On Ee-hearin&.
Day, Ch. J.A petition for re-hearing was presented in this cause, and the whole case has been re-argued by eminent counsel with much ability and research. In view of the great interest which has attached' to this question, and of its public importance, we deem it not only proper, but necessary, to examine with considerable fullness the leading points relied upon as necessitating a conclusion different from the one reached in the foregoing opinion.
*604I. It is asserted in the petition for re-hearing that “the judicial department of the state has no jurisdiction over political questions, and cannot review the action of the Nineteenth General Assembly, and of the people, in the matter of the adoption or amendment of the constitution of the state.” This position practically amounts to this: that the provisions', of the constitution for its own amendment are simply direct-f ory, and may be disregarded with impunity; for it is idle to-say that these requirements of the constitution must be observed, if the departments charged with their observance are the sole judges as to whether or not they have been complied with. This proposition was advanced for the first time upon the petition for re-hearing, and, if correct, it is of course an end of the controversy. Upon this branch of the case counsel cite Luther v. Borden, 7 How., 1. As this case has principally been relied upon by the advocates of the theory now under consideration, and has been given great prominence in the discussions which have taken place, we desire to present its facts with a degree of fullness which, under ordinary circumstances, would perhaps be considered unnecessary, to the end that the degree of its applicability to the present case may be fully understood.
In 1841, the state of Rhode Island was acting under the form of government established by the charter of Charles II, in 1663. In this form of government no mode of proceeding was pointed out by which amendments could be made. It authorized the legislature to prescribe the qualification of voters, and in the exercise of this power the right of suffrage was confined to freeholders. In 1841, meetings were held and associations were formed by those who were in favor of a more extended right of suffrage, which finally resulted in the election of a convention to form a new constitution, to be submitted to the people for their adoption or rejection. The persons chosen came together and framed a constitution by which the rights of suffrage was extended to every male citizen of twenty-one years of age who had resided in the *605state for one year. Upon a return of the votes, the convention declared .that the constitution was adopted and ratified by a majority of the people of the state, and was the para-, mount law and constitution of Ehode Island. The charter government did not admit the validity of the proceedings, nor acquiesce in them. On the contrary, in January, 1842, when this new constitution was communicated to the governor and by him laid before the legislature, it passed resolutions declaring all acts done for the purpose of imposing that constitution upon the state, to be an assumption of the powers of government, in violation of the rights of the existing government and of the people at large, and that it would maintain its authority and defend the legal and constitutional rights of the people. Thomas W. Dorr, who had been elected governor under the new constitution, prepared to assert the authority of that government by force, and many citizens assembled in arms to support him. The charter government thereupon passed an act declaring the state under martial law, and at the same time proceeded to call out the militia to repel the threatened attack, and to subdue those who were engaged in it. The plaintiff, Luther, was engaged in supporting the new government, and, in order to arrest him, his house was broken and entered by the defendants, who were enrolled in the military force of the old government, and in arms to support its authority. The government under the new constitution had but a short and ignoble existence. In May, 1842, Dorr made an unsuccessful attempt, at the; head of a military force, to get possession of the state arsenal at Providence, which was repulsed. In June following, an assemblage of some hundreds of armed men, under his command at Chipatchet, dispersed, upon the approach of the troops of the old government, and no further effort was made to establish the new government. In January, 1842, the charter government took measures to call a convention to revise the existing form of government, and a new constitution was formed, which was ratified by the peo*606pie, and went into operation in May, 1843, at which, time the old government formally surrendered all its powers. Under this government Dorr was tried for treason, and in June, 1844, was sentenced to imprisonment for life. In October, 1842, Luther brought an action in the Circuit Court of the United States, against Borden and others, to recover damages for the breaking and entering of his house in June, 1842. The defendants justified, alleging that there was an insurrection to overthrow the government, that martial law was declared, that plaintiff was aiding and abetting the insurrection, that defendants were enrolled in the militia force of the state and were ordered to arrest the plaintiff. The plaintiff relied upon the fact that the Dorr government, to which he adhered, was the legal goveimment of the state, and, as the new constitution had never been recognized by any department of the old government, he offered to prove at the trial, by the production of the original ballots, and the original registers of the persons voting, and by the testimony of the persons voting, and by the constitutionjtself, and by the census of, the United States for the year 1840, that the Dorr constitution was ratified by a large majority of the male people of the state, of the age of twenty-one and upwards, and also by a majority of those who were entitled to vote for general officers under the then existing laws of the state. The Circuit Court rejected the evidence, and instructed the jury that the charter government, and laws under which the defendants acted, were, at the time the trespass was alleged to have been committed, in full force and effect, and constituted a justification of the acts of the defendants. The correctness of this ruling involved the only question which was taken to the Supreme Court of the United States for review. The Supreme Court held that the evidence was properly rejected. Of the correctness of that decision no one can entertain the shadow of a doubt. But the differences between that case and this are so many and so evident, as to deprive it of all force as an authority in the present *607controversy. In that case an entire change in the form of government was undertaken; in this,.simply an amendment, in no manner affecting the judicial authority of those acting under the existing government, is sought to be incorporated into the existing constitution. In that case the charter pro-?' vided no means for its amendment; in this, the mode of | an amendment is specifically provided. In that case the* authority of' the court was invoked for the admission of oral evidence to overthrow the existing government and establish a new one in its place; in this, that authority is invoked simply to preserve the existing constitution intact.
It is evident, from an examination of the entire case of Luther v. Borden, that the question which the court was considering pertained to the power of the federal courts to determine between rival constitutions in the states. The power is not denied to the state courts, unless one of the constitutions involved in the controversy be the one under which the court is organized. This is fully apparent from the whole opinion. Referring to the trial of Thomas W. Dorr for treason, in the Supreme Court of Rhode Island, the court say: “ It is worthy of remark, however, when we are referring to the authority of state decisions, that the trial of Thomas ~W. Dorr took place after the constitution of 1843 went into operation. The judges who decided that case, held their authority under that constitution; and it is admitted on all hands that it was adopted by the people of the state, and is the lawful and established government. It is the decision, therefore, of a state court, whose judicial authority to decide upon the constitution and laws of Rhode Island is not questioned by either party to this controversy, although the gov-* eminent under which it acted was framed and adopted under the sanction and laws of the charter government. The point, then, raised here-has already been decided by the courts of Rhode Island. The question relates altogether to the constitution and laws of that state; and the well settled rule in this court is, that the courts of the United States adopt and *608follow the decisions of the state courts in questions which concern merely the constitution and laws of the state. Upon what ground could the Circuit Court of the United States, which tried this case, have departed from this rule", and disregarded and overruled the decisions of the courts of Rhode Island.” It seems from the foregoing quotation, which is really the fact, that the courts of Rhode Island had determined the question involved in Luther v. Borden, and that the courts of the United States were bound by and followed that adjudication.
The language of the court which, it is claimed, asserts the doctrine that the question of a change of constitutions is a political one, with which courts have nothing to do, was clearly employed with reference to the peculiar facts of the case. This is apparent from the following language of the opinion, which is found upon pages 39, 40. “Indeed, we do not see how the question could be tried and judicially decided in the state court. Judicial power presupposes an established government, capable of enacting laws and enforcing their execution, and of appointing judges to expound and administer them. The acceptance of the judicial office is a recognition of the authority of the government from which it is derived, and if the authority of that government is annizlled and overthrown, the power of its courts and other officers is annulled with it, and if a state court should enter upon the inquiry proposed in this case, and should come to tbe conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court, and be incapable of pronouncing a judicial decision upon the question it undertook to try. If ir1 decides at all as a court, it zzecessarily affirms the existence/ and the authority of the government under which it is exert cising judicial power.” That this reasoning is eminently sound no one can doubt. A court which, under the circumstances named, should enter upon an inquiry as to the existence of the constitution under which it was acting, would be *609like a man trying to prove his personal existence, and would be obliged to assume the very point in dispute, before taking the first step in the argument. It is apparent that the reasoning employed in that case can have no application whatever to an amendment to a constitution, which does not affect the form of government, or the judicial powers of existing courts. The case of Luther v. Borden gives no countenance whatever to the doctrine that the sovereignty of the people extends rightfully to the overturning of constitutions and the adoption of new ones, without regard to the forms of existing provisions. It is true that right, under our form of government, exists, but it is a revolutionary and not a constitutional right. "When that right is invoked, a question arises which is above the constitution, and above the courts, and which contending factions can alone determine by appeal to the dernier resort. In such a case as that, might makes right. That there are questions of such a character as to admit of no adjustment but through an appeal to arms, we freely admit. This arises out of the imperfections of human government. A government which could provide for the peaceful adjustment of all questions would be more than human. But surely no sagacious statesman or wise jurist will seek, by a narrow construction of judicial power, to extend the questions which are beyond the domain of the courts, and capable of solution only by an appeal to arms. Happily for. the permanency and security of our institutions, the present case, as we believe, involves no such question.
It has been said that changes in the constitution may be introduced in disregard of its provisions; that, if the majority of the people desire a change, the majority must be respected, no matter how the change may be affected, and that the change, if revolution, is peaceful revolution. But the revolution is peaceful only upon the assumption that the party opposed surrenders its opposition and voluntarily acquiesces. If it objects to the change, then a question arises which can be de*610termined only in one of two methods, by the arbitrament of the courts, or by the arbitrament of the sword.
Disguise the question as we will, theorize about it as we may, this is the fact with which we are at last brought face to face, and wisdom dictates that its dreadful possibilities should be apprehened and appreciated. We fear that the advocates of this new doctrine, in a zeal to accomplish an end which a majority of the people desire, have looked at but one phase of the question, and have not fully considered the terrible consequences which would almost certainly follow a recognition of the doctrine for which they contend. It may be that the incorporation of this amendment in the constitution, even if the constitution has to be broken to accomplish it, would not, of itself, produce any serious results. Rut if it should be done by sanctioning the doctrine contended for, a precedent would be set which would plague the state for all future time. A Ranquo’s ghost would arise at our incantation which ■ would not down at our bidding. The contest between the ¡ rival governments in the state of ^Jiode Island raised a ! question which was above the power of the existing courts; 1 and it is a matter of history that it was not determined until the adherents of the Dorr Constitution fled at the point of the bayonet. We have read history to little purpose, if we refuse to learn from its examples or profit by its teachings. The public dangers which threatened the republic from the rival claims for the presidency, so graphically and so beauti- ' fully described by appellant’s attorney, were averted only | through a commission created by Congress, entrusted with ju- ’ dicial powers, which judicially determined the questions involved, and to whose decisions the people yielded voluntary obedience. That judicial decision averted the horrors of i.a civil war. The political department of the government, to which so much reference has been made in this case, stood appalled and impotent in the face of the great danger, and yet we are asked to abdicate our functions, to deny our jurisdiction, and to leave the question of an amendment to the *611constitution, unless voluntarily acquiesced in, to be determined by a resort to arms. We ought to ponder long before we adopt a doctrine so fraught with danger to republican institutions. All the danger lies in the line of the argument of appellant’s attorneys. The courts can never overturn our institutions or subvert our liberties. They command neither the purse nor the sword of the state. Rut a people which is educated to disrespect the decisions and disregard the adjudications of the courts, is prepared for anarchy, with all its attendant evils and dreadful consequences. We may, perhaps, be excused, if in the interest of social order and public security, and the permanency of republican institutions, we enter a most earnest protest against the heresies which have been advanced in this case. -/
The appellant further cites and relies upon Williams v. Suffolk Insurance Company, 13 Pet., 414. The only point determined in this is, that where the President, in a message to Congress, and in correspondence carried on with the government of Rueños Ayres, denied the jurisdiction of that country over the Falkland Islands, the courts must take the facts to be so.
The determining of the territorial jurisdiction of a foreign country, from the very nature of the subject, cannot reside in the courts of this country, but must be entrusted to the treaty making power, which rests in the President by and with the advice and consent of the senate. When, therefore, the President, in his official communications, has denied the jurisdiction of a foreign country over specified territory, it may well be conceded that it would not be within the jurisdiction of the courts to determine the fact to be otherwise. We are, however, unable to see that this case has any bearing upon the question now under consideration.
The case of United States v. Baker et al., 5 Blatchford, 12, is also cited and relied upon by appellant. This is a nisi prius case. The defendants were indicted for piracy, and were tried in 1861. They were acting as privateers under a commission *612from Jefferson Davis, President of the Confederate States, which they claimed was, at least, a government de faeto, and entitled to the rights and privileges that belong to a sovereign and independent nation. Nelson, J., upon this branch of the case, charged the jury as follows: “ The court do not deem it pertinent or material to enter into this wide field of inquiry. This branch of the defense involves considerations that do not belong to the courts of the country. It involves the determination of great public and political questions, which belong to the departments of our government that have charge of our foreign relations — the legislative and executive departments. When those questions are decided by those departments, the courts follow the decisions, and, until/ those departments have recognized the existence of the new government, the courts of the nation cannot. Until this recognition of the new government, the courts are obliged to regard the ancient state of things as remaining unchanged.” This case falls under the same principle ás the preceding case.
The case of White v. Hart, 13 Wallace, 646, which is the only remaining case cited by the appellant upon this branch of the case, originated as follows: In January, 1866, the plaintiff instituted a suit in the Supreme Court of Chattooga county, Georgia, upon a promissory note. The defendant pleaded in abatement that the consideration of the note was a slave, and that, by the present constitution of the state of Georgia, the court is prohibited to take and exercise jurisdiction or render judgment thereon. To this plea the plaintiff demurred. The court overruled the demurrer, and gave judgment for the defendants, thus enforcing the constitutional provision. The plaintiff excepted, and removed the case to the Supreme Court of the state, where the judgment was affirmed, and the plaintiff thereupon prosecuted a writ of error in the Supreme Court of the United States. The constitution of Georgia of 1868 contains the toll owing clause:
“ Provided, that no court or officer shall have, nor shall the General Assembly give, jurisdiction to try, or give judgment *613on, or enforce any debt, tbe consideration of which was a slave or the hire thereof.” The plaintiff insisted that this provision was in conflict with the constitution of the United States, in that it impaired the obligation of contracts. The defendant sought to maintain the judgment in his favor, upon the ground, amongst others, that the constitution of Georgia was adopted under the ■ dictation and coercion of Congress, and is the act of Congress rather than of the state, and that, though a state cannot pass a law impairing the yalidity of contracts, Congress can, and that for this reason the inhibition in the constitution of the United States has no effect in this case. In passing upon this question the court says: “Congress authorized the state to frame a new constitution, and she elected to proceed within the scope of the authority conferred. The result was submitted to Congress as a voluntary and valid offering, and was so received, and so recognized in the subsequent action of that body. The state is estopped to assail it upon such an assumption. Upon the same ground she might deny the validity of her ratification of the constitutional amendments. The action of Congress upon the subject cannot be inquired into. The case is clearly one in which the judicial is bound to fol-;f'* low the action of the political department of the government,^1 and is concluded by it.”
This case is a very peculiar one, from the fact that the defendant did not claim that the constitution was not in force on -account of its being adopted under coercion, but he claimed the benefit of its provisions because it was adopted under coercion. Ve most heartily approve the decision of the court in this case. The court might even have gone further, if the question had been in the case, and decided that, if a question had been raised in the courts of Geoi’gia as to the validity of the constitution, on the ground that its adoption had been coerced by Congress, the courts of that state could not entertain jurisdiction of the question. But even such a decision as that would not have been at all in conflict with our right to entertain jurisdiction in this case. These are all the au*614thorities relied upon by appellant upon this branch of the case. We think it is apparent that they do not, even by implication, sustain the doctrine contended for, that the’ judicial department of the state cannot review the action of the General Assembly in the matter of the amendment of the collstitution of the state. Counsel have drawn an appalling picture of the wreck in which our political institutions would be involved, if the courts should conclude to decide that the constitution of 185.7, under which they are organized, had not been properly adopted. The courts of this state possess no such power, and they could not assume such a jurisdiction. The reason why a court could not enter upon the determina^ tion as to the validity of a constitution under which it is it- i self organized, is forcibly set forth in the case of Luther v. Borden, supra, upon which appellant relies. The distinction between such a case and one involving merely an amendment, not in any manner pertaining to the judicial authority, must at once be apparent to the legal mind. The authorities recognize the distinction. We are at a loss to know why appellant’s counsel ignore and disregard it.
Appellant’s counsel cite and rely upon section 2, article 1, of the constitution of the state. This section is a portion of the bill of rights, and is as follows: “All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require.” Abstractly considered, there can be no doubt of the correctness of the propositions embraced in this section. These principles are older than constitutions, and older than governments. The people did not derive the rights referred to from the constitution, and, in their nature, they.are such that the j>eople cannot surrender them. The people would have retained them if they had not been specifically recognized in the constitution. But let us consider how these rights are to be exercised in an organized government. The people of this state have adopted a constitution which *615specifically designates the modes for its own amendment.^ But this section declares the people have the right at all times to alter or reform the government, whenever the public good may require it. If the people unanimously agree respecting an alteration in the government, there could be no trouble, for there would be no one to object. Suppose, however, a part of the people conclude that the public good requires an alteration or reformation in the government, and they set about the adoption of a new constitution, in a manner not authorized in the old one. Suppose, also, as would most likely prove to be the case, that a part of the people are content with the existing government, and will not consent to the change, and that the governor, who, under the constitution, is the “ commander in chief of the militia, the army and navy of the state,” determines to maintain the existing government by force. It is evident that the people who think the public good requires a change, can establish these changes only by<_ superior force. If they are powerful enough to succeed, well. They will have altered or reformed the government. But if they are not powerful enough to succeed, their attempt to overthrow the government is treason, and they are liable to punishment as traitors. They have the right to alter theii '’goverriment, in a manner not recognized in the constitution, only when they can maintain that right by superior force. It follows, then, after all, that the much boasted right claimed ' under this action, is simply the right to alter the government-in the manner prescribed in the existing constitution, or the right of revolution, which is a right to be exercised, not under the constitution, but in disregard and independently of it.
Eor a very valuable case upon this subject, see Wells v. Bain, 75 Pa. St., 39. In commenting upon a reservation in the bill of rights, the same as that contained in our own constitution, the court says: “ 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 exist*616ing lawful form of government, viz: 1. The mode provided in the existing constitution. 2. A law, as tbe instrumental process of raising tbe body for revision, and conveying to it the powers of tbe people. 3. A revolution.” In the progress of tbe opinion tbe court employ tbe following language, which is most applicable to tbe question now under consideration: “In considering tbis question of delegated power,\i some are apt to forget that the people are already under a f constitution, and an existing frame of government institutedJ by themselves, which stand as barriers to tbe exercise of thy original powers of the people, unless in an authorized form.” It is well that tbe powers of tbe people and their relations to'organized society should be understood. No heresy has ever been taught in tbis country so fraught with evil, as tbe doctrine that the people have a constitutional right to disregard the constitution, and that they can set themselves above the instrumentalities appointed by the constitution for the administration of law. It tends directly to the encouragement of revolution and anarchy. It is incumbent upon all who influence and mould public opinion to repudiate and discountenance so dangerous a doctrine, before it bears fruits destructive of republican institutions. It will be well if the people come to understand the difference between natural and constitutional freedom, before license becomes destructive of liberty. ,
The authority opposed to the view advanced by appellant’s counsel, is most satisfactory and conclusive, and, so far as we have been able to discover, is' without conflict. Not only must a constitution be amended in the manner prescribed in the existing constitution, but it is competent for the courts, when the amendment does not relate to their own powers or functions, to inquire whether, in the adoption of the amendment, the provisions of the existing constitution have been observed.
That eminent jurist and law writer, Justice Cooley, in his work upon Constitutional Limitations, page 598, says: “al*617though by their constitutions the people have delegated the exercise of sovereign powers to the several departments, they have not thereby divested themselves of the sovereignty. The government which they create they retain in their own hands a power to control, so far as they have thought needful, and the three departments are responsible to and subject to be ordered, directed, changed, or abolished by them. But this control and direction must be exercised in the legitimate mode previously agreed upon. The voice of the people can] only be of legal force when expressed in the times and under ¡ the conditions which they themselves have prescribed and < pointed out by the constitution; and if any attempt should be made by any portion of the people, however large, to interfere with the regular working of the agencies of government, at any other time, or in any other mode, than as allowed by existing law, either constitutional or statutory, it would be revolutionary in character, and must be resisted and repressed by the officers who for the time being represent legitimate government.” The author cites Gibson v. Mason, 5 Nevada, 291, in which Chief Justice Lewis employs the following language: “The maxim which lies at the foundation of our government is that all political power originates with the people. But since the organization of government, it cannot be claimed that either the legislative, executive, or judicial powers, either wholly or in part, can be exercised by them. By the institution of government the people surrender the exercise of all these sovereign functions of government to agents chosen by themselves, who, at least theoretically, represent the supreme will of their constituents.”
On page 30, Judge Cooley further says: “In the original states, and all others subsequently admitted to the Union, the power to amend or revise their constitutions resides in the great body of the people as an organized body politic, who, being vested with ultimate sovereignty, and the source of all state authority, have power to control and alter the law which they have made at their will. But the people in *618the legal sense must be understood to be those who, by the existing constitution, are clothed with political rights, and who, while that instrument remains, will be the sole organs through which the will of the body politic can be exprésséd. But the will of the people to this end can only be expressed in the legitimate modes by which such a body politic can act, and which must either be prescribed by the constitution whose revision or amendment is sought, or by an act of the legislative department of the state, which alone would be authorized to speak for the people.upon this subject, and'to point out a mode for the expression of their will, in the absence of any provision for amendment or revision contained in the constitution itself.” The learned author cites in support of this doctrine of the text, Opinions of the Judges, 6 Cush., 573; Collier v. Frierson, 24 Ala., 100; State v. McBride, 4 Mo., 303. In Opinions of the Judges, 6 Cush., 573, the facts are as follows: In 1833 the House of Representatives of Massachusetts submitted to the Supreme Court of that state, the following questions:
First. Whether if the legislature should submit to the people to vote upon the expediency of having a convention of delegates of the people for the purpose of revising or altering the constitution of the commonwealth in any specified parts of the same, and a majority of the people voting thereon should decide in favor thereof, coaid such convention, holden . in pursuance thereof, act upon, and propose to the people, amendments in other parts of the constitution not so specified ?
Second. Can any specific and particular amendments to the constitution be made in any other manner than that prescribed in the ninth article of the amendments adopted in 1820? The justices of the Supreme Court responded to these questions substantially as follows: “First. Considering that the constitution has vested no authority in the legislature, in its ordinary action, to provide by law for submitting to the people the expediency of calling a convention of delegates, for *619the purpose of revising or altering the constitution of the commonwealth, it is difficult to give an opinion upon the question, what would be the power of such a convention, if called. If, however, the people should, by the terms of their vote, decide to call a convention of delegates to consider the expediency of altering the constitution in some particular part thereof, we are of opinion that such delegates would derive their whole authority and commission from such votes, and, upon the general principles governing the delegation of power and authority, they would have no right, under such vote, to act upon and propose amendments in other parts of the constitution not so specified.”
Second. “ 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 the ninth article 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 anywhere 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.”
This opinion was signed by all the justices of the Supreme Court of Massachusetts, consisting of Chief Justice Shaw, and justices PutnVim, Wilde, and Morton, judicial luminaries as illustrious as ever adorned the bench of this or any other country.
In Collier v. Frierson, 24 Ala., 108, it appears that the legislature had proposed eight different amendments to be submitted to the people at the same time. The people had approved them, and all the requisite proceedings to make *620them a part of' the constitution had been had, except that in the subsequent legislature the resolution for their ratification had by mistake omitted to recite one of them. On the question whether this one had been adopted, the court say: “The constitution can be amended in but two ways; either by the people who originally framed it, or in the mode prescribed in, 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. We entertain no doubt that to change the constitution in any other mode than by a convention, every requisition 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 requisites are to be observed, before a change can be effected. But to what purpose are those acts required or those requisitions enjoined, if the legislature, or any 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 any amendment which is not shown to have been made in accordance with the rules prescribed by the fundamental law.” In this case counsel distinctly made the point that, “when the legislature has declared an act done, which it alone has the *621power to do, it does not become tbe judiciary to gainsay it.” Tbe court repudiated this doctrine and asserted its jurisdiction in the following terse and unambiguous language: “Every principle of public law and sound constitutional policy requires tbe courts to pronounce against every amendment! which is shown- not to have been made in accordance with? tbe rules prescribed by tbe fundamental law.” /
Tbe case of State v. McBride, 4 Mo., 303, involved a question as to tbe proper adoption of an amendment to tbe constitution of the state of Missouri. Tbe counsel on behalf of tbe state, contended almost in tbe language of appellant’s counsel in this case, “that this amendment having been passed and promulgated by tbe Eighth General Assembly, as a part of the constitution, this court is bound to receive and give it tbe effect of'a constitutional provision; it being an act done by the General Assembly, not in their capacity of ordinary legislation, but tbe exercise of sovereign authority in a conventional capacity.” The language of the court in passing upon this position of counsel is so applicable to, and so entirely decisive of, the question now under consideration, that we quote in full. Tbe court says: “ Tbe constitution of this state requires that each officer, whether civil or military, shall, before entering on the duties of bis office, take an oath or affirmation to support the constitution of the United States and of this state, and to demean himself faithfully in office. In pursuance of the duty imposed by this oath, it has become quite a common business of the courts to examine tbe acts of tbe legislative body, to see whether any of them infringe the constitution, and to declare that such acts, or parts of acts, as are repugnant to tbe constitution, are not the law of the land, and are, therefore, of no force. No educated man at this day denies this right to tbe courts. On tbe contrary, it is considered a base abandonment of duty for a judge to hesitate, when it becomes his duty to examine the acts of the more powerful branches of the government. If, then, the constitution be the supreme law of the land, it becomes *622the duty of the judge to look into and understand well this first law of the land. The General Assembly, acting itself under a power granted by the convention, can only change the constitution in the manner presented to it. Is, then, this court, each member of which is sworn to support the constitution, that first law of the land, to be told that they are not to inquire what that constitution is? We are told that this is a matter which the people have confided to two successive General Assemblies, and that their declaration of what is] done is to be to us evidence that the thing is done, they being sworn, as well as ourselves, to support the constitution. Yet we look into the acts of each General Assembly, and if we find any of its acts violating the constitution, we declare such acts null and void. The General Assembly, or two General Assemblies in succession, are but public servants, and it is disrespectful to them to say that their acts will not bear inspection. If, then, they will bear inspection, and if, as we believe, they have left behind them evidence of what they have done, why need we, whose duty it is to observe the constitution as the supreme law of the land, hesitate respectfully to approach and examine those proofs, and see if indeed the constitution of 1820 has been changed, or if by neglecting to pursue the course pointed out by the 12th section of the constitution, they have failed to give to their acts the validity of constitutional acts. To tell us that the people have reserved to themselves the sole right of looking into the matter, is to tell us that we are sworn to support a constitution which we are not permitted to know.” Those two cases contain the calm adjudications of respectable courts, in times when there was no popular excitement, and upon constitutional amendments not arousing popular interest. They are, therefore, entitled to the highest consideration, as they were entirely uninfluenced by popular clamor.
It is not at all material that in State v. McBride, supra, the court finally concluded that the amendment under con sideration had been properly adopted. The court haa to de*623termine its power to decide, before it could decide in favor of tbe amendment. As was well said by one of appellant’s attorneys upon tbe argument: “tbe power to decide, involves tbe power to decide either way.” In The State v. Swift, 69 Ind., 505, the jurisdiction of the court was exercised, and an amendment to tbe constitution of the state of Indiana was held not to have been properly adopted. In tbe opinion tbe court say: “Tbe people of a state may form an original constitution, or abrogate an old one and form a new one, at any time, without any political restriction except tbe constitution of tbe United States; but if they undertake to add'j, an amendment, by tbe authority of legislation, to a constitu- jj tion already in existence, they can do it only by tbe method ¡Í pointed out by tbe constitution to which the amendment is to be added. Tbe power to amend a constitution by legislative action does not confer tbe power to break it, any more than it confers tbe power to legislate on any other subject contrary to its prohibitions.”
In Westinghausen v. The People, 44 Mich., 265, tbe Supreme Court of Michigan entertained jurisdiction of a question as to tbe adoption of an amendment to tbe constitution of that state. The Prohibitory Amendment Cases, 24 Kans., 700, in so far as they assume jurisdiction over tbe question involved, are in harmony with all tbe cases upon tbe subject. In State v. Timme, 11 N. W. Rep., 785, tbe Supreme Court of Wisconsin assumed jurisdiction of a question involving tbe validity of an amendment to the constitution of that state. Tbe same thing was done in Trustees University of North Carolina v. McIver, 72 N. C., 76.
It is true that in tbe last five cases the question of jurisdiction was not raised by counsel. But tbe courts could not have entered upon an examination of tbe cases without first determining in favor of their j urisdiction. If they entertained doubts respecting their jurisdiction, it was tbe duty of tbe courts to raise tbe question themselves. We have then seven states, Alabama, Missouri, Kansas, Michigan, *624North Carolina, Wisconsin and Indiana, in which the jurisdiction of the courts over the adoption of an amendment to a constitution has been recognized and asserted. In no decision, either state or federal, has this jurisdiction been denied. We may securely rest our jurisdiction upon the authority of these cases. He would be a bold jurist, indeed, who would ride rough-shod over such an unbroken current of judicial authority, so fortified in principle, sustained by reason, and so necessary to the peaceful administration of the government.
II. It is next insisted that the Nineteenth General Assembly had jurisdiction of the subject embraced in the joint resolution of the Eighteenth General Assembly, proposing the amendment to the constitution drawn in controversy in this case, including the regularity of its passage, and its .judgment thereon is conclusive and cannot be reviewed. This point was insisted upon in the original argument. It is now renewed, and is reinforced by a citation of some additional authorities. This argument in effect admits that there were defects and omissions in the submission of the question, but contends that, notwithstanding such omissions and defects, the action of the Nineteenth General Assembly estops all investigations, and that its recital, no matter how false, cuts off all inquiry as to its truth. As this point is relied upon with much confidence, we propose, even at the risk of tediousness, to state as briefly as we can the points decided in all of the cases relied upon in the re-argument.
In Gaines v. Thompson, 7 Wall., 347, it was held that the act of the Secretary of the Interior, and Commissioner of the Land Office, in canceling an entry for land, is not a ministerial duty, but is a matter resting in the judgment and discretion of these officers, as representing the executive department, and that the United States courts will not interfere by injunction or mandamus to restrain it. At the same time it was conceded that there were numerous cases in which the Supreme Court of the United States had sustained the courts *625of justice, after the title had passed from the United States, and the matter had ceased to be under the control of the executive department, in decreeing the equitable title to belong to the person against whom the department had decided. The case of Litchfield v. Register and Receiver, 9 Wall., 575, simply re-affirms the doctrine of Gaines v. Thompson, and applies it to the register and receiver. The cases of Johnson v. Towsly, 13 Wall., 72, and Secretary v. McGarrahan, 9 Wall., 298, are to the same effect as’ the two preceding cases. The case of French v. Fyan, 93 U. S., 169, simply decides that a patent of lands, as swamp lands, cannot be impeached in an action at law, by showing that the land which it conveys was not in fact swamp and overflowed land. In Town of Coloma v. Evans, 92 U. S., 484, the following point was determined, as correctly stated in the syllabus: “Where, by legislative enactment, authority has been given to a municipality or to its officers to subscribe for the stock of a railroad company, and to issue municipal bonds in payment, but only on some precedent condition, such as a popular vote favoring the subscription, and where it may be gathered from the enactment that the officers of the municipality were invested with power to decide whether that condition has been complied with, their recital that it has been, made in the bonds issued' by them, and held by a bona fide purchaser, is conclusive of the fact, and binding upon the municipality, for the recital is itself a decision of the fact by the appointed tribunal.
The case of Virginia v. West Virginia, 11 Wallace 39, involves the validity of the proceedings by which the counties of Jefferson and Berkley and others became a part of the state of West Yirginia. The case is a long one. The point decided, bearing upon this case, is as follows: “The statutes of the Yirginia legislature having authorized the Governor of that state to certify the result of the voting on that proposition (to transfer said counties) to the state of West Yirginia, if in his opinion the vote was favorable, and he having *626certified the fact that it was so, under the seal of the state to the Governor of West Virginia, and the latter state having accepted and exercised jurisdiction over these counties for several years, the state of Virginia is bound by her acts in the premises.” In the opinion in the case the fact was emphasized that the legislature had vested the Governor with large control as to the time of taking the vote, and made his opinion of the result the condition of final action, a,nd rested, of its own accord, the whole question on his judgment, and in his hands.
In Miners' Bank of Dubuque v. The United States, Morris (Iowa) 482, where a bank charter contained a provision “That if said corporation shall fail to go into operation, or shall abuse or misuse their privileges under their charter, it shall be in the power of - the legislative assembly of this territory at any time to annul, vacate and make void this charter,” it was held that the legislature reserved to themselves the right of repeal upon certain contingencies, and of determining when the contingencies had happened. In the same case, 1 G. Greene, 533, the question again came before the court and was determined the same way.
In Carpenter v. Montgomery, 7 Blackf., 415, under a constitution providing that statutes are not to be in force until published in print, unless in cases of emergency, it was held that “of the existence of the emergency the legislature must necessarily be the judges; and when they deem it to exist, they have the right to declare a statute in force from and after its passage.”
In Barret v. Brooks, 21 Iowa, 148, where an act of Congress granted swamp lands to the state, and required that the proceeds of the sale of the lands should be applied to the purpose of reclaiming the same “as far as necessary,” it was held that the General Assembly had the right, under the act of Congress, to determine whether or not it was necessary to drain the lands, and how far it was necessary to appropriate the proceeds of the sales of the land- to that purpose. The *627same doctrine was recognized in American Emigrant Company v. Adams Co., 100 U. S., 68.
In Martin v. Mott, 12 Wheaton, 19, it was held that the authority to decide whether the exigencies contemplated in the constitution of the United States, and the act of Congress of 1795, in which the President has authority to call forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions, have arisen, is exclusively vested in the President, and his decision is conclusive upon all other persons. This decision was grounded upon the nature of the power, and the necessity of prompt and unhesitating obedience to commands of a military nature. It is evident that upon no other construction could the President perform his duty of suppressing insurrections and repelling invasions, for he could never keep together an army if every soldier could call in question his power to call him into the service. In Varderhuyden v. Young, 11 Johnson, 150, the same question came before the Supreme Court of the state of New York, and was decided the same way.
In Commissioners of Knox County v. Aspinwall, 21 Howard, 539, it was held that where the statute of a state provides that the board of commissioners of a county should have power to subscribe for railroad stock, and issue bonds therefor, in case a majority of the voters of the county should so determine after a certain notice should be given of the time and place of election, and tile board subscribed for the stock and issued the bonds, purporting to act in compliance with the statute, it is too late to call in question collaterally the existence or regularity of the notices, in a suit by the innocent holders of the coupons attached to the bonds. In Ryan v. Varga, 37 Iowa, 78, it was held that, after township trustees have passed upon the sufficiency of a petition presented to them, calling for an election to decide the question of levying a tax in aid of the construction of a railroad, and thp election has been ordered, and the tax voted and levied, the determination of the township trustees cannot be assailed col*628laterally, but like any other judicial determination, remains conclusive until reversed or set aside by writ of error, certiorari, or other direct proceeding provided by law. These are all the cases cited in the arguments on rehearing upon this branch of the case. It is evident that most of them bear but very remotely upon the question under consideration. In our opinion, the question involved in the case at bar does not fall within the principle involved in any of these cases, and is not determined by them.
It is true, the Nineteenth General Assembly was authorized to submit to the people for their adoption, only a proposition which had already been proposed and agreed to by the Eighteenth General Assembly. The fact that the Eighteenth General Assembly had agreed to the same proposition that the Nineteenth General Assembly was about to submit, was a condition precedent to the right of the Nineteenth General Assembly to take any action in the premises. If the Nine-' teenth General Assembly acted within the scope of its constitutional authority, it necessarily had to be of opinion that the Eighteenth General Assembly had agreed to the same resolution which it was about to submit to the people. This opinion would amount to a conclusion, primarily, that the Eighteenth General Assembly had so acted, and this conclusion, until reviewed and examined in some legal manner, would be absolute. Further, if the law has provided no means for the examination of this determination, it would be absolute and binding upon all parties, as the appellant claims. The appellant assumes that no mode of examination has been provided by the law, and that, therefore, the determination of the Nineteenth General Assembly is conclusive. Upon the contrary, we maintain that a mode of examination has been provided, and^ that, therefore, the action of the Nineteenth General Assembly is not conclusive. The Nineteenth General Assembly recited in substance that the Eighteenth General Assembly adopted and 'duly entered upon its journals the same resolution which the Nineteenth General Assembly *629was about to submit to tbe people. The argument of appellant impliedly concedes that this recital might, upon examination, be found to be untrue, and hence it is insisted that the recital is conclusive, and that we cannot inquire into the truth. If this recital is untrue, for what reason are the courts estopped from declaring it untrue?
The district courts of this state, are courts of general jurisdiction. There is no presumption that anything is beyond their jurisdiction. "We have already established in the first division of this opinion, that the jurisdiction of the courts extends to the setting aside of a constitutional amendment, if it has not been adopted in the manner provided in the existing constitution. Indeed the argument of the appellant upon this branch of the case impliedly admits this general jurisdiction of the courts, for the appellant, upon this branch of the case, in effect relies upon an estoppel. But there would be neither necessity nor propriety in relying upon the finding of the Nineteenth General Assembly, as an estoppel, if the jurisdiction of the court did not extend to the subject of the adoption of an amendment at all. The jurisdiction of the court, to inquire whether an amendment has been properly adopted, being then established, and in effect conceded by the argument, what warrant is there for cutting it short just as it enters' upon an examination as to the truth of this recital. The appellant says this recital is conclusive, and, therefore, the courts cannot inquire into it. But a recital of this kind is conclusive only when no mode of examination is provided. The appellant says no mode of examination has been provided, and upon the appellant is the burden of proof to establish that fact. The district courts being courts of general jurisdiction, it is incumbent upon the appelant, who denies that this jurisdiction extends to inquiry into the truth of this recital, to establish that fact. The presumption is that the jurisdiction extends to all questions, until the contrary is shown.- The party who relies upon an exception must establish its existence. The appellant mustgive a bet*630ter reason for the absence of this jurisdiction than that the recital is conclusive, for,when that reason is assigned,the question recurs, why is the recital conclusive. There is no provision of constitution or statute making it conclusive. There is nothing in the policy of our institutions or in the nature of the subject making it conclusive. Then why should it be considered conclusive? Why should the Nineteenth General Assembly by the recital of a fact, which, at least for the purposes of the argument on this branch of the case, must be conceded to be untrue, estop the courts from declaring it false? As we understand the argument of the appellant’s counsel, they claim that the recital is conclusive because the jurisdiction of the court does not extend to the making of any inquiry into it. But whether the jurisdiction of the court extends to the making of inquiry into the recital, is the very question in dispute. The argument, therefore, as it seems to us, begs the whole question, except in so far as it is based upon the authorities above referred to, which, in our opinion, are not pertinent to the question. Further, it is claimed that the finding of the Nineteenth General Assembly that the Eighteenth General Assembly had adopted the same proposition that the Nineteenth General Assembly was about to submit to the people, was the determination of a matter within its jurisdiction, and that it cannot be collaterally impeached. It is insisted that the same rules are applicable to the action of the Nineteenth General Assembly as to a court acting within its jurisdiction. We propose to examine the grounds of this position. We will, for the sake of the argument, concede that the same rule applies to the Nineteenth General Assembly as to a court. The Nineteenth General Assembly, then, had no jurisdiction to submit to the people, any proposition which had not previously been adopted by the Eighteenth General Assembly. The fact that the proposition had been adopted by the Eighteenth General Assembly was necessary, in order that any jurisdiction over it could be possessed by the Nineteenth General Assembly. The Nine*631teentli General Assemby could not acquire jurisdiction by a false recital that the fact existed. The existence of the fact itself was necessary, before jurisdiction could attach. The case of the People v. Cassels, 5 Hill, 168, is, upon this branch of the case, directly in point. This case was certiorari to the judge of Chenango county courts, to review his action in discharging upon habeas corpus the defendant, Cassels, from a commitment by a magistrate for contempt. In the branch of the case pertinent to this inquiry, the court say: “The prisoner had an undoubted right to show that the committing magistrate acted without authority; and this is so, notwithstanding the commitment recites the existence of the necessary facts to give jurisdiction. No court or officer can acquire jurisdiction by the mere assertion of it, or by falsely alleging the existence of facts on which jurisdiction depends.” See also Griffiths v. Frazier, 8 Cranch, 9.
But there is another view of this case which is to our minds conclusive. The constitution required the Eighteenth General Assembly to keep a journal of its proceedings, and to enter thereon the proposed amendment. An entry was made upon the journal of the senate of the Eighteenth General Assembly, which shows that the proposed amendment, when it passed the senate of the Eighteenth General Assembly, contained the words “or to be used.” The Nineteenth General Assembly recited that the Eighteenth General Assembly proposed and agreed to, and duly entered upon its journals, a proposition which did not contain the words “or to be used.” In other words, the Nineteenth General Assembly recited as a fact essential to its jurisdiction, a matter which the journal of the Eighteenth General Assembly, which is the constitutional and statutory record of its proceedings, shows to be untrue. It is a familiar doctrine that, where the record of a court shows affirmatively the non-existence of the facts upon which a court bases its jurisdiction, the recital that the facts exist is a nullity, no jurisdiction attaches, the proceedings are void, and may be collaterally impeached. The authority upon *632this point is abundant. In Kitsmiller v. Kitchen, 24 Iowa, 163, a decree was collaterally drawn in question, which was rendered upon a notice which failed to inform the defendant as to the place where, and time when, he must appear and defend the action. The court say: “We' are clear that the service of such a notice did not confer jurisdiction upon the court over the person of the party served. The judgment was, therefore, void, and could not be relied upon as res adjudicata, since it did not affect the rights of the parties.”
In Cait v. Haven, 30 Conn., 197, the following language is employed: “We do not, understand that, upon the authorities at home or abroad, there is any contrariety of opinion that a domestic judgment, rendered by a court of general jurisdiction, where no want of jurisdiction is apparent on the record, cannot be collaterally attacked. If it be a foreign judgment, or the judgment of a court of limited jurisdiction, or the want of jurisdiction is apparent on the record, it can be collaterally attacked, for then the jurisdiction is not presumed, or the presumption is repelled by the record itself, and the judgment is an absolute nullity if the want of jurisdiction in fact exists.” To the same effect, see, also, Hahn v. Kelley, 34 Cal., 391; Penobscot Railroad Co. v. Weeks, 52 Maine, 456; Parish v. Parish, 32 Ga., 653; Mercier v. Chace, 9 Allen, 242.
The journal of the Eighteenth General Assembly constitutes the record of that body, and it shows that the fact, the existence of which was essential to the jurisdiction of the Nineteenth General Assembly to submit the' proposition upon which the people voted, did not exist. It follows from the doctrine of the foregoing authorities, that the finding by the Nineteenth General Assembly that such facts did exist is a nullity, and that it may be impeached collaterally.
There is a further reason why the finding of the Nineteenth General Assembly should not have the force for which the appellant contends. The constitution makes three steps necessary for the adoption of an amendment, viz: the proposal of an amendment in one General Assembly, and its *633entry upon the journals; the agreement thereto by the next General Assembly, and its submission to the people; and the approval and ratification thereof by the people. These steps are distinct, independent and essential. No one of them can be dispensed with. It is necessary that the proposition shall be concurred in by two successive General Assemblies. If, however, one General Assembly can cut off all inquiry into the action of its predecessor, by a mere recital of what it has done, it follows that an amendment may be incorporated into the constitution, which has never received the sanction of more than one General Assembly. Such a construction might lead to a clear violation of the constitution. We cannot give it our sanction. In our opinion, the action of the Nineteenth General Assembly is not conclusive as to what the Eighteenth General Assembly proposed.
III. The resolution adopted by the senate of the Eighteenth General Assembly, as shown by its journal, reads as follows: “No person shall manufacture for sale, or sell, or keep for sale, as a beverage, or to l>e used, any intoxicating liquor whatever, including ale, wine and beer.” The resolution as enrolled in the Eighteenth General Assembly, adopted by the Nineteenth General Assembly, and ratified by the people, reads 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.” The difference between these two resolutions is that the four words “or to be used” are in the resolution as entered upon the journal, but are not in the resolution as enrolled. It has always been conceded in the arguments in this case that the difference between the two resolutions is a substantial and material one. It is claimed, however, that the entry upon the journal is a mistake, and that the enrolled resolution expresses the legislative intent. If we should concede that the difference between the journal entry and the enrolled resolution resulted from mistake, we would still have to inquire which expresses the legislative will. The appellant says the enrolled resolution, clearly. At *634the same time, appellant’s attorneys have not at all times been consistent with themselves as to the manner in which the four words, “or to be used” were made to disappear from the resolution. Upon the original oral argument, it was stated that after the amendment, striking out the words “for such purpose,” had been adopted, the senate, by common consent and without any motion, agreed to drop out the words, “or to be used,” and that the clerk failed to make any record of that action. Subsequently it has been stated that the amendment proposed in the senate was to strike out the words, “or to be used for sueh purpose,” and that the clerks, by mistake, recorded only the latter portion of it, “for sueh purpose.” These conflicting statements, however honestly made, show the danger and the impracticability of going outside of the record, and accepting parol proof of what was done in the senate of the Eighteenth General Assembly. It has further been insisted that the journal contains internal evidence of a mistake: that it cannot be conceived that any senator would move to strike out the words “for sueh pwrpose,” and leave the words “or to be used.” We propose to give some consideration to this position. It is a matter pertaining to the public history of the amendment that those favoring it were divided into two classes, those who wished to prohibit the manufacture and sale of intoxicating liquors for all purposes, and those who simply wished to prohibit the manufacture and sale‘of intoxicating liquors to be used as a beverage. It will be remembered that it was claimed that the resolution, as enrolled and as submitted by the Nineteenth General Assembly, was ambiguous, and that it was uncertain whether it would be construed to prohibit absolutely the manufacture of intoxicating liquors for all purposes, or simply to prohibit the manufacture of intoxicating liquors for sale as a beverage. It will not be forgotten that an effort was made to procure from the Nineteenth General Assembly an interpretation of the resolution, and that a resolution expressing the understanding of the Nineteenth General Assembly did actually pass the senate *635of that assembly. It is further a matter of public history that the press of the state, and the public speakers who advocated the amendment, differed as to its meaning, and that an effort was made in the State Bar Association, before the election, to have that association place a construction upon it. In fact, the advocates of the amendment were very greatly embarrassed in their presentation of it, because it was couched in language susceptible of two essentially different meanings, and requiring judicial construction before its meaning could be settled. Now, if the senator who moved the last amendment to the resolution belonged to that class which thought the prohibition should be absolute, it is evident that he could not have adopted a course more likely to have accomplished his purposes, than to move to strike out the words “for suoh purpose” for, whatever may be the ambiguity in the resolution as ratified by the people, there is no ambiguity in it as it appeared after the words “for such pwpose” were stricken out, and with the words “or to be used,” remaining. In that form, no one questions that it requires the absolute prohibition of manufacture for any purpose, even including mechanical and medicinal purposes. There would have been no necessity for judicial construction to ascertain its meaning. There is no warrant anywhere in the record, for saying that the resolution as shown upon the journal does not express the intent of the senate.
It is claimed, however, that the enrolled resolution contains the conclusive evidence of the action of the senate of the Eighteenth General Assembly, and that it overrides and is paramount to the journal entry. But little which is new has been advanced upon this branch of the case, and we deem it necessary to say but little in addition to what is contained in the former opinion.
Section 1, article 10, of the constitution provides: “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 *636to 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.”
Section 3717 of the Code, provides: “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.” Notwithstanding this constitutional provision requiring the entry of the proposed amendment upon the journals, and the statutory provision that the proceedings of the legislature are pi’oved by the journals, the appellant insists that the enrolled resolution is better evidence of the action of the legislature than the evidence required and provided by both the constitution and the statute. There is no provision either in the constitution or the statute requiring the enrollment of a bill or of a resolution. Section 9, article 3, of the constitution, authorizes each house to determine its rules of proceedings. Pursuant to this authority, the Eighteenth General Assembly adopted the following joint rules;
“ 4. When a bill shall have passed both houses, it shall be duly enrolled by the enrolling clerk of the house in which it originated, and the fact of its origin shall be certified by the indorsement of the secretary or clerk thereof.
“ 8. All orders, resolutions, memorials, or other votes, which are to be presented to the governor for his approval, shall be enrolled, examined, signed, and presented in the same manner as bills.”
It will be observed that these rules require the enrollment of Mils, and of such resolutions as are to be presented to the governor for his approval. It is conceded that the governor cannot veto a resolution proposing an amendment to the constitution, and it must also be conceded that, because he cannot veto it, it is not necessary that it should be presented to him for approval. It follows, we think, that there is not even a rule of the General Assembly requiring the enrollment *637of a resolution proposing a constitutional amendment. ¥e have, then, this question: shall the journal entry which the constitution requires, and by which the statute declares the legislative proceedings shall be proved, be overridden by the enrolled resolution which is not required by constitution, statute, or rule of the General Assembly? Upon this question, it seems to us, there is not room for two opinions. Appellant contends, however, that joint rule eight, refers not to such resolutions as the lam requires to be presented to the Governor for his approval, but to such resolutions as it has been the eustom of the legislature to present for approval; and that the uniform custom of the legislature has been to present for approval resolutions proposing amendments to the constitution. If this should be conceded to be the custom of the legislature and the meaning of the rule, it would still, we think, be apparent that the legislature could not, by mere custom, override the provisions of the constitution and of the statute, and substitute different evidence of a fact from that which the constitution and the statute require. The authority conferred upon the legislature to determine its rules of proceedings, authorizes it to adopt rules of proceeding only in subordination to, and in harmony with, other provisions of the constitution. If the journal entry had contained the resolution in the form that it was adopted by the Nineteenth General Assembly and ratified by the people, and the enrolled resolution had contained the words uor to he used” would any one have had the audacity to claim that the enrolled resolution must override the journal entry, and that the amendment must fail? But if the journal entry would constitute the better evidence in the case supposed, it must constitute the better evidence in the case at bar. The rules of law are not elastic. They cannot be bent or stretched to meet the exigencies of a particular case.
The authorities cited by appellant as to the conclusiveness of an enrolled act, with regard to its contents, all apply to the case of a bill which is not required to be entered on the *638journal. No authority has at any time been cited during the progress of this case, which holds that, as to a paper required to be entered upon the journal, the enrollment can override the journal entry. As to a bill, we concede the correctness of the authorities cited. Under the custom of legislation, the enrolled bill is presented to the speaker of the house and the president of the senate, for their signatures, and is approved by the governor. It is in all respects treated as the original act. No entry of it is requii’ed to be made upon the journal, and hence the journal could not contain any evidence of its contents. But with regard to a proposition for an amendment to the constitution, whether it be in the form of a resolution or of a bill, the provisions of the constitution are different. That is required to be entered upon the journal, and if this requirement is observed, the journal does contain evidence of its contents. It is evident that the authorities which apply to the case of an ordinary bill have no application whatever to the resolution in question.
IY. The constitution, article 1Ó, section 1, provides that, if the proposed amendment 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.” It is claimed that this provision does not require that the proposed amendment shall be made to appear at length upon the journals, but that it is a compliance with this requirement of the consti tution if the proposed amendment is entered by title, or other descriptive words. In addition to what we have advanced in the former opinion; we submit that this construction utterly nullifies and ignores the constitutional requirement. The constitution does not require that the second General Assembly, which agrees to the proposition, and submits it to the people, shall enter it upon its journals. But of necessity it must be entered upon its journals by title or descriptive words, for in no other manner could any record be kept of the action of the second General Assembly. It *639follows that, under the construction contended for by appellants, the second General Assembly, which is not required to make any entry upon its journals, must make precisely the same entry as the first General Assembly, which is required to make an entry upon its journals. It is evident that this construction utterly ignores the provision requiring an entry upon the journal, and in effect eliminates it from the constitution. We are not authorized to deal thus with constitutional requirements. Article 3, section 16, of the Constitution, provides that if the Governor does not approve a bill, “he shall return it with his objections to the house in which it originated, which shall enter the same upon their journal and proceed to reconsider it.” Under this provision, the uniform custom of the legislature has been to spread the Governor’s veto upon the journal at length. It has never been claimed that this provision could be complied with by simply entering the title of the veto. The only other provision in the constitution with regard to entries of papers upon the journals is found in article 3, section .10, which authorizes any member of the General Assembly “to dissent from or protest against any act or resolution which he may think injurious to the public or an individual, and have the reasons for his dissent entered on the journals.” Who would contend that this provision does not authorize a member to have the reasons for his dissent spread at length upon the journal, and that he could be put off by having his protest entered by title or descriptive words ? To our minds, this claim of the .appellant is utterly untenable.
Y. The appellant insists that the enrolled joint resolution of the Nineteenth General Assembly, in the custody of the Secretary of State, is conclusive of the action of the Eighteenth General Assembly. Upon this branch of the case the appellant cites and relies upon section 61 of the code, which is as follows: .
“The secretary of state shall keep his office at the seat of government, and perform all duties which may be required *640of him by law; he shall have charge of and keep all the acts and resolutions of the territorial legislature and the General Assembly of the state, the enrolled copy of the constitutions of the state, and all bonds, books, records, maps, registers, and papers which now are or may hereafter be deposited to be kept in his office.” As the Nineteenth General Assembly was not required to enter upon' its journals the proposition by it agreed to and submitted to the people, it might preserve the evidence of its action by an enrollment of the resolution by it agreed to. This enrolled resolution may, under this section, be kept in the office of the secretary of state, as the action of the Nineteenth General Assembly, and, after the adoption thereof by the people, it may be kept as the- evidence of the amendment agreed to. But the Eighteenth General Assembly was required to preserve evidence of a different kind of its action. There is no trouble as to what the Nineteenth General Assembly agreed to and submitted. All the difficulty is in regard to what the Eighteenth General Assembly proposed. The enrolled resolution of the Nineteenth General Assembly may be the very best evidence of the action of that body. But, for the reasons already assigned in this opinion, it cannot be regarded as any evidence of the action of the Eighteenth General Assembly.
YI. It is said that there is a presumption in favor of the regularity of all official action, and that, therefore, it must be presumed that the words “or to be used ” were stricken from the proposition for the amendment, by the action, in some manner, of the senate of the Eighteenth General Assembly. This argument assumes that it was irregular for the Eighteenth General Assembly to agree to the proposed amendment, with the words “or to be used” in it. This assumption is purely voluntary. It was just as regular for the Eighteenth General Assembly to agree to the proposed amendment, with or without the words “or to be used.” No inference, therefore, can be drawn, as to what the Eighteenth General Assembly did, from the fact that it is presumed to have acted *641regularly. It is said that the words “or to be used ” may have been stricken out by general consent, and that, therefore, we must presume they were so stricken out. Even if we should concede that they might 'have been stricken out by general consent, we would not be authorized to presume that they were so stricken out. It is said that, where action is had by general consent, the journal does not show, and needs not show, the action. This is true in some cases, and untrue in others. If a bill is under consideration, which is not required to be entered on the journal, and an amendment is made by general consent, the amendment may be entered on the bill, and needs not appear on the journal. Rut if a matter is under consideration which has been entered upon the journal, then all changes, whether by general consent or otherwise, must appear upon the journal, otherwise the journal would not contain a correct record of the proceedings, and there would, be no way in which the action could' be proved, for the journal could not be contradicted by parol. It follows that we cannot legally presume that the words “or to be used” were stricken, out by general consent.
VII. In the oral argument upon rehearing, it was stated by counsel that the original resolution which passed the senate and house of the Eighteenth General Assembly, was in the possession of the secretary of state, showing that the amendment proposed by the Eighteenth General Assembly passed both houses in the exact form and words agreed to by the Nineteenth General Assembly. Counsel produced what purported to be a copy of this paper, and asserted that there is no doubt about the authentic character of the document, and that it is the original record, and is better evidence of what the General Assembly did relative to said amendment, than the transcribed journal in the custody of the secretary of state. It was insisted that we must take judicial notice of this paper. This was the first time in the history of this ease that any reference was made to the existence of such record. IJpon inquiry of the Attorney-general, he stated in *642open court that the paper referred to was handed to him on the street, about three weeks prior to the argument on rehearing, by a person whose name he was not authorized to disclose. The Attorney-general further stated that he had procured and caused to be attached to said paper the affidavits of J. S. Earron, enrolling clerk of the Eighteenth General Assembly, and of W. Y. Lucas, clerk of the house, and,, A. T. McOargar, secretary of the senate of the Eighteenth General Assembly. Upon the argument it was expressly conceded by counsel that the affidavits could not be considered for any purpose, and counsel expressly and repeatedly disclaimed all intention of making use of them for any purpose whatever. We went to the office of the secretary of state, for the purpose of obtaining information respecting the paper, as requested by appellant’s counsel. The secretary infonned us that the paper was presented to him by the Attorney-general, about two weeks .before the argument on re-hearing, with the request that he file it as a paper belonging to his office. That he refused to do this, but consented to retain custody of it as an individual. That the paper had never before been in his custody, did not belong to the archives of his office, and that he would not certify to it as a paper in his official custody.
The constitution, article III, section 9, provides that each house shall keep a journal of its proceedings and publish the same. The statute, code, section 3717, provides that the proceedings of the legislature “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 proceeding was had, or by a copy purporting to have been printed by their order.” Section 4, chapter 159, of the acts of the Sixteenth General Assembly, provides that: “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 *643same, shall deliver them to the secretary of state for preservation in his office.” Section 5, of this same chapter, provides for the printing and indexing of the journals. These are the provisions of law by which the journals are preserved and authenticated. It is not claimed by counsel that there is any difference between the journal, as contained in the books certified by the secretary and clerk of the respective houses, and delivered to the secretary of state, and the journals as published under the provisions heretofore referred to. In fact, no such difference exists. The practice has been to print the journals, not from a transcribed copy, but from the original journals, kept in the respective houses. When, therefore, the printed copies and the transcribed journals agree, as they do in this case, an almost conclusive presumption is afforded that both are correct. The printed journals, or the certified books in the custody of the secretary of state, made and authenticated as provided by law, are the ultimate and conclusive proof of the proceedings of a General Assembly. It would be a startling doctrine, indeed, if it should be held that the journals of the General Assembly could be contradicted by a paper produced upon the street, three years after the action was had, by a person who will not permit his name to be disclosed, and whom the court is not permitted to know. We might well tremble for the permanency of our constitution, if such a proceeding could be sanctioned. It is a matter of the greatest regret that a paper should have been brought into this case, so clearly not legally entitled to consideration, and which could have no other effect than to further inflame and excite an already excited and inflamed public mind.
YIIL We have now determined all of the points involved in the petition for rehearing, and answered its positions as fully as we deem essential. If all of the obstacles in the way of sustaining the amendment, which have already been considered, could be overcome, there are still others in the way which would most likely prove insurmountable. We have already seen that the constitution requires that a pro*644posed 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 602 and 8, that the house re-adopted 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 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 es*645tablisli 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.
We have approached and discussed this grave question with a full appreciation of the responsibilities which it involves, and we have given to its consideration the earnest attention which its importance demands. We have sought to maintain the supremacy of the constitution at whatever hazard. *646It is for the protection of minorities that constitutions are framed. Sometimes constitutions must be interposed for the protection of majorities even against themselves. Constitutions are adopted in times of public repose, when sober reason holds her citadel, and are designed to check the surging passions in times of popular excitement. But if courts could be coerced by popular majorities into a disregard of their provisions, constitutions would become mere “ropes of sand,” and there would be an end of social security and of constitutional' freedom. The cause of temperance can sustain no injury from the loss of this amendment, which would be at all comparable to the injury to republican institutions Which a violation of the constitution would inflict. That large and respectable class of moral reformers which so justly demands the observance and the enforcement of law, cannot afford to take its first reformatory step by a violation of the constitution. How can it consistently demand of others obedience to a constitution whi'ch it violates itself? The people can, in a short time, re-enact the amendment. In the matter of a great moral reform, the loss of a few years is nothing. The constitution is the palladium of republican freedom. The young men coming forward upon the stage of political action must be educated to venerate it; those already upon the stage must be taught to obey it. Whatever interest may be. advanced er may suffer, whoever or whatever may be “voted up or voted down,” no sacrilegious hand must be laid upon the constitution.
Abidingly and firmly convinced- of the correctness of our former conclusion, recognizing no superior higher than the constitution, acknowledging no fealty greater than loyalty to its principles, and fearing no consequences except those which would flow from a dereliction in duty, we adhere to and. reaffirm the doctrines already announced.
The petition for rehearing is
Overruled.
Mr. Justice Seevers, although unable to be present at this *647time by reason of sickness, has consulted with us upon all the points involved in the case, and is fully in accord with us upon all the positions of the foregoing opinion.