. C. 14 N. W. Rep. 738, and 15 N. W. Rep. 609. The constitution of Iowa provides that "any amendment or amendments to this constitution may be proposed in either house of the general assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment 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 as provided by law for three months previous to the time of making such choice; and if, in the general assembly so next chosen as aforesaid, 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 general assembly to submit such proposed amendment to the people, in such manner, and at such time, as the general assembly shall provide; and if the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the general assembly voting thereon, such amendment or amendments shall become a part of the constitution of this state." Article 10, § 1.

The eighteenth general assembly of Iowa adopted a resolution introduced into it for amending the constitution of that state by adding a clause at the end of section 26. This resolution so adopted was sent to the senate, and adopted in a different shape from that in which it passed the house. The resolution adopted by the senate was as follows: "No person shall manufacture for sale, or sell, or keep for sale, as a beverage, or to be used, any intoxicating liquors whatever, including ale, wine, and beer." The house, on the return of the resolution, concurred in it as amended by the senate. The house journal shows that the committee on enrolled bills reported to the house that they had examined the joint resolution, and that the same was correctly enrolled. Thereupon such enrolled resolution was signed by the members of the house and president of the senate, and approved by the governor. The joint resolution thus signed and approved was as follows: "No person shall manufacture for sale, or sell, or keep for sale, as a beverage, any intoxicating liquor whatever, including ale, wine, and beer." This proposed amendment to the constitution in the form in which it was enrolled was agreed to by the nineteenth general assembly, and ratified by the electors at a special election held on the twenty-seventh day of June, 1882. It will thus be seen that the amendment as adopted was materially, in substance, different from the one ratified by the electors. It was not contended in the argument of the cause that this was not so. The proposed amendment was entered in the journal of the senate as above, but not in that of the house. 60 Iowa, 559, 560; 14 N. W. Rep. 746, 747. There was, however, an identifying reference in the house journal, and the court held this not a compliance with the constitutional provision. 60 Iowa, 560; 14 N. W. Rep. 747. "It matters not if not only every elector, but every adult person in the state, should desire and vote for an amendment to the constitution, it cannot be recognized as valid unless such vote was had in pursuance of, and in substantial accord with, the requirements of the constitution." 60 Iowa, 549; 14 N. W. Rep. 741.

The court further said: "The constitution provides for its own amendment, and the manner in which this may be done is prescribed with particularity, and yet the provisions are ample and readily understood. An amendment may be proposed in either house of the general assembly, and if the same shall be agreed to by a majority of the members elected to each of the two houses, the proposed amendment shall be entered on the journals, with the yeas and nays taken thereon.'" 60 Iowa, 554, 555; 14 N. W. Rep. 744. "We deem it sufficient to say that if there is any provision of the constitution

which should be regarded as mandatory, it is where the constitution provides for its own amendment otherwise than by means of a convention called for that purpose. * * * The object of the provision cannot be doubted or misunderstood. It is to preserve, in the manner indicated, the identical amendment proposed, and in an authentic form, which, under the constitution, is to come before the succeeding general assembly. * ** * It is immaterial, however, whether the constitution provides the best method for the preservation and authenticity of the proposed amendment or not, for the constitutional mode must prevail, even if it be conceded some other would have been better. It may be suggested that to enter' or entering' on the journal does not necessarily mean spreading the same at length thereon. This will be conceded, but that it may so mean must also, we think, be conceded. See Webst. Dict. Various instances where the words to enter' or entered' occur in statutes and constitution may, no doubt, be cited, where they do not mean spread at length. But this is not of much significance; for the object to be attained must be considered, in determining the meaning of the word entered,' as used in the constitution. The evident intent of the constitution is that the proposed amendment should be entered at length on the journal, or, at least, so entered as to leave no reasonable doubt as to its provisions. This must be so, or the entering of the yeas and nays can be as readily dispensed with as entering the resolution; and yet this is the constitutional mode of ascertaining whether a majority of the members elected to each house agreed to the amendment. Cooley, Const. Lim. (2d Ed.) 141. When the object intended to be accomplished is considered, we think there is no doubt that it is the design and intent of the constitution that a proposed amendment thereto should be so entered on the journals that it can be known, by an examination of the journals, what it is that has been agreed to by each house of the general assembly which first acts thereon, to the end that the succeeding general assembly may certainly know what its predecessor did. It seems to us that a simple entering on the journal of the title or object of a proposed amendment does not accomplish the intent of the constitution, and the thought that this must be so is much strengthened when regard is had to all the provisions of the constitution. That instrument provides that upon the final passage of a bill the yeas and nays must be taken, and the same entered upon the journal. This necessitates the entering on the journal of the title or substance of the bill to be voted upon. This being so, if no more than this was intended in relation to a constitutional amendment, the provision as to entering it on the journal is unnecessary and meaningless. There is no provision requiring a bill to be entered on the journal, but the constitution does require that a proposed amendment thereto shall be entered' on the journals, with the yeas and nays.' This must mean that the amendment shall be spread at length thereon, and the yeas and nays set out in the journal in full or at length. No distinction between the two can possibly be drawn." 60 Iowa, 555-557; 14 N. W. Rep. 744, 745.

On a rehearing the court further said: "We have already seen that the constitution requires that a proposed amendment to the constitution shall, when agreed to, be entered upon the journal of each house, with the yeas and nays. The eighteenth general assembly disregarded this constitutional requirement. The resolution is not entered upon the journal of the senate in the form that it was adopted by the nineteenth general assembly, and the senate substitute is not entered upon the journal of the house at all. Indeed, it is impossible to determine from the house journal that the senate substitute ever passed the house. It seems fairly inferable from the house journal (pages 502, 503) that the house readopted the original Harvey resolution, denominating it the 'senate amendment.' The constitution, then, having required this entry upon the journal, is the general assembly at liberty to disregard its provisions? Is this constitutional provision mandatory, or simply v.11p.no.1-2

directory? A mandatory provision is one which must be observed; a directory provision is one which leaves it optional with the department or officer to which it is addressed to obey it or not, as he shall see fit. Courts sometimes exercise the power of declaring statutory provisions directory. Even in the case of a statute, the exercise of this power is a delicate one, and must be indulged very sparingly. But in the case of a constitutional provision, the exercise of this power is of much more doubtful propriety. Judge COOLEY, in his excellent work upon Constitutional Limitations, (page 78,) as a result of his examination of the authorities upon the subject, holds the following language, which commends itself to us for its evident soundness: But the courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules, by which all departments of the government must, at all times, shape their conduct; and if it descends to prescribing mere rules of order in unessential matters, it is lowering the proper dignity of such an instrument, and usurping the proper province of ordinary legislation. We are not, therefore, to expect to find in a constitution provisions which the people in adopting it have not regarded as of high importance, and worthy to be embraced in an instrument which, for a time at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power which can be exercised, as well by the delegate as by the sovereign people themselves. If directions are given respecting the times or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only; and we impute to the people a want of due appreciation of the purpose and proper province of such an instrument when we infer that such directions are given to any other end; especially when, as has been already said, it is but fair to presume that the people in their constitution have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leave as little as possible to implication.' We adopt the foregoing quotation as giving expression to our own views. Placing the most liberal construction upon the provision of the constitution under consideration of which it is susceptible, we think it requires, at least, that the entries upon the journals shall show the terms of the amendment submitted. This is not shown upon the journal either of the senate or house of the eighteenth general assembly." 60 Iowa, 643-645; 15 N. W. Rep. 629, 630.

The conclusion reached by the court is that the proposed amendments shall be so entered on the journals of each house as to "show the terms of the amendment submitted." We cannot see how this conclusion can be refuted. We will add here that under our constitution no question can be made whether the provision in it for its amendment is mandatory or directory. That question is settled by the constitution itself, which ordains in the most solemn form and manner that each and all of its provisions are mandatory and prohibitory, unless by express words declared to be otherwise. Article 1, § 22. This section, in our judgment, not only commands that its provisions shall be obeyed, but that the disobedience of them is prohibited. Under the stress of this rule it is the duty of this court to give effect to every clause and word of the constitution, and to take care that it shall not be frittered away by subtle or refined or ingenious speculation. The people used plain language in their organic law to express their intent in language which cannot be misunderstood, and we must hold that they meant what they said.