Koehler & Lange v. Hill

Seevers, J.

At a sj>ecial election held on the 27th day of June, 1882, the electors of the State, by a majority of about thirty thousand, ratified an amendment to- the Constitution, which, it is claimed, had been previously agreed to by the Eighteenth and Nineteenth General Assemblies, prohibiting the manufacture and use of intoxicating liquors as a beverage, including ale, wine, and beer, as therein provided.

The question is fairly presented-in the record in this case, whether or not the amendment aforesaid has been constitutionally agreed to and adopted, and this is the question discussed by counsel, and the only question we are called on to determine. The validity of the amendment, and whether the same now constitutes a part of the Constitution, depend upon the question whether the Eighteenth General Assembly agreed to the amendment which was ratified and adopted by the' electors, and whether the amendment was agreed to .by the Eighteenth General Assembly in the form and manner required by the Constitution.

When the Constitution was adopted, it was wisely therein provided, or at least it must be- so presumed, 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 thé 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.” Art. 10, § 1.

This is the only way the Constitution can be amended or changed except by a convention called for that purpose.

In compliance with the foregoing provision, there was in-, troduced into the House of Representatives of the Eighteenth General Assembly a joint resolution, the material portion of which, for the purpose of this case, is as follows:

“Be it resolved by the General Assembly of the State of Iowa, That the following amendment to the Constitution of ■the State of Iowa be, and the same is hereby, proposed, viz.:

“To add as section 26 to article 1 of said Constitution the following:

“Section 26. No person shall hereafter manufacture, sell, or keep with intent to sell, within this State, any alcoholic, distilled, brewed, fermented or vinous liquors, except for medicinal and mechanical purposes.”

This resolution was agreed to by the House, sent to the Senate, and referred to the appropriate committee. The committee reported it back with the recommendation that it do pass. Various amendments were offered, and finally it was moved to adopt a substitute for the House resolution. The substitute was as follows:

“No person shall manufacture for sale, or sell, or keep for sale, as a beverage, or to be used for such purpose, any intoxicating liquors whatever.”

The substitute was amended by adding after the word “whatever” the words “including ale, wine, and beer.” It was further amended by striking out the words “for such purposes.” Thereupon the substitute, as amended, was adopted. On motion, the rule was suspended, the joint resolution considered engrossed, read a third time, and agreed to by the Senate, as shown by the journal, and it was sent with the following message from the Senate to the House:

“Mr. Speaker: I am directed to inform your honorable body that the Senate has passed the House joint resolution proposing to amend the Constitution so as to prohibit the sale of intoxicating liquors within this State, with amendments, as noted in the resolution.

“A. T. McCargae, Secretary.”

The joint resolution whicll had been agreed to by the Senate was referred to the appropriate committee, and such committee afterward made the following report to the House:

“Mr. Speaker: Your committee on constitutional amendments, to whom was referred the substitute passed by the Senate for the joint resolution passed by the House, proposing to amend the Constitution of the State of Iowa, as follows:

“Section 26. No person shall hereafter manufacture, sell, or keep with intent to sell, within this State, any alcoholic, distilled, brewed, fermented or vinous liquors, except for medical and mechanical purposes — beg leave to report that they have had the same under consideration, and a majority of said committee have instructed me to report the same back to the House with the recommendation that the House do concur in the passage of said substitute.

Thereupon the House concurred in the “Senate amendments.”

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 Speaker 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 was .agreed to by the Nineteenth General Assembly, and ratified by the electors at a special election, held on the 27th day of June, 1882. Counsel for the plaintiff insist that the joint resolution, at the time it was agreed to by the Senate, contained the words “or to be used.” Their contention is that it then reads as follows: “No person shall manufacture for sale, or sell, or keep for sale as a beverage, or to be used, any intoxicating liquor whatever, including ale, wine and beer.” The resolution claimed to have been agreed, to by the Senate is materially different in substance from the one ratified by the electors. Counsel for the appellant do not claim this is not so as shown by the journals, but their contention is that the enrolled resolution, signed by the Speaker of the House and President of the Senate, and aj>proved by the Governor, is a verity, and is conclusive evidence that the resolution as enrolled was agreed to by both houses of the Eighteenth General Assembly, or, if this is not so, that the perponderance - of the evidence is in favor of the proposition that the resolution which was agreed to was correctly enrolled. The plaintiff contends that it is made clear and certain by an examination of the Senate journal that the words “or to be used” were in the resolution when it passed the Senate, and that the journal is the best evidence of such fact. This question, and all others in the case, have been elaborately and ably argued by counsel, both in print and orally at bar, and we proceed to the consideration of the question just stated.

I. In Cooley’s Constitutional Limitations, 4th Ed., 164, it is said: “Each House keeps a journal of its proceedings, which is a public record, and of which courts are at liberty to take j udicial notice. If it should appear from these journals that any act did not receive the requisite majority, or that in respect to it the legislature did not follow any requirement of the Constitution, or that in any other respect the act was not constitutionally adopted, the courts may act upon this evidence, and adjudge the statute void.” In the opinion of the eminent author, the journals of the respective houses, in the absence of a statute so making them, are evidence of what the houses respectively did, and, upon such evidence, a statute, if not constitutionally passed, should be declared void by the courts. It logically follows that a proposed amendment to the Constitution should be declared void, if the same has not been constitutionally agreed to. It is not claimed that it is not just as essential, in a constitutional sense, that a proposed amendment to the Constitution should be agreed to by two General Assemblies, as that it should be ratified by the electors. Not only so, but each house of each General Assembly must agree to the same amendment, and it must be adopted by the electors. 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. If, then, both houses of the Eighteenth General Assembly did not agree to the resolution which was adopted and ratified by tbe electors at tbe special election held for that purpose, it is not a part of the Constitution, and cannot be so recognized.

There is much dispute between counsel as to whether Judge Cooley is sustained by the weight of authority. That there is an apparent want of harmony on the important question under consideration in the adjudged cases, must be conceded. In view of the peculiar provisions of our Constitution and statutes, we do not deem it important to determine, with any degree of accuracy, upon which side of this controversy there is a preponderance of authority, or which, in the absence of constitutional provisions or statutes, is the better rule. Nor do we deem it important to determine whether the term, “proceedings of the General Assembly,” as used by Cooley, embraces the contents of a bill or statute, or not; that is, whether such contents may be evidenced or established by the journal.

A brief examination of some of the authorities may, however, be of advantage, when we come to consider the bearing of the provisions of the constitution and statutes of this State on the question under consideration: The leading and better reasoned of the cases which hold the enrolled bill is a verity, and that the journals cannot be considered in determining the question whether such bill was constitutionally passed by the General Assembly, or what the contents of the bill were, are—The People v. Devlin 33 N. Y., 269; Sherman v. Story, 30 Cal., 254; Pagborn v. Young, 32 N. J., 29; Pacific R. R. Co. v. The Governor, 23 Mo., 353; Evans, Auditor of State, v. Brown, 30 Ind., 514. These cases are based on substantially the same reasons which are stated in the New York case, as follows: The journals “are not made evidence by the Constitution; they are not made so by the statute; they were never made so at common law.” In the New Jersey case, it is said: “They (the journals) are not required to be attested in any way whatever * *. There is required not a single guarantee to their accuracy or truth; no one need vouch for them, and it is not enjoined that they should be either approved, copied or recorded.” In the Missouri case, it is said: “But there is no provision of law declaring how the journals shall be authenticated, or what shall be their effect.” In addition to the foregoing, counsel for the appellant have cited—The State of Nevada v. Swift, 10 Nev., 176; Eld v. Gorham, 20 Conn., 7; Green v. Weller, 32 Miss., 650; Division of Howard County, 15 Kan., 194; Annapolis v. Howard, 32 Md., 471; Clare v. The State, 5 Iowa, 509; and Duncombe v. Prindle, 12 Id., 1. All that was determined bearing on the question under consideration in the two last named cases was that, where there is a conflict between the printed act and the enrolled act-filed in the office of the Secretary of State, the latter is the ultimate proof of the expression of the legislative will. Whether the journals were competent evidence, or their effect, was not considered in either case.

On the other hand, omitting reference to the earlier New York, Missouri and Indiana cases, there-may be cited, as sustaining the rule laid down by Cooley, the following:—Spangler v. Jacoby, 14 Ill., 297; The People v. Stame, 35 Id., 121; Miller v. Martin, 70 Id., 695; Burr v. Ross, 19 Ark., 250; The State v. Platt, 2 So. Car., N. S., 150; James v. Hutchinson, 43 Ala., 721; Moody v. State, 48 Id., 115; Smithie v. Garth, 33 Ark., 17; Board of Supervisors v. Henan, 2 Minn., 330; Southwark Bank v. Commonwealth, 26 Pa. St., 446. The Opinion of the Justices, 35 N. H., 579. Also 52 N. H., 622; The People v. Mahaney, 13 Mich., 481; Berry v. R. R. Co., 41 Ind., 446; Osborn v. Staley, 5 W. Va., 84.

As we have said, the appellant contends the enrolled joint resolution is a verity, and that we cannot look into the journals for the purpose of ascertaining whether or not it was ever agreed.to by the respective bodies composing the Eighteenth General Assembly, and that the great weight of authority is in favor of this position. The citations made indicate, to say the least, that this is a debatable question. We pass it, and turn to our constitution and statutes for the purpose of determining to what extent the adjudged cases are applicable in this State. The Constitution provides that each house shall keep a journal of its proceedings and publish the same — Art. 3, Section 9. It is believed a similar provision in substance is contained in the constitution of every State.

Every bill which shall have passed the General Assembly, before it becomes a law, shall be presented to the Governor. If he does not approve it, he shall return it to the house where it originated “which shall enter the same on their journal and proceed to consider it.” Art. 3, Section 16. “No bill shall be passed unless by the assent of a majority of all the members elected to each branch of the General Assembly, and the question upon the final passage shall be taken immediately upon its last reading, and the yeas and nays entered upon the journal.” Art. 3, Section 17.

The foregoing provisions are substantially the same as the provisions of the constitution of Illinois, upon which the cases cited from that State, were based. This being so, those cases are clearly applicable to the case at bar, and therefore entitled, at least, to respectful consideration.

The statute provides: “The secretary of the Senate and clerk of the House of Representatives shall transcribe the journals of their respective houses in books furnished for that purpose by the Secretary of State, and, after having certified to the correctness of the same, shall deliver them to the Secretary of State for preservation in his office.” Miller’s Code, p. 27, sec. 4. It is further provided by statute: “The proceedings of the legislature of this or any other state of the Union, or the United States, or of any foreign government, are proved by the journals of those bodies respectively, or of either branch thereof, and either by copies officially certified by the clerk of the house in which the proceeding was had, or by a copy purporting to have been printed by their order.” Code, § 3717.

"Without doubt, the journals, under the foregoing statutes, are competent evidence to establish the proceedings of either or both houses of the General Assembly. The important, if not the only legitimate, business of the General Assembly is legislation; that is, the enactment of laws or statutes. The proceedings of the General Assembly, therefore, include the manner and form in which the laws are enacted. The journals, therefore, are competent evidence of such facts. If it becomes necessary, the design of the statute evidently is that the journals may be introduced and become competent evidence in the courts. The provision is, the proceedings are proved by the journals. For this purpose the journals are competent evidence in all courts and places, and for all purposes — for there is no exception.

We, therefore, have not only the right, but it is our duty, to regard the journals as competent evidence of the proceedings of the General Assembly. To what extent they can be regarded as evidence, or what can be established thereby, will be hereafter considered.

Statutes, before they become such, and when first introduced into either house of >the General Assembly, are named “bills,” and every bill which has passed both houses shall be signed by the Speaker of the House and President of the Senate, and, we will assume, approved by the Governor, before it becomes a law. Art. 3, sections 15,16, of the Constitution.’

The statute provides: “The original acts of the General Assembly shall be deposited with and kept by the Secretary of State.” Code, § 31. No provision is made in the Constitution or statute for the enrollment of a bill, act,- or joint resolution, which has passed the General Assembly. There is an implication in Art. 3, Section 15, of the Constitution, that the bills which are introduced should be signed by the presiding officers of each house. But the legislative practice has always been to enroll a bill or joint resolution, and it is such that are always presented to the presiding officers of each house, signed by them, and filed and preserved in the office of the Secretary of State. This practice existed prior to the adoption of the present constitution, and no doubt was well known to the members of the constitutional convention. Ve, therefore, incline to think the enrolled bill is and should be regarded as the original act. But it is difficult to say enrollment is essential to the validity of a law or statute. If the enrollment was omitted, and the original bill, as introduced and passed by the General Assembly, was signed by the presiding officers of the two houses and approved by the Governor, we are not prepared to say it would not be a valid and constitutional law.

The question whether a bill which has been duly enrolled and properly signed by the presiding officers, and approved by the Governor, and deposited in the office of the Secretary of State, can be impeached or declared void because the journal's fail to show it was passed by either house of the General Assembly, or when the journals show affirmatively it never was passed, is not before us. The first proposition can possibly be readily answered, but the latter cannot be as readily solved.

Inasmuch as a bill, before it becomes a law, must-be signed by the presiding officers of the two houses and by the Governor, as will be assumed, we may, for the purposes of this case, concede, when it has been enrolled and so signed, and deposited in the office of the Secretary of State, it is the ultimate and conclusive evidence of the contents of the bill which passed the General Assembly, and that it cannot be contradicted by the journals, because there is no constitutional provisions requiring that it shall be entered on the journals.

The question before us is as to the validity of a constitutional amendment, and we think there is. a material distinction between the rules which must obtain in such case, and when.a statute is assailed as not having been constitutionally enacted. 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 simple and readily understood. An amendment may be “proposed in either house of the General Assembly, and if the same shall be agrfeed 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.”

Much has been said by counsel as to whether the provision as to entering the proposed amendment on the journals'is mandatory or directory. We do not regard it as essential to determine this question, but we cannot forbear from quoting the following from Cooley on Constitutional Limitations: “ In all that 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 is 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 not 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 the instrument from which it derives its authority, and which ought, therefore, to be scrupulously observed and obeyed.” Cooley’s Constitutional Limitations, 2 Ed., 149.

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 powers of a convention are, of course, unlimited. The members thereof are the representatives of the people, called together 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. No better mode could have been adopted, when it is considered that, to be effective, the proposed amendment must be agreed to by the succeeding General Assembly. This thought is much strengthened by the consideration that the proposed amendment is only required to be entered on the journals of the first General Assembly which acts thereon. This distinction, to our minds, is significant, and enhances the importance of the constitutional injunction — that the proposed amendment shall be entered on the journals of both houses of the General Assembly which first agrees thereto. 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 Webster’s Dictionary. Yarious 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 majoriy of the members elected to each house agreed to the amendment. ‘Cooley’s Constitutional Limitations, 2 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 t'he 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. Amendments were proposed to the Constitution in the Eleventh General Assmbly, some of which were agreed to, but all were spread at length on the journal. The amendments afterward ratified by the electors, striking out the word “white” where it occurred in the Constitution, were among the amendments proposed at that session. These amendments were spread at length upon the journals of both houses. Here we have a legislative construction of the Constitution which should not and cannot be ignored.

It will be observed that the Constitution does not provide in what manner the amendment shall be proposed. Whether it shall be done by a bill or joint resolution seems to have been left to the discretion of the General Assembly to determine. But, in whatever way proposed, when agreed to, it is provided that it shall be entered on the journal. Now suppose- a member of eithér house had, while it was in session, orally proposed the amendment in question in the form it was agreed to by the electors, and it had been entered at length on the journal, .and agreed to, and the amendment so entered had been correctly copied and properly transmitted to the other house, entered at length on its journal, and agreed to, and published as provided by the Constitution and law, and the subsequent general Assembly had agreed thereto as required by the Constitution, and the same had been submitted to-the electors, as was done, could it be said it was not constitutionally adopted, because it was not enrolled, signed by the presiding officers of the two houses, and approved by the Governor ? If it can be so said, why, or for what reason ?

Suppose the Governor had vetoed the joint resolution and returned it, with his objections, to the house in which it originated, and upon being put upon its passage it had failed to receive a two-thirds majority of one or both houses, as provided in Art. 3., section 16 of the Constitution, would this have been fatal to the amendment ? No one will so contend. It was not essential, therefore, the Governor should have approved the- joint resolution. The Constitution does not so require.' There is no provision of the Constitution, nor is there a statute which, by implication, requires that a joint resolution proposing to amend the Constitution shall be signed by the presiding officers of the two houses. Such signing, therefore, is "not essential, and may be dispensed with. There is no provision of the Constitution or statute which requires it shall be enrolled. But there is a constitutional injunction, to say the least, that it shall be entered on the journals. In a constitutional sense, the journals constitute and are the primary and best evidence, and the enrolling and signing, as above stated, at best, are only secondary evidence, which may,, and can only be considered when the primary evidence has been lost or destroyed. The Senate substitute for the House resolution, when introduced, was entered at length upon the journal of the Senate. There was added to it the words, “including ale, wine and beer.” These words are set out at length in the journal. The substitute, when introduced, contained the words “or to be used for such purpose.” The words “for such purpose” were stricken out, as shown by the journal. Thereupon the substitute was agreed to, and the joint resolution, as thus amended, was agreed to by the Senate. The words “or to be used” were in the substitute when it was introduced. They were not, so far as the journal shows, stricken out by any action taken by the Senate. It necessarily follows that, so far as can be determined from a,ny competent evidence, the words “or to be used” were in and formed a part of the substitute when it was passed, and of the joint resolution agreed to by the Senate.

The Constitution seems to contemplate that the proposed amendment shall be entered on the journals with the yeas and nays. Literally, we apprehend, the proposition should be entered on the journal, and immediately followed by the yeas and nays. But the substantial requirement is that the proposed amendment shall be entered on the journal, and we think this was done in the Senate journal of the Eighteenth General Assembly, and that a substantial compliance with even the forms enjoined by the Constitution clearly appears. "We have, then, before us, in the Senate journal, the constitutional evidence of the exact form of the resolution which was agreed to by the Senate. "We cannot ignore it or give effect to other evidence, and say that something else that was done shows that the Senate journal does not state truly what the Senate did. "Where a statute prescribes that a particular fact or act shall be proven or established in a particular way, no other evidence can be regarded as sufficient. Baldozier v. Haynes, 57 Iowa, 683. The journal of the House of the Eighteenth G-eneral Assembly fails to set out, or even show, the substance of the substitute or amendment of the House joint resolution which had been adopted by the Senate. Such journal only sets out the original resolution which had been introduced in the House, and shows simply that the House concurred in the Senate substitute, and, therefore, the House journal fails to show that it adopted the same resolution which was adopted by the Senate.

II. It was suggested on the oral argument, by one of the counsel for the ajjpellant, that the words “or to be used” were struck out of the substitute by common consent before it was adopted by the Senate, and it was further suggested on such argument that we can readily so ascertain, if we should consult the persons present at the time, including the members of the Senate, and that we should not only do so, but that such is our duty. This argument practically concedes the necessity of getting rid of the words aforesaid in some manner. As has been said, the Senate journal, by the provisions of the Constitution, is made the primary evidence of the contents of the resolution, as it passed the Senate. This journal is in existence, and, as has been said, was kept as required by the Constitution. Now we áre asked to ignore this constitutional evidence, and receive parol evidence, or ascertain for ourselves by inquiry of those who are supposed to know, as to the existence of a fact which is contradictory to the journals kept, certified to, and preserved by sworn officers, as provided by law. To our minds this is a startling proposition. It ignores fundamental rules which have always existed. Parol evidence never can be introduced or considered when there is written evidence of any fact which can be produced. If the journals had been lost or destroyed, it is possible that we could and should resort to the next best evidence attainable. If there was any written evidence in existence, resort, we presume, would first be had to that. If there was none sudh,' it may be parol evidence should be regarded as competent. But it is useless to speculate. The constitutional evidence is before ns, and by that we are bound.

In Kansas there is a statute requiring the Secretary of State to take charge of all enrolled laws, and in the Division of Howard County, 15 Kans., 194, it was said: “Now, as we have before intimated, the enrolled bills and the legislative journals being records provided for by the Constitution, imparting absolute verity, we cannot take judicial notice that they are untrue, nor can we even allow evidence to be introduced for the purpose of proving they are not true.” In this ease there was no conflict between the journals, and enrolled law, and the court said, as both were records provided by the Constitution, both imparted absolute verity. So the journals in this State impart absolute verity, and, as no enrollment of a proposed constitutional amendment is required by the Constitution, it cannot impeach or contradict the journal.

III. It was suggested in argument that the journals of both houses of the General Assembly are written and kept by clerks, and that this duty is carelessly performed, and, therefore, they cannot be relied on as accurate. The rules adopted by each house require that the journals of the proceedings of the preceding day shall be read in the presence of the members thereof on the morning of the succeeding day. It is said such reading is frequently dispensed with. This is believed to be true, but this can be done only with the consent of the House. The journal of the Senate- of the Eighteenth General Assembly, however, shows that it was read on the morning of the day after the proposed amendment was adopted by the Senate. Now if the words “or to be used” were stricken out by common consent, or otherwise, is it not exceedingly strange no member called attention to the fact that the journal failed to so show? Can or should it be presumed the members of the Senate failed to perform their duty? If the words aforesaid were stricken out by common consent, or by any action of the Senate, it is clear the journal should show it. Under the circumstances, and in accord with the universal rule, if necessary, should n'ot the presumption be indulged that every officer or other person does that which by law he is enjoined to do? It is true, the journals are written and kept by clerks, but they are sworn officers, who perform their duties under the direction of the respective houses of which they are officers. The records and proceedings of all courts are kept by clerks under the direction of the court, and they impart absolute verity, in the absence of fraud. Why, therefore, should not the import of the journals be the same? Especially should this be so held, when the Constitution has so clearly defined that amendments to the Constitution must be entered on the journals of, not one house only, but both. The Constitution contemplates that the journal is kept under the direction and in accord with the directions of the two houses, by whom the constitutional amendment must be agreed to before it can be valid. Who is so likely to know what was done, or the exact phraseology of a proposed amendment, as the body by whom it was agreed to, and how could the amendment be better evidenced or authenticated than by entering or spreading the same on the journal?

It is said that the enrolled joint resolution, which was signed by the presiding officers of the two houses, constitutes such evidence. Rut, as we have seen, such enrolling and signing is not required, but may be dispensed with at the pleasure of the two houses. It cannot be possible that such an enrolled bill or resolution can supersede or constitute more reliable evidence than the journals of the Senate of the Eighteenth General Assembly, which was kept in strict accord with the requirements of the Constitution. It is said the enrolled joint resolution constitutes better evidence of what the Senate did than the journal, because of the certainty which exists that it was enrolled precisely as it was agreed to. The joint resolution, as we have seen, was first agreed to by the House, sent to the Senate, and there a substitute was adopted, which was returned to the House and agreed to by it. It was not enrolled by the officers or clerks of the Senate under the supervision of a committee of that body. It was, no doubt, correctly enrolled as it passed the House. But whether it had passed the Senate in the same form, depends on the question whether the Secretary of the Senate reported to the House the same resolution which had passed the Senate. Here there is great liability to mistake. Besides this, the enrolling is the act of a clerk, under the supervision of a committee, composed of, we believe, two members of the House or Senate. This clerk and committee might make a mistate in enrolling the resolution. They are as liable to do so as the secretary of the Senate in keeping the journal under the direction and supervision of the whole body of senators. The argument, then, that the enrolled resolution is better evidence of what the Senate did than the journal, because more likely to be accurate, falls to the ground.

For fear we may be misunderstood, we will repeat that, when a bill or joint resolution is required to be signed by the presiding officers and the Governor, and it is so signed, it will be conceded that such bill or resolution constitutes the ultimate and conclusive evidence of the contents thereof.

IY. The Constitution provides that “the powers of the government of Iowa shall be divided into three separate departments — the legislative, the executive, and the judicial; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed and permitted.” When the Nineteenth General Assembly came to consider the question as to whether or not it would agree to the constitutional amendment proposed in the Eighteenth General Assembly, it did so in the following manner and form, omitting immaterial portions thereof:

“Joint resolution agreemg to an amendment of the Oon stitution of the State of Iowa, prohibiting the mmvufaetwre and sale of intoxicating liquors as a beverage within this State.

“Whereas, The Eighteenth General Assembly of the State of Iowa did in dne form, by a majority of the members elected to each of the two houses, agree to a proposed amendment to the Constitution of this State, to add as section 26, to article 1 of said Constitution, the following:

“Section 26. No person shall manufacture for sale, or sell, or keep for sale, as a beverage, any intoxicating liquors whatever, including ale, wine and beer.”

It will be observed the words “or to be used’? are not in this resolution, and that the Nineteenth General Assembly determined, in substance, such words were not in the resolution when it was agreed to by the Eighteenth General Assembly.

Now it is insisted by counsel that the courts and all persons are bound by the determination of a fact by the Nineteenth General Assembly, which occurred or did not occur in the Eighteenth General Assembly. The argument goes further, and it is insisted the courts are concluded and estopped from ascertaining the truth, and that the parties to this action and all persons are so concluded and estopped, no matter what the truth may be.

In support of this proposition Shawhan v. Loffer, 24 Iowa, 217; Cooper v. Sunderland, 3 Id., 114; Boker v. Chapline, 12 Id., 204; Bonsall v. Isett, 14 Id., 308; Morrow v. Weed, 4 Id., 77; Ballinger v. Tarbell, 16 Id., 491; Pursley v. Hays, 22 Id., 11; and Lyon v. Vanatta, 35 Id., 521, are cited. In these cases, or the most of them, there was a defective service of notice of the action or proceeding. While this was so, the court proceeded and granted the relief asked. It was held, in a collateral proceeding attacking the judgment of the court, that it was erroneous only, and not void. An erroneous judgment can only be corrected in a direct proceeding by appeal or other appropriate remedy provided by law. If tbe court rendering tbe judgment is one of general jurisdiction the presumption is always indulged, where nothing appears to the contrary, that such court had jurisdiction. Every court of that character has, of necessity, the power to inquire and determine as to its own jurisdiction, and if it commits an error in this respect the judgment is not void, but erroneous merely. But if it affirmatively appears of record that such a court did not have jurisdiction over the subject-matter, or of the person against whom the judgment is rendered, such judgment would be absolutely void, and could not be 'enforced. Boker v. Chapline before cited.

Conceding, then, that the determination of the Nineteenth General Assembly as to what was done by the Eighteenth is similar to the determination of a court in relation to its own jurisdiction, we then have a case where jurisdiction has been asserted by the assumption of a fact which the record of the Eighteenth General Assembly affirmatively ■ shows did not exist; that is, the journal of the Senate of the Eighteenth General Assembly shows that body did not pass the joint resolution the Nineteenth General Assembly determined it did. As this fact affirmatively appears of record, the determination of the Nineteenth General Assembly is not binding on anyone, and is absolutely void. It was held in Duncombe v. Prindle, 12 Iowa, 1, that the recital in an act of the General Assembly was not conclusive as to private parties affected thereby, and, in that case, the recited fact was found to be otherwise than it had been determined to be by the General Assembly. This, it seems to us, must be so, or a person might be deprived of his property and rights by the finding or recital of a fact by the General Assembly. For the argument is that such determination is conclusive, amounts to a verity, and cannot be impeached, however false it may be. To thus deprive a person of his property or of a substantial right, without trial by jury, or the opportunity to prove the truth, would be clearly unconstitutional, and an usurpation by the legislative department of the government of the powers expressly conferred upon the judiciary. .It is further insisted that, under the Constitution, the Nineteenth General Assembly had the jurisdiction and power to submit the amendment to the electors, provided it had been agreed to by the Eighteenth, and that, therefore, it was the province of the Nineteenth General Assembly to inquire what the Eighteenth did, and for this purpose, and to this extent, it was invested by the Constitution with judicial powers. In support of this proposition, counsel cite and rely on Brittian v. Kinnard, 1 Brad. & Bing., 432; Betts v. Bagley, 12 Pick., 572; Marston v. Mott, 12 Wheat., 19; Vanderhayden v. Young, 11 Johns., 150; Birdsall v. Phillips, 17 Wend., 464; Ex Parte Watkins, 3 Peters, 192; The People v. City of Rochester, 21 Barb., 656; and Ryan v. Varga, 37 Iowa, 78. The last case cited well illustrates the rule contended for, and the other cases cited are based upon the same rule, which is undisputed. The statute provided where a-petition signed by one-third of the resident tax-payers of a township, “asking the question of aiding in the construction of any i-ailroad to be submitted to the voters' thereof\ it shall be the duty of the trastees * * * * * * to immediately give notice of a special election,” for the purpose of determining such question. Before the trustees could order the election, they must determine the petition had been signed by the. requisite number of tax-payers, and to this extent they were invested with judicial powers. Now, in Ryan v. Varga it was held, under this statute, where the trustees had given the requisite notice, and the election had been held, tax voted and duly levied, and it was sought- to enjoin the collection on the ground that one-third of the tax-payers had not signed the petition, that the decision of this question by the trustees was conclusive. At the same time it was said such question could be re-examined and again “decided by the courts only upon an appeal, writ of error, certiorari, or other method provided for a direct review of the decision made by tbe trustees.” The proceeding in which this ruling was made was collateral in character, and not direct.

It cannot be questioned the decision of the trustees could have been reviewed on certiorari, and their decision reversed if the fact was the petition had not been signed by the requisite number of resident tax-payers. The plaintiff in the cited case, then, had a remedy which he failed to adopt. But it cannot be successfully maintained in the case at bar that either party to this action, or any other person, could, by certiorari or otherwise, have brought before the courts for review acts of the legislative department of the government.

It is clear, we think, the Nineteenth General Assembly could not have been enjoined by the courts, or in any manner prevented from passing the joint resolution, with the recital therein, just as it did. A law may be declared unconstitutional by the judiciary, but its passage by the General Assembly cannot be prevented. The Des Moines Gas Co. v. The City of Des Moines, 44 Iowa, 505.

There was no way known to the law, except the manner adopted in this case, by which the question as to the validity of the constitutional amendment could be tested in the courts. The logical result of the argument of counsel for the 'appellant is, that it is for the General Assembly to say whether an amendment to the Constitution has been constitirtionally adopted, and that their determination is conclusive and binding upon all persons. Therefore, it follows, the Nineteenth General Assembly could have determined the Eighteenth General Assembly had agreed to an amendment which had never passed that body, and then agree thereto, and submit it to the people, and, if the same was ratified by the electors, that it would be valid. If this be so, the provision of the Constitution requiring it to be agreed to by two General Assemblies must be ignored, and certainly this will not be claimed.

Each General Assembly is independent and supreme as the law-making power, within the limits prescribed by the Constitution. The last General Assembly which convenes may undo all that its predecessors have done. But it cannot, so to speak, put words into the mouth of any of its j>redeeessors.

Y. The Constitution provides, that “all political power- is inherent in the people.” Art. 1, § 2. While this is so, the Constitution is a limitation on such power. The power of the people can only be exercised through the executive, legislative and judicial departments of the government, unless a change of the Constitution through a convention constitutes an exception to the general rule. The power which is inherent in. the people must be expressed and exercised in a lawful manner. We are aware of the rule, which universally obtains, that a statute should not be declared unconstitutional unless it clearly appears to be so. It follows, this rule should be applied to amendments of the Constitution. Mindful of this rule, and feeling its full force, it is possibly to be regretted that we have felt forced to declare that the amendment in question, which was ratified by so large a majority of the electors, has not been constitutionally adopted. But we cannot ignore another rule, which also universally obtains, which is that it is not only the province, but the duty of the judiciary, to fearlessly declare a statute or amendment to the Constitution to be unconstitutional, when such is clearly the case. We would be derelict to duty if we .did not do so. As the Constitution is a limitation on the power of the people, this proposed amendment is of that character. As we have held it is not a part of the Constitution, it is, perhaps, a subject of congratulation that the General Assembly can, by the enactment of a law, effectuate the objeet intended to be accomplished thereby.

The result is, the judgment of the District Court must be

Affirmed.