The opinion
Mehaffy, J. (concurring) The facts are stated fully in the majority opinion, and I concur fully in the conclusion reached, holding that the amendment is now in effect and has been since January 1, 1939. As stated by the majority opinion, the insistence is that the failure of the House of Representatives to enter at length the resolution upon the journal body is a fatal defect in the proceeding, for the reason that the constitution requires this entry at length upon the journals of both the Senate and House.
The Constitution- provides the manner in which amendments may he submitted by the General Assembly. Section 22 of art. 19. provides that either branch of the General Assembly at a regular session thereof may propose amendments to this constitution, and if the same be agreed to by a majority of all members elected to each house, such proposed amendments shall be entered on the journals with the ayes and nays, etc.
The question is, what is the meaning of the word “entered”. It is the contention of appellants that it means “spread at length”. We think that riot only the weight of authority, but reason also is to the effect that “entered”, used in the provision of the constitution, does not mean “spread at length”.
In the case of Boyd v. Olcott, 102 Ore. 327 , 202 Pac. 431 , the Supreme. Court of Oregon decided this question. It is stated by that court:
“If the resolution is written out in full in the journal, it is, of course, entered in the, journal, and so, too, when the journal contains a record sufficient to identify a given resolution it is entered in the journal within the meaning of the word “entered” as that word is naturally and popularly understood; but, nevertheless, the authorities are divided upon the question as to whether or not the word “entered”, when found standing alone, requires recording in full in extenso, at length, or is satisfied if the journal contains references sufficient for identification. 6 It. C. L. 29. After a careful examination of many authorities discussing the subject, it is our conclusion that a great majority of the reported judicial decisions, when read and analyzed in the light of the facts upon which they are based, support the rule that an identifying reference is a full compliance with a constitution requiring that a resolution be “entered in” the journal. See 12 C. J. 692; Ex Parte Ming, 42 Nev. 472 , 181 Pac. 319 , 6 A. L. B. 1216. The following are a few of the’ many reported decisions holding that an identifying reference satisfies the requirements of a constitution worded like our constitution:
Ex Parte Ming, 42 Nev. 472 , 181 Pac. 319 , 6 A. L. R. 1216; Oakland Paving Co. v. Tompkins, 72 Cal. 5 , 12 Pac. 801 , 1 Am. St. Rep. 17 ; Thomason v. Ashworth, 73 Cal. 73 , 14 Pac. 615 ; Constitutional Prohibitory Amendment, 24 Kan. 700 ; Cudihee v. Phelps, 76 Wash. 314 , 136 Pac. 367 ; Gottstein v. Lister, 88 Wash. 462 , 153 Pac. 595 , Ann. Cas. 1917D, 1008; State ex rel. Adams v. Herreid, 10 S. D. 109, 72 N. W. 93 ; Worman v. Hagan, 78 Md. 152 , 27 Atl. 716 , 21 L. R. A. 716; In re Senate File, 25 Neb. 864 , 41 N. W. 981 ; Lee v. Price, 54 Utah 474 ; 181 Pac. 948 ; West v. State, 50 Fla. 154 , 39 So. 412 .”
In the same opinion the Oregon court also said:
“When the constitution, as a whole, is taken by its four corners and examined as an entirety, and Article 17 is read in connection with the remainder of the instrument, it will become obvious that the conclusion that the words “entered in” as used in Article 17 are satisfied when the entry consists of an identifying reference, and that they do not mandatorily compel. an entry in full, is the only conclusion which can be reasonably drawn.”
If a bookkeeper is required to enter a promissory • note on his ledger, he does not copy the note in full; no person would expect him to do that; and all that he is required to do is to enter an identifying reference. A court should not close its eyes and refuse to believe what every intelligent person believes.
The Utah Court said, in the case of Lee v. Price, et al., 54 Utah 474 , 181 Pac. 948 : “The only purpose of entering a proposed amendment upon the journals is to keep a record that will be sufficiently certain to identify the proposition to be submitted to the people, and that the identical amendment proposed shall be the one voted upon by the electors. In the instant case it is conceded that the proposed amendment was submitted to the people and adopted by an overwhelming majority of the electors voting thereon. In our opinion it would . do violence to both the spirit and letter of the law to hold that the formal entry on the legislative journals is subject to some technical criticism, and that therefore the amendment should be declared void and invalid and the expressed will of the people thwarted. In the opinion in the “Prohibitory Amendment Cases,” 24 Kan. 499 , Mr. Justice Brewer, who thereafter served with distinction as a member of the Supreme Court of the United States, brushed aside all sophistry and all technicalities, and discussed the question under consideration in these clear and forceful words: “It is a proposition to amend the Constitution in the nature of a criminal proceeding, in which the opponents of change stand as defendants in a criminal action, entitled to avail themselves of any technical error or mere verbal mistake; or is it rather a civil proceeding, in which those omissions and errors which work no wrong to substantial rights' are to be disregarded? Unhesitatingly, we affirm the latter. . . .”
In the same opinion, it is also said: “This is a government by the people, and, whenever the clear voice of the people is heard, Legislatures and courts must obey. True, a popular vote without previous legislative sanction must be disregarded. There is no certainty that all who could would take part in such a vote, or that they who did, all realize that it was a final action. It lacks the sanction of law, is a disregard of constitutional methods and limitations, and should be taken as a request for a change, rather than as a change itself. But, notwithstanding, this, legislative action is simply a determination to submit the question to popular decision. It is in no sense final. No number of legislatures, and no amount of legislative action, can change the fundamental law. This was made by the people, who alone can change it. The action of the Legislature in respect to constitutional changes is something like the action of a committee of the Legislature in respect to the legislative disposition of a bill. It presents, it recommends, but it does not decide. And who ever thought of declaring a law invalid by reason of any irregularities in the proceedings of the committee which first passed upon it? It is the legislative action which is considered in determining whether the law had been constitutionally passed; and it is the popular action which is principally to be considered in determining whether a constitutional amendment has been adopted.”
The Supreme Court of "Washington, in the case of Cudihee v. Phelps, 76 Wash. 314 , 136 Pac. 367 , had this identical question before it, and cited many authorities to sustain the proposition that the word “enter” did not mean copy or enter at length or enter in full, but simply meant a brief, identifying reference, and among other things, that court said:
“We find that the entry really made was a brief identifying reference, preliminary to obtaining license to print. Such instances of the use of the word and of the' phrase in which it occurs might be multiplied indefinitely, but these are enough to show that this usage is quite common. Now, if we substitute in all these and like cases the word ‘copy’ or the phrase ‘enter at large’, for the word ‘enter’ we are conscious at once that a great change has been made. Indeed the mere fact that the. qualifying words ‘at large’, ‘at length’, ‘in full’, do so often accompany the word ‘enter’ is proof that all feel that it is not a synonym of the word ‘copy’. . . . This is sufficient to uphold the amendment, unless we can see from the context that something else was meant. We perceive no such intent. The evident purpose of the entire provision doubtless was to preserve a record of the vote. As a majority controls the journals, it may have been apprehended that it might be made to appear that the proposal was duly passed, although lacking the requisite majority, and so it was required that the yeas and nays be entered. But, however this may be, the principal thing is the record of the yeas and nays, and this purpose is accomplished as perfectly by the entry made as it would be by any other. As to preserving the identity of the amendment proposed, there is no greater difficulty in this matter than with reference to bills.” There are very many authorities on this question, but it would serve no useful purpose to review them here. Many of them are referred to in the cases we have cited. There is some conflict in the authorities, 'but in my opinion, the overwhelming weight' of authority supports the rule here announced.
If the makers of the 'Constitution had intended that the resolution and amendment should he spread at length or copied in full, they would have said so. When the whole ‘ Constitution is considered," we think there can be no doubt about this question.'
In art. 5, § 22 of the Constitution, it is provided that every bill shall be read at length in each house, and § 23 of art. 5 of the Constitution provides that no law shall be revived, amended or the provisions thereof extended, by reference to its title only, but' so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length.
It is said in 11 Am. Jur. p. 638 : “On the other hand, the rule has been laid down that after ratification by the people, every reasonable presumption, both of law and fact, is to be indulged in favor of the validity of an' amendment to a state constitution or the legality of a new constitution; and unless the courts are satisfied that the constitution has been violated in the submission of a proposed amendment, they should uphold it. The view is taken that substance is more important than form, and that the will of the legislature lawfully expressed in proposing an amendment and the will of the people expressed at the proper time and in the proper manner in ratifying such amendment ought not to be lightly disregarded.”
The majority opinion discusses the case of McAdams v. Henley, 169 Ark. 97 , 273 S. W. 356 , 41 A. L. R. 629, where the opinion was delivered by the late Chief Justice McCullough. That case is easily distinguished from the present. It appears from the facts in that case that one house passed a measure, sent it to the other house where it was amended. The house where the measure originated never did agree to the amendment, and the other house nover did agree to the original measure without the amendment. It, therefore, clearly appears that the measure passed by one house was different from the measure passed by the other house. No one contends that either house may submit a constitutional amendment to be voted on by the people, but the identical measure must be passed by both houses, and in the case above referred to, this was not done and for that reason the Legislature had not adopted the proposed amendment, and there was no occasion to decide any other question in that case. We have always held that 'before a measure becomes effective, whether a bill or proposed constitutional amendment, both houses must pass the same measure. So it is not necessary in this case to overrule the case of McAdams v. Henley. It is true the question before the court here was discussed in that opinion, but if the opinion is wrong, or that discussion of this question was wrong, the case should be overruled.
I agree with Judge Scott of the Colorado Supreme Court in his dissenting opinion in the case of Van Kleeck v. Ramer, 62 Colo. 4 , 156 Pac. 1108 , in which he said: “It may be answered that the people are not always swift to correct a wrong by means of constitutional amendment, it was a long, difficult, and bitter struggle to so secure the initiative and referendum amendment. The people, like the mills of the gods, grind slow, but they sometimes find it necessary to grind exceedingly fine. . ’
“Precedents that find support in sound reason, and tend to promote justice, are strongly persuasive and generally to be followed; but precedents not so supported, or when for any cause the reason for the rule has ceased to exist, obstruct progress, and should be discarded as being both unjust and dangerous. The tendency of courts to so generally rely on' case law, regardless of existing reasons that may appeal from righteous judgment, is fast becoming a menace to our government.
“I may be permitted to suggest, for the consideration of courts and judges who feel impelled to sacrifice their sense of reason and justice upon the alter of the Golden Calf of precedent, the quaint philosophy of Sam Walter Foss, in the following lines:”
Judge Scott then quoted a poem by Sam Walter Foss. A portion of that poem reads:
“For thus such reverence is lent
To well-established precedent.
A moral lesson this might teach,
Were I ordained , and called to preach.
“For men are prone to go it blind
Along the calf-paths of the mind,
And toil away from sun to sun
To do what other men have done.
“They follow in the beaten track,
And out and in, and forth and back,
And still their devious course pursue
To keep the path that others do.”
The doctrine of stare decisis does not prevent a re-examination of any question, and a correction of the previously declared law is found erroneous. I think that a great majority of the recent decisions are to the effect that if a case has been decided wrong, it should be promptly overruled, unless it. has become a rule of property. When it has become a rule of property, it should then be overruled, if erroneous, unless the overruling would be more harmful than following the erroneous decision.
I think when any measure has been fairly submitted to the people and they have voted on it, adopted it, the measure should be upheld; unless there has been some violation of a provision of the constitution, and I think there has not in this case.
I, therefore, agree with the majority that the amendment was adopted on November 8, 1938, and became .effective January 1, 1939.