section number makes no difference. It may result in a little inconvenience or confusion, owing to the fact that there will be two sections bearing the same number, but these sections may be differentiated by referring to one as having been adopted in the year 1911 and the other as having been adopted in the year 1913. While a little embarrassment is likely to result from the situation, it is my judgment that this legislature will be pursuing by far the safer course by couching the resolution in guage carried by the resolution of 1911, that it would be dangerous to attempt to ber at this time.

exactly the same lanand I, therefore, advise change this section num

Yours very truly,

W. C. OWEN,
Attorney General.

JUNE 10, 1913.

Honorable F. M. WYLIE,

Chief Clerk, Senate,

Capitol.

Dear Sir: In your letter of the 29th ult. you state that the question has arisen, as to whether the proper method for the legislature to submit to the people constitutional amendments that have passed two sessions is by bill or by joint resolution, and request my opinion upon the matter.

I am enclosing herewith a copy of an opinion this day rendered Honorable C. E. Shaffer, chief clerk of the assembly, which I believe will answer your question.

Very truly yours,

W. C. OWEN,

Attorney General.

JUNE 10, 1913.

Dear Sir: In your inquiry of the 29th ult. you state that there are pending in the assembly a number of proposed amendments. to the constitution, the resolutions proposing which have been adopted by the legislature a second time pursuant to Article XII, section 1, constitution; that it thus becomes the duty of the legislature to submit such proposed amendments to the people; that in the past this duty has been performed by the enactment of a bill providing for such submission; that this practice has been questioned on the ground that there is nothing in Article XII which imposes upon the executive the power or responsibility either to approve or disapprove the action of the legislature in this regard; and that the proper form for submitting a constitutional amendment to the

You ask my opinion

people is by joint resolution and not by bill. on the question thus raised. Article XII, section 1 of our constitution provides that after agreement upon a proposed amendment by two legislatures

"It shall be the duty of the legislature to submit such proposed amendment or amendments to the people in such manner, and at such time as the legislature shall prescribe." Former Attorney General Hicks held that proposed amendments might be submitted either by bill or by joint resolution and sug gested that the latter was the preferable method.

Biennial Report and Opinions of Attorney General for 1902, p. 97.

He, however, did not cite any authorities.

It has frequently been held under similar provisions that the amendment may be proposed by resolution and that no executive approval is essential.

Commonwealth ex rel. Elkin es. Griest, 196 Penn. state, 396; 46 Atl. 505; 50 L. R. A. 568.

Hollingsworth vs. Virginia, 3 Dall. (U. S.) 378.

State er rel. Wineman vs. Dahl, 6 N. D. 81; 68 N. W. 418; 34 L. R. A. 97.

Warfield vs. Vandiver, 101 Md. 78; 60 Atl. 538; 4 Am. &

Eng. An. Cases, 692.

There is an exhaustive note appended to the last case cited in the Annotated Cases stating the general rule as above and citing a number of cases. The note further say::

"However, the usual practice seems to be to observe in the case of proposed amendments the usual formalities relating to ordinary legislative bills."

In Nebraska a constitutional amendment was proposed by a bill and the question was raised, as to whether the amendment was properly adopted. The court held that it was, but arguendo the court said that submission to the governor was not necessary as to the amendment itself.

In re Senate File, 25 Neb. 864; 41 N. W. 981.

In South Dakota an amendment was submitted by resolution, but this question was not raised or passed upon.

Lovett es. Ferguson, 10 S. D. 44; 71 N. W. 765.

Our own court had before it an amendment submitted by bill. Other questions were raised, but not the question of whether it should have been by joint resolution.

State ex rel. Hudd vs. Timme, 54 Wis. 318.

"There seems to be a difference of view as to the necessity of the approval of the executive officers."

After a careful consideration of the foregoing authorities I am satisfied that an amendment may be proposed by joint resolution and that such resolution is sufficient until the two legislatures have agreed to the amendment. Upon such agreement having been reached, how should it be submitted to the people?

"It will be remarked that the power to propose an amendment to the constitution is vested in the two houses,-senate and assembly, and if two-thirds [in Wisconsin a majority] of all the members elected to each of the two houses vote in favor thereof, it shall be the duty of the legislature to submit such proposed amendment or amendments to the people to be voted thereon. The proposal of the amendment or amendments is not by the legislature, as such, in the ordinary enactment of the law, and with the proposal the governor has nothing to do. The act is that of two thirds [in this state a majority of each branch of the legislature. But the matter

of submitting the proposed amendment or amendments to the vote of the people is quite different. That is to be done by the legislature, by a law to that effect, and in the enactment of a law the governor is a part of the law-making power." Hatch vs. Stoneman, 66 Calif. 632; 6 Pac. 734.

In the Nebraska case herein before cited, the court said that if the amendment had been proposed by resolution and agreed to in that form, it would then have been necessary to pass a bill to submit it to the people.

See also 6 Am. & Eng. Ency, of Law (2nd ed.) 906.

It appears clear to me that the determination of the manner and time of submission should be made by bill providing for such submission.

Dear Sir:

Senate Chamber, Capitol.

In your favor of June 10th, you state that: "An index of sections affected by laws enacted at this session is kept up in my office and when it is discovered that a senate bill appearing on the senate calendar for engrossment or third reading affects a section of the statutes which has already been amended or touched in some other manner by an act passed at this session, a chief clerk's correction is drafted and entered in the journal pursuant to the provisions of senate rule 32, amending the pending bill so as to make it conform to the act passed at this session.

"Such act generally changes the wording of the section of the statutes which is sought to be amended by the pending bill so that the bill no longer complies with subdivision 8 of joint rule 7 of the legislature, in that it does

*

*

not directly state the wording of the statute as it really exists and does not strike out with a line through the words such

matter as is omitted, nor underscore such matter as is new and foreign to the existing statute.

"In order to make such pending senate bill comply with subdivision 8 of joint rule 7, we have followed the practice of making chief clerk's corrections pursuant to senate rule 32, which reads as follows: * * * 80 as to make the bill show the statute as changed during this session, and also show the matter stricken out or inserted.

Does senate rule 32 give the chief clerk the power and authority to make such changes?"

Senate rule 32, as found on pages 26 and 27 of the Senate Manual for 1913, provides:

reso

"(1) Minor clerical errors in any bill, memorial, or lution, such as errors in orthography or grammar, or the use of one word for another, as 'affect' for 'effect,' wrong numbering or references, whether such errors occur in the original bill or in any amendment thereto, shall be corrected by the chief clerk as a matter of course upon the approval of the chairman of any committee to which the bill was referred.

"(2) The chief clerk shall, with the approval of the author of the bill, insert the enacting or usual enabling clause in any bill before its passage if the same shall have been omitted. He shall also, when necessary, amend titles of all bills so that they will show the sections affected, the subject to which the bill relates, and the making of an appropriation, if such is made by the bill.

(3) Any corrections made by the clerk under this rule shall be noted by him upon the journal.

"(4) Webster's New International Dictionary shall be the

standard."

It is apparent that, if you have the power to make the changes referred to, it is because they are corrections of "minor clerical errors. A clerical error is defined to be "an error made in copying or writing"-Webster's New International Dictionary. See also Bostwick v. Van Vleck, 106 Wis. 387, 390. Such an error is obviously one of form rather than of substance. The correction referred to do not seem to be of that class. If made, it would be on the assumption that the legislature did not intend by the later act to effect an amendment in a law made by a prior act of the same session. This would, of course, frequently be contrary to fact. See sec. 4075 of the statutes, as amended by chapter 332 and section 44, ch. 664, laws of 1911; State vs. Law, 150 Wis. 313, 325, 329; and chapter 349, laws of 1913.

"The law is well settled that all provisions of a former section not found in a revised section are repealed." Bentley v. Adums, 92 Wis. 386, 391. For example, sec. 997, R. S. 1878, was amended by ch. 58, laws of 1885, by adding a proviso. Sec.

5, Ch. 161, laws of 1885 amended sec. 997

66

so as to read as

written in said section 5, chapter 161, and that section omits the proviso added to it by chapter 58; so that according to the rule

adopted by this court in the construction of statutes, the proviso is repealed." State ex rel Terry v. Keaough, 68 Wis. 135, 144. Consequently, it seems clear to me that the suggested changes in a pending bill are not merely clerical, but are so material that they should be made only by the legislature itself in the form of amendments duly offered and passed. Such changes are not the correction of "minor clerical errors" within Senate rule 32, in that they are not necessarily "errors" and in addition they are clearly not "minor", nor "clerical."

You also ask:

"In the case of assembly bills awaiting action on the senate calendar and conflicting with acts passed at this session, has the chief clerk power and authority under rule 32 to make the changes necessary to make such bills conform to the act, and if such changes are made in the senate after the assembly has passed the bill, is the bill valid without any specific action on the part of the assembly concurring in the changes made by the senate chief clerk?"

Clearly, you have not the power and authority to make the suggested changes, for both branches of the legislature must pass the same bill in order that it may become a law. State v. Wendler, 94 Wis. 369, 374. Mere clerical differences would probably not affect the validity of the law, but, as pointed out, the changes referred to are not in form merely, but of substance.

You also ask:

"In instances where a bill has passed both houses and a conflict with an 1913 act is discovered in the enrolling, has the chief clerk power and authority to make the required changes before the bill is enrolled, and if such changes are made, is the bill that goes to the governor the same one as was passed by the legislature?"

It follows from what I have already said that such changes may not be lawfully made. Where a later act conflicts with an earlier, the later operates to supersede or impliedly repeal the earlier and any change made in the later act to avoid such conflict is, of course, a material change- -ap act of legislation. Such change can be made only by the legislature itself.

I appreciate that in many instances time and expense would be saved if changes such as you refer to could be made by you, but it is perfectly elear to me that you have no power to make changes which plainly may result in legislation entirely different from that actually acted upon by the legislature. It is of far greater importance that no acts which have not in fact been passed by the legislature should be given the semblance and form of laws, than that a little time and expense should be saved in their passage.

Yours very truly,

W. C. OWEN,
Attorney General.