(dissenting). I do not dissent from an af-firmance of the judgment, but do from the method of it. I cannot recognize that there has been a rehearing, strictly so called. None was proper for reasons stated in Hocks v. Sprangers, 113 Wis. 123, 135, 87 N. W. 1101, 89 N. W. 113. I adhere to the. decision that the purported amendment to the constitution is not a part of the fundamental law. Perhaps a modification of the reasons therefor is within the spirit of Hocks v. Sprangers, but to give the late proceeding the cast of a technical rehearing and practically reverse the former judgment as upon such, though affirming it in fact, exceeds what this court has many times said it has the power to do, after the time fixed therefor in the statute, as was the case here. Whether the many previous decisions on the subject *394are wrong and the term “want of power” should, at most, he read as, ought not to exercise power, may admit of some question. If so, the matter should be met in a considerate way and, perhaps, a new doctrine be promulgated. In my judgment it rather takes from the dignity of the court to cast practice of fifty years aside with an appearance of the court being confronted with some great emergency, — some overruling necessity of saving public and private interests from impending disaster, — which moved it with strong hand to a desired result. I am not conscious of there having been any such emergency. There was none in fact, as I shall endeavor to show, though there might have been such supposed, but that will appear so infirm that there is danger of the mere supposition being regarded as a pretext to shrink behind, as was suggested by Justice Paiive in Kneeland v. Milwaukee, 15 Wis. 454, is sometimes the resort of courts.
I must pause to say, I cannot doubt, but what my brethren were convinced of there being some peril impending which warranted the novel action, and that they did their duty as they saw it, regardless of its unpleasantness. It is judicially noble to hold the desire to be right high above any effect upon personal reputation for stability. For that the majority are entitled to all honor. I am pleased to accord it notwithstanding the somewhat radical nature of my dissent. If it be a fact that the majority were impelled to the result indicated in the opinion from thought of necessity, though none, not the slightest, existed, and no call, at best, for more than a! modification of the reasons for holding the amendment not a part of the constitution, the result has almost a pathetic cast. I may, possibly, be wrong about this; but with the highest respect for my associates I feel in duty bound to write as I have and shall. It is more for the future than the present. Upon the calm level of the years to come we may safely rest for vindication if right and must suffer criticism if wrong.
No one will venture to say but what the logic by which the *395purported amendment was condemned is supported by tbe great weight of judicial and text-book authority, and would never have been departed from as an original matter. That is freely confessed in leading opinions elsewhere. Sufficient on that are cited in the first opinion here. Many might be added.
The duty of upholding the constitution according to the intent of its framers has always been supposed to be one of the very highest character. Ready and wide departures from it to satisfy the calls of practical construction have been condemned by most eminent jurists and text-writers. Where indulged in at all it has, in general, been minimized to the actual necessities of the case and the strict limitation of the practice. So much so that duty in that regard is a part of the unwritten law. One of the most eminent writers upon constitutional law thus forcibly pointed out the error and danger of lightly dealing with mandatory words of the constitution to accord with legislative practice:
“In all we have said upon this subject we have assumed the constitutional provision to be mandatory. . . . The fact is this: that whatever constitutional provision can be looked upon as directory merely is very likely to be treated by the legislature as if it was devoid even of moral obligation, and to be therefore habitually disregarded. To say that a provision is directory seems, with many persons, to be equivalent to saying that it is not law at all. That this ought not to be so must be conceded; that it is so we have abundant reason and good authority for saying. If, therefore, a constitutional provision is to be enforced at all, it must be treated as mandatory. And if the legislature habitually disregard it, it seems to us that there is all the more urgent necessity that the courts should enforce it. And it also seems to us that there are few evils which can be inflicted by a strict adherence to the law, so great as that which is done by the habitual disregard, by any department of the government, of a plain requirement of that instrument from which it derives its authority, and which ought, therefore, to be scrupulously observed and obeyed.” Cooley, Const. Lim. (6th ed.) 179.
*396That may well be read in connection with this by another eminent writer, cautioning against departing from the ordinary meaning of words in a constitution in order to accomplish a particular result:
“As the constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse meaning in the words they employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.”
In connection with the foregoing, we must call, more pointedly, attention to the peculiar circumstances under which the first position of the court has been radically overruled.
It is frankly admitted that, as an original proposition, the first opinion is right. No one doubted, when the case was. decided, but what it was demanded by the meaning the framers of the constitution probably intended to express by the words they used and the meaning the people attributed thereto when they adopted the fundamental law. If there were anything not fully understood and appreciated it was the legislative practice. No one would venture to say that the first opinion was not written with strict fidelity to the decision agreed upon, nor that there was not full opportunity to consider it, nor that it was not unqualifiedly approved. So solicitous was the Chief Justice to have the vital point made perfectly plain and significant that he thought best to make the position of the court emphatic by stating it concisely, stripped of all discussion, which he did in a separate opinion. That was followed by the decision in the forestry case (State ex rel. Owen v. Donald, ante, p. 21, 151 N. W. 331) which had been previously argued, where the principles stated in this case were reaffirmed. True, there was a special defect which was unquestionably fatal and on which the cause turned' *397as to the amendment feature, but all the questions involved here were fully discussed by counsel in that case.
The forestry case was decided some forty-two days after the opinion in this case was filed and after the time for a rehearing had expired, and such opinion had been published in the advance sheets of the Northwestern Reporter, and specially published by the legislature. Yet no question was raised here but what it was right. It was, in the main, grounded on the decision in State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N. W. 785, with which no one will venture to-say it was not in harmony.
It was fully appreciated by the writer, and I think by some other of the justices, that there might be other purported additions to the fundamental law which would not stand the stated test of validity, though, if so, it was not, for a moment, thought that they could be disturbed to great public detriment in case of their having been actually agreed upon by both houses of the legislature, adopted by the people, and acquiesced in without 'question for a considerable term of years. That was stated, suggestively but advisedly, in the opinion, with numerous well considered authorities at hand to vindicate it, if necessary. It was supposed, at least, by some of us, that settled principles of law properly applied would efficiently stand guárd to prevent any calamitous consequences following a firm, logical, sensible, efficient vindication of the fundamental law substantially in the spirit of its adoption by the people and that it were better to resort to them than to override the evident purpose of the people in adopting it. That was most emphatically said. There was ample conception of such principles and consciousness of courage to apply them so far as necessary. There, as said in Kneeland v. Milwaukee, 15 Wis. 454, “the constitution was made for the safety and protection of the people and not to be used as an instrument of destruction.” A practice, originating in error, may, under some circumstances, come to have the force of law with the limita*398tions herein mentioned. In. that light, springing from our conceptions of legal logic and the doctrine of our own and other courts, the decision deliberately, considerately, and fearless of personal consequences was rendered, though not without most-earnest consideration of whether public interest's would be imperiled by thus taking the constitution as it was believed by all was intended, and if so, whether there was room, on principle, for some more liberal view.
After all, by groundless, inconsiderate, but confident and persistent declarations from the outside, largely, I think, ab inconvenienii} it came to be thought by some, that the decision, practically, nullified most of the amendments which had been supposed to have been made to the constitution, and that even all the positions on our own bench but three were jeopardized. Such and the most dire consequences were suggested would probably follow from the decision, partieularly as regards the court itself. I confess that such notion seemed to me so ..groundless, in view of well recognized saving principles, that I did not take it seriously. It seemed so baseless that I supposed the winds would pass by, reason resume its customary sway, and all would come to appreciate that the constitution, as it was intended, had been vindicated; that designed original dignity had been given to it; that the people of our commonwealth who sensed its importance to life, liberty, safety, and happiness, and so loved and cherished it, would feel a greater sense of security than before and would have greater confidence than ever in the competency, the ability, the disposition, and the courage of their tribunal charged with the duty to protect it in all its integrity to fill the full measure of its great function.
In view of the foregoing that the condition was created here leading the court, on its own motion, to institute and direct the proceeding which has resulted, as we see, puzzles the mind. I, perhaps, am not in a proper state to survey the wreck of the stately work the court wrought at first, or appreciate the idea which came up out of the ruins. I do not *399say this in any spirit of conscious superiority of judicial judgment. I feel no such. I have such confidence in the collective judgment of my four associates who have spoken in the opinion by my Brother Winslow, that, notwithstanding my firm conviction that they are wrong, and it is reinforced by the judgment of my Brothers Timlin and Vinjb, I should not write as I have and shall, were I not, seemingly, compelled by duty to do so and thus round out the history of this unfortunate case. All will be recorded. The future will judge between the adverse views. I am content with that. If those which are controlling are as clearly wrong as I believe them to be, they are mortal and truth will rise again. Error cannot long withstand the assaults of logic, especially when it hinges upon so slender a thread as does the majority opinion in this case.
What has been said will be seen not to be beside the subject properly treatable in such an opinion as this, when it is appreciated that it is written to picture the novelty, as eviden-tiary of error, in the result dissented from. It must be confessed that it is without precedent, but that does not count for much if,.on principle, it is justifiable. This court has been accustomed to ignore mere precedent, and none too much when there is a right to be vindicated and a real necessity for action. I have not been wanting in progressive spirit along those lines, as what I have written for the court and otherwise will amply show. But was there a right to be vindicated in this case, and if so, was there a dire necessity for doing it in a manner and under circumstances which, as I think, reflect unfavorably upon judicial dignity, stability, and regularity, and otherwise weakens the court by the appearance of not only reaching for opportunity to recede; but improving it, and in the retrogression, passing the starting point and, unnecessarily, barriers where it could easily and logically have reformed its lines and, impregnably and with real dignity, intrenched itself ?
This court, on another memorable occasion, gave most em*400phatic expression to requirement for overwhelming necessity to justify it in changing a decision, undoubtedly right from an original standpoint, as the first opinion here is confessed to be. There was such a change in Kneeland v. Milwaukee, 15 Wis. 454. The court reached a conclusion, somewhat by balancing the consequences of going forward against those of going backward. The agony of the situation was most intense because of the great public peril apprehended. Justice Paine confessed that duty, in the ideal sense, required a judge to declare according to his convictions, regardless of effects and consequences; yet that, even the judicial mind is so apt to shrink before supposed disastrous results as to, consciously or unconsciously, take refuge in some plausible pretext, which would otherwise have been considered insufficient, justly subjecting courts to the criticism of being guilty of usurping lawmaking functions and declaring the law to be as judges think it should be rather 'than as they think it is in-fact. He declined to yield to any such influence at first, but was overwhelmed by the necessities of the case at last, seeing no other way to avoid supposed calamitous consequences. His associate, Chief Justice Dixon, with most pathetic reluctance took the initiative, protesting that if the first decision which had been relied upon had been made a matter of record, he would not be intimidated by the menace of public calamity into changing it so long as he believed it to be right. The court finally did change such decision and returned to the earlier unrecorded determination though firmly believing it, res in-tegra, to be wrong. That retrogression happened upon the theory that, because of the calamitous consequences which would otherwise occur the court was justified in regarding the long practice under the decision, founded in error, to have the force of law and be beyond the power of any but the lawmaking power to change it. The long struggle which so resulted, the extreme reluctance with which it was approached, the spirit of overwhelming necessity which was a constant ex*401citer, and the sense of humiliation, mixed with a high order of courage which characterized the end, inculcated the lesson that a decision believed to be right from an original standpoint, should never be changed upon ground of mere expediency, and not changed upon the pretext of wrong without some fairly sound basis therefor, and then only so far as justified by the necessities of the case.
Now what is the real logic of the retrograde in this case? That ought to be made plain. The majority would not have assumed such responsibility without being impelled to it from a sense of duty. Notwithstanding suggestions to the contrary, there is no one here, and it is thought no reputable number anywhere, who believes personal consequences cut any figure. What were the real reasons? We have no way of knowing but from the opinion. We have carefully read it, and reread it to that end, hoping to give due credit thereto.
It is suggested that the court made a mistake in the first decision and, inferentially as it seems, that it made a mistake' in State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N. W. 185, to which I have referred. Mistake of what, — not one of law, evidently, in the strict sense of the term, since it is confessed that, res integra, the first decision is right; that the meaning attributable to “entered on their journals” is the natural ordinary one. If not a mistake of law, then it must be one of fact, or of mixed law and fact, which the court committed.
If there was a mistake of fact, what was its nature and in what particular did it consist? Was it in not going deeper, into the legislative practice, as bearing on the question of whether the particular words are ambiguous and, if so, in not appreciating legislative construction? If not,.was it in respect to the history of the particular amendment ? If .not that, then was it in respect to the weight of authority elsewhere, and state of our own decisions ? If not that, could it have been in the meaning the people attributed to the particular term when they adopted the constitution ? If neither of *402those suggested ox some or all of them, was it in not stretching some old principle to the cast of a new one, ex necessitate, to guard against some real or imagined great peril, with the thought that the result was justified by the exigency ? One must determine these propositions to justly conclude upon the relative merits of the adverse judicial positions.
If the mistake is of the first kind, then this query is suggested: Why was the full legislative practice given in the final pronouncement not stated ? Why was the omitted part overlooked or not appreciated, and did that turn the scales which were so evenly balanced ?
If practical construction is the rule in such a very important matter, all must agree that the entire practice should be understood and referred to. The circumstantial facts and all of them, should be established beyond a reasonable doubt, and all be consistent with the theory adverse to the original meaning of the mandatory words of the constitution, or the latter should prevail. That is the established rule and the-only safe one to go by in dealing with the fundamentals. In. the end, the former decision, which no one will venture to say is not right from an original standpoint, should not be disturbed further than necessary to harmonize with the practice.. That is the logical scope of the rule of practical construction. It should be strictly limited to the reason for it, especially in dealing with the fundamental law.
It will be noted that the majority opinion mentions the fact that practically all the twenty-five propositions to amend the constitution which were, in form, adopted by the people,, were entered in full, or substantially so, in the journal of the-house of origin at the first session of the legislature and that one fourth of them were so entered in both journals. Why point solely to the twenty-five when that gives but a mere-minor item of the whole ? By much labor the legislative history of all proposals to amend the constitution, from its origin ".o date, found in over a hundred journals and covering some *403300 such, incidents was completed. It was thus shown that about ninety-two per cent, of the proposals prior to 1897 were entered like the twenty-five and most of those which were not were evidently thought to be inconsequential or were inadvertently not entered. Who will suggest that the history of the hundreds which failed are of any less importance on the question of legislative understanding than that of those which did not ? Looking at the whole, could a word-picture of a legislative idea be much more perfect? If practice may be so long continued and uniform as to turn words out of their ordinary orbit and satisfy the calls for an original meaning in harmony therewith, then it seems the rule has been clearly misapplied in this case.
Another fact, within our reach, might well have been stated in the effort to find a sound basis in the practice for departure from the intent the people purposed embodying in the constitution. The particular section, • as phrased, originated in Michigan as a part of its constitution of 1835. It was adopted from there with the existing practice. That had been uniformly, to enter a proposal to amend the constitution, at least, in'full on the journal of the house of origin at the first session. In that is seen a clear explanation of the practice adopted and followed, persistently and consistently here, for over half a century. It would seem that if the provision in question is open to practical construction, and there ever could be a practice so long continued and convincing as to make a rule of law, this seventy years of history ought to be so regarded.
The idea adopted by the majority that the term “entered on their journals” points to both as plainly as to either, and that the practice of not following the entirety in practice made a rule of displacement for the whole, seems to me strikingly illogical. I am utterly unable to understand it. If it is not a novelty in practical construction, or if it is not really outside of the rule, then I confess ignorance of what such con*404struction means. “Entry on. their journals” points as plainly to an entry showing the full nature of the proposal as it does to both journals. That seems to be conceded. Why then should not “entry on their journals” so far as uniform practice goes, be held to be required, if the practice is to prevail at all ? As well might the entire constitution be cast into the discard because some part of it has been ignored in practice, as to'hold that the entire requirement for entry on the journals may be regarded as directory because, in practice, only part has been followed.
Some significance was given on the argument and is in the decision to the circumstance that, in sec. 10, art. V, of the constitution, it is provided that in case of an executive veto the bill shall he returned to the house of origin’with the objections, and that such objections shall be entered “at large upon the journal,” — the idea being that the word “entered” in the amendment provision was considerately used in a narrower sense than “entered at large on” in the veto provision. Probably that suggestion would not have been made, or if made considered, if it had been appreciated, as the fact is, that the requirement in the veto provision, as in our constitution, was adopted from the constitution of Michigan and adopted there from the constitution of the United States of which it formed a part from the beginning. Thus it will be seen, that it is hardly possible the difference in the two expressions came about from any idea that “entered” in the amendment provision should be taken other than in its ordinary sense.
There is much reason why the stronger expression was used as to the veto provision. It was doubtless appreciated that a veto message might be very long, that members might need to refer thereto often, and that merely filing it with the clerk, or entering it according to the clerk’s notions of its substance, would come far short of satisfying the necessities of the case. So, ex industria, the term “entered at large” was used. A. *405proposal to amend tbe constitution, was customarily a concise declaration of a principle requiring but a few words. In that case, “entered on tbeir journals” did not need any explanatory or emphasizing clause to indicate the intent, especially in framing the constitution in the light of the history for fifteen years in Michigan.
The second suggested ground of mistake which one unfamiliar with the case might indulge in, must be rejected. A full history of the amendment is given in the opinion by my Brother WiNsnow; but it is only a repetition of what can be found in the first opinion and was iterated and reiterated, again and again, before the case was first closed. The amendment was not entered at all at the first session, except by number and a very meager title which did not disclose the substance of the proposal. That was understood all along. The original papers were produced at first and'the whole matter fully understood and placed upon the record.
The mistake could not have been in respect to the weight of authority elsewhere, nor the position of this court taken in State ex rel. Hudd v. Timme, which has been cited time and again by courts and text-writers to support the doctrine of the first opinion. I understand that no one questions but what the general trend of authority elsewhere, as to the meaning the people probably intended is as stated in the former opinion.
If it were otherwise, I would take time t'o reduce the matter to a demonstration.
With the concessions expressly and inferentially found in the majority opinion, I must conclude that the real mistake thought to have been made was in not taking the practice of the legislature as. indicating the purpose of the people in adopting the constitution, and extending that so out of its scope as to make of the whole constitutional provision, a mere directory requirement. The danger, — the real wrong involved in that, — is well stated in the quotations from eminent text-*406writers found, in the opening pages of this opinion. If that was the idea it was not even justified, if that were possible, by the necessities of the case, as we shall see.
It does not seem best to spend time with the suggestion that “entered” might be regarded as having a narrower meaning than spread in full or in substance. That is beside the case in face of the fact that the common ordinary meaning is as indicated in the first opinion and the view of all that it was probably used in that' sense in the fundamental law. To refer to meanings confessed to be foreign to the thought of those who made and adopted the constitution, as justification for holding that only a constructive entry was intended, and hardly that, I think will be regarded as an indication of weakness- and not worthy of being referred to as even one of those “plausible pretexts” spoken of by J"ustice PatNe in the Knee-land Case, in which the judicial mind is sometimes wont to take refuge in the endeavor to escape from real or spectral disastrous results.
Thus we have shown that, while the rule of practical construction is relied on, the real premises were only partly stated, and the rule itself was not applied according to the reason of it. There was not read out of language found to be ambiguous a meaning sanctioned by practice, but the practice departure, was laid hold of for a ground of rejecting the coneededly intended meaning, then there was a return to the latter for a requirement of some sort of an entry on each journal, and then both the practice meaning and the confessed originally intended meaning were rejected by a process of reasoning which is far from satisfying. If such a course is permissible, to my mind a written constitution may easily be recast to suit not only disregard of it, but notions of what might well take its place. Seemingly, the majority has said: the meaning of the words “entered on their journals” shall be neither the common ordinary nor the uniform practice meaning; but shall be a meaningless or mere directory require*407ment, because the practice meaning has uniformly been different from tbe ordinary one. I do not think there is anything in the rule of practical construction or established principle which warrants such an excursion to a resting place far' beyond the boundaries of the reason for such rule. If there were .the excuse of necessity to prevent disastrous results, I could understand it if I did not approve of it. But no such necessity existed.
Not one of the twenty-five amendments to the constitution of any great public importance would have failed of judicial approval had the limit of the practice been taken as the limit of departure from ordinary meaning. By such restraint, the fundamental intent would have been essentially left efficient. Furthermore, if practical construction had been applied in its integrity, and anything of consequence had been left unguarded, the doctrine of estoppel would have effectually restrained any efficient attack upon it. If that had been appreciated at the beginning of this unfortunate controversy, I think the constitution would have been saved in all its integrity. The following authorities amply bear this out: Kneeland v. Milwaukee, 15 Wis. 454, 512, 519; Nesbit v. People, 19 Colo. 441, 452, 36 Pac. 221; Secombe v. Kittelson, 29 Minn. 555, 12 N. W. 519; People ex rel. Elder v. Sours, 31 Colo. 369, 14 Pac. 167; People v. Maynard, 15 Mich. 463; Bingham, v. Mills, 17 Ohio, 445, 448; Essex v. Pacific Mills, 96 Mass. (14 Allen) 389, 398; VanNada v. Goedde, 263 Ill. 105, 114, 104 N. E. 1072; Stuart v. Laird, 1 Cranch, 299; Dodd, Rev. of State Const. 222. The writer had most all these authorities and the general principle well in mind when the first opinion was written, particularly the unqualified in-dorsement of it in the Kneeland Case. Hence his inability to appreciate why the after condition which was so slow in developing should have been aroused at all.
I will now rest this matter confident that the judgment of the future will be that, if the first opinion should be modified *408at all, there is no warrant for it in practical construction or even in the dernier resort of necessity, beyond bolding as I indicated, with concurrence of Justices TimliN and ViNje, when this case was decided, that is:
The constitution, — as administered so long that the manner thereof should be regarded by force of practical construction to indicate the intent of those who made it, requires a proposal to amend it to be entered, at least in substance, on the journal of the house of origin at the first session, and be referred to upon the journal of the other house in such manner as to clearly connect such substantial entry with such reference; that an entry by mere number or number and title is not sufficient nor is an entry in externo necessary; but that a proposal which does not, at least, conform, as regards the journal history to the indicated necessity, cannot' become a part of the fundamental law; so the instant proposal did not become such.
To that extent I was willing to bend to the views of the majority, thinking there was a sound basis for it and hoping, thereby, that the court might avoid making a decision on so important a matter by such a division that, even the stability of the result, would necessarily be regarded as very uncertain.
I still think that the better way would be to adhere to the first opinion. I feel confident it were better for the court and] for the people if that could remain unchanged. Its soundness as an original matter no one doubts, as before indicated. I would stay by it firmly and so uphold the constitution in all its integrity and dignity, and in the spirit of Marbury v. Madison, 1 Cranch, 137. It is the very sheet anchor of our life, liberty, and happiness. The people made it. We are sworn to support it as they made it until they see fit, in the manner they designed therefor, to change it. As we and those who come after us prove inefficient to do that by taking undue liberties with its language, it will be weakened and the respect for the court itself be lessened. We would make a serious *409mistake by being deluded into thinking otherwise from noisy approval or criticism of the hour, indicating popular desire for the fundamental law to be administered as those in.prce-senti would like it, instead of as the people who made it intended. There may be, at times, popular unrest with fundamental restraints and wandering away from their safeguards; but in all such cases there.will be return, for only in that can the safety which a constitutional system, in form, guarantees be realized. It may be that I may carry my veneration for the constitution too far, but I do not think so. Eor that, on the calm judgment of the future I may trust. I freely confess that I believe most of the ills we suffer from are attributable to failure to heed it and that the sure pathway to avoidance of them is that which returns to it. In respect to the particular matter the legislature may easily do so, and doubtless will, to the extent of entering a proposal to amend the constitution in full on the journal of the house of origin at the first session and efficiently refer thereto in the other house. I venture to suggest that is not only the best policy, but the only safe-one, since the result is such that a single incident might change it.
I have endeavored in this opinion to keep within the scope of the concurrence of Justices TimliN and YiNje with my views, but responsibility for the manner of treating the matter is personal. Doubtless one or both of my brethren will write to some extent on the subject.