Dissenting Opinion.
Fenner, J.Into the calm precincts of this court, this case brings nothing but cold questions of law and fact, which must be determined according to the same principles and methods which are applied in all other cases; L shall endeavor to express the reasons for my opinion in language clear, concise, and free from legal technicalities, so as to be of easy comprehension by every citizen.
The relator invokes the writ of mandamus to order and compel the Secretary of State to make publication, in conformity to law, of a proposed amendment to the Constitution of the State, which publication is made, by the Constitution itself, a prerequisite to the submission of the amendment to the electors of the State for approval or rejection.
The contention as to whether this is, or is not, a ministerial duty proper to be enforced by mandamus, may be dismissed with the self-evident remark that, if it is a duty at all, it is a ministerial duty.
It would be preposterous to hold that the Secretary of State could interpose his mere will or alleged discretion as a barrier which would prevent constitutional amendments, duly proposed by the General Assembly, from reaching the people for their approval or rejection. This would place it in his power practically to nullify the constitutional provision and the legislative action in pursuance thereof.
While such a pretension’is set up in the defendant’s answer, I must do the learned Attorney General the justice to say that he has substantially waived it before this court. On the other hand, it is necessarily true that every public officer, when called upon to perform an act, the doing of which is claimed to be a duty imposed on him by law, has the right to determine for himself, primarily, whether the law does or does not impose such duty. If he determine that the law does not impose the duty required, he may decline-*681to perform it. But if the duty asserted be one which, if it exist at all, is of a purely ministerial character, as we hold the one here involved to be, the party aggrieved by his refusal is not deprived of redress. He may apply to the judicial power to declare that the duty claimed is imposed by law and to compel the officer to perform. Such are the purpose and function of the extraordinary writ of mandamus, which is the appropriate remedy and is properly invoked by relator if the allegations of his petition be true.
The ease, therefore, presents for our determination the clear and well-defined issue, whether or not, under the law, it is the duty of respondent to make the required publication.
Suggestion is made and even insisted on, that because, in declining to comply with the demand of relator when made before suit, the respondent assigned only one ground for his refusal, he is thereby estopped from setting up any other grounds in his answerto the mandamus. No such estoppel can apply. The question involved is, duty vel non? It is a matter of public concern. The duty arises from the law and from compliance with the conditions prescribed thereby. It can not be affected by the acts or omissions of respondent.
It is the duty of relator to show every fact essential to give rise to the duty. It is the right of respondent to propound and prove every defence of law or fact which negatives the duty.
Under the very language of the Constitution, the duty of the Secretary of State to publish a proposed constitutional amendment is purely conditional.
Article 256 of the Constitution is as follows: “ Propositions for the amendment of this Constitution may be made by the General Assembly at any session thereof, and if two-thirds of all the members elected to each house shall concur therein, after such proposed amendments have been read in such respective houses 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 to be published * * for three months preceding the next election for Representatives, at which time the amendment or amendments shall be submitted to the electors for their approval or rejection,” etc.
Thus, under the. express terms of the Constitution, the duty of the Secretary of State to publish only arises if the following named conditions precedent have been complied with, viz:
*6821. The proposition for amendment must be made by the General Assembly.
2. The amendment must be read in each house on three separate days.
3. The amendment must be concurred in by two-thirds of all the members elected to each house.
4. The amendment, together with the yeas and nays thereon, must be entered on the journal.
The relator asserts, and the respondent denies, that all these conditions have been fulfilled.
This presents the gist of the controversy. If the conditions have been fulfilled, tbe duty of the respondent has arisen and he must perform it. If all or any of the conditions have not been complied with, the duty has not arisen and relator’s demand must be rejected.
I can not stop to discuss the proposition that the Secretary of State is bound to perform the act required of him, whether the conditions have been complied with or not. No such issue is presented in this case. The relator bases his demand exclusively on the ground that all these conditions have been scrupulously fulfilled; the respondent bases his defence exclusively on the denial that they have been fulfilled. This is the sole issue presented for our determination. It is our clear duty to decide it. If the conditions have not been complied with, the publication and the election itself would be vain and nugatory; and even after the election, on proof of such non-compliance, the amendment would be void, and it would be the duty of the judiciary so to pronounce it. This is so conclusively settled by authority that it is only necessary to refer to Judge Cooley’s work on Constitutional Limitations, who cites and approves the decisions to that effect. This is no doubt the very reason which prompted the framers of the Constitution to make the duty of publication and submission expressly conditional, in order that such questions might be raised and decided in advance, and that the people might be saved the trouble and expense of a fruitless canvass and election. See State ex rel. Forsyth vs. Judge, 42 An. 1104.
The most general and fundamental question presented for our determination is whether or not propositions to amend the Constitution are, like other legislative acts, subject to executive approval or veto. This question is subdivided into two, which must be separately considered, viz:
*6831. Whether proposed amendments, necessarily and in all casés, are ' subject to executive approval before becoming final.
2. Whether this particular proposition, in manner and form as adopted, required, for its finality, submission to the executive and passage over his veto.
1. A very strong argument in favor of the necessity of executive cobperation is made, based on the principle of construing all articles of the Constitution together, and with special reference to Articles 73, 75 and 199. Article 73 declares that “ every bill which shall have passed both houses, shall be presented to the Governor,” proceeding then to provide the method for his approval or veto, etc.
Article 75 declares: “Every order, resolution or-vote, to which the concurrence of both houses is necessary, except on a question of adjournment, or on matters of parliamentary proceedings, or an address for removal from office, shall be presented to the Governor, and before it shall take effect be approved by him; or being disapproved, shall be repassed by two-thirds of the members elected to each house.”
It is contended with great force that these provisions are very sweeping in their effect, and made more so by the exceptions introduced into Article 75. Special reference is made to the exception of the address for removal from office under Article 199, which is very similar in character to Article 256 in regard to amendments. The Article 199 is as follows: “ For any reasonable cause the Governor shall remove any officer on the address of two-thirds of the members elected to' each house óf the General Assembly. In every such ease the cause or causes for which such removal may be required shall be stated at length in the address and inserted in the journal of each house.”
Now, nobody would conceive for a moment that such an address, made by the houses to the Governor, would requiré his approval before it could be adopted and presented to him. The thing is absurd upon its face. Its omission from the exceptions stated in Article 75 could not have affected the cáse and its inclusion among said exceptions was purely superfluous. Its insertion was doubtless due to the over-caution of some member, to whose mind the address from office happened to present itself when considering the broad terms of the article, and it was accepted as doing no possible harm. I can not think that the omission of propositions for amendments to *684the Constitution from the exceptions stated should have effect to subject them to the general provision- of Article 75, because the terms of Article 256 are inconsistent with such subjection.
Article 256 plainly declares that such propositions may be made by the General Assembly, and “if two-thirds of all the members shall concur therein,” after reading and entry on the journal, “ the Secretary of State shall cause the same to be published,” etc. and the amendments “ shall be submitted to_ the electors,” etc. No principle of construction could -justify us in adding to the conditions expressly stated in the article, which do not include the necessity of the Governor’-s eodperation.
Canons of construction, after all, are only guides to reach the true meaning when it is obscure or doubtful. When the meaning as expressed is clear and unambiguous, there is no necessity for resorting to them. »
Further reference is made to the fact that the several amendments which have been proposed and submitted since the adoption to the Constitution, have in every case been submitted to the Governor fox' approval, and this is invoked as a legislative and executive interpretation of the Constitution entitled to great weight in judicial coixstruction. But it will be found that every one of the amendments referred to contained, in addition to the proposed amendments themselves, legislative provisions touching the method of submission and regulating the duties of officers, which were to have immediate effect as law, and could not be operative without executive cooperation. „ As applied to such- measures, no doubt the uniform legislative and executive practice is entitled to great aixd controlling weight, but it does not affect the general proposition now under discussion. My opinion is clear that the Legislature may, by joint resolutioix containing no legislative matter, validly propose amendments without the necessity of executive sanction.
2. I now reach what I consider to be the pivotal point in the case, and that is whether or not this proposed amendment has been finally concurred in by two-thirds of the members elected to each house.
No one, I take it, will dispute that the concurrence required by the Oonstitution means a final concurrence — concurrence oix a final vote, which has passed beyond reconsideration and can not be recalled.
The process of legislation, as constitutionally conducted, has various stages, expressly prescribed and designed to prevent rash and *685hasty action, and to give members time to reflect and discuss and to reconsider their previous votes, if they see reason to change them.
No legislative act can be considered as finally passed, no vote as final and conclusive, until the measure has gone through all the stages during which, under parliamentary law, votes may be retaken and changed. As heretofore indicated, I have no doubt of the power of the two houses of the General Assembly, by a simple joint resolution passed in conformity to the requirements of Article 196, to have validly adopted this proposition for amendment, without the necessity of presenting it to the Governor at all. But they have not chosen to pursue this course.
They have embodied the proposed amendment in the form of an ordinary bill or legislative act, entitled “An act to provide,” etc. They have embraced in the bill legislative provisions entirely separate from the amendment, which required the Governor’s approval before they could have the force of law.
The following are the provisions referred to:
“Sec. 2. Be it further enacted, That it shall be the duty of the Secretary of State to publish the foregoing proposed amendment, in accordance with the provisions of Article 256 of the Constitution, within ninety days after the first day of January, in the year eighteen hundred and ninety-one.
“Sec. 8. Be it further enacted, That at the next general election all electors who desire to vote for said amendment shall write or print upon their ballots the words, ‘ for the levees, schools, charities, pensions, drainage and lotteries amendment; ’ and all electors who desire to vote at.said election against said amendment shall write or print upon their ballots the words, ‘ against the levees, schools, charities, pensions, drainage and lotteries amendment.’
“ Sec. 4. Be it further enacted, etc., That all officers charged with elections or the conduct or returns thereof, under the general electionlaws, shall at the time they give notice of the said general election also give notice of the- election herein ordered for the adoption or rejection of the proposed amendment, and shall, without other direction or authority than is herein contained, make due returns of said election in conformity with the general election laws, in so far as they are not inconsistent with, or in conflict with, this act.”
It is impossible to deny that these provisions are distinctly legislative in their character. They prescribe rules of conduct for officers *686of the State, differing in several respects from those imposed by any previously existing legislation. Thus Section 2 makes it the duty of the Secretary of State to publish the amendment ‘‘ within ninety days after the 1st day of January in the year 1890.” The Constitution, Article 156, only required him to publish “for three months next preceding the next eléction for Representatives,” which does not take place until 1892.
In the petition of the relator we find the averment that, “ under the terms of the second section of said proposed amendment it is made the duty of the Secretary of State to make such publication within ninety days after the first day of January,'1891.” The specific relief asked, and actually granted, in the decree of this courtis that he 1! shall begin such publication within ninety days from the first day of January, 1891.” This is claimed'to be a duty imposed by law. By what law? By the second section of this act. If it is not a law the duty is not imposed. If it is a law, it required Executive co6peration to make it so.
If the elaborate, sections referred to mean nothing, and made no change in existing law, why were they so carefully prepared and inserted, and why are they appealed to as the measure and foundation of the duty, performance of which is demanded in this case?
Section 3 prescribes the form of ballot and declares that it may be either written or printed, whereas the general election law of the State requires the use of printed ballots only.
Section 4 prescribes the giving of a particular notice, and directs the returning officers to jnake their returns according to “ the general election laws, in so far as they are not inconsistent with the provisions of this act,” which means that they must count and return written as well as printed, ballots, which is contrary to and inconsistent with the general election laws.
All these provisions are to have legal force and effect at once, and are not submitted to, or dependent upon, the vote of the people.
Whence do the two houses of the General Assembly derive the power to adopt such legislation without the codperation of the Executive? Certainly no such power is conferred by Article 256 of the Constitution, and it is conclusively negatived by Articles 73 and 75. This subject has been fully treated by Mr. Jamison in his able worlj on constitutional conventions. He draws the distinction between that sort of legislative action in such matters which is ministerial in *687character and that which is legislative. To the ministerial class, he assigns, “ that in which legislatures merely, by resolution, declare the adoption of specific amendments to be expedient, as a preliminary step toward submitting them to a vote of the people.” But, he adds: “The general course in these cases is for the Legislature, after the appropriate preliminaries, to require the electors, on a day specified, to cast their vobe3 for or against the amendments, laying down, for the direction of the public oStteers, as well as of the voters, the specific injunctions needed to secure an adquate and honest expression of the public will. Can a reason be conceived why the intervention of a Legislature in thisbusiness, prescribing rules of conduct, and denouncing, as it commor-ly does, penalties for acts of disobedience, should not be considered an act of legislation as much as when it takes steps identicalin character, but respecting interests that are temporary and trivial?” Secs. 547, 548.
Recurring to this subject, he says: “ The question has been raised, whether or not propositions for specific amendments, made by a Legislature, under the constitutional provisions referred to, ought to be submitted to the Executive for approval. Judging of this question from a priori considerations, it seems that the answer should be that whenever the propositions^are coupled with provisions which impart to the legislative act, in whole or in part, the force of law, according to the principles above explained, they ought to receive the approval and signature of the Executive; but when they bear only the character of recommendations, they ought not. to be submitted to the Executive. The reason for this distinction is simple. By our Constitutions, all acts of the Legislature, before they can become operative as laws, must receive the sanction and signature of the executive branch of the government. An act which is not legislative in its nature, and when perfect and operative to the full extent intended by its framers, is yet destitute of all vigor as a law, not coming within the terms of the constitutional provisions, -would clearly not be subject to the same conditions.” Sec-556.
He further sho'ws that in the States of Connecticut, Massachusetts, New York, Michigan, Minnesota and Maine, having provisions for amendment similar to or analogous to those of our Constitution, the practice is uniform, that whenever the proposed amendments are embodied in a bill with further provisions of a legislative character,, *688regulating the manner and proceedings to be followed in submitting them to the people, such bills are presented to the Governor for approval. And in cases where the propositions of amendment are passed alone in one resolution, and the regulations for submission are.made in a separate act, the former is not submitted to the Executive, but the latter is submitted. Sec. 561.
To this I may add the uniform and unvarying practice in this State, which has been, as already indicated, without exception, to submit proposed amendments, when coupled with legislative proceedings, to the Executive.
While the opinions of Mr. Jamieson are not cited as binding authority, they are recommended by the solid reasons on which they rest; and it is satisfactory to find that so able a jurist, considering the question dispassionately and free from all excitement or prejudice, confirms the conclusions which I have felt compelled to adopt.
It is claimed, however, that even conceding that the legislative sections of the bill have failed of adoption by reason of the Governor’s veto, yet the proposition of amendment, not requiring executive approval, still stands as constitutionally adopted. Whatever merit this contention might have from other points of view, it is a clear begging of the question at present under discussion, which is, whether the amendment has been finally concurred in by two-thirds of the members of each house.
1 well understand that legislative acts, which have been passed by the General Assembly, may contain provisions, some of which are constitutional, and others unconstitutional; and that, in proper cases, the courts may give effect to the former, and annul the latter. But I am unable to comprehend how any legislative measure, presented as a whole, voted on as a whole, and dealt with throughout as a whole, can possibly reach a position in which it can be said that part of it has passed and another part has not passed. No such anomaly has ever, to my knowledge, been presented or approved.
The bill, in the form adopted, was one requiring executive sanction. It held out to every member of both houses the assurance, as distinct as if it had been written on its face, that before it was finally adopted it should go to the Executive for his approval or veto, and that, if vetoed, it should return to the houses and be passed over his veto.
The whole course pursued indicates this understanding. We *689gather from the index to the journal of the House a summary of theproeeedings had, from which we learn that after the Senate amendment had been concurred in the bill was enrolled, and on July 1 was “ signed by the Speaker and Lieutenant Governor, and taken to the Governor and Secretary of State;” that on July 2 its receipt was acknowledged; that on July 7 it was “received in the House from the Governor with a message containing objections, which was read, and consideration of same fixed as special order for July 8, 1890, at 2 o’clock P. m. ;” that on July 9 it was taken up as a special order, read in full, roll called on question will the House, after reconsideration pass the bill — yeas 66, nays 31 — passed, the veto of the-Governor to the contrary notwithstanding; the bill, with the message of the Governor, was taken to the Senate Chamber immediately after the vote was recorded.”
Turning then to the journal of the Senate, we find that, after the bill and message were received, a vote was passed returning the bill, and message to the calendar.
Subsequently a motion was made to “reconsider the vote by which the House Bill No. 214 and the veto message were returned to the calendar,” which was adopted.
Then a motion was adopted to refer to the judiciary committee the bill and message, with instructions to report whether “ House Bill No. 214 is of such a matter as to require the Governor’s approval or disapproval.”
That committee reported, by majority, with a resolution denying-the power of the Governor to veto such a bill, and directing that the veto be returned to the House, and that a copy of the resolution be-sent to the Governor. This resolution was finally adopted by a vote of 22 yeas to 12 nays.
The bill and veto, together with a copy of the resolution, were then transmitted to and received by the House, which thereupon adopted the following resolution by a vote of 61 to 27; 10 absent:
“ The Senate having refused to consider the veto message of the-Governor, on House Bill No. 214, which bill is an amendment to the Constitution passed by the requisite two-thirds majority of all the-members elected to both houses, and as the action of the Senate denying the right or authority of the Governor to veto a constitutional amendment is in entire accordance with the views of this House, I move that it is the sense of this House that we heartily agree and *690■concur in the action of the Senate, and adopt their reasons as ours, and that the Clerk of the House be instructed to deliver to the Secretary of State, for promulgation,'enrolled House Bill No. 214, with a certified copy of the proceedings of this House on the said bill :and to take the receipt of the Secretary of State for the same.”
This was the final step in the legislative consideration of this bill. It will be observed that neither the resolution of the Senate nor that of the House received the vote of two-thirds of the members elected to the respective houses. They can, therefore, form no factor in the question whether or not the bill was finally passed. If the resolutions were necessary to give finality to the passage of the bill, they were unavailing for want of the necessary majority of two-thirds.
If the resolutions were unnecessary, they should be disregarded, ■and then how would the matter stand?
We would have a constitutional amendment embodied in a bill ■containing, in addition to the amendment, legislative provisions requiring submission to the Executive; sent to the Executive for his ■official action; returned to the house in which it originated with an executive veto; taken up in the House and passed over the veto; sent to the Senate for its action, and no action taken.
Can such a measure be said to be finally passed?
When the veto reached the House the vote was taken on the following question: “Will the House, on reconsideration, pass the bill, the veto of the Governor to the contrary notwithstanding? ” Does not this assert the right of the House to reconsider the bill? If on ■such reconsideration some of those who had formerly voted for the bill had voted to sustain the veto, destroying the requisite two-thirds majority, would not that have been an end to the bill? But if the House had and exercised the right to reconsider the bill, how can the same right be denied to the Senate? and how can such right be destroyed or nullified by the action of a mere majority of the Senate, 'in a matter which could only be finally and effectively acted on by two-thirds?
It seems to me indisputably clear that this amendment has 'never ■been finally concurred in by the requisite majority of the two houses; that the votes by which it was adopted were not intended or understood to be final and beyond reconsideration; that it was necessary, in the shape in which the bill was framed, that it should be sub*691mitted to the Governor; that it was the understanding of all that the bill should be so submitted, and that it should be reconsidered and a final vote taken on the passage over his veto.
The correctness of this view is placed beyond dispute by the history of another constitutional amendment proposed at the same ses.sion of this General Assembly, viz: House Bill No. 21, entitled “ Joint resolution proposing to submit to the electors of the State an amendment to Article 229 of the Constitution relative to public education.” In form and substance it is far less suggestive of the necessity of submission to the Executive than Bill No. 214 involved in this case. Yet, after having been passed by the requisite two-thirds of each house, it was sent to the Governor, and was refurned by him with his veto on the same day that the veto of Bill No. 214 was received. The only action taken on this veto by either house was a motion passed by the House of Representatives “ that further consideration of the Governor’s veto message be indefinitely postponed.” I do not understand that any one contends that this proposed amendment has been finally passed by the two houses, or should be submitted to the electors. Yet what is the difference in the status of Bill 21 and Bill 214? Both were passed in precisely the ■same manner; both were submitted to the Governor; both were vetoed by the Governor; neither has been passed over the Governor’s veto. Yet we are told that one has been finally passed and ■that the other has not. Why? There is but one possible reason that can be assigned, and that is the resolutions adopted by the House and Senate regarding the veto of Bill No. 214. But that concedes that, after the veto by the Governor, some further action by the houses was essential to give finality to its passage. I have shown that the resolutions did not ieceive the two-thirds vote of either house. How is it possible, I ask, that the action of a mere majority of the houses can give finality to the passage of a measure which the Constitution prescribes can only be passed with the final concurrence of “ two-thirds of the members elected to each house? ”
I am firmly convinced that this position is unassailable, and that this proposition of amendment has not been finally adopted in accordance with the requirements of the Constitution. The simple, patent, undisguisable fact is, that the friends of the measures intended and undertook to pass it in a form and in conjunction with legislative provisions which required submission to the Governor, *692and in case of his veto required passage over his veto before it could: be finally adopted. They successfully carried the measure through all the requisite stages, including passage over the veto by the House, until it reached the Senate. There, owing to the illness and death of a member of the majority, they lost the strength to pass the bill over the veto, and the measure failed. ' It is said that the record furnishes no evidence on this point. If that were so, certainly it would be improper for me to refer to it; but the journals of the two houses are in evidence, and they show the fact conclusively. Senator J. Fisher Smith is recorded as one of the two-thirds who voted originally on the bill. He was absent at all votes taken after the Governor’s veto. The following resolution was offered on the 9th of July by Senator Posey:
“ I move under and by virtue of Article 33 of the Constitution that the Senate, with the consent of the House, shall proceed at 12 o’clock m., July 10, 1890, to the Mayer Hotel, where our brother Senator J. Fisher Smith lies physically ill, but sound in mind, and in accordance with his request, that the Senate then and there do sitio vote upon His Excellency’s veto message on the lottery amendment, which is known as Bill 214 of the House.”
This shows his illness on the day when the veto' was under consideration; andón the following day his death was announced to-the Senate, and appropriate resolutions were passed in his memory.
The recorded votes show that at no stage of the proceedings did the measure receive the two-thirds vote required without counting the vote of Senator Smith. Therefore, the record justifies me in saying that, owing to his illness and death, its supporters lost the: power to pass the bill over the Governor’s veto, and the bill failed to pass. *
The attempt of the mere majority of the houses, in this emergency, to “ change its foot,” and togive ex post facto finality to the-original vote upon the bill, ignores and contradicts all the subsequent proceedings. The sending of the bill to the Governor declared that the bill was not finally passed. The action of the House-in receiving the Governor’s veto, in returning the bill to the calendar, in reconsidering the bill and passing it over the Governor’s, veto, declared that the bill was not finally passed. The action of' the Senate in returning the bill to the calendar, declared that the bill required further action, and was not finally passed. Every member-*693of the majority is committed by his own votes to these solemn, authentic and official declarations.
Resolutions passed by a mere majority of each house cannot effect the final passage of a bill, which could not be passed without a two-thirds vote, and which more than two-thirds of at least one house, by its vote in reconsidering the bill and passing it’ over the Governor’s veto, had solemnly acknowledged and declared was not finally passed.
A dictum is quoted from a decision of the Supreme Oourt of Iowa, in the case of Koehler vs. Hill, in which it is suggested that a veto by the Governor and failure to pass it over the veto would not invalidate the passage of the amendment. This dictum is purest ■obiter, and, moreover, a reference to the case shows that the proposition for amendment to which it is applied was a simple joint resolution, containing no legislative provisions, and not- one word beyond the proposed amendment itself. As to such a jproposition of amendment, I have already expressed my opinion that it did not require the Governor’s approval and his veto might well be considered non-effective. The dictum is not only obiter, but it has not the slightest application to the instant case.
I am, therefore, bound to hold that this amendment has never re•eeived the final concurrence of two-thirds of the members elected to each house, and indeed, what is still more radical, that this proposition for amendment “ has not been made by the General Assembly ” at all. It stands as a mere inchoate proposition, offered and considered by the General Assembly, but never finally adopted.
I agree with the views so eloquently expressed by Mr. Justice McEnery that the right of the people to change their organic law in the mode provided by the Constitution should be jealously guarded and liberally enforced; but I can not ignore the clear mandate placed by the people themselves in their Constitution that no amendment can be submitted or voted on unless it has been first proposed by the General Assembly with the concurrence of two-thirds of the members elected to each house.
I agree with him as to the evil of permitting subordinate officers, by their wilful acts or accidental omissions, to obstruct the course of amendments, duly proposed by the General Assembly, in reaching the people for their sovereign action. This very proceeding illus.trates the efficient means by which such unwarranted obstructions *694may be swept out of the way; and, when unwarranted, no member of the court would act more vigorously in suppressing them than-myself. But the Constitution, not only does not require, but impliedly forbids the Secretary of State to publish propositions of amendment not made by the General Assembly in the mode therein-prescribed ; and I am bound to uphold him in refusing to violate-his duty.
I have not found it necessary to give minute study to the question whether or not the prescribed forms as to reading, recording of yeas and nays, and spreading on the minutes, were observed or are exhibited by the proper journals. The elaborate analysis of the facts connected with those questions given in the majority opinion indicates the care with which they have been considered, and supports the conclusion reached. I approve the philosophic views expressed by Mr. Justice Brewer in the Kansas prohibition cases, and quoted in the majority opinions; and while compliance with these prescribed forms is doubtless essential, it would require proof of non-compliance too clear to admit of division of opinion to justify me in dissenting on such a ground. The ground on which my dissent is based is so radical and fundamental that no one who conceded its correctness could possibly act otherwise.
What I have here so- carefully stated has not been written with-the slightest desire now to convince any one that I am right and my brethren wrong. I have simply felt that, in such a case, no judge-could feel satisfied in dissenting unless he could give strong and substantial reasons for his course, and, in self-justification, I haveelt bound to state mine as strongly and forcibly as I could.
I have long ago put behind me all vain conceit of opinion. Every day’s experience convinces me more clearly of the humiliating fact that the human mind possesses no infallible touchstone of truth; and that men equally honest and intelligent, whatever their desire-to harmonize, will often reach opposite conclusions on the same-matters. I concede to others, what I claim for myself, the sovereignty of each man’s conscience over his own judgment.
Justitia patrem et matrem, nescit; veritatem solum spectat justitia.
I dissent.