dissenting: — I. I adhere to the conclusions announced in my first dissenting opinion, after a careful and thorough review of all the arguments and authorities presented in the case. My re-examination of the doctrines involved, in the clear and powerful light shed upon it by the re-argument, has strengthened my conviction that the judgment of the District Court ought to be reversed. I will proceed now to present additional arguments and authorities which, in my judgment, adding convincing effect to those I have before adduced, establish with the force of demonstration the correctness of my conclusion. The order of my present discussion will vary somewhat from that pursued in my first opinion, for the reason that the additional arguments and facts I propose to consider may, in this manner, be presented more nearly in accord with correct logical arrangement.
II. That the views I now propose to present may be entirely plain, it becomes necessary to state briefly the facts upon which the majority of the court base their conclusion, that the amendment of the constitution has not become a part of that instrument, and may, therefore, be disregarded by this court. The facts referred to are these: 1. The joint resolution of the Eighteenth General Assembly proposing the amendment to the constitution, as it appears in its enrolled form in the archives of the state, is in the precise language and form of the proposition adopted by the Nineteenth General Assembly, and adopted by the vote of the people. 2. But the journal of the senate of the Eighteenth General Assembly, it is claimed by the majority of the court, shows that the joint resolution passed by that body contained the words “or to be used.” It is not claimed, neither does the journal show, that these words were not stricken out with other words from the substitute offered by Senator Hemen*648way. 3. it will be remembered that tbe joint resolution originated in the house, and the senate did not concur therein, but adopted a substitute. It is not denied that the house finally adopted the substitute in the precise language and form in which it appears in the enrollment, nor is any change of the words of the resolution shown to have been made in the house after it was sent from the senate. 4. The joint resolution was not entered at length, copied in full, upon the journals of the two houses. But it does appear to have been entered upon the journals by its title, description, or by statements of its object and purpose. 5. It was published in one newspaper designated by the Secretary of State, under Chap. 114, Acts 1876 (Miller’s Code, p. 1198), in twelve weekly issues thereof, the first of which was more than three months prior to the election for members of the General Assembly.
For the reasons that, as it is claimed by plaintiffs, the journal of the senate shows the joint resolution passed that body containing the words “or to be usedthat it was not copied in full on the journals of the respective houses; and that it was not published in one newspaper for the full time required by the constitution, plaintiffs claim that the amendment is not a part of the constitution of the state.
III. Before proceeding to the further consideration of the objections urged by plaintiffs to the constitutional amendment in question, I will proceed to state certain political principles pertaining to the form of government of our state— a representative democracy — which are nowhere denied and by all admitted, and are axiomatic in character.
1. Sovereignty, i. e., supreme political power, inheres in the people.
“2. 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 it. Const., Art. 1, Sec. 2.
*649“3. The enumeration of rights (in the constitution) shall not be construed to impair or deny others- retained by the people. Const., Art. 1, Sec. 25.”
4. The constitution of the state is not a limitation upon or a surrender of the absolute power of the people. This is a corollary to the preceding propositions.
It is sometimes said that the people limit their own power by the constitution. The expression, in its proper sense, is not accurate. The people, by the constitution which they ordain, may prescribe the manner of the exercise of these powers, as the manner of amending the constitution, or of ordaining a new one. Such provisions are obligatory upon the representatives of the people who administer the government created by the constitution. ■ These representatives, and the government administered by them, must pursue the course pointed out by the constitution for its amendment or the creation of a new constitution, when it is sought to be changed through the instrumentality of the existing government. But this limitation does not extend to the power of the people; it is rather a limitation upon the power of their representatives. The constitution is a limitation upon the power of the government organized under it, and not a limitation of the power of the people. But if in terms the people should limit their powers, the limitation would terminate at the will of the people. Possessing sovereignty, the restrictions they impose upon their own power they may annul at pleasure. See Jameson on the Constitutional Convention,, seetioh 351; Cooley’s Constitutional Law, 598.
5. The Constitution of the State of Iowa is an instrument formed by the people through their representatives, and adopted and ratified by them, ordaining and establishing a free and independent government and restricting its powers. See Constitution, preamble, Art. 12, Sec. 13.
IY. I will now proceed to recite certain facts taught by the political history of the state, which cannot be denied.
The present constitution was framed by a convention, the *650members of which were chosen in pursuance of, and in accord with, the provisions of the old constitution. See Acts 1855, chapter 78. The convention, after having agreed upon the constitution, caused it to be enrolled, and to be deposited in the office of the Secretary of State. It was adopted by the people at an election held pursuant to Art. 12, Sec. 13, and the proclamation of the governor required by the same provision was issued, declaring that it had been adopted by the vote of the people. Under this provision it took effect and became the constitution of the state after the publication of the proclamation. Thereupon the government existing under the old constitution ceased to exist; the government of the state from thence forward was the government established by the new constitution. While, according to the provisions of the new constitution, the offices, for a time at least, were filled by persons elected under the old constitution, and no great and radical change was made, the new government being of the same form and possessing, practically, the same power as the old one, yet it cannot be doubted that the new constitution created a new government which took the place of and superseded the old one.
I have thus shown briefly the process of forming the constitution, its promulgation, and its effect to supersede the existing government and create a new one. The instrument, as all written laws have been, since written laws were first promulgated among men, was consigned to the custody of the government, and kept by the proper officer in the archives of the state. The instrument there found and kept is the authoritative and only constitution of the state. Copies for convenience are multiplied in print, and are declared to be prima faeie correct. But all disputes as to the contents of the instrument are settled by appealing to the original constitution found in the office of the secretary of the state. My statement of facts and conclusions thus far I have never heard doubted.
Now, suppose a question is raised involving the validity of *651the constitution; that is, a claim is made that it was not lawfully adopted by the people. How is this controversy to be settled? It will be remembered that the constitution is the work of the people, that, upon the approval of the instrument by the vote of the people, certified by the proclamation of the governor, it becomes the supreme law of the land. The instrument itself prescribes that it shall take effect after it is ratified by the people, upon the promulgation of the proclamation of the governor. This proclamation, probably alone, but surely together with the evidence of the vote of the people adopting the constitution, is the evidence, and only evidence, necessary to establish the fact that it is of force, and is the expression of the sovereign will of the people. There is no officer or tribunal that can go back of the proclamation of the governor and the vote of the people, as shown by the records in the archives of the state. And, indeed, we shall presently see that the constitution cannot now be so far called in question by a demand of evidence of the vote and proclamation.
To repeat what I have said, the constitution took effect upon the publication of the proclamation. It was, from thence on, the constitution — the supreme law of the land. Springing from this instrument, the state government arises. The government in all its departments rests upon and exists by virtue of the constitution. Every department of the government, every officer of the state, derives authority from the constitution, and from no other source. Now, it is very plain that, as the government cannot exist without the constitution, it cannot possess the power to overthrow that instrument, and declare it to be of no effect. If there is no constitution, if it is void, there is no government. If there is no constitution, there are no officers, legislative, executive or judicial, and the acts of all departments of the government, looking to the overthrow of the constitution, would be as nothing. No proposition can be plainer.
The constitution exists as a whole, and was adopted as a whole. Causes of invalidity which affect one part affect the *652whole. I am now speaking of the original constitution without amendments. Therefore, if one part be invalid, the whole is void. It follows that neither the j udicial, nor any other department of the government, can claim that the portions of the instrument creating such department, and upon which it rests, is valid, while another part is void. It is, therefore, impossible for any one department of the government to maintain its own existence, and declare any provision of the constitution void. Luther v. Borden, 7 How., 1. A contrary view would make the constitution of the state a feto de se — would recognize the supreme law of the state as containing within itself the elements of its own destruction. But our government is planted upon no such uncertain foundation. Permanency, an existence to be ended only by the sovereign authority, the people, which called it into existence, belongs to it. The attribute of supremacy is possessed by the constitution, and is derived from the sovereign people; it is the supreme law of the land. The thought that the sovereignty of the constitution is rightfully subject to overthrow by the government designed to execute its authority, cannot be entertained. If so subject, the constitution is not supreme.
The people make the constitution; the constitution establishes the government. The government in none of its departments is charged with the duty, or possesses the power, of ordaining and establishing the constitution. The legislative and executive departments of the government are appointed as instruments by the people, to be used in amending the constitution, but in the formation of the original instrument these departments had nothing to do, for when it was framed, adopted, and promulgated, they did not exist. It cannot be possible that the constitution confers authority upon the government, or any of its departments, which may be exer cised to effect its own overthrow. There is nothing like this within the dominion of morals, politics, or jurisprudence.
The constitution is the life of the government. As we have seen that life began upon the promulgation by the gov*653ernor’s proclamation of the fact that the people had completed the work of making the constitution by their vote ratifying it. When this life begins, the life of the old constitution ends, and the old government passes away. The officers of the various departments of the government, the people, and the whole world take notice of the existence of the new constitution and the new government, for the simple reason that each is an accomplished fact. The constitution and the government do exist, and their existence is made known by manifestation of governmental life. It will not do to say that the constitution and government do not exist because life was given, them irregularly. But, if that be true, nevertheless the government is a government de facto, based upon a constitution de facto, though that constitution was not formed in accord with the law adopted by the people themselves, prescribing the form and proceedings for framing and ratifying a new constitution. No department of the government can inquire into these proceedings in order to overthrow the de facto constitution. They cannot withhold obedience to the constitution for the reason that it does not exist de jure. Its existence de facto gives it all the life and authority it would possess were it a constitution de jure. It may be enforced, and obedience thereto exacted, to the same extent as though it existed de jure. It can only be overthrown by rebellion, which, if successful, will be termed a revolution. It is as'absurd to deny the existence and authority of a de facto constitution as to deny the life and natural rights of a bastard on the ground of his illegitimate birth. Each demonstrates its existence by the manifestations of the life and power which it possesses. It will not avail to resist the exercise of governmental power by the state on the ground that its constitution was irregularly adopted. Many of the states of this Union are governed under constitutions adopted in contravention of provisions of prior constitutions, or without authority therefrom.
In view of these doctrines of undoubted soundness, the ex*654ercise of authority by a state cannot be questioned upon the ground that the constitution was irregularly adopted. Nor can proof be demanded to establish the constitution. It is regarded as an accomplished fact, notice of which will be taken by all the departments of the government, and by the people and the world. It manifests its existence by the exercise of governmental authority and power.
Y. I have stated that no department of the government can question the constitution after it is fully established by the people, and I have shown that it is so established when the approval of the people by their vote is shown by proclamation of the governor, or in such other manner as is prescribed by the people through their representatives. I have never heard it claimed that either the executive or legislative department of the government could hold for naught the constitution so promulgated, and I have nowhere heard it claimed that the legislature of the state, by statute or any other act, could declare a constitution, promulgated and duly recognized in the manner therein prescribed, and therefore the constitution de facto, to be void and of no effect. No case .has been brought to my attention where this was attempted. I here refer to the action of the legislature existing under the constitution which is brought in question.
But plaintiffs claim that it is competent for the judicial department of the government to inquire and determine whether the amendment of the constitution was duly ordained. I will hereafter show that no distinction exists between the case where the original constitution is brought in question, and that wherein an amendment is sought to be set aside.
I shall now proceed to inquire into the power of the courts of the state to annul, for irregularity in the proceedings under which it was adopted, the original constitution of the state.
TI. All the judicial power of the state is conferred by the constitution upon the courts. Const., Art. 5, Sec. 1, and Art. *6553, See. 1. What is meant by the term “judicial power?” Chief Justice Marshall, defining the functions of different departments of the government, declares that “the difference between the departments undoubtedly is, that the legislative makes, the executive executes and the judiciary construes the law.” Wayman et al. v. Southard et al., 10 Wheat., 1. To complete the distinction, it ought to be added that the judicial department applies the law, to the end that the rights of the citizens may be protected. The judiciary department of the government is charged with the duty and authority of construing and applying the law which is made by the legislative department of the government. See cases cited in Cooley’s Constitutional Limitations, 91, 92. It is often said that the judiciary is charged with the duty of determining what the law is. The observation is true in the sense that .the courts are to determine the rules prescribed in the written laws — I mean statutes. This is done by the interpretation of the laws under the rules recognized by the courts. It is not true that the judiciary may determine that a statute promulgated by the legislature is not the law, on the ground that it was not enacted by that department of the government. It is often said that courts declare void, annul, and overthrow statutes, on the ground that they are in conflict with the constitution. This is true in the sense that they may refuse to enforce them, but it is not true in the sense that they disregard such statutes on the ground that they were not in fact enacted by the legislature. A few brief thoughts will establish and make plain these propositions:
First. As the judiciary cannot make laws (statutes), they cannot unmake them. It cannot be claimed that government has within its organization two departments, one with the power to make laws, the other with the power to destroy them. If this were so, there would be, or could be, a conflict that would speedily overthrow the state. Our government was not established with so little wisdom.
*656Second. But the judiciary may annul, hold as void, that is, refuse to enforce or apply a law. The source and origin of - that power is readily discovered by the following considerations:
Two statutes are passed in direct conflict; both cannot be enforced. It. is the duty and within the power of the courts, by construction and the application of familiar rules prevailing in -such cases, to determine which one of the statutes shall be applied. But the courts do not unmake the law which in this instance they refuse to enforce. >
The constitution is the paramount law. If a statute is in conflict with it, the courts will determine that fact by construction, and will hold the statute of no effect. The courts in such cases exercise the identical power, and no other, which they apply in the case of conflicting statutes. They compare the laws in question with the constitution, and determine by construction of each whether there is in fact, a conflict; and, if a conflict be thus found, they will not apply the statute, but will maintain and enforce the constitution, because it is the paramount law. Marbury v. Madison, 1 Cranch, 137 (177).
Courts will, in certain cases, inquire whether a law was constitutionally enacted, that is, whether the legislature pursued the rules prescribed in the constitution to be followed in the enactment of statutes. But, in the cases now in contemplation, they do nothing more than to compare the statute and constitution, and enforce the paramount law. In the absence of constitutional restrictions, the legislature, by the expression of its will, without regard to the manner in which concurrence in that will was reached, could ordain any law within the sphere of legislative authority. I have thus shown that the judicial department of the government cannot unmake laws.
It cannot be claimed that the courts possess any greater authority over the constitution. They interpret that instru*657ment, and if there should be found conflicting provisions therein, they may, by the rules of construction, determine which provision shall prevail.
I shall now proceed to consider whether the courts may inquire into the proceedings of the people, through their representatives, to determine whether the constitution was adopted by proceedings in harmony with statutes, or prior constitutional provisions relating to the formation of the instrument. I think they cannot for the following reasons:
1. The exercise of such authority might lead to the overthrow of the constitution by one of the departments of the government. I have shown that such authority in any department of the government cannot exist.
2. Before the courts were created the constitution had an existence. If their separate existence began simultaneously, athe constitution surely exists when the judgment of the court is rendered overthrowing it. Such judgment then disregards, sets at naught, and- overthrows an existing paramount law, the constitution. This is judicial rebellion.
3. The question of the existence of the government and constitution is not for the determination of the courts; it is not a judicial question. That existence is a fact made known, not by judicial decision, but, as I have before said, by the manifestation of governmental authority. That the constitution does exist is shown by the existence of the government upon which it alone rests. But how shall we discover the contents, the provisions, of the constitution, conceding its existence ? At the archives of the' state where it is kept, its custodian, who represents the whole people as the keeper of the paramount law which they have ordained, will disclose the instrument. That is the Constitution. It was adopted and promulgated by the representatives of the sovereign people. Behind that instrument the courts cannot go.
Suppose a foreigner having no knowledge of our institutions should visit the state. He would discover the government by the manifestation of its authority. He desires to *658obtain a knowledge of our laws and institutions, and is infoi-med that they all rest upon a constitution, the supreme law of the land. He desires to become acquainted with this wonderful instrument. A printed copy is shown him and he is informed the original is to be found in the archives of the state. He asks of the learned lawyer, from- whom he seeks information. How am I to know this instrument is your constitution? He would be informed that it was promulgated by the representatives of the people, who are sovereign, and is recognized by the people and all the departments of the government, and that it is, therefore, the Constitution of this State. Would the learned instructor of the foreigner suggest that the constitution is valid as long as the courts uphold it, and that its existence depends on the decision of the judiciary of the state upon facts relating to proceedings had when it was framed? On the contrary, he would declare that the instrument was, at the beginning, promulgated by the representatives of the people as their constitution, and that it has been recognized by the judicial department of the government, and that its existence as the supreme law cannot be questioned by any authority in the state. This brings me to the thought that questions pertaining to the existence of the constitution must be determined by that authority of the state which is charged with the duty and power of shaping its policy, of protecting its existence, of preserving its safety and peace, of augmenting its strength, and which is charged by the sovereign people with the task of framing a constitution for their approval, and promulgating it when so approved. This authority pertains to, and is exercised by, what is often called the political departments of the government. The courts are clothed with no such authority. They cannot, therefore, determine questions pertaining to the existence and validity of the constitution. Such determination must be alone made by other representatives of the people, who exercise political functions within the political department of the government. Luther v. Borden, 7 How., 1; White v. Hart, *65913 Wal., 646; Miles v. Bradford, 22 Md., 170; Hawkins v. The Governor, 1 Ark., 570; Mayor v. Root, 8 Md., 95; The U. S. v. Baker, 5 Blatch., 6; Foster et al. v. Neilson, 2 Pet., 253; Cherokee Nation v. State of Georgia, 5 Pet., 1; Garcia v. Lee, 12 Pet., 511; Williams v. Suffolk Insurance Co., 13 Pet., 415; Brittle v. The People, 2 Neb., 214.
This conclusion appears to me to be supported by reason, and is in accord with the principles of our government and sound public policy. -The judicial department of the government has nothing to do with shaping the policy or foi’ming the institutions of the state, or with protecting it and augmenting its strength. It cannot, therefore, determine any question striking at the validity and binding force of the constitution, under which all political functions which pertain to these matters must be exercised.
The constitution shapes the form of the government, and prescribes limitations upon legislative authority. Under it the political institutions of the state are established; audits policy is foreshadowed by the constitution. The constitution lays the foundation and erects the frame work of the government, which must be completed and finished by legislation in accord with the measure established and plans contemplated by that instrument. It is the source to which the legislative department of the state must look for instructions, limitations and directions, pertaining to the policy of the state. It follows that the validity or existence of constitutional provisions involve political questions.
VIL I will now proceed to inquire what recognition of the constitution will give it life and constitute it the supreme law of the land. Such recognition must be made by authority emanating from the department of the government charged with such duty. Art. 12, Sec. 13, of the constitution declares that it shall become the constitution of the state after it is adopted by a vote of the people, and the result of the vote is made known by the proclamation of the governor. Here is the determination of the fact that the eon*660stitution is the supi’eme law of the land. It is made under authority of the executive, which is of the political department of the state. For obvious reasons the determination must be final. The constitution becomes supreme and, as I have shown, is not subject to destruction by any authority created by it. When once launched into the life of supremacy^ its existence can be terminated by no power save that which created it, the sovereign power of the people. No department of the government can thus question its existence. The legislative, the executive, and the judicial cannot separately or together question its existence or .resist its authority. The highest interests of the people demand that their constitution shall be permanent. Under the views I have announced, it is subject to change only by the exercise of the sovereign will of the people. Upon this point I shall have something more to say hereafter. These doctrines, I think, will meet with no denial.
YIII. I shall now proceed to enquire whether different doctrines and rules apply to amendments of the constitution. I am clear that they do not. This proposition, though a vital one upon this branch of my opinion, may be established by a brief discussion.
The same sovereign authority — the people — that made the constitution, made the amendment. Different instrumentalities were used, and therein is the only difference between the one and the other. Jameson’s Constitutional Convention, sec. 555.
A convention formed the constitution, provided for its submission to the final approval of the people, and declared what officers should canvass the vote, and that a proclamation should be issued by the governor declaring the fact of its adoption. Constitution, Art. 12, Sec. 13.
The amendment was framed by the General Assembly and submitted to the vote of the people, under the provisions of a statute and in accord with the constitution. It is declared that when the amendment is adopted by the vote of the peo*661pie, it shall become a part of the constitution. The board of state canvassers are authorized to declare the result of the election, and the governor is required to issue his proclamation informing the people of the result of such election. See Constitution, Art. 10, Sec. 1; Acts 1876, Chap. 114, sec. 2, (Miller’s Code, 1198); Acts 1882, Chap. 172, Sec. 5.
It is not denied that the amendment was adopted, promulgated, and declared to be a part of the constitution, as contemplated by the constitution and the statutes. It then became a part do facto of the constitution. In the language of Jameson, “the result of submission (to the people) certified and announced” is “the crowning apt by which changes in the fundamental law are consummated.” See Jameson’s Constitutional Convention, Sec. 523.
Recurring to the doctrine I have heretofore established, it will appear that no department in the state can declare it invalid, for it has become a part of the constitution by the recognition of the political department of the state. It is obvious that all principles I have above announced are applicable to the amendment.
I do not fail to observe that one argument I have used, based upon the fact that the whole' of the original constitution was adopted at the same election, after proceedings relating to the whole instrument, is not applicable to’ the amendment. The argument is that the whole constitution would be equally affected by causes of invalidity. It is true, that there may have been irregularities in the proceedings prior to the vote upon the amendment that did not occur in adopting the original constitution. But this fact, and the inapplicability of the argument based thereon to the questions raised by the amendment, can have no effect to detract from the force of the conclusion I have announced.
It may be urged that, in disregarding the amendment, the ■courts do not defeat the part of the constitution from which their authority is derived, and that the argument based upon the conclusion that, by overthrowing the constitution, the courts *662defeat their authority to adjudicate is, therefore, not applicable. If the courts may defeat this amendment, they may defeat all amendments where the same irregularities exist. They could, therefore, defeat an amendment affecting their own jurisdiction. Such an amendment might create the courts. In that case, if the courts held it invalid, they would overthrow their own power and jurisdiction. This I have shown cannot be done.
There is no limit to the number of amendments which may be proposed and adopted in the manner contemplated by the constitution. By changes of the constitution in that way, the government may be reorganized, the authority of departments, changed or taken away. New courts may be created to take the place of old ones, and, indeed, the distribution of powers to the different departments may be wholly reformed. These changes could be as great as would be introduced .by a new constitution, and may be introduced by amendments proposed together by the same acts of the legislature, and voted upon at the same election, and promulgated at the same time and in the same manner. If the courts may defeat the amendment in question, it may overthrow the numerous amendments in the case I have supposed. It will not be a reply to this position to claim that courts will stop when they reach amendments affecting their jurisdiction. If that be true, we would have the spectacle of courts existing under amendments, notwithstanding irregularities therein, held sufficient to defeat other amendments. Other absurd results could be pointed out which would follow such a conclusion. I forbear to specifiy them. The position, in my judgment, is without the support of sound reason, and in conflict with legal principles.
IX. I will proceed to point out some certain consequences and probable results following the exercise of jurisdiction by the courts to declare of no effect amendments of the constitution of the state. If such jurisdiction rightfully exists, it may be exercised under the same conditions and in the same *663manner in cases involving the validity of the amendment as in other cases. Courts may, nay, often do, refuse to adhere to their own decisions, but overrule them, and recognize principles of law diametrically opposed to the rules of their first decision. Instances of this kind often occur in cases wherein grave constitutional questions are involved. The same judges sometimes change their opinions and overrule their own decisions, but more frequently decisions are overruled by reason of new judges taking the place of those who have retired from the bench. A notable instance of this kind is found in the recent history of this court. In 1869, we held a statute authorizing a township to levy taxes in aid of the construction of railroads unconstitutional and void. Hanson v. Vernon, 27 Iowa, 29. In 1870, less than two years after that decision, this court overruled it, and a statute identical in effect and in its general provisions, was held to be constitutional. Stewart v. Supervisors, 30 Iowa, 9. After the, decision of the case first named, two of the judges concurring therein retired from the bench, and their successors, uniting with the judge who disagreed to the first opinion, constituted a majority which overruled Hanson v. Vernon, and established other rules of law, the direct opposite of those approved in that case.
Rules of law established by the decisions of this court, until overruled by this court, or superseded by legislative en.actment, have the authority and force of statutes. They settle the rights of persons and property, enter into contracts, in short, they constitute a part of the body of the laws of the state.
Another important doctrine of the law must be here stated, namely, decisions of courts do not make law, but simply declare what the law is. The judicial theory is that the law as declai’ed by the courts existed and was of force before the decision, and is to be applied to all rights existing, and transactions occurring, before the decision was made. Rules are recognized which are introduced to modify the harsh effect of *664the doctrine in some cases; but none of them reach so far as to hold that property and rights of the citizen, held and enjoyed under the decision of this court to-day, may not be lost, swept away, by the decision of this court to-morrow. These observations are not made in a spirit of condemnation of the doctrine stated. It doubtless is necessary for the efficient administration of the law, and its application does not always operate with harshness, and is not often the source of injustice. Legislative and judicial wisdom have not, and probably never will, devise rules to supersede it. But it is obvious that the correct administration of the law, and proper exercise of the functions of government, forbid that, under the operation of this rule, the government should be disturbed and the constitution be subject to frequent changes.
It is very plain that, if the courts have jurisdiction to declare what is the constitution and what is not, that an amendment to that instrument was or was not lawfully adopted, and is, therefore, not in force, or is of no effect, the constitution will rest in uncertainty. What will be the constitution — the supreme law — to-day, may not be to-morrow. That the rights and property of the people may be perfectly protected and the government be stable, the constitution must be a certain, permanen tinstrument, unchanged and unchangeable, except by the sovereign authority which ordained it — the people.
Nothing is more conducive to the general prosperity of the state than stability of its constitution arid political institutions. Of course, they should accord with the liberty of the people and the natural rights of the citizen. If they do not, the people, the sovereign power in the state, will change them, and there is no other power that can.
Under the doctrine recognized by the majority of this court, the amendment to the constitution in question is void, and, under the decision, the manufacture and sale of wine and beer is lawful, and no liabilities or penalties are, or can be, incurred therefor. Upon the advent of new judges to the *665bench, the decision of this court announced to-day may be overruled, and the amendment may be declared valid and a part of the constitution, the supreme law of the state. Such decision would have the effect to declare that the amendment was valid and a part of the constitution from the first; that it was the supreme law of the state during the whole time the decision of this court announced to-day shall stand unreversed. The citizens will then find that they are burdened with liabilities, and probably subject to penalties for acts which they are taught by this decision are lawful. Contracts will be then invalid, which, under this decision, are esteemed of force. Surely, in view of these considerations, the decision of this court, leading to such consequences, is to be deplored, and, to my mind, the argument based upon these consequences, supporting my conclusion that the court has no jurisdiction to set aside the amendment, is irresistible. These consequences can be averted in no other way than by limiting the exercise of judicial authority to judicial questions, and forbidding its exercise in the decision of political questions. I have shown that the questions involving the validity of the amendment are essentially political.
The thoughts I have just expressed fitly introduce for consideration in this connection another powerful argument in support of the conclusion that courts have no jurisdiction to determine political questions, to which class the one now under consideration belongs, involving, as it does, the existence of a part of the constitution of the state.
Political questions are such as involve the authority and acts of the departments of the government charged with the duty and power of shaping the policy of the government, of protecting its existence, of preserving its safety and peace, of augmenting its strength, to which "the sovereign peoplé committed the task of forming a constitution for their approval, and promulgating it after they have approved the instrument. I have shown that the courts are not charged with these duties and powers. These political questions al*666ways receive the earnest and watchful attention of the intelligent and free people of our state; and the exercise of political powers is observed by them with jealous attention, for the reason that they pertain to the public policy of the state, to the very existence of the constitution of the state, and other matters exclusively of public interest. Upon these questions the people may be, in fact, usually are, divided in-opinion, hence arises what is called politics in its partisan sense, and the division of the people into what are called political parties. In matters involved in these questions, the people will have their own way. They will, and always do, settle these questions according to the will of the majority, and no department or power of the state can stand up against that will. If courts and judges oppose it, the constitution affords a ready remedy to the people in its provisions for an elective judiciary. They will elect judges who will decide political questions so that the will of the people as to the policy of the state shall be enforced. Judges cannot escape from the control of the people in this manner, be it right or wrong, if they would. The claim that, as they exercise judicial functions, they ought not to be subject to the will of the sovereign people, will not be heard; and the claim that they ought not to be “dragged into politics” will be answered by the assertion that, by entering the dominion of politics in deciding political questions, they must become subject to political control in the partisan sense of the expression. The subject may be aptly illustrated by reference to our recent political history. During the rebellion, there was a division of opinion as to the constitutional authority of the state to do many acts in aid of the national government in the prosecution of the war. Some thought that the war was prosecuted in violation of the constitution of the United States, and that all acts of the government of Iowa, recognizing the war and giving aid to the national government, were unauthorized. Now, all questions as to the existence of war are political in its governmental sense, and they were at that time, and *667still are, political, in the partisan sense., Suppose the Iowa courts had decided against the authority of the state government to recognize the existence of war and to aid the national government in its prosecution, can it be doubted that the people would have overthrown such decisions by changing the judges, or, if that process would have been too slow, by the reorganizing of the courts; and that, to attain that end, special sessions of the General Assembly would have been called with all possible speed? And who would condemn such action ?
If judges decide political questions they must enter the arena of political strife. Nothing can be plainer. No language can be used too strongly condeming such a thing. Judges ought not to be partisans, and be influenced by partisan control; their duty is to interpret and apply the law, to the end that the liberty and the rights and property of the people may be secured. Their duty and authority extend to no political questions. These are to be determined by the political department of the government. How then shall the courts and judges “keep out of politics?” The ready answer discloses a sure way of escape. Let judges confine themselves to the sphere of their constitutional jurisdiction, and decide only judicial questions. In cases wherein arise questions relating to the policy of the government, let them follow the decisions of the political departments, which have exclusive jurisdiction to determine such questions. They will, by pursuing this course, never become subject to political influences. These considerations pertaining to the efficiency and purity of the judiciary, to my mind, support a controlling argument establishing the position that this court has no jurisdiction to inquire iuto the validity of the amendment — a matter that has been conclusively settled by the political authority of the government
X. Unless the people, in the exercise of their sovereign power, control the courts in a constitutional manner, the judiciary may become the supreme arbiter of all political ques*668tions. This danger is pointed out by Mr. Justice Woodbury, in Luther v. Borden, supra, in language so strong and direct, that I am restrained by my ideas of courtesy and propriety from repeating it on this occasion, or from presenting the thoughts it conveys. ' It is certainly true that the way of safety for our government is that course which will restrict each department of the government to the exercise of authority within its particular sphere.
XI. I have shown that the people make the constitution. As it is impossible for them to meet in assemblies, as did the democracies of the ancient cities, and there frame and adopt their supreme law, the constitution, it becomes necessary for them to choose representatives, to frame the constitution and submit it for approval by a vote of the people themselves. The constitutional convention, and the General Assembly in proposing amendments, was each constituted by the people their representatives, charged with the duty of framing and submitting for approval, the constitution in one case, and the amendment in the other. These functions and powers are the same. Jameson’s Constitutional Convention, § 555. The legislature was required to frame an amendment to the constitution and submit it to the people. This work was all preparatory to the exercise of the people’s sovereign power; that is, the legislature caused to be written out ari amendment which if, in the words of the constitution, the people should “approve and ratify,” became the constitution. The act giving life to the instrument was the approval and ratification. Preparatory and preliminary proceedings cannot, after the constitution is ratified and adopted, affect the instrument. Irregularities on the part of the legislature do not enter into the constitution. If they did, the people’s ratification cures them. This ratification gives life to this instrument, notwithstanding prior irregularities.
The thought is illustrated by the instance of the irregularities of the act of an agent, a representative of an individual, in preparing and executing a written contract. If the representa*669tive overstepped the bounds of his authority, or failed to fully discharge it, the ratification and approval of the principal, by adopting the contract, would cure and render of no effect all prior irregularities of the agent. The following authorities support the views I have just expressed. Jameson’s Constitutional Convention, § 124; Federalist, No. XL, Ed. 1873, p. 316; Wells v. Bain, 75 Pa. St., 39.
In the last case it was held that the court would take cognizance of the action of the constitutional convention upon matters not within its jurisdiction, as the time fixed for the vote thereon, when another time was prescribed by law; but that, touching matters within its jurisdiction, its action was not subject to review in the courts. 'As the decision of the court bears upon the point now under consideration, as well as upon the question of the court’s jurisdiction, I cannot refrain from giving the following language of Agnew, Oh. J., who delivered the opinion of the court: “ The convention was clothed with express power to act upon the question of submitting the amendments in whole or in part, having all the neccessary. authority to make rules for its own procedure, and to decide upon all questions falling within the scope of its authority. The power over the manner of submitting amendments is expressly conferred in the fifth section. It is true, the law gives to one-third of all the members a right to require a separate submission of any amendment. But while this right is awarded to a majority of the body, it is one upon which the convention itself must act, and it must act according to its own rules of procedure. The question of a separate submission being one committed to the whole body, of which the requiring third is itself a part, it must be presumed that the decision of the ■ body as a whole was rightly made, and, either that the request was not made by a full one-third of all the members, or, if made by one-third, it was not in a regular or orderly way. It would be a violent presumption to suppose that the body would willfully disregard their own oaths, as well as a full and orderly request. And, if they did this wrong, *670no appeal is given to tbe judiciary, and the error can be corrected by the people themselves, by rejecting the work of the convention. If the people, notwithstanding, chose to ratify their work, with them lies the consequence. Mere errors of procedure will then be of no avail. The convention, having in that matter acted within the scope of its undoubted power, we must take its decision as final, and leave correction to the power to which it belongs.”
This case does not support the position that courts have jurisdiction to inquire into the validity of constitutions. It holds that a constitution must be submitted at an election conducted in the manner prescribed by law, and that the convention framing it, in the absence of any authority conferred upon it so to do, cannot fix the manner of conducting the election different from the requirements of statutes. It does not hold that, if the constitution had been adopted at such an election, recognized and promulgated by the political department of the state, the courts could inquire into such irregularities. The constitution had not been adopted; no election had been had to vote upon it, when the case was decided, and, of course, no such question could have been raised in it. The case was at nisi prims, and was to restrain the commission appointed by the convention from holding an election in the city of Philadelphia, on the 3d Tuesday of December, 1873, to vote upon the adoption of the constitution. The decision was made on the 2d day of December, 1873.
XII. It is not necessary, in order to support the position that the courts have no jurisdiction to inquire into the existence and validity of a constitution, to go to the extent of holding that a constitution, or an amendment thereof, framed and submitted for the approval of the people by a convention or legislature, without any pretense of authority from an existing constitution or government, or in contravention of rules prescribed by such constitution or government, controlling the choice of the members of the convention, or direct*671ing the concurrence of the legislature in the act of framing and submitting the constitution to the vote of the people, and the like, must be accepted by the courts as the constitution of the state. Nor would a constitution be so accepted, where the people failed or refused to approve and ratify it. Whenever the violation of the constitution or law by the convention or legislature is of such character as to defeat their jurisdiction, or when, by reason of non-compliance therewith, these bodies acquire no jurisdiction, their proceedings are void, and the courts of the state may disregard their acts. But mere irregularities, or even violations of law, in matters whereof they have jurisdiction, will form no ground for interference on the part of the courts.
But however irregularly a constitution may be formed and submitted to the people, even though no authority therefor was had under a prior constitution and laws; nay, though it was done in contravention of existing laws, if the constitution or amendment be adopted and ratified by the people, and regarded by the existing political authority of the state, and thus becomes, d& faato, the supreme law, the courts must accept it as the constitution of the state. Were the rule otherwise, conflicts would arise between the political and judiciary departments of the state. But the constitution contemplates harmony in the several departments of the government, and the courts must, therefore, accept the constitution recognized by the political department of the state. The history of the formation of the constitution of the Union and of the states shows that, in many instances, they were framed and submitted to the people 'without authority, or in contravention of express constitutional provisions. I have not time to recite instances of this character. The subject is clearly and pointedly discussed in Jameson’s Constitutional Convention, a work highly regarded by statesmen and the legal profession. But in no case, I may safely assert, where a constitution, or a constitutional amendment, has been adopted by the people and recognized and promulgated as the constitution by the *672political department of the state, have the courts ventured to declare it invalid.
The conclusion I reach upon the question of the jurisdiction of the courts, of course, settles the case. It is proper to say that the question was not brought to our attention upon the first argument, and it did not occur to me upon my investigation of the points upon which the case was submitted. It was not, therefore, noticed in my first opinion.
XIII. Upon an examination of the case, I am satisfied that my conclusion upon the points discussed in my first opinion are sound. Even if I am mistaken on this subject of jurisdiction, I am confident that I am supported in my conclusions by the points I presented in my first opinion. Several authorities have fallen under my observation, and many arguments have occured to my mind, since I prepared that opinion, which support my conclusions therein announced. Some of them I propose to present in connection with answers to the arguments of the majority of the court, as expressed in the opinion of Chief Justice Day. I pursue this course for the sake of brevity; at the same time, I believe it will enable me more clearly to present the new views and authorities I have at hand.
In support of the sixth point of my former opinion, which maintains that the Nineteenth General Assembly was charged with the duty and authority to determine whether the proceedings were had, which are prescribed by law to be had, preliminary to the action of that body in submitting the amendment to the people,' I need, I think, to advance but one additional argument, which is based upon a clearly expressed legislative requirement that at least one preliminary act, giving the Nineteenth General Assembly jurisdiction, should be determined by that body. It is this: Chap. 114, Sec. 1, Acts of 1876 (Miller’s Code, p. 1198), provides as follows:
“That whenever any proposition to amend the constitution has passed the General Assembly and been referred to *673the next succeeding legislature, as provided in Sec. 1, Art. X, of the constitution, the secretary of state shall cause the same to be published in two newspapers of general circulation in each congressional district in the state, for the time provided in Sec. 1, Art. X, of the constitution; and the fact of such publication having been made shall be verified by the affidavits of the publishers of such newspapers, and such affidavits, together with the certificate of the secretary of state that he had designated the newspapers in which the publication was made, shall be filed, preserved, and recorded in a book kept for that purpose in the office of the secretary of state; and the secretary of state shall report his, acts in the premises to the next succeeding General Assembly.”
Under this provision the secretary of state is required to designate the newspapers in which the proposition shall be published, and to file and record the proofs of publication, together with his certificate showing the newspaper designated by him. He is required to report his action to the General Assembly last acting upon the proposition. This contemplates that he shall report the record kept by him as required by the statute just quoted. Now, it cannot be doubted that the object of the provision was to inform the General Assembly of what had been done in the way of compliance with the law requiring publication. The law thus provides that all matters pertaining to the publication shall be made known to the General Assembly. Why should it be informed upon these facts ? For no other reason than that it is required to determine whether the law regarding publication had been complied with so that it acquired jurisdiction.
Now, surely, if the General Assembly was not clothed with the authority to decide upon this matter, no such requirements would have existed. If the secretary of state was clothed with authority of deciding it, he would have been required to .certify his decision, and not the facts. But no such requirement exists. I think it cannot be doubted that this provision contemplates that the General Assembly shall de*674cide upon the question of compliance with the law in regard to publication. Now, it would be strange, indeed, if this question is to be determined by the General Assembly, and all other questions pertaining to their jurisdiction should be left in nubibus, without authority anywhere to determine them.
But, under familiar principles of the law, tlie Nineteenth General Assembly was required to determine the regularity of all prior proceedings. It could lawfully act only in case prior proceedings complied with the law. The proposed amendment was “referred” to it by the Eighteenth General Assembly, Constitution, Art. X, Sec. 1. That reference carried with it all matters connected with the regularity of prior proceedings. A different view would require the legislature to act upon the proposition, even if all proceedings connected with it were utterly illegal. The law in no case countenances such proceedings. Its officers and ministers are the direct representatives of the people, who discharge legislative functions, and are required to act with intelligent deliberation, which will discover their authority and disclose the existence of facts whereon that authority rests.
XIY. In support of the seventh point of my first opinion, which maintains that, as the Nineteenth General Assembly was clothed with authority to determine the regularity of the preliminary proceedings had before they could act, their determination is conclusive, I will add the following thoughts: It is a well settled rule that the decisions of all courts, special tribunals, and officers which have jurisdiction of matters involved in proceedings before them, are held to be conclusive in all collateral proceedings, as long as they stand unreversed by direct review. It is admitted that the law has provided no proceedings to review the action of the General Assembly. The following authorities, in addition to those I have before cited, supports this position. Town of Coloma v. Eaves, 92 U. S., 484; Virginia v. W. Virginia, 11 Wall., 39; Gaines v. Thompson, 7 Wall., 347; Johnson v. *675Towsley, 13 Wall., 72; Secretary v. McGarrahan, 9 Wall., 298; French v. Fyan, 93 U. S., 169; Carpenter v. Montgomery, 7 Blackf., 415.
The rule is applied in cases- where the liberty of the citizen is involved. The action and decisions of courts and legislative assemblies committing offenders guilty of contempt, when jurisdiction is possessed of the person and of the offense, will not be reviewed by habeas corpus, the decisions being regarded as conclusive. Anderson v. Dunn, 6 Wheat., 204; Ex-parte Kearney, 7 Wheat., 38; Brass Crosby’s Case, 3 Wilson, 188; Howard v. Gossett, 10 Add. & E. (N. S.), 359; Burdett v. Abbott, 14 East, 1; Sheriff of Middlesex, 11 Ad. & E., 273.
Of course, if a legislative body or a court has no authority to punish a particular act, as for contempt, and it is not in fact regarded by the law as a contempt, no jurisdiction attaches, Kilbourn v. Thompson, 103 U. S., 168. But whenever jurisdiction over the particular act is possessed, the commitment is conclusive and will not be reviewed.
In Hawkins v. The Governor, 1 Ark., 576, it was held that the judiciary have no jurisdiction to interfere with other departments of the government in the discharge of political duties. The court says: “All departments of the government unquestionably have the right of judging of the constitution and interpreting it for themselves.” If the law provides no direct proceeding to review the action of the political departments in the courts, their action must be conclusive in collateral proceedings. It is admitted that the law provides no way to review the action of the General Assembly in proceedings involving constitutional amendments.
XY. The ninth point of my first opinion .maintains that the provision of the constitution, to the effect that a proposed amendment shall be entered upon the journal, does not require it to be copied in full. The purpose of the language of the constitution, in my opinion, is to secure an entry of the yeas and nays, thus showing the votes of members *676of the two houses. The language of the provision is that “the proposed amendment shall be entered on the journal with the yeas and nays taken thereon.” We are required to interpret the language here used as it is always understood in legislative practice and proceedings. In the absence of aid from this source, the meaning of the provision as to yeas and nays would not be understood. The direction that the yeas and nays shall be entered means, in the parliamentary language, that the name of each member shall be written on the journal, indicating his vote either yea or nay. It does not mean that the number only of the yeas and nays shall appear; it does not mean that the full name of the member shall be written out, for the reason that the language is not so understood when applied to parliamentary proceedings. We surely must interpret' the whole provision in the sense of the language when applied to parliamentary proceedings. This conclusion is based upon familiar rules of statutory and constitutional interpretation. Now, if we apply this rule to one part of the provision, to the requirement as to the yeas and nays, we should apply it .to the other part, and in that way learn what the word enter means, when used in reference to parliamentary proceedings. Under the rule of construction just referred to, we must seek for the meaning of the word as it is used in the constitution and laws of the state, and where used in relation to parliamentary proceedings. I have shown in my first opinion that no instance can be found, where it is used without qualifying words in our statutes, in which it means to copy or write in full.
It is, I think, a uniform practice of legislative assemblies to enter all matters required to appear on their journals by description or titles, unless otherwise specially ordered. So far as I am able to discover, this is the practice prevailing in the General Assembly of this state.
A rule prevailing in Congress (number 131 of the Rules published in 1863), provides that “members having petitions and memorials to present may hand them to the clerk, en*677dorse the same with their names and the reference or disposition to be made thereof; and such petitions and memorials shall be entered on the journal, subject to the control and direction of the speaker, etc.”
Under this rule, the uniform practice has been for years to make the entry by stating briefly the relief sought or the object prayed for, and the name of the petitioner, if one only signs the petition, or, if more, the place of residence of the petitioners, without their names. This statement I have verified by an examination of the printed journal published during a period of time when this rule was in force.
The argument based upon the thought that the proposition should be entered in full upon the journals, in order to give notice to the people and to the succeeding General Assembly of the precise form of the amendment to be voted upon by the people, fails in support from the facts. It is to be presumed that the framers of the constitution were familiar with parliamentary proceedings and the language of legislative bodies, and well knew the habits of our people. They knew that, in a parliamentary sense, as well as in the statutory sense, the word enter does not mean to copy in full, that it means a note or memorandum describing by its title, or otherwise, the paper to be entered, and that no one in the state ever consulted the journals for the purpose of gaining information relating to the acts of the respective houses of the General Assembly, further than as to the votes of the members. The journals are of limited circulation, and are not sought after by officers of the state or the people. They are not usually read by any citizen for any purpose. It surely could not have been in contemplation of the framers of the constitution that the people would gain information of the proposed amendment from the journals. On the other hand, the statutes of the state are the source of information to which all the people resort for knowledge touching the legislation of the state. These statutes.are extensively circulated, and pi’esent the laws in a form that is readily acces*678sible to all. The joint resolutions of the General Assembly are published with the statutes. This has.always been the practice in Iowa, beginning with the first territorial legislature. Indeed, it appears unreasonable to suppose that the framers of the constitution intended the proposition to amend-the constitution to be copied into the journals of the General Assembly for the information of the people. But inasmuch as the journals are the proper record of the votes of the members of the General Assembly, whose constituents have a right to know, and an interest in knowing, how they voted, the constitutional provisions requiring the proposition to amend the constitution to be “entered upon the journals with the yeas and nays taken thereon,” was intended to provide for a record of the votes of the General Assembly. The entry of the proposition by its title, with the yeas and nays, in the manner recognized and practiced by legislative assemblies, is what the constitution requires. It has been complied with in the case of the amendment under consideration.
XYI. An ancient yet familiar maxim of the law is expressed in this language: “All acts are presumed to have been rightly and regularly done.” The maxim applies to acts of all officers of every department of the government, and, indeed, to the acts of private persons. It is. unnecessary to cite cases to show that proceedings of the legislature are within its scope. The presumption always prevails that men will.act honestly, and duly discharge all duty, whether imposed by law or morals. The law regards every citizen as honest, and every officer of the state as patriotic and faithful in the discharge of public duties. Hence, the acts of all men are presumed, in the language of the maxim, “to have been rightly and regularly done.” Surely, it will not be expected of me to cite cases to support the authority of this. ancient maxim. Under it, if an official act is done in the exercise of lawful authority, all preliminary and preceding acts are presumed to have been regular, until irregularity is proved. Under this presumption, all uncertainty as *679to the regularity of the acts in question will be solved in their favor. Thus, if the record of official proceedings shows that an act was done, or an order made, which would arrest all future proceedings until its effect should be removed by another act or order, and the officer proceeds as though it were done, yet the record fails to show it, the law will presume the existence of regularity, and that the effect of the act or order was removed by proper proceedings. Thus, if a court should order a continuance of a case and afterwards, at the same time, it appears that the parties went to trial, it would be presumed that the order for the continuance was set aside. So, if a default should be entered, and the record shows that subsequently the defendant pleaded, and a trial was had, and a verdict rendered against the plaintiff, it would be presumed that the default was set aside. But it is useless to illustrate the maxim under' consideration. It may be stated in general terms that, when an officer is charged with the duty of performing certain preliminary acts before an ultimate act is done, the law will presume that the preliminary acts were done; and if, according to the course of business of an officer, or according to the rules of practice of a court, such preliminary acts may be done, and are not shown by the record, the law will presume they were done according to the course of business or rules.
I will now proceed to show that under these rules the fatal words “or to be used,” which, in the view of the majority of this court, are so potent as to overthrow a part of the constitution adopted by the people, and recognized and promulgated by the political authority of the state, will be held by the law to have been stricken out of the substitute of Senator Heminway, before it was finally adopted by the senate.
Under the plain language and unquestioned spirit of the maxim cited above, these mischievous words must be presumed to have been stricken out, for the very plain reason that the passage of the resolution in the form of its enrollment, the ultimate act, could not have been regularly done *680if the words remained. . TIence, as in the case of the order of continuance, or the default above supposed, the law will presume in favor of the regularity of the proceedings, that the words were, in some manner in accord with rules of legislative proceedings, eliminated from the substitute, the adoption of which, without the words, was the ultimate act shown by the enrollment in the archives of the state; and the presumption is entirely in accord with the rules of parliamentary proceedings, and does not necessarily contradict the journal entry. At any time while the substitute of Senator Heminway was under the control of the senate, the words, “or to be used,” could have been stricken out by general consent, without the formality of a vote in any form. See Cushing’s Manual, sections 21, 164, 316. Of course, in cases where acts of a parliamentary body are done by general consent, there is no motion and no vote; hence neither motion nor vote upon striking out the words, could have been entered in the journal, for there was nothing of the kind, and an order for striking out the words would not appear upon the journal. Cushing’s Law and Practice of Legislative Assemblies, section 1793. It follows, therefore, that the words, “or to be used,” could have been struck .out without that act appearing, in any form, upon the journal. After general consent was had, in pursuance thereof the words would have been stricken out of the Heminway amendment. This required no entry to be made by the clerk keeping the journal. Under the maxim and doctrine above stated the law will presume that the words were stricken out. It must be remembered that the journal does not show that the words were not stricken out, it is, therefore, not contradicted by this legal presumption. Cushing’s Manual, cited above, by statute governs the proceedings of the General Assembly. Code, § 27.
XYII. I will now present additional considerations which support the position advanced in the tenth point of my first opinion, to the effect that the enrolled joint resolution is the authoritative and conclusive expression of the legislative will, *681behind which courts cannot go. This position is resisted in both the first and supplemental opinion of the majority, on the ground that there is no requirement, either in the constitution or statutes of the state, to the effect that joint resolutions shall be signed by the presiding officers of the respective houses of the General Assembly and be enrolled.
As 'is stated in the first majority opinion, “no pro vis ion is made in the constitution or statutes for the enrollment of a bill, act, or joint resolution which has passed the General Assembly.” It is, in another connection in the same opinion, incorrectly stated that “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 bodies.” Upon this position as to the provisions of the law, the majority conclude that the enrollment of a joint resolution has not the force and effect of an enrolled bill. It is conceded by the majority that the enrollment of each is required by the law, on the ground that it was the practice at the time of the adoption of this constitution, that is, it is a provision of the parliamentary law which is not repealed, but rather recognized by the constitution. But, because there is no requirement that the joint resolution shall be signed by the presiding officers of the two houses and approved by the governor, the enrollment does not impart to it the authenticity and force as evidence of the legislative will, that is imparted by the enrollment of a bill.
In the first place parliamentary law regards hills and joint resolutions in the same light. Cushing, in his work on the Law and Practice of Legislative Assemblies, section 2403, uses this language: “A form of legislation which is in frequent use in this country, chiefly for administration purposes of local or temporary character, sometimes for private purposes only, is variously known in our legislative assembly as a joint resolution, a resolution, or a resolve. This form of legislation is recognized in most of our constitutions, in *682which, and in the rules and orders of our legislative bodies, it is put upon the same footing and made subject to the same regulations with bills properly so called. In congress, a joint resolution, which is the name given in that body to this bind of legislation, is then known as a bill.”
Unwritten laws, by which expression I mean laws not in the form of statutes, are established by custom and the course of practice of the people or the government acting under and in recognition of -such laws. Parliamentary law is mainly established in that way, as there are few statutes pertaining to the practice of parlianentary bodies. When a practice has continued for a long time, and has never been questioned or varied from, it is regarded as authorized by law; indeed, the custom under which the practice is had has the force of law. Since the beginning of the territorial existence of Iowa, it has been the custom of all legislatures, territorial and state, to regard joint resolutions as bills. Under this custom, which, as I have shown, is in accord with parliamentary law, joint resolutions have been signed by the presiding officers of the two houses, approved by the governor, and enrolled. In this respect there has been no variation of the practice.
At the first session of the territorial legislature, commencing in 1838, twelve joint resolutions were passed, the first on the 27th day of November. All were signed by the presiding officers of the houses and approved by the governor. In subsequent General Assemblies, both before and since the admission of the state into the Union, joint resolutions have been frequently passed. Their number reaches nearly five hundred, yet in every instance have .'they been signed by the presiding officers of the houses and approved by the governor, except in one or two instances, when executive approval was withheld, as in the case of a bill, and also enrolled. I conclude that, under the well established rule of parliamentary law, joint resolutions are included within the term “bills.”
*683Now, parliamentary law was in existence when the constitution was adopted, and the words bills, when used in it, must be understood in the sense it bears when used in that law from which it was borrowed. When we find the word bills in the constitution, we turn to the foregoing authoritative statement and practice to ascertain what the term includes. We are there told that it includes “bills properly so called,” and joint resolutions. The principles upon which these positions are based are admitted in that part of the majority opinion just referred to. I am sure it will not now be denied.
Article 3, sections 15-16 of the constitution provides that “bills” shall be signed by the president and speaker of the respective houses, and approved by the governor. As we have seen, the word bills includes joint resolutions. So joint resolutions, under the requirement of the constitution, must be signed by the presiding officers of the two houses and approved by the governor.
Does the law require that a joint resolution shall be enrolled? The majority admit that it does, as I have above shown, on the ground that such is the requirement of parliamentary law. But in the case of a joint resolution containing a proposition to amend the constitution, there is a statute contemplating such enrollment. Code, section 61, provides that the secretary of state “shall have charge of and keep all the acts and resolutions of the territorial legislature and General Assembly of the state, the enrolled constitutions of the state,” etc. The statute contemplates that the constitution is enrolled. Of course the whole constitution is enrolled. An amendment becomes a part of the constitution. It must be enrolled; otherwise the whole instrument would not be enrolled.
I conclude, therefore, that the constitution, in explicit language, requires the joint resolution proposing the amendment to the constitution to be signed by the presiding officers of the two houses and approved by the governor; and that *684not only is the enrollment required under the practice prescribed by parliamentary law, but is contemplated by the statute.
We have the joint resolution signed by the presiding officers of the two houses, and approved by the governor, and enrolled under constitutional and legislative requirement. Here is the enrolled bill, the ultimate expression of the legislative will, in the form, and authenticated in the manner, prescribed by the constitution and statute, and yet the majority of the court think it evidence inferior to the journals of the houses, for the only reason that the constitution requires the amendment shall be “entered” upon the journals which, in their opinion, can only' be done by copying it in full.
If it were conceded that the constitution, by the use of the word “enter,” required the amendment to be copied in full upon the journal, in view of the foregoing conclusions that the signing of the joint resolution by the presiding officers, its approval by the governor, and its enrollment, are required by the constitution, the enrolled resolution must be regarded as the ultimate expression of the legislative will. The entry in the journal is but preliminary to the ultimate acts, the signing, approval and enrollment, which the constitution and law prescribe as the final expression of the legislative will. This, under the plainest principles, cannot be defeated by an omission to do the preliminary act. In this view the requirement to enter was not jurisdictional. It was in the nature of a requirement pertaining to proceedings to be had prior to the ultimate and final act of the G-eneral Assembly. The enrollment, after the authentication by the presiding officers of both houses and approval by the governor, all being required by the constitution and the law, cannot be questioned or impeached, for it is the ultimate expression of legislature will, behind which no court can go.
XVIII. The first position taken in the majority opinion is, that Luther v. Borden, 7 How., 1, and other cases which *685I have cited, are not applicable in principle to the case now before ns. A lengthy statement of the history of the Dorr rebellion is made in the opinion. Whether it be fully accurate, I will not inquire. Surely, my brothers will not claim that, because the Dorr rebellion was not founded upon just cause, and the Dorr constitution was not lawfully adopted, and the government established thereby, in the language of the majority, “ had but a short and ignoble existence,” these facts, stated by the Chief Justice with so much emphasis, have anything to do with the questions of law decided by the courts.
It is true, and the facts are shown by the statements of the case found in the majority opinion, that one of the parties to the action, the defendant, contended that the charter was the paramount law of Ehode Island, and the government established thereunder was the government of the state, while the plaintiff maintained that the Dorr constitution was the authoritative constitution of the state, and the government established by it was the rightful government. The question upon which the case turned involved the- validity of the Dorr constitution. If it was valid, the charter had no authoritative existence. But it was held that this was a political question which the court had no jurisdiction to decide. The merits of the case were not considered; it was disposed of upon the question of jurisdiction, and no other. The case involved the validity of the whole of the Dorr constitution. Can it be supposed that, if the validity of but a part was in question, the case would have been differently decided? And if that part had been an amendment, would not the result have been the same? Or, suppose we consider the case as involving the validity of the charter, which is the fact, the case is the same. And if a part of the charter, being an amendment thereto, had been involved, no different result could have followed. The court decided that it had not jurisdiction to determine a question involving the organic law of the state. It is plain that the jurisdiction would not attach if the case involved *686only an amendment to that law, and this is the only distinction between that case and the one before us.
The majority opinion states a distinction in this language: “ In that case (Luther v. Borden) 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 case same authority is invoked, simply to preserve the existing constitution intact.” For the present, admitting the language quoted to be correct, it expresses, as plainly as words can, that the dispute in Rhode Island involved the question, which was the constitution of the state, the charter or Dorr’s constitution. And the controversy in this state relates to the validity of the constitution in a certain form.
It is clearly shown by the language quoted that both cases involve the question of the existence of a constitution — the whole constitution in one case, and a part of the constitution in the other.
The language I have quoted has not the merit of the highest ingenuousness. It aims to gather strength for the views of the majority in the merit of sustaining old constitutions in Rhode Island and Iowa, when, in fact, the merits of the old and new constitutions, in neither state, has anything to do with the case. It is surely an incorrect statement, from the standpoint of the majority, to assert that the question before us is whether our constitution shall be maintained intact/ that is, kept from injury, left complete; thus claiming that our constitution is injured, rendered incomplete by the amendment. Speaking from my standpoint, there might be an apology for the language, as the following considerations will make plain: The amendment has been adopted by the people in the form prescribed by law, and has been recognized and promulgated by the political department of the government, as required by the constitution and the statute. It has, therefore, become a part of the constitution. The conclusions of the majority overthrow a part of:the constitution; my conclusions preserve the whole “intact.” If there is anything to *687be gained from tbe position of tbe majority, as announced in tbe language just quoted, to tbe effect that there is great merit in preserving tbe constitution “intact,” it comes to my support, and not to theirs.
Suppose tbe government of Rhode Island bad recognized tbe Dorr constitution, can it be doubted that, under tbe doctrines of Luther v. Borden, tbe courts would have held it to be tbe valid constitution of the state, and would not have gone behind that recognition to inquire into tbe regularity of its adoption?
Tbe doctrine of Luther v. Borden is applicable in principle, whatever court, whether state or federal, is called upon to decide upon tbe validity of a constitution. Tbe quotation found in tbe opinion of tbe majority from that decision, to tbe effect that tbe United States courts will follow tbe decisions of tbe state courts, in cases involving state law and state constitutions, is advanced as another ground upon which tbe decision is sustained. It does not in any way affect tbe other point decided, namely, that tbe question of tbe validity of a state constitution is political in its character and nature, and will not be decided by tbe courts, either state or federal.
Upon tbe question of the applicability of Luther v. Borden, and other cases announcing tbe same doctrines, to tbe case before us, tbe only real question of dispute is this: Do tbe doctrines apply to tbe case of tbe amendment of tbe constitution? I have pointed out in so many forms of argument that tbe question of tbe existence and validity of a part of tbe constitution is a political question, in no respect differing from tbe question of tbe existence and validity of tbe whole constitution, that nothing more need be said in this connection upon tbe subject. It would not be profitable to quote from tbe cases I have cited, to show that they bold that tbe courts have no jurisdiction in political cases, and that tbe question of the validity of a constitution is to be settled by tbe political department of tbe government.
Reference is made in tbe majority opinion to tbe presiden *688tial electoral commission of 1876. It was a special tribunal, organized by the political department of the government, to decide a political question. It surely ought not to be urged, as is done in the majority opinion, that this was a judicial decision which establishes the authority of the courts to decide political questions, or that it illustrates the great public good which may result from the courts assuming jurisdiction of such questions. It was, in fact, a political tribunal; that is, a tribunal organized to decide a great political question. While it cannot be doubted that patriotic motives prompted Congress to create the tribunal, and the country, through that instrumentality, probably escaped a serious partisan conflict, which I cannot believe would have resulted in civil war, the policy of including judges in the commission is subject to great doubt. It is certainly true that many intelligent citizens are of the opinion that their connection with the commission tended to impair the confidence to which they are entitled from all the people.
XIX. Much is said with great force and earnestness, in the last opinion of the majority, about the evils which would result from changing the constitution in a manner not authorized by that instrument. This is denomniated revolution, which would be consummated by force of arms. In the course of my opinion I have advocated no position which sustains the thought that the constitution can be lawfully changed under its provisions except upon a substantial compliance therewith. Rut the question whether there has been such compliarice, is for the political department of the government to decide, and not for the judicial. 1 have said, it the change is recognized by the political department of the government, however it was effected, the courts must follow that recognition, and cannot defeat the constitution as existing and recognized by the government. It is true that it, without authority from the prior constitution, a change is made by the ratification of the people, which is concurred in by the political department of the government and by the *689people, this may be called a peaceable revolution. Rut I cannot see that any odium ought to be thrown upon the principle I state, by the use of the word revolution to designate the change in this way. If there is resistance to such change, the question would be settled by an appeal to arms, and those citizens who would oppose the existing government and constitution recognized by that government, would be the rebels. Happily, under the wise provisions of the constitution of the United States (article IY, section 4), the national government would interfere and protect the state from internal strife. This would be done upon the application of the existing government, and the federal authorities would recognize it, under the decision of Luther v. Borden, which is in accord with the fixed policy of the United States government.
We have discovered that there may .occur two classes of revolutions, one accomplished peaceably, the other by arms. There may occur a revolution under other circumstances, which requires a place in a third class, under another designation. This would happen when a constitution is changed or altered in pursuance of á prior constitutional provision, and with the intention on the part of the people and the government to comply therewith, and the change and alteration is recognized and promulgated by the political department of the government, holding that the constitution and laws have been complied with in making the change. Thereupon, the courts, disregarding the action of the political department of the government in making and recognizing the change in the constitution, set aside the constitution adopted by the people and recognized by the political department of the government. This would be a judicial revolution. A revolution of that character is accomplished by the decision of the majority of the court in this case. Peaceful it will be, for the law-abiding, intelligent and patriotic people of Iowa never resist the law or decisions of the courts. They know well that they have a remedy, peaceful and efficient, through *690•which they can establish a constitution in accord with their will.
XX. The dangers of internal strife, and its effects if inaugurated, are forcibly, and with more eloquence than calmness, depicted in the last opinion of the majority. It is claimed that, if the judiciary do not exercise jurisdiction, there may be a conflict of arms between contending factions, and that to avoid this result the courts must be clothed with the authority to decide political questions pertaining to the existence of the government. We are to infer from that opinion that the majority of the court believe that the decisions of courts possess some magic power which will soothe and subdue the passions of the people when aroused upon political questions. We are to infer that the majority think the excited people will obey decisions of courts upon political questions, and will utterly disregard the decisions of the legislative aud executive — the political departments of the government. The history of the past shows that good citizens will obey all departments of the government, and that those who may resist the law and rebel against the government have no more respect for the judiciary than for the other departments of the government.
My brothers seem to think that, if there were such a state of affairs in Iowa that the amendment to the constitution would be resisted, after being recognized by the political departmént of the government, the rebellious spirit and purpose would be subdued by a decision of the courts. I have never observed an instance in history where the spirit of rebellion was subdued by judicial decisions. But the majority of the court, by their decision, make resistance to the amendment impossible, by doing what they seem to fear might be done by rebellion. They overthrow the amendment by their own decision.
XXI. The majority opinion contains much and cites much from the authorities, to the effect that a constitutional amendment must be made in accord with constitutional and *691statutory provisions. Now, upon this proposition, there has been no dispute in this case. It is not denied. But the questions upon which there is a difference are these: What acts constitute a compliance with the constitution and laws, and what authority of the state, the political or judicial, is clothed with the jurisdiction to decide these questions? I surely do not claim, and have not heard it claimed in the case, that, in the amendment of the constitution, the laws, both constitutional and statutory relating to that subject, must not be followed. But the political department of the state is alone clothed with the authority to determine whether they have been pursued.
Surely, the statement that, if the people adopted a constitution without authority of a prior existing constitution which is recognized by the political department of the government, the courts cannot set it aside, is not a warrant for the assumption that, by making such a statement, the claim is set up that the prior constitution may be disregarded by the convention or General Assembly which undertakes to submit to the people a proposition to amend the instrument under its provisions. The statement is intended to illustrate the exclusive jurisdiction of the political department of the state in recognizing and promulgating a new constitution, or an amendment thereto.
XXII. A brief examination of the authorities cited by the majority in support of the position that the courts have jurisdiction to declare void an amendment of the constitution recognized by the political department of the government, will clearly show that they have not that effect. The citations from Cooley’s Constitutional Limitations are to the effect that changes in the constitution must be- made according to provisions of existing laws, constitutional or statutory. But it is nowhere in these extracts intimated, that the political departments of the government are not clothed with exclusive jurisdiction to determine whether these laws are complied *692with. The closing sentence, from page 598, seems to indicate a contrary view.
It cannot be inferred from the Opinions of the Judges, 6 Cash., 573, that it is therein held that the courts have jurisdiction over the political questions connected with the change of the constitution. The contrary is to be inferred. Under the statutes of Massachusetts', the legislature called upon the judges for an opinion touching the duty of that body which contemplated the discharges of political power in changing the constitution. Under the statute the judges were empowered to answer the questions ashed them. Now the judges advised the political body as to its political duties, but it is nowhere suggested in the answers that the courts have jurisdiction to decide these questions in any case brought therein. The answers cited in the majority opinion are not authority to establish the doctrine advocated. Besides this, the opinion has not the weight of authority of an adjudicated ease. Judge Cooley says that such expression of the opinion of the judges “can seldom be satisfactory when made, as they commonly will be; under such calls, without the benefit of argument at the bar, and of that light upon points involved, which might be afforded by counsel learned in the law, and interested in giving them thorough examination.” Const. Limitations, pages 40-41. Collier v. Frierson, 24 Ala., 100, cited by the majority, fails to support the doctrine in regard to the court’s jurisdiction upon which the conclusion of the majority is-based. The constitution of Alabama contained a provision in the following language: “Mode of amending and revising the constitution:—
“The General Assembly, whenever two-thirds of the houses shall deem it necessary, may propose amendments to this constitution; which proj>osed amendment shall be duly published in print, at least three months before the next general election of representatives, for the consideration of the people; and it shall be the duty of the several returning officers, at *693the next election which shall be held for representatives, to open a poll for, and make a return to the secretary of state, for the time being, of the names of all those voting for representatives who have voted upon such proposed amendments; and if, thereupon, it shall appear that a majority of all the citizens of this state voting for representatives have voted in favor of such amendments, and two-thirds of each house of the next General Assembly, after such an election and before another, ratify the same amendments by yeas and nays, they shall be valid.to all intents and purposes as parts of the constitution; provided that the said prosposed amendments shall, at each of the said sessions, have been read three times, on three several days in each house.”
Eight separate amendments were proposed, and all of them adopted by the people, but the last General Assembly required to act upon the propositions failed to ratify one of them. The court rightly held that it did not become a part of the constitution. Attention to the constitutional provision above quoted will disclose the fact, that the ratification of the last General Assembly required to act upon the proposition was intended as a recognition and promulgation of the amendments, just as the announcement of the vote of the people and proclamation is the recognition of the amendment under our constitution. The act of the General Assembly wanting in the Alabama case was essential to the recognition and promulgation by the political department of the government, without which it did not become a part of the constitution. Of this fact the court would take judicial notice, and treat the proposed amendment as no part of the constitution.
In the State v. McBride, 4 Mo., 303, two questions were raised by counsel: First — that the courts had no jurisdiction of the case. Second — that the enrollment was a verity. The court did not discuss or pass upon the first question, simply holding that it would, in the language of the discussion, «look into the matter” and determine whether the action of the General Assembly was had upon a vote of a constitutional *694majority. A careful reading will show that the question of jurisdiction cut no figure in the decision. The case was not well considered; there is no discussion of principles or citation of authorities in the opinion.
The State v. Swift, 69 Ind., 505; Westinghausen v. The People, 44 Mich., 265; the Prohibitory Amendment Cases, 24 Kansas, 700; The Trustees, etc., v. McIver, 72 N. C., 76; and State ex rel. v. Timme, 54 Wis., 318, are cited by the majority with the admission that the question of jurisdiction was not made in the cases. I will surely not be expected to cite the books to support the position that cases are not authority upon points not passed upon in them. There is scarcely a case argued before us in which the authority of some precedent is not questioned, upon the ground that the point it is cited to sustain is not made or decided in it. And in our ojunions it is often stated that cases cited to support a disputed question of law do not decide such questions, and are, therefore, not precedents in point. It is never said that, because a question of jurisdiction could have been raised in a case but was not, therefore, the court must have passed upon it. Cases, to be precedents upon questions of law, must not only show that such questions were decided, but that they received proper judicial consideration. As the question of jurisdiction was not raised, discussed, or decided in any of the cases, they are not authority upon the point in support of which they are cited. The majority say: “But the court could not have entered upon an examination of the cases without'first determining in favor of their jurisdiction. If they entertained doubts respecting their jurisdiction, it was the duty of the courts to raise the question themselves.” How these observations could have been ventured, in view of the fact, well known to every member of this court, that this case was decided by the first majority opinion, without the question of jurisdiction being so much as thought of by one of the judges, I am unable to surmise. Surely my brothers exercise presumption the most liberal, and contrary to prob*695abilities and facts within their own observation, in order to give these cases the force of precedent upon a point that was not made, argued, or decided therein.
In addition to this, the State v. Swift, 69 Ind., 505, was decided by a bare majority, there being five judges, two of whom dissented. And the decision holds that the court will take judicial notice of the number of votes at the election, a doctrine that is strange and new. It is known, too, from the current political history of the county, that the character of the decision is questioned on the ground that it was rendered for partisan purposes.
XXIII. The argument of the majority found in their last opinion, upon the question of the conclusiveness of the action of the Nineteenth General Assembly touching the proceedings of the Eighteenth General Assembly, demands brief attention. In the first place, it is justly subject to the criticism that in it is found frequent statements to the effect that the argument in support of my position admits false recitals, etc., etc. The language is used for no other purpose than to convey the impression that there were in fact errors and false recitals, and they are admitted. I must enter an earnest and respectful protest against this manner of argument in a judicial decision. Counsel who in the argument of a demurrer would urge the implied admission of the facts pleaded, to the end that the question of law could be raised, as a ground for overruling the demurrer, would receive reproof from the court. The language to which I am now objecting is justly subject to the same objection. There has been no admission made by any one connected with this case that there is anything false or irregular connected with the proceedings. This and other parts of the majority opinion demand that the truthfulness of all the legislative recitals be vindicated. I point out in my first opinion that the Nineteenth General Assembly had authority to determine the irregularity of the action of the Eighteenth General Assembly, and that abundant evidence was within reach of the members of *696that body which support their determination that all proceedings were regular. It is well also to notice that the majority use the words “estop” and “estoppel” in connection with the conclusiveness of decisions of the courts. The words are not properly so used, and convey the idea of no legal principle supporting the opinion of the majority. We never hear the expression used in the law that courts are estopped in the exercise of judicial functions. Parties are estopped to plead or set up matter in an action, on the ground of some prior act or thing which the law calls an estoppel. A judgment of a court may operate as an estoppel against parties. But courts are never estopped in the judicial sense of the word.
XXIY. The last opinion of the majority clearly misapprehends the legal principles upon which my position is based, to the effect that the decision of the Nineteenth General Assembly, as shown by the joint resolution adopted by it, is conclusive. The doctrine relied upon is this: The decisions of all courts, special tribunals and officers, upon facts whereon their jurisdiction is based, is conclusive in all collateral proceedings, while such decisions remain unreversed. It is admitted by the majority that the decision of the Nineteenth General Assembly is within this rule. But it is urged that the courts of the state, as they have unlimited jurisdiction, may inquire into the correctness of the decision of the Nineteenth General Assembly in this case, which is not claimed to be a direct attack, but must be admitted to be collateral. It is said that, because the courts have jurisdiction to determine whether the amendment was constitutionally adopted, they could not exercise that jurisdiction, if they are precluded from inquiring into the facts decided by the Nineteenth General Assembly; therefore, it is argued, the courts have authority to disregard the decision of the Nineteenth General Assembly, and decide upon the facts adjudicated upon by that body. This is the position fairly stated. Now I presume we are not to have special legal rules for this case, *697and, if the position of the majority is correct in this case, it will apply in all collateral cases wherein arises the question of the effect of a court’s decision upon facts whereon its jurisdiction is based. I will apply this position of the majority to other cases. An action is brought to recover land, the title of which is based upon a judgment. The record of the court wherein this judgment w'as recovered shows that the court rendering it decided upon the facts whereon its jurisdiction rested; as, that notice was duly served, and the like. Thereupon the defendant proposes to show that the very matters fcund by the court rendering the judgment are false— that notice was not served, thus claiming a retrial of the very issues settled by the judgment. ■ Now the question of the conclusiveness of the judgment comes before this court, on a rnling made upon the question of the correctness of admitting evidence as to the facts whereon the court’s jurisdiction is based. Would this court hold that, as the court wherein the action to recover the land is brought is a court of general jurisdiction — that its jurisdiction extends to everything — that it has jurisdiction to try the title to the land and to inquire into the validity of the judgment whereon the title is based, therefore it cannot be “estopped” to form an issue involving the facts pertaining to the jurisdiction of the court rendering the judgment? And would this court support this decision by presumptions that the court rendering the judgment decided the facts falsely, and would it use language, inferentially at least, charging that the facts were different from those found by the court rendering the judgment. Yet the only difference between the supposed case and the one at bar is, that involves the validity of title to land, this the validity of an amendment to the constitution of the state. The argument of the majority of the court now under consideration is based upon the single assumption that the jurisdiction of courts extend to all matters, and they cannot exercise their jurisdiction if they are “cut short” by the ,decision of a tribunal upon questions of fact whereon *698jurisdiction of the tribunal rests. The argument does not even reach the merit of reasoning in a circle. It asserts the authority of the court to disregard the conclusive adjudication because it has authority to decide the case. The doctrine as to the conclusiveness of decisions of courts and other tribunals is simple and well understood. They are verities, and cannot be disputed in collateral proceedings. The rule extends to the decision of facts whereon jurisdiction is based. The majority of the court disregards it in this case, on the avowed ground that it stands in the way of courts in deciding upon the validity of the amendment, or, more properly speaking, it stands in the way of determining that the amendment is invalid. The majority incorrectly state that nothing will be presumed to be beyond the jurisdiction of the court. Courts of general jurisdiction may determine all questions within the sphere of judicial cognizance. They cannot go outside of the circle circumscribing the subjects of judicial authority. The majority incorrectly state that the argument maintaining the conelusiveness of the decision of the Nineteenth General Assembly is based upon the position that the jurisdiction of the court does not extend to cases involving the validity of the constitutional amendment. The true position is that, if the courts have such jurisdiction, and, in its exercise in this case, it is discovered that the Nineteenth General Assembly decided that all proceedings were regular, that decision being conclusive, the court must hold the amendment valid.
The People v. Cassels, 5 Hill, 168, cited in the last, majority opinion, has not the remotest bearing upon the question before us. The case was a review by certiorari of a habeas corpus proceeding to enlarge one committed for’ contempt. It was held that the recital in the commitment, showing that a contempt had been committed, would-not conclusively give the committing magistrate jurisdiction, and that the petitioner could show the recitals false. To give a court or magistrate jurisdiction to punish for contempt, the *699party charged therewith must be guilty of an act held by the law to be contempt.. The jurisdiction depends on the act itself. If the act is contemptuous, all proceedings are conclusive; if not contemptuous there is no jurisdiction. See Kilborn v. Thompson, supra.
The jurisdiction to punish in contempt cases depends upon the very subject of adjudication — the existence of the contempt. Hence, a recital of guilt in a commitment would not be conclusive. It will readily be discovered by a little thought that contempt cases differ from all others in regard to jurisdiction of the committing court or magistrate.
There is another argument which the majority opinion declares is convincing upon this point. It is based upon the well understood legal principle that, when the record . of a judgment shows that the court had no jurisdiction, the judg-. ment is void. Thus, if the judgment, or the record of the court wherein it was rendered, affirmatively shows that no notice or process was served, the judgment is void. The majority bring this case within this rule in this way. The journal of the Eighteenth General Assembly shows a failure to comply with the law; the joint resolution of the Nineteenth General Assembly shows that body adjudged the law had been complied with, by the Eighteenth General Assembly. Now the majority say that here the record shows the law was not complied with, and contradicts the adjudication of the Nineteenth General Assembly. What record shows this? The record of the Eighteenth General Assembly, not the record of the Nineteenth. The trouble with my brothers is, they go to the wrong record. They regard the journal of the Eighteenth General Assembly as the journal of the Nineteenth. It may be true that, if the journal of the Nineteenth General Assembly contradicts the adjudication of that body, we would hold that its adjudication is void. -But we cannot question this adjudication under the recitals of the record of the Eighteenth General Assembly, which were the very subjects of adjudication of the Nineteenth General Assembly. *700My brothers go to the record of the wrong General Assembly to find contradictions of the recitals of the Nineteenth General Assembly. The effect of the argument is to deprive the Nineteenth General Assembly of all power to decide upon the acts of the Eighteenth General Assembly, a power which, in very cautious language, is admitted in the majority opinion. The point may be illustrated in the following manner: A judgment is rendered against A, the return of service and other records show the notice was served on B, the plaintiff, in the judgment, alleging that the return is a mistake and that notice was served on A, instituted proper proceedings to validate the judgment, wherein it is afterward declared and adjudged that service was made on A, and the judgment is valid and binding. Afterwards, in a collateral proceeding to recover land sold upon the judgment as validated, it is claimed that the court entering the judgment of validation had no jurisdiction, because the record of the original case shows no service. This is the prcise case before us. The Nineteenth General Assembly declared that the law was complied with; the majority would contradict their ajudication by going back of the record of the Nineteenth General Assembly and bringing before us the very record of the Eighteenth General Assembly, in the proceedings declared correct by the action of the Nineteenth General Assembly. The point demands no further attention.
XXV. It is' said that under the rules of the General Assembly there is no authority for enrolling the joint resolution. I may here call attention to the fact that, in parliamentary language which is introduced into the constitution, and, of course, used in the rules of the General Assembly, a joint resolution is a Mil; that it is so regarded by parliamentary law; that from the beginning of our existence as a territory to the present day all joint resolutions have been approvéd by the governor, after having been signed by the presiding officers of the General Assembly, and enrolled. And it may be further added, that all amendments of the constitu*701tion, proposed or adopted, liave been in the same manner authenticated, approved and enrolled. I wonder to hear this court say, that there is no law requiring joint resolutions to be signed by the presiding officers of the two houses, approved by the governor and enrolled.
XXVI. I am surprised to read in the majority opinion the assertion that “it is impossible to determine from the house journal that the senate substitute ever passed the house. It seems fairly inferable from the house journal, pages 502-3, that the house re-adopted the original Harvey resolution, denominating it the senate amendment.” All the foundation there is for this remark is the fact that, upon the return to the house of the substitute for the Harvey resolution, that resolution is set out by way of designating it in showing that a substitute to it had been returned from the senate, and it is expressly shown that the senate substitute did pass.
XXVII. ^ Much is said in the majority opinion about matters not in the record. To one of them I will briefly allude. The original resolution is now in the office of the secretary of state, and has been deposited there, where it should have been from the first, in the manner stated in the majority opinion. I have examined that document, and there can be no doubt on the part of any unprejudiced mind that it is the identical resolution that passed the senate, and was sent back to the house and was passed by that body. It has the indorsement and signature of the secretary of the senate and clerk of the house and ’ enrolling clerk — all genuine, which show that it passed, and is the identical resolution that was finally enrolled and now remains in the archives of the state. It corresponds precisely with the enrolled resolution, and shows that the words “or to be used” were stricken out. In addition to this, the secretary'of state declares that he had, at one time, in his possession the substitute in Senator Hemenway’s hand writing, which also shows that the words “or to be used” were stricken out. A copy of this paper *702appears to have been pasted to the original resolution as a “rider.”
If the position of the majority of the court be correct, that there is no law requiring the enrollment of the joint resolution, then this paper is the original, and is the proper resolution for the secretary to keep, as he is required by Code, section 61. It does not affect the character of the instrument, however the record may be regarded by the secretary. The law, and not that officer, must determine its character and custody. As to its absence, and the method of its delivery to the custody of the secretary, this may be said: If it is a record to be kept by that officer, its effect is not impaired by its being irregularly taken, and delivered in a manner described in the majority opinion. If a citizen find in improper hands papers belonging to the custody and records of any officer, he should restore them, and the fact that they have been irregularly taken and l’etained does not affect their validity, if they bear no evidence of having been tampered with and altered. A case fell under my observation where public papers had been kept from their proper custodian for fifteen years. After their restoration to the proper officer, no question was or could have been raised as to their legal effect. They identified themselves, as the original joint resolution does, and were entitled to full credit, just as though they had been all the time in the proper custody.
But, in my view, the original joint resolution referred to need not be consideration in the determination of this case. The enrollment is to be regarded as the original and ultimate expression of the legislative will, behind which no court can go. The original referred to'is unimportant, and its consideration is not necessary to influence my decision. But, in another view, it is a document of vast importance. While it has nothing to do with making judicial decisions, it makes history. Upon it and other evidence which will go into history, as the many copies made on the very day and hour of the passage of the resolution, and the statements of the sec*703retary of state and others, history will record, and the whole world will believe, that the words “or to be used” were not in the resolution but were stricken out before its passage. The decision in this case is that, under rules recognized by this court, which make a legislative journal the conclusive evidence, the will of the people may be defeated by over-throwing truth. A decision having such result, it cannot be denied, is a great strain upon the confidence due the courts.
XXVIII. In both opinions of the majority, arguments are based upon the presumption that the legislative departments of the government will violate the law, and that, therefore, the exercise of authority by the judiciary is necessary to restrain this department within the bounds of its authority. When any department or officer of the government violates the law, the judiciary ought, to administer all remedies within its authority. Rut decisions of courts cannot be based upon presumptions of the disregard of law by any of the departments of the state, or any officer. Judges should presume in favor of the patriotism, intelligence, and honesty of legislators and other representatives of the people. It would be just as reasonable for the legislative department of the government to restrict the exercise of judicial authority, on the ground that judges might disobey the law and fail or refuse to enforce it. I am sure I do not want for respect toward the judiciary of the state. I know that, during our whole history, the courts have inteligently and faithfully administered the law. Rut I have equal respect for, and confidence in, other departments of the government, and am sure that they have been conducted with equal patriotism and fidelity. The prosperity of the state testifies to the uniform wisdom and fidelity to public interests of the legislative and executive departments of the state government.
The argument based upon distrust of future legislatures ought not to emanate from this court. I have never before seen anything of the kind referred to in decisions of other courts, except to be condemned as improper and unwarranted. *704I regret, too, the statements found in the majority opinion, stronger than inferences, that the resolution of the Nineteenth General Assembly is untrue. Courts, in my opinion, ought not thus refer to the action of another department of the government. It should be protected from charges of this character by the presumption of regularity required by the maxim I have stated and .commented upon. But this presumption the majority exercise in favor of no official act involved in this case, save that of the journal clerk who failed to strike from the journal the fatal words “or to be used,” which the facts and legal presumptions clearly establish, to my mind, ought to have been stricken out.
The majority opinion expresses correct and patriotic sentiments of loyalty and obedience to the constitution, which I fully approve, in eloquent language, which I greatly admire. Regarding, as I do, the amendment as a part of the constitution, these sentiments, in my opinion, condemn the decision of the court, which disregards and overthrows that supreme law, instead of rendering to it support and obedience. While inculcating obedience and respect for the constitution, this court destroys a part of it.
It is painful for me to dissent from the opinion of my brothers, whose learning and ability I so highly esteem. But my convictions, which admit of no doubt, compel me to stand by the constitution as it was ratified and approved by the people, and promulgated by the proper legal authority, thus becoming the supreme law of the state.