Concurring Opinion.
McEnery, J.It is urged that a mandamus does not lie because the Secretary of. State is vested with a certain discretion; that he is vested with discretion to look into the journals of the two houses for information to see whether or not the forms of law have been observed in the enactment of a bill, or the passage of a resolution; that in this matter he is vested with discretion to determine the validity of the law which he is required to promulgate.
The mere statement of this proposition carries with it its own refutation. The Secretary of State can not go behind the official signatures which attest the verity of the bill or the resolution.
To permit him to do so would be vesting in him both executive and judicial functions. In the first it would give him the power to veto a bill, which is an executive function; and in the latter, a judicial power vested exclusively in the judiciary, both of which powers claimed by the Secretary of State are clearly in violation of Articles 14 and 15 of the Constitution of the State.
The duties of an.officer who is to execute the law are clearly defined in the case of the Governor vs. Shakspeare, Mayor, 41 An. 165.
The duty of the Secretary of State, therefore, is to promulgate the laws without reference to their constitutionality; whether they have been legally enacted or not is a judicial question.
It is the province of the judiciary to interpret the law in every controversy of right, which is brought before it, and it may hold a law invalid in certain cases because in conflict with the Constitution, which is also a law, and to which every enactment of the Legislature must yield.
But the refusal of the Secretary of State to promulgate a law because in his opinion it is unconstitutional, and referring this question to the courts, is imposing upon the judiciary a decision up on the validity of a law before it has involved a wrong to any, thus giving to the judiciary, if it should sustain his pretensions, an absolute veto upon the Legislature.
It would have .no parallel, except, perhaps, in the tribunal veto in .Rome, the ultima jus tribunorum of the Republic.
The judiciary must always resist such arbitrary action and usurpa*665tion. Ifc is not, however, vested with superior functions to this end, and its resistance is simply that which belongs to every power defined in the Constitution, by keeping within the limits of its sphere as pointed out and defined in the Constitution.
The judiciary has no power of origination, but only of judgment and comparison. It has no power to declare what the law shall be, because it can not make its opinion constructive of the political order. But it can determine what is the statute law, and can interpret and apply the Constitution as law, and also the laws of the Legislature. This is its function as designated in the Constitution, and no other department can encroach upon it, any more than the judiciary department can encroach upon the functions of the other departments of the government.
This whole controversy might stop here, for it does not concern the Secretary, whether the formalities required for the submission of 'the amendment were or were not strictly complied with.
He alleges, however, that the amendment submitted by the Legislature failed to receive the Governor’s^approval, and that he vetoed it, thus destroying it. If it be the organic law that the Governor's signature was not required, then the reasons above stated apply to the Secretary’s official duties and he can not go behind the official signatures of the presiding officers of the two houses.
The veto of an executive officer can only be exercised when his * » assent is necessary to perfect a law.
A proposition to amend the Constitution is- uot a law and can not become a law until adopted by the vote of the people. The people in their sovereign capacity, acting by units or individuals, amend their constitution just as they did when they adopted it. If the Legislature had been authorized ' and empowered by the people in the organic law to amend the Constitution, then as a part of the lawmaking power of the government, the Governor would necessarily be empowered to approve or .to veto the proposed amendment. But the people have reserved to themselves the right of adopting or rejecting a proposed amendment to the Constitution.
The sovereignty of the people has its first formal expression in the convention called to form a constitution for their government. The convention- represents the constructive power and intendment of the people in the formation of the constitution. It is the assertion of the will of the people in the ordination and institution of govern*666ment. The power existent in it is not withdrawn, but continually exists in it and never expires. It is the people who ordain and establish the constitution, and they act in it and through it.
The convention then which formed the Constitution of 1819 still exists in it. Therefore the people in their sovereign capacity are existent in said Constitution, and the Legislature acting as their agent, proposing amendments to the Constitution, does so, justas the convention would do if in session — as the sovereign people would do, recognizing no other authority than themselves. Jamison on Constitutional Conventions, p. 622.
Article 256 of the Constitution is as follows: * * * “Proposition for the amendment of this Constitution may be made by the General Assembly at any session thereof, and if two-thirds of the members elected to each house shall concur therein after such proposed amendments have been read in such respective houses three times on three separate' days, such proposed amendment or amendments, together with the yeas and nays thereon, shall be entered on the journal, and the Secretary of State shall cause the same tobe published in two newspapers published in the city of New Orleans, and in one paper in each other parish of the State in which a newspaper is published, for three months preceding the next election for representatives, at which the said amendment or amendments shall be submitted to the electors for their approval or rejection; and if a majority voting for said amendment or amendments shall approve and ratify the same,' then such amendment or amendments so approved and ratified shall become a part of the Constitution. When more than one amendment shall be submitted at the same time they shall be so' submitted as to enable the electors to vote on each amendment separately. The result of said election shall be made known by the proclamation of the Governor.”
This article is plain and unambiguous in its meaning. It could not be plainer if it said in positive terms that the Governor should not veto the proposed amendment.
But one duty devolves upon the Governor — that is to cause to be promulgated the amendment when adopted by the people.
If there were any doubts as to the right of the Governor to veto a proposed amendment, the court should feel bound to construe the article as favoring a submission.
The constitution of a people has a two-fold character. There is a *667real and a formal constitution. The one is the development of a people in history as' a state or sovereign community; the other the ordained or written constitution, which- is the formula which the people in their sovereign state prescribe for their order and government. The latter presupposes the existence of the former. The Nation, Chap. IX; Brownson’s American Republic, p. 218; Hurd’s Law of Freedom, Vol. 1, p. 296; Jamison’s Constitutional Convention, p. 67; Generative Principles of Political Construction, De Maistre.
The formal constitution must correspond with the real. The people must find in the written constitution the reflection of their spirit,.and its purpose must not be fettered or perverted by it. If it fails in this, it has elements of weakness or of peril. The neglect of this distinction between the unwritten and written constitution, and the consequent identification of the people with the formal organization, becomes the most dangerous of political falsehoods. It may so happen that the written -constitution may not be .in accord with the spirit-of the people. They may have outgrown it — advanced beyond what they expected when it was framed.
The supreme object of the written constitution is to care for the preservation of the people. The advance of-the people maybe such that the constitution, without amendment to keep up with the progression, “may become itself only the mask which hides from an age its degeneracy, or the mausoleum which conceals its decay.” Such a constitution could not enslave the present to the past.
Therefore the people may amend or alter the Constitution which they have framed.
The people, when they were in convention to organize the government, could’not regard its course and order as perfect. With entire subjection to the Constitution, there must be in it always the expres-sion of a higher development — the means provided for the progressive element among the people, to .have some relation to the permanent organization — the manner in which the old is to be built into the new, the change which comes to be ingrooved into that which flies— not the isolation of the old from the new, but wrought out of the old into the new.
The Constitution defines the order of the people, but it can not mould the events in their history. It can not become the substitute *668for the laws and .statutes which, in their immediate enaciment, became the embodiment of a living will.
The Constitution which the convention has framed and which has been adopted, is in its very nature the supreme law, but in its provisions to make its amendments as well nigh impossible, and then to assume that it shall be exclusively and exhaustively definitive of the action of the people in all events, is a denial of the organic and moral being of the people. The prescription of the action of the people in all events and under all circumstances is not within the scope of the Constitution," and it would not be possible. It is not. requisite to its stability or to the firm order of the government. The Constitution which sought to predetermine' the future and to forestall the conduct of affairs in the infinite changes of time and circumstance, would presume that a people were already beyond the conditions of histoiy. President Washington in his farewell to the people, which, for its wisdom, has no parallel in modern political literature, asserts as a fundamental right, “the right of tlie people to make and to alter their Constitution of government.” .
Schleurmacher says: “A Constitution which has no place for amendment is absolutely immoral, for it sets itself forth as absolutely perfect; it is far more immoral than the unlimited power of the monarch.”
It places the sceptre over a free 'people in the hands of dead men, and the only office left to the people is to build thrones out of the stones of their sepulchres. If there be, therefore, in the Constitution aprovision for its amendment,andit is involved indoubt as to the means of carrying it out, it is the unquestionable duty of the court to so construe it as to make it effective, so that the proposition to amend can reach the political people. As lias been above stated, the controversy in this case might cease with the inquiry into the duties of the Secretary of State, in relation to the promulgation of the laws. He has, also as stated above, no right to look into the journals of the two houses of the Legislature to find reasons for not promulgating an act, but is bound to act on the official signatures attesting the verity of the law.
There have been, however, very grave charges made against the Secretary of the Senate and Clerk of the House. They are charged directly with altering the journal of their respective houses; of adding to them matters that never took place in either house. These *669charges, if true, are sufficient not only to destroy public confidence in these officers, but to impair confidence in the Legislature of the State. If such a thing was done as the falsifying of the journal, to make it appear that a law was enacted or a resolution adopted, or a proposition to amend the Constitution submitted, that never received the sanction of the two houses, certainly such a fact would reflect severely upon the legislative body, and would be almost conclusive evidence of incompetency or corruption. In the case at bar it would place the Speaker of the House of Representatives and the Lieutenant Governor of the State, and the members of the two houses who were present when the enrolled amendments were presented for the signatures of the presiding officers of each house, in the attitude, in the one case, of certifying to that which was false, and in the case of the members, of sanctioning and approving such false declarations.
I will premise what I have to say on this question by the statement of the law in relation to the evidence of the acts of the two houses. The journal of either house is evidence of the action of that house upon all matters before it. 7 Cowan, 613, Cowp. 17. It is a public record of which th,e courts will take -judicial notice. 5 W. Va. 85, 17 An. R. 28; 16 same, 647; 94 U. S. 260.
If it should appear therefrom that any act did not receive the requisite vote, or that the act was not constitutionally adopted, the courts may adjudge the' act void. Cooley Cons. Lim. 164. Every reasonable presumption is made in favor of a legislative body. It will not be presumed from the mere silence of the journals that either house disregarded a constitutional requirement in the passage of an act, unless in cases where the Constitution has required the journals to show the action that has been taken. 25 Ill. 181, 11 Ind. 424.
The journal of each is conclusive evidence of what is contained therein.
Omissions can not be supplied, nor can what is properly in the journal be taken therefrom. Article 28 of the Constitution is as follows:
“ Each house shall keep a journal of its proceedings and cause the same to be published immediately after the close of the session. When practicable, the minutes of each day’s session shall be printed and placed in the hands of members on the following day. The original journal shall be preserved after publication, in the office of *670the Secretary of State, but there shall be required no other record thereof.”
Each house under the above article has the control of the making of its journal.
SENATE JOURNAL.
Rule 56 of the Senate says:
“The Secretary shall read the journal daily from the sheets on which he takes his minutes, and after being so read and corrected, and not before, the said minutes shall be examined by the presi-1 dent, and, if necessary, corrected and amended under the sanction of the Senate, and copies furnished to the printer, authenticated by the signature of the Secretary. The Secretary shall consider himself responsible to the Senate for the accuracy of the journal.”
The minutes are brief memoranda of what has taken place in the Senate. The Secretary then in full prepares the matter forthe journal. He is, according to the rule above quoted, responsible for the accuracy of the journal. To him is delegated the power to make up the journal from the approved minutes, which he has to present to the printer, authenticated by his signature alone.
It is a fact proved conelusivtely in the record, that, in the matter handed to the printér, the proposed amendment was included as a part of the journal. It then became a part of it, and could not be destroyed or eliminated from the journal by any omission of the printer. If he omitted it in the slips prepared for the convenience of the members of the Senate, it was unquestionably his duty to see that it went into the journal before final publication. The rule quoted makes this his imperative duty.
It is not required by Article 256 of the Constitution that the amendment should be read in full in each house. It was read three times by title, in accordance with said article. It was, however, read in full in the Senate. The Senate’s order to correct the journal is of itself a complete record of this fact. It stands in place of the Secretary’s omission.
HOUSE JOURNAL.
Rule 64 of the House — the “ proceedings of the House, when not acting in committee of the whole, shall be entered on the journal as concisely as possible, care being taken to detail a true and accurate account of the proceedings.”
*671Rule 67 provides: “The chief clerk shall read the journal from the sheets on which the minutes are written, and, after being so read and corrected, the said minutes shall be recorded in the journal and copies in the English language, authenticated by the signature of the chief clerk, shall be' prepared for delivery at his desk to the printer by 10 o’clock on the day following that on which it shall have been read.”
Rule 68 makes. the clerk responsible for the correctness of the journal. To him, as in the case of the Senate Secretary, the authority is delegated to make up the journal from the approved minutes.
It is in proof that the journal was so made up, showing, in accordance with Article 256, the proposed amendment was entered on the journal.
It was aiso his imperative duty to see if the printer omitted to enter it on his slips prepared for convenience of the members of the House, that it formed a part of the journal before final publication. The matter indicated in the approved minutes comprise the matter of the journal of each house. The sheets and the printed slips and all other matter relating to the making fip of the journal, after its final publication became worthless.
The proposed amendment, however, was read in full more than three times in the House. The “ original journal ” is the book publication preserved in the office of the Secretary of State.
This is conclusive evidence of what is therein contained. It shows that the requirements of Article 256 have been complied with. It was, therefore, unnecessary to review the evidence in the record, as it could not affect this original journal of the two houses. But we have done so because of the grave and serious charges against the Clerk of the House and the Secretary of the Senate. These officers have made, so far as the proposed amendment is concerned, in accordance with the rules of the two houses, an accurate journal of each house.
. It is also urged by the Secretary ■ of State that the proposed amendment violates Article 256 of the Constitution, because there is mór'e than one amendment contained in the matter submitted. It is plain that the article of the Constitution refers to the amendment of more than one article of the Constitution. The amendment of but one article of the Constitution is proposed. But this is a matter *672■which the Secretary of State can not urge for the reasons heretofore stated.
The reasons advanced, by the respondent Secretary that the proposed amendment contains matter of legislation which required the Governor’s approval is untenable. If the article was of such a nature as to require legislation to make it operative, and this legislation was incorporated into it on condition of its adoption, there might be some force in the position assumed by the Secretary. But on this point I am of the opinion that under the well recognized jurisprudence of this State, the part, if separable, which requires the signature or approval of the Governor, because it is legislative could be eliminated, and that part — the proposed amendment. — could be maintained as constitutional.
The proposed amendment is either legislative or a proposition to amend the Constitution. It- .can not be both. The articles of the Constitution relating to legislation and to propositions to amend the Constitution forbid any such construction’. From what has been said in the first part of this opinion in reference to* the capacity in which tlie Legislature acts when proppsing amendments to the Constitution, it is clear to my mind that the Legislature, having entire control of the matter, just as the convention had when it submitted the Constitution to the people for adoption, can direct in what-manner the proposition may be submitted, provided the Constitution is silent on this point.
There is no legislation, however, connected with the proposed amendment under consideration. There is no law proposed. It is a mere regulation of the manner in which the proposition to amend may reach the voters. It passes away with the adoption or rejection of the amendment. The alleged legislatibn formed 'no part of the amendment. It can not be submitted to the electors for their approval or rejection, and, therefore, in no contigency can it form a part of the Constitution of the State.
If the legislation complained of required the Governor’s signature to become law, and it failed to receive it, this was an end of it. But as it could under no circumstances form a part of the Constitution, therefore the amendment stands unaffected by the failure of the Governor to approve the legislation accompanying the amendment.
If the views urged by the defendant are adopted, then will it become impossible to amend the Constitution, in accordance with *673Article 256. Nearly every amendment is accompanied by legislation.
The submission of an amendment would, therefore, require executive approval, or it could not be submitted after the Governor had vetoed the accompanying legislation, although it should be in a separate bill.
It is urged that there was no final vote by the General Assembly on the question of the submission of the amendment. It is not denied, for the journals show this fact, that, two-thirds of the members elected to each house voted for it on its final passage, and the yeas and nays recorded in the journals, as required by Article’256 of the Constitution.
But it is said the intention of the Legislature was that the Governor should approve the proposed constitutional amendment, that it was put in the shape of a bill, was sent to the executive office, vetoed by the Governor and returned to the House, with his veto, in which it originated, thus showing that it was treated and acted upon as a bill and failed to.pass over the Governor’s veto.
It is conceded that a proposal to amend the Constitution does not require executive approval. How, then, can the intention of the members of the Legislature defeat it? It was in the form of a bill, yet it was a proposal to amend the Constitution. The journals of both houses, the briefs and a'rgments of counsel, all show this. It was sent to the Governor’s office and receipted for as a bill. But this did not change its nature. It was still a proposal to amend the Constitution, having received the required vote, and having passed through all the formal stages of its existence, as required by Article 256 of the Constitution.
We sometimes look into the reasons for the passage of a law to find out the intention of the Legislature in enacting it, in order to properly interpret it where it is ambiguous; but never where the law is free from ambiguity.
■ That the Legislature did not intend to enact a law can not be urged as a reason for its nullity. This is too plain for argument. There is nothing, however, in the alleged legislation that requires executive approval. There is nothing in it which, as a rule, principle or method of action, the community is to recognize and enforce, so as to regulate, limit or protect Che conduct of its members.
Section 2 requires the Secretary of State to give notice of the pro*674posal to amend the Constitution within ninety days after the 1st of' January, 1891. The Constitution requires the same length of time in giving the notice preceding the election. It does not say immediately preceding.
It seems to he eminently fit and proper, in the absence of any particular time, that the Legislature should designate, in the submission of the amendment, the day on which it should be first published, in. order that it reach the voter with certainty.
Section 3 prescribes the duties of the several officers who conduct the election. These are already prescribed bylaw, and the section-is declaratory of .what the law is.
In the absence of executive proclamation, it will liot be denied that these officials, in puisuance of law, would have the right to give the requisite notices. The people also have the undoubted right, on failure of the proper officers 'to give the required notice, to vote on the day fixed by law for the election.
I think the various pretexts set up by defendant are the merest technicalities. If they are to be approved, there is a virtual denial of the sovereignty of the people. The people might at once abdicate their boasted power and bestow it upon a chosen few." In the instant case it .would be bestowing it'upon several, each independent of the other, and, in their respective spheres of action, each supreme.
The General Assembly may enact a law, but it is in the power of the Secretary of the Senate and Clerk of the House to defeat it.
These officers may do their ducy, yet the public printer may defeat the law.
He may do his duty. A law may have gone through all the regular stages of its passage, and finally reach the Secretary of State. He at once becomes the supreme arbiter. In him are centered all the functions of the executive and judiciary departments. He can veto a bill that has passed executive scrutinjn He can usurp the .functions of the judge, and declare the law unconstitutional, which he is required to promulgate. If this is to be tolerated, what kind of government have we ? It is not republican — it is a nondescript. There is nothing like it in the history of the world.
That portion of the alleged legislation relating to the form of the-ballot does not change existing laws. There is no law requiring any *675particular form for the ballot to be cast on the submission of the-amendment.
It was, therefore, in the absence of such legislation, competent for the Legislature to instruct in what form the ballot should be east for a proposal to amend the Constitution. Section 4 of Act 101 of 1882, requiring a printed ticket, has exclusive reference to candidates for office. It says: “That all the names of persons voted for shall be printed on one ticket or ballot of white paper, of uniform size and quality, to be furnished by the Secretary of State at a charge of five per centum over and above the actual cost of said paper, and the names of persons voted for and the offices for which they are voted shall be accurately specified.” Manifestly this can not apply to the ticket to be voted for on the submission of the proposed amendment.
“ The prohibitory amendment cases,” reported in 24 Kansas, p. 700, and decided by Judge Brewer, now one of the Associate Justices of the Supreme Court of the United States, are instructive in the consideration of the instant case. The provisions for amending the Constitution of Kansas are identical with Article 256 of our Constitution. Article 256 was evidently taken from the Constitution of Kansas, and must, therefore, be interpreted by the construction placed upon it by the courts of that State.
The proposed amendment to the Constitution of Kansas did not appear upon the journal of either house of the Legislature of Kansas. It was held by the court that the failure to spread the amendment on the journals was not one of the essentials to its validity. The court said: “ The two important vital elements in any constitutional amendment are the attest of two-thirds of the Legislature and a majority of the popular vote. Beyond this other provisions are mere forms. They may not be disregarded, because by them certainty as to the essentials is secured. But they are not themselves the essentials.” * * *
“ The records of the proceedings of the two houses are made not by the houses themselves, but by clerical officers. True, they are under the control of the respective houses, but in fact, the records are made by clerks. May they defeat the legislative will? The Constitution does not make amendments dependent upon their approval or their action. To insure certainty and guard against mistake, journal evidence o' the amendment and votes is prescribed, *676but this is mere matter of evidence and not the substantial condition of constitutional change. In Leavenworth City vs. Higginbotham, 17 Kas. 62, a law was upheld, although the signature of the presiding officer of the Senate was never affixed to it as the Constitution prescribes, and although the yeas and nays were not entered on the journal of the Senate on its concurrence in certain slight amendments made by the House. See also Davison, of Hasad County, 15 Kas. 194.”
The second issue made in this case was that, in the submission of the amendment, “no provision was made for receiving, counting or canvassing votes; that, therefore, the action of the election board, county commissioners and State canvassers was. without warrant of -law and void, and that the court has and can have no legal evidence that a majority of these votes east upon this amendment was in favor of it; and finally that two amendments having been submitted, an examination of the votes by precincts shows that •a majority of all the voters on the two amendments was not cast in favor of this.”
In the opinion of the court it was said: “It must be conceded that this proposition has great force,” and a large part of the abel argument of the learned judge was directed to demonstrate the validity of the amendment, notwithstanding the absence from it of any provisions as to the manner in which it was to be submitted. In the case at bar these omissions as to the mode of submission have been supplied, and yet this is made the reason for the invalidity of the proposed amendment. In our election law there is no provision made as to the manner in which a proposal to an amendment to the Constitution shall be voted for, in what manner the ballot shall be arranged. If these matters had been omitted, it is more than likely that this defect would have been urged with as much vigor as their insertion in the amendment has provoked.
The question of prohibition in Kansas excited the people of Kansas to the degree that the present proposed amendment to our Constitution has agitated the people of Louisiana.
With a quotation from the opinion of Justice Brewer, in the case referred to, which is appropriate to the case under investigation, I will conclude:
“ On the one hand we have been told that this is a crowning effort of a brave and earnest people to free itself from the curse of intoxi*677cation; on the other, that it is a departure from the wisdom and experience of the past, a radical change of policy, trespassing upon personal liberty and rights of property.
“ But questions of policy are not questions for the courts. They are wrought out and fought out in the Legislature and before the people. Here the single question is one of power. We make no-laws ; we change no constitutions; we inaugurate no policy. When the Legislature enacts a law, the only question which we can decide-is whether the limitations of the Constitution have been infringed upon. When a constitutional amendment has been submitted, the single inquiry for us is whether it has received the sanction of popular approval in the manner prescribed by the fundamental law. So-that whatever may be the individual opinion of the justices of this-court as to the wisdom or folly of any law or constitutional amendment, and notwithstanding the right which, as individual citizens,, we may exercise with all other citizens in expressing through the-ballot box our personal approval or disapproval of proposed constitutional changes — as a court, our single inquiry is, have constitutional requirements been observed and limits of power been regarded? We have no veto. The judge who casts his individual opinions of wisdom or policy into the discussions'of questions of' constitutional limitations and powers, simply usurps a prerogative never committed to him in the wise distribution of duties made by the' people in their fundamental la,w-”
I concur in the opinion and decree, and assign these reasons-therefor.