Martien v. Porter

MR. JUSTICE STARK

delivered the opinion of the court.

This is an action in equity, instituted by the plaintiff for the purpose of obtaining an injunction to restrain the defendants George P. Porter, as state auditor of the state of Montana, and O. H. Junod, as state treasurer, from paying any salaries to the members of the state board of equalization or the employees thereof, on the ground that the amendment to section 15 of Article XII of the state Constitution, under which said board was created, is invalid as not having been proposed and submitted to the people of the state by the extraordinary session of the seventeenth legislative assembly in accordance with section 9 of Article XIX of the Constitution.

The only irregularity to which attention is directed and of which complaint is made is that the proposed amendment, together with the ayes and nays thereon, was not entered in full upon the journal of the senate. The senate proceedings will be shown in the latter part of this opinion. For present purposes, it is sufficient to state that a bill submitting the proposed amendment to the electors was passed in both house and senate by a two-thirds vote of the members elected to each house, enrolled, signed by the presiding officer of each house, and approved by the governor, but the full text thereof was not entered in the senate journal.

At the next ensuing general election the secretary of state caused the proposed amendment to be advertised as required by the Constitution, and at the election the same received a majority of the votes cast thereon, which were properly canvassed, the result declared, and thereafter in regular course the governor proclaimed that the amendment had become a part of the state Constitution.

Pursuant to the provisions of this amendment the legislative assembly enacted Chapter 3 of the Session Laws of the eighteenth legislative assembly, providing the necessary statutory law to carry out the provisions of the amendment, and under this law the defendants J. W. Walker, O. A. Bergeson and A. J. Violette were appointed as a state board of equalization, thereafter duly qualified, entered upon the discharge of their duties and have continued so to act down to the present time.

Subsequent to the filing of the complaint the defendants filed their answer, and later on counsel for the respective parties filed a stipulation containing certain extracts from the senate journal of the extraordinary session of the seventeenth legislative assembly, which they agreed constitute and are the only references to the amendment under consideration which appear thereon. Thereaftér the plaintiff made and filed a motion for judgment in his favor upon the complaint, answer and stipulation. This motion was heard by the court on September 5, 1923, and was sustained. In accordance with the order of the court sustaining the motion a judgment was entered granting to the plaintiff the relief prayed for; from this judgment the defendants appealed to this court.

Section 91 of Article XIX of the Constitution reads as follows: “Amendments to this Constitution may be proposed in either house of the legislative assembly, and if the same shall be voted for by two-thirds of the members elected to each house, such proposed amendments, together with the ayes and nays of each house thereon, shall be entered in full on their respective journals; and the secretary of state shall cause the said amendment or amendments to be published in full in at least one newspaper in each county (if such there be) for three months previous to the next general election for members to the legislative assembly; and at said election the said amendment or amendments shall be submitted to the qualified electors of the state for their approval or rejection and such as are approved by a majority of those voting thereon shall become part of the Constitution. Should more amendments than one be submitted at the same election, they shall be so prepared and distinguished by numbers or otherwise that each can be voted upon separately; provided, however, that not more than three amendments to this Constitution shall be submitted at the same election.”

From the foregoing facts and the provisions of the Con- stitution above quoted it is apparent that the sole question presented for decision is whether the amendment to section 15 of Article XII is invalid because the same, together with the ayes and nays thereon, was not “entered in full” on the senate journal.

We enter upon a consideration of this case, bearing in mind a rule of construction dictated by reason and sanctioned by authority and long usage, that whenever an Act of the legislative assembly is assailed as unconstitutional, the question presented to the court is not whether it is possible to condemn but whether it is possible to uphold.

In the early case of Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678 [see, also, Rose’s U. S. Notes], Chief Justice Marshall declared: “It has been truly said, that the presumption is in favor of every legislative Act, and that the whole burden of proof lies on him who declares its unconstitutionality.” It has been invariably held by this court that the constitutionality of an Act of the legislature will be upheld unless its unconstitutionality appears beyond a reasonable doubt. (In re O’Brien, 29 Mont. 530, 1 Ann. Cas. 373, 75 Pac. 196; Northwestern Mut. Life Ins. Co. v. Lewis and Clark County, 28 Mont. 484, 98 Am. St. Rep. 572, 72 Pac. 982; State v. Camp Sing, 18 Mont. 128, 56 Am. St. Rep. 551, 32 L. R. A. 635, 44 Pac. 516; Missouri River Power Co. v. Steele, 32 Mont. 433, 80 Pac. 1093; Spratt v. Helena Power Transmission Co., 37 Mont. 60, 94 Pac. 631; State v. McKinney, 29 Mont. 375, 1 Ann. Cas. 579, 74 Pac. 1095.)

The same rules are applied in the construction of the Constitution as in the construction of statutes (Dunn v. City of Great Falls, 13 Mont. 58, 31 Pac. 1017), and, if possible, effect must be given to every section and clause (Montana Coal & Coke Co. v. Livingston, 21 Mont. 59, 52 Pac. 780).

At the outset we are confronted with a contention by the attorney general that it is not competent for the court to go back of the enrolled bill to ascertain the regularity of the legislative • proceedings, save only for the purpose of ascertaining whether the aye and nay vote was entered upon the journals of the respective houses, and in that connection he cites the decisions of this court holding to that principle, the last of which is State ex rel. Woodward v. Moulton, 57 Mont. 414, 189 Pac. 59, wherein the former decisions of this court on the subject are collected. The rule of these cases would, of course, hold good if this were an ordinary legislative proceeding for the enactment of a law, but such is not the case.

When the legislative assembly proposes an amendment to the Constitution it “is not in the exercise of its legislative power or any sovereignty of the people that has been intrusted to it, but is merely acting under a limited power conferred upon it by the people” to make such a proposal. (Jameson on Constitutional Conventions, 2d ed., Chap. 8; Ellingham v. Dye, 178 Ind. 336, Ann. Cas. 1915C, 200, 99 N. E. 1; Livermore v. Waite, 102 Cal. 113, 25 L. R. A. 312, 36 Pac. 424.)

TJie reason of the rule which forbids the court to go back of an enrolled bill to inspect the journals to ascertain whether the legislature, in passing a law, observed the ■ constitutional requirements, is that, by the terms of 'section 1 of Article IV of the Constitution, the government of the state is divided into three distinct departments: legislative, executive and judicial, neither of which is permitted to exercise any power properly belonging to the other, except when expressly directed or permitted so to do. Each of these three branches is supreme in its own domain, and in the exercise of the duties imposed upon it the other branches are not permitted to interfere.

All of the cases cited by the attorney general have to do with the enactment of a bill or statute under the power vested in the legislature by Article V of the Constitution. They have no reference to Acts of the legislature in proposing amendments to the Constitution under section 9 of Article XIX. The Constitution does not prescribe the method which shall be pursued in submitting such a proposal. It may be by bill or by joint resolution, but in either event it is a mere proposal and does not become effective until ratified by a vote of a majority of the electors at the polls. Being a mere proposal made by the legislature in the exercise of its delegated power, and not in the exercise of its inherent power to legislate, it is not an invasion of the legislative department for the Court to look to the journal entries in reference to such proposal to determine the regularity of the proceedings. For this reason the rule contended for by the attorney general has no application here.

The above-mentioned section 9 of Article XIX of the Constitution first came before this court for construction in the year 1894, in the case of State ex rel. Woods v. Tooker, County Clerk, 15 Mont. 8, 25 L. R. A. 560, 37 Pac. 840, which involved a proposed amendment to section 4 of Article XVI of the Constitution providing for the election of county commissioners at the general election of 1894. The specific objection made to the constitutional amendment in that case was that the secretary of state had not published the same in the newspapers for a period of three months previous to the election as required, but instead of doing so had only published the same for a period of • two weeks. This dereliction on the part of the officer was so clearly a noncompliance Avith the Constitution that the court, in a decision written by Mr. ■Justice DeWitt, held that the proposed amendment had not become a part of the Constitution, although a majority of the electors had voted for it at the general election. In the course of his opinion the learned Justice used language which indicated that the rule of literal compliance should be applied to the provisions under consideration relative to publication. Such a holding was not necessary in order to reach the conclusion which he did, since no one would have contended that publication for two weeks was a substantial compliance with a direction that the same should be made for a period of three months.

In 1899 section 9 of Article XIX again came before the court for consideration in the case of Durfee v. Harper, 22 Mont. 354, 56 Pac. 582. In that case, however, the question Avas only incidental to the main issues. The attempted amendment to the Constitution there under consideration involved an addition to section 5 of Article VIII, authorizing the judges of the supreme court (which then consisted of three members), in case any of its members should in any way be disqualified to sit in a case, to call in a district judge to sit with them in the hearing thereof in place of the one disqualified. When the cause was set down for argument, Chief Justice Brantly being disqualified, the two remaining Justices had called Judge Henry of the sixth judicial district to sit in his place, but before the case was called for hearing it was suggested to the court by Colonel W. F. Sanders that Judge Henry could not properly sit therein for the reason that the amendment to the Constitution under the provisions of which he had been called in had not been legally proposed for adoption, inasmuch, as it had never been entered in full on the respective journals of the two houses of the assembly. Thereupon the court of its own motion caused an investigation to be made of the legislative records of the two houses which had attempted to submit the amendment. While the opinion in the ease merely recites that the proposed amendment had never been entered in full on the respective journals of the two houses, the fact is that it was not entered at all on the journal of either house, and the title of the so-called bill incorporating the proposed amendment did not even correctly refer to the section of the Constitution which it was sought to amend. From an inspection of the legislative journals alone, and without extrinsic evidence, it was impossible to determine what measure had passed the senate and house. In the course of the opinion it was held that the attempted amendment had not become a part of the Constitution because of the defects above pointed out. The question of substantial compliance with the provisions of the Constitution was not considered in the case at all. In fact, under the conditions disclosed by the record, it could not have been properly suggested; but in the course of the opinion Mr. Justice Hunt, speaking of the provisions of the Constitution generally, said: “There is no discretion in that body [the legislature] to ignore the commands of the fundamental authority, or override its limitations in great or small matters.” If by this language the court intended to declare that there must be a literal compliance with every procedural detail in submitting a proposed amendment to the electors and that rule of construction should still prevail, then the attempted amendment involved in the present ease must fall by the wayside. How- ever, in the decision of that ease it was not necessary for the court, in order to reach the conclusion which it did, to go to the extent of declaring so strict a rule of construcr tion as the one which might be deduced from the language used.

In speaking of the force and effect of prior decisions of the court as precedents, Mr. Chief Justice Marshall, in the ease of Cohens v. Virginia, 6 Wheat. (U. S.) 264, 399, 5 L. Ed. 257 [see, also, Bose’s U. S. Notes], used the following language: “It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. ’ If they go beyond the ease, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”

In State ex rel. Hay v. Alder son, 49 Mont. 387, Ann. Cas. 1916B, .39, 142 Pac. 210, decided in 1914, the same section once again came before the court for consideration in connection with a proposed amendment to section 1 of Article V of the Constitution, being the initiative and referendum measure. Two objections to the proposed amendment were made in that case, one of which related to the sufficiency of the publication of the proposed amendment by the secretary of state. The court determined from the record then before it that there had not been a literal compliance with the requirements of section 9 of Article XIX, and said in effect that if the rule of literal compliance with the provisions of that section were to prevail, then the attempted amendment under consideration had not been properly submitted to the electors and consequently was a nullity. In that case the court was confronted for the first time with the question whether it would adhere to the rule requiring a literal compliance with all of the procedural requirements of this section which had been intimated in State ex rel. Woods v. Tooker and Durfee v. Harper, or whether these provisions, confessedly mandatory, would be sufficiently met by a substantial compliance therewith. The court was at the parting of the ways — if the rule of literal compliance was. adopted it would make a proposed amendment to the Constitution practically impossible. The court said: “But the enforcement of such a rule would also defeat the very purpose of the provision under consideration. Our Bill of Rights declares: ‘ The • people of the state have the sole and exclusive right of governing themselves, as a free, sovereign and independent state, and to alter and abolish their Constitution and form a government, whenever they may deem it necessary to their safety and happiness, provided such change be not repugnant to the Constitution of the United States.’ (Const., Art. Ill, see. 2.) Section 9, Article XIX, deals with but one subject — amendments to the Constitution. In its adoption it was not the purpose of the people to render their fundamental law incapable of change, but, on the contrary, to provide a plain, simple, and easily executed method of amendment,” and instead of adopting the rule of literal compliance, held that the mandatory provisions of the Constitution for its own amendment, in the absence of any intimation that injury, substantial or unsubstantial, resulted, were satisfied by a substantial compliance therewith. The requirement that the proposed amendment shall be published in a newspaper in each county of the state during the prescribed period is for the purpose of advising the electors of the very change which is sought to be made in the fundamental law, and is at least equally as important as the one which requires that the proposed change shall be entered upon the journals of the two houses of the legislative assembly. If one of these requirements is satisfied by a substantial compliance therewith, no good reason appears why the same rule should not apply to the other.

The rule of construction so adopted by this court has stood unchallenged from 1914 to this date. We are now asked to discard it and revert to the rule of literal construction intimated in the two Montana cases first above cited. This we must decline to do. We think the rule is the. correct one, not alone for the cogent reasons announced to support it in the decision, but because it is justified by the provisions of the Constitution itself.

To illustrate the meaning of the last statement, reference is made to certain sections of Article V of the Constitution:

Sec. 19. “No law shall be passed except by bill. * * * ”

Sec. 22. “No bill shall be considered or become a law unless referred to a committee, returned therefrom, and printed for the use of the members.”

See. 24. “No bill shall become a law except by a vote of a majority of all members present in each house, nor unless on its final passage the vote be taken by ayes and noes, and the names of those voting be entered on the journal.”

No doubt can exist but that the above provisions must receive a literal construction. The doctrine of substantial compliance announced in State ex rel. Hay v. Alderson has no application to them. Such has been the ruling of this court in many cases, among which may be cited State ex rel. Peyton v. Cunningham, 39 Mont. 197, 18 Ann. Cas. 705, 103 Pac. 497, and Palatine Ins. Co. v. Northern Pac. Ry. Co., 34 Mont. 268, 9 Ann. Cas. 579, 85 Pac. 1032. If the command of section 29 of Article III, that all “the provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise,” requires literal construction of each and every procedural mandate, there was no necessity to particularly designate some provisions, in language which unmistakably compels such construction.

In this connection attention is directed to section 8 of Article XIX, which provides for the submission of amendments to the Constitution by a convention called for that purpose. This section closes with the express declaration: “And unless so submitted and approved by a majority of the electors voting at the election, no such revision, alteration or amendment shall take effect,” whereas section 9 of that Article contains no such prohibitory clause.

“In construing a Constitution, resort may be had to the well-recognized rule of construction contained in the maxim, expressio unius est exclusio alterius, and the expression of one thing in a Constitution may necessarily involve the exclusion of other things not expressed.” (6 E. C. L., p. 49, sec. 43.) It is a fundamental canon of construction that a Constitution should receive a liberal interpretation, especially with respect to those provisions which were designed to safeguard the liberty and security of the citizens. (6 E. C. L., p. 49, see. 44.) “No court of justice can be authorized so to construe any clause of the Constitution as to defeat its obvious ends when another construction, equally accordant with the words and sense thereof, will enforce and protect it.” (Prigg v. Pennsylvania, 16 Pet. (U. S.) 539, 10 L. Ed. 1060 [see, also, Eose’s U. S. Notes].)

At the time our Constitution was adopted in 1889, there were thirty-seven other state Constitutions in force. Of these, thirty-five either had no provision regulating the journal entries of proposed constitutional amendments or else contained provisions that they should be “entered on their journals,” or words to that effect. Only the Constitutions of Colorado and Illinois contained provisions like the one adopted in Montana, requiring that a proposed amendment should be entered “in full” on the respective journals of the houses of the legislature. Our attention has not been directed to any Illinois case construing this constitutional provision. The Colorado court first had this section of the Constitution presented to it for consideration in the case of Nesbit v. People, 19 Colo. 441, 36 Pac. 221, and afterward the same provision was involved in the decision of the case of People v. Sours, 31 Colo. 369, 102 Am. St. Rep. 34, 74 Pac. 167. In each of these cases the court in effect held that the section does not require a literal interpretation, but that it is sufficiently met by a substantial compliance with its provisions.

From the rule laid down in State ex rel. Hay v. Alderson, it appears that the mandatory provisions of section 9, Article' XIX, other than those which require the amendment to be proposed by a two-thirds vote of the members elected to each house, entered by the ayes and nays upon their respective journals, and the approval thereof by a majority of the electors voting thereon, are satisfied by a substantial compliance therewith, in the absence of any intimation that injury, substantial or unsubstantial, resulted.

What, then, is meant by “substantial compliance’1 ? Obviously it denotes something not easy to define and often difficult to apply. Indeed, it is a term not susceptible of exact definition. We conceive that to make application of the doctrine to constitutional provisions, other than those falling within the class above pointed out, the primary inquiry should be directed to ascertaining the ultimate object to be attained thereby, i. e., what right is to be protected or what benefit conferred, and secondarily, what mode has been prescribed to guarantee the attainment of the ultimate object.

We must ascertain, by a process of inclusion and exclusion, whether, from the facts as they appear in the record, there has been, in truth, such a course of action considering the object to be accomplished (i. e., the protection of a right or conferring of a benefit) by the mode indicated for its attainment, though not literally following such mode, it can be said that the object has been fully attained without any resulting substantial or unsubstantial injury. If this condition is found to exist, then, although the prescribed mode of attainment has been deviated from in some particulars, not detracting from the right to be protected or the benefit to be conferred, still the right has been protected and the benefit conferred as fully and completely as though the mode of attaining the object had been literally followed, then there has been a substantial compliance.

Having proceeded thus far, let us now advance another step and re-examine section 9 of Article XIX in connection with two other sections of the Constitution.

Section 2 of Article III of the Constitution, which reserves to the people the right to .alter and amend the Constitution, being a part of the Bill of Rights, is set out in full in a preceding paragraph hereof. If we were to exalt any provision of the Constitution above the others it would be difficult to find a more important one than this, since it insures to the people of the state the right to change, alter, or amend their fundamental law as they may desire by a process of evolution instead of revolution. To make secure this reserved right to alter the, fundamental law of the state there was included in the Constitution, section 9 of Article XIX, which has already been referred to, and also section 8 of the same Article, which provides in effect that the legislative assembly may at any time, by a vote of two-thirds of the members elected to each house, submit to the electors of the state the question whether there shall be a convention to revise, alter, or amend the Constitution, and if a majority of those voting on the question shall declare in favor of .such convention the legislative assembly shall at its next session provide for the calling of the same.

It thus appears that there are two methods by which an amendment to the Constitution may be properly proposed; First, by a convention called for that purpose by a majority vote of the electors when the proposal has been submitted to them by a two-thirds vote of the members elected to each house of the legislative assembly; and, second, by a vote of two-thirds of the members elected to each house. In either of these methods the ultimate object to be accomplished is to permit the qualified electors to exercise the right to alter or amend their fundamental law, which right has been reserved by-section 2 of Article III, above quoted. It was declared by this court, in State ex rel. Hay v. Alderson, supra; “The proper proposal of the amendment by the legislature and the will of the people expressed at the polls in favor of such amendment are clearly emphasized as the factors of paramount importance in effecting a change of our Constitution. (Constitutional Prohibitory Amendment Gases, 24 Kan. 700.) Whatever may be said of the rigidity with which the rules of law must be drawn whenever either of these paramount factors is in issue, we are clearly of the opinion that any question which may arise upon other features of the amending process is referable to the rule of substantial compliance, even though the provision of the Constitution invoked is mandatory.” Stress is laid upon the two paramount factors — proper proposal by the legislature, and the vote of the electors at the'polls. In the Kansas case cited and relied upon in the foregoing decision it is said: “The two important, vital elements in any constitutional amendment are the assent of two-thirds of the legislature, and a majority of the popular vote. Beyond these, other provisions are mere machinery and forms. They may not be disregarded, because by them certainty as to the essentials is secured. But they are not themselves the essentials.”

Reverting now to what we have heretofore indicated as being our understanding of what constitutes a substantial compliance, we again observe that the ultimate object to be obtained in either of the two methods laid down for amending the fundamental law is to have the proposed amendment submitted to the qualified electors for them to pass upon, and if approved by a majority it shall then be incorporated in the Constitution. The amendments in the Kansas case, in State ex rel. Hay v. Alderson and in the instant case, were -each proposed by the second of the indicated constitutional methods, i. e., by direct action of two-thirds of the members elected to each house of the legislative assembly. Under this method, as declared by the Kansas court, beyond the two-thirds vote of the members elected to each house and the approval by a majority of the voters at the polls, all the other requirements are mere machinery and forms which must be followed to secure certainty in the essentials, but they are not the essentials. If certainty in the essentials is secured, though the mode of attaining it laid down in the Constitution has not 'been literally followed but has been deviated from in some particulars not at all detracting from the right of the electors to voté upon the identical amendment which has been proposed, we ought not to say that the ultimate object has not been attained by reason of failure to literally follow the specific method prescribed for its attainment. In other words, under such conditions we should hold that there has been a substantial compliance with the prescribed mode.

Certainty being the object to be attained by the requirement that the proposed amendment, “together with the ayes and nays of each house thereon shall be entered in full on their respective journals,” we have left the inquiry as to whether that object has been attained in this instance.

The proposed amendment under consideration first made its appearance by an entry on page 768 of the senate journal as follows: “The following bills were introduced, read first and second times and referred: Senate Bill No. 11, by Greenup. A bill for an Act entitled ‘An Act for the submission to the qualified electors of the state of Montana of an amendment to section fifteen of Article XII of the Constitution of the state of Montana, as amended, creating county boards of equalization and a state board of equalization, and defining and prescribing thSir powers and duties.’ Bef erred to committee on judiciary.” The next entry concerning the same is on page 770 of the senate journal and is as follows: “The committee on judiciary submitted the following report: ‘Mr. President: We your committee on judiciary, to whom was referred S. B. No. 11 introduced by Greenup, being a bill for an Act entitled “An act for the submission to the qualified electors of the state of Montana of an amendment to section fifteen of Article XII of the Constitution of the state of Montana, as amended, creating county boards of equalization and a state board of equalization, and defining and prescribing their powers and duties,” having had the same under consideration, respectfully report and recommend that the same do pass. Burlingame, Chairman.’ Report adopted.” The bill followed the regular course of legislation, was printed and considered by the committee of the whole, whose report upon the same appears at page 779 of the senate journal, as follows: “March 19, 1921. Mr. President, Your committee of the whole to whom was referred business on general file, respectfully report that we have had under consideration Senate Bill No. 11 and recommended that the same do pass. T. P. Stewart, Chairman. Report adopted.” And on the same page of the senate journal appears this entry: “Third •Reading of Bills. Senate Bilí No. 11 having been read at length three several times, was passed by the following vote,” following which are recorded the names of those voting for and against the bill, showing forty-five ayes, three noes, and six absent and not voting. Thereafter the bill was transmitted to the house of representatives, where it was duly passed by the required two-thirds vote, entered in full, together with the ayes and nays, upon the house journal, returned to the senate by the house, with a report that it had been concurred in, duly enrolled and signed by the president of the senate and the speaker of the house, all of which facts are shown upon the senate journal.

The identifying references to Senate Bill No. 11 on the journal of the senate, coupled with the entry of this measure in full upon the journal of the house, discloses with certainty, exactly the measure which was proposed in the senate and passed by it and the house of representatives, in each instance by the requisite two-thirds vote of all members elected to each, and thereby the ultimate purpose of the constitutional requirement was fulfilled in substantially the mode prescribed. Unless certainty as to the proposed amendment had been clearly established by the legislative journals themselves, the rule under 'consideration would have no application and the measure would fail.

• We deem it advisable to again point out, as was done in State ex. rel. Hay v. Alderson, that if the attack on the proceedings had been made prior to the election of 1922, it might have prevailed, “but the general rule is that every reasonable intendment will be indulged in favor of the validity of a constitutional amendment after its ratification by the people at the polls” — citing People v. Sours, supra.

For the reason heretofore indicated we have thus far confined our observations upon the question of certainty to the entries. appearing upon the legislative records.

Turning now to the pleadings in the case, we find, in paragraph 1 of the second affirmative defense set up in the defendants’ answer, an allegation that said Senate Bill No. 11 was passed by and concurred in by the house of representatives “in the exact form, and language as the same was introduced in and passed by the senate.” And in paragraph 3 thereof, “That said Senate Bill No. 11, proposing said constitutional amendment, as introduced in said senate, as passed by it, as concurred in by the said house of representatives, as enrolled in said senate, as signed by the president of said senate and speaker of said house of representatives, as approved by the governor of this state, as published by the secretary of state, as ratified by the people at the general election on November 7, 1922, and as published with the laws of this state, is identically and verbatim, the same.”

The plaintiff’s motion for judgment on the pleadings amounted to an admission of the truth of all material allegations of the defendants’ answer, and so for the purposes of the record which is presented to this court these allegations must be accepted as true.

It is further pleaded in the answer, and likewise admitted to be true, that for a long time before the general election of 1922 this proposed amendment was discussed to such an extent from the public platform and through the public press that it became a paramount issue of the campaign with a very-large majority of the people of the state and that its adoption was “actively, bitterly, and vigorously opposed by the plaintiff herein. ’ ’

Upon this state of the record, since plaintiff’s rights were' fully protected, and he took complete advantage of the same, we do not think a court of equity should now reach out with the extraordinary writ of injunction to stay the operation of the amendment to the Constitution so adopted. To do so would be to interpret the Constitution by the letter which killeth rather than by the spirit which giveth life: compel a process of reasoning so refined that it would enable one to

“ # * # distinguish and divide A hair ’twixt south and southwest side, ’ ’

and do violence to the age-old maxim that equity regards substance rather than form.

The judgment of the district court is reversed and the cause remanded, with directions to enter a judgment in favor of the defendants.

Reversed.

Mr. Chief Justice Callaway and Mr. Justice Holloway concur.