III. AMENDING METHODS IN OTHER STATES.

Of the present state constitutions the provisions for specific amendment may be divided into six classes:

(1) The proposal of amendments by a constitutional convention only (New Hampshire);

(2) Amendment by the action of two successive legislatures, without a direct popular vote. (Delaware);

(3) Proposal by the legislature with a popular vote upon the proposal, but with the ultimate approval or rejection (South Carolina) or the insertion of the amendment into the constitution (Mississippi) left with the legislature after the people have approved a proposed amendment. It should be noted, however, that in Mississippi, initiated amendments take effect upon approval by the people.

(4) Amendments proposed by the legislature and subject to popular approval, but with the amending process subject to such restrictions as to make constitutional amendment difficult. Such restrictions are of three kinds :

(a) The requirement of action by two successive legislatures for the proposal of amendments. (Connecticut, Indiana, Iowa, Massachusetts, New Jersey, Nevada, New York, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Wisconsin). Of the states enumerated here, attention should be called to the fact that Massachusetts in 1918 and Nevada in 1912 adopted a popular initiative for the proposal of constitutional amendments.

(b) Limitations as to the number, frequency and character of proposals. (Arkansas, Colorado, Illinois, Indiana, Kansas, Kentucky, Montana, New Jersey, Pennsylvania, Tennessee, Vermont.) Of these states, attention should be called to the fact that Colorado, (1910) adopted the initiative for the proposal of constitutional amendments, and that the initiative process is held to be free from the limitation upon the number of amendments that may be submitted; and that Arkansas, (1910) permits the popular initiative of constitutional amendments, but that in Arkansas the popular initiative of amendments is held subject to limitation as to the number of proposed amendments that may be submitted.

(c) Requirements of a popular vote greater than that of a majority of all persons voting upon the amendment. (Alabama, Arkansas, Connecticut, Illinois, Indiana, Minnesota, Mississippi, Nebraska, Oklahoma, Rhode Island, Tennessee, Wyoming). Arkansas (1910) permits the adoption of amendments proposed by initiative petition by a majority of those voting upon the question, but still requires for amendments proposed by legislative

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action a majority of those voting at the election. Nebraska (1912) requires a 35 per cent affirmative vote of those voting at the election for amendments proposed by initiative petition and a majority of those voting at the election for amendments proposed by the legislature. Mississippi requires a majority of those voting at the election for constitutional amendments proposed by the legislature, but only a majority of those voting upon the question for amendments proposed by initiative petition. Amendments proposed by constitutional convention in New Hampshire must receive two-thirds of the vote cast upon the question for their adoption or rejection.

(5) The unrestricted proposal of amendments by one legislative action merely and adoption by a majority of the persons voting thereon. (Maryland, Michigan, Missouri, New Mexico, North Carolina, North Dakota, Ohio, Oregon, South Dakota, Texas, Utah, Washington, West Virginia.) It is possible that New Mexico should be placed in the group of states having restrictions as to the character of proposals, although the method of proposal under an amendment of 1912 is not difficult. The restrictions upon the legislative proposal of amendments in Colorado, Kansas and Montana are so slight as to make it proper to class the constitutions of these states here rather than among those difficult of amendment. South Carolina may also be classed with this group in so far as respects the proposal of and popular vote upon amendments.

(6) Those which in addition to the legislative power of proposal permit the popular initiation of constitutional amendments. (Arizona, Arkansas, California, Colorado, Massachusetts, Michigan, Mississippi, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon.)

The tendency has been steadily toward the easy amending process. represented by the fifth type, and since 1902 there has been a rapid development in the use of the popular initiative for the amendment of constitutions. The group of states whose constitutions are least flexible is that of subdivision (c) of the fourth type; but where, in addition to the requirement of a majority of all votes at an election, there are other restrictions upon the amending process, the alteration of a constitution often becomes practically impossible. This is true of Tennessee, where we have a combination of limitations-not only is a majority of all votes for representatives required to be cast for an amendment, but amendments may only be proposed once in six years, and the action of two successive legislatures is required for such proposal. So, but to a less extent than in Tennessee, the amending procedure in Illinois and Indiana is burdened by restrictions to such an extent as to be practically unworkable, although the Indiana restrictions are more serious than those of Illinois.

The requirement of proposal by two successive legislatures, while it defeats many projects which would otherwise go to the people, cannot be said to interpose serious obstacles in the way of constitutional alteration, nor in fact even in the cases of Vermont, Tennessee, New Jersey, Pennsylvania and Illinois do the restrictions upon the proposal

of amendments interpose insuperable barriers, but when these provisions are combined with the requirement of a popular vote which is ordinarily impossible to obtain except upon questions of the greatest importance, as is done in Tennessee, the amending process becomes almost useless. Even where the restrictions are not so stringent, but where two legislative actions are required and the power of legislative proposal restricted, the amending process is slow and cumbersome, preventing a ready adjustment of the constitution to changing conditions. This is peculiarly true in view of the fact that substantially all of the state constitutions outside of New England contain numerous detailed provisions which may require frequent alteration.

The hindrances to constitutional change which have been devised are of two kinds: (1) Those which make any change difficult, and (2) those which make an actual change fairly easy but which provide a method of change requiring a long time for its operation. The provisions requiring a popular vote equal to that of a majority of all votes cast in a general election, belong to the first class. Those requiring two legislative actions and permitting the proposal of amendments only at long intervals belong to the second class. Certainly the requirement of a long time to obtain an amendment forms a check upon constitutional change. The limitation through the requirement of action by two successive legislatures is not serious in the small number of states still having annual legislative sessions, as in New York and South Carolina.

Limitations upon submission of constitutional amendments: There are twelve constitutions which impose limitations as to the number, frequency and character of proposed amendments. New Jersey permits the proposal of amendments only once in five years, Tennessee once in six years, and Vermont once in ten years. Pennsylvania provides that no amendment or amendments shall be submitted oftener than once in five years. The Illinois constitution provides that no amendments shall be proposed to more than one article of the constitution at the same session, and that the same article shall not be amended oftener than once in four years. Colorado (1876) provided that the legislature should not have power to propose amendments to more than one article at the same session, but this provision was amended in 1900 so as to permit the proposal of amendments to six articles at the same time, and even this limitation is held not to apply to initiated amendments.1

In Indiana, while an amendment agreed upon by one legislature is waiting the action of the succeeding legislature, no additional amendment may be proposed. A similar provision of the Oregon constitution was repealed in 1906. Arkansas, Kansas and Montana forbid the submission of more than three amendments at the same election, and the Arkansas limitation is held to apply to amendments

1 People ex rel. Tate v. Provost, 55 Colo. 199 (1913).

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proposed by initiative petition as well as to those proposed by the legislature.2

Kentucky forbids the submission of more than two amendments at the same time and provides that the same amendment shall not be submitted oftener than once in five years. The provisions in Arkansas, Florida, Kentucky, New Mexico and Texas that amendments may be submitted only at regular legislative sessions do not constitute a serious restriction upon the amending power. The New Mexico constitution provides that no amendment affecting certain matters relating to the elective franchise and education shall have effect unless it be proposed by a vote of three-fourths of the members elected to each. house and ratified by a vote of the people in an election at which at least three-fourths of the electors voting in the whole state, and at least two-thirds of those voting in each county in the state, shall vote for such amendment. The New Mexico provision was intended for the purpose of giving guarantees to the Spanish speaking population. Certain restrictions upon the use of the initiative in proposing amendments are commented upon in another place.

The restrictions upon the proposal of amendments in Arkansas, Colorado, Kansas and Montana are relatively slight and have not proven troublesome, except in Arkansas where two methods of submission have come into conflict. However, the limitations in Pennsylvania, New Jersey, Vermont, Tennessee, Indiana and Illinois are so strict as to prevent the ready adaptation of the constitutions to changing conditions.

Legislative action in submitting constitutional amendments: The requirement of action by two successive legislatures was abandoned by Illinois in 1848, and the tendency throughout the country. for some time has been directly away from such a plan. Of the nineteen constitutions adopted since 1885 all but three provided for action by one legislature only; Oregon by amendment of 1906 and North Dakota by amendment of 1918 have made a similar provision. In the states providing for only one legislative action, it has usually been customary to require such action to be taken by more than a majority of the legislature. Of the thirty-three constitutions to which amendments may now be proposed by one legislative action, nine permit such proposal by a majority vote (Arizona, Arkansas, Minnesota, Missouri, New Mexico, North Dakota, Oklahoma, Oregon, and South Dakota); seven require a three-fifths vote (Alabama, Florida, Kentucky, Maryland, Nebraska, North Carolina, Ohio); and seventeen require a vote of two-thirds of the members of each of the two houses (California, Colorado, Georgia, Idaho, Illinois, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, South Carolina, Texas, Utah, Washington, West Virginia and Wyoming).

In practically all the states the constitutions specify that the majorities required for the proposal of amendments shall be majorities of all members elected to each of the two houses, although in a

2 State ex rel. Little Rock v. Donaghey, 106 Ark. 56 (1912).

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few cases the requirement is that of a majority or a greater proportion of the members of the two houses. A reference has already been made above to the confusion likely to result through the fact that the convention clause of the Illinois constitution does not state a precise standard in this regard.

The rejected New York constitution of 1915 provided for a joint session of the two houses to consider a proposed amendment after either house had adopted such a proposal, leaving the action of each house to be taken separately, however. A use of joint sessions is prescribed in Massachusetts for the consideration of proposals of amendment initiated by popular petition.

Proposal by popular initiative: A separate pamphlet is devoted to the initiative and referendum, and in this pamphlet will be found a full analysis of the initiative and referendum provisions in all states which have applied the initiative to constitutional amendments. No effort will be made here to analyze the initiative provisions of state constitutions in detail, but a statement will be made sufficiently full to indicate the relationship of the popular initiative to other methods of altering state constitutions.

Of the states which have adopted the popular initiative, fourteen apply this institution to the proposal of constitutional amendments, so that in these states there are two methods of specific proposal of constitutional changes (Arizona, Arkansas, California, Colorado, Massachusetts, Michigan, Mississippi, Missouri, Nebraska, Nevada, North Dakota, Ohio, Oklahoma and Oregon). The states of Oregon, Nevada, Missouri, Arkansas, Colorado and Mississippi permit the use of the initiative for the proposal of constitutional amendments in the same manner as for the proposal of laws. California substantially belongs in this group, the only distinction in this state being that for statutes there is both a direct and an indirect initiative, while for constitutional amendments there is merely a direct initiative.

In seven states distinctions are made between constitutional amendments and statutes. In Oklahoma, Arizona, Nebraska and North Dakota a larger petition is required to propose a constitutional amendment. In Oklahoma an eight per cent petition is sufficient for ordinary legislation, and a fifteen per cent petition is required for constitutional amendments. In Arizona and Nebraska the initiation of ordinary legislation is accomplished by a ten per cent petition, but for constitutional amendment a fifteen per cent petition is required. In North Dakota the initiation of a law requires a petition of 10,000 voters, and the initiation of a constitutional amendment requires a petition of 20,000. Michigan provides for an indirect initiative petition of eight per cent for ordinary legislation, and for a direct initiative petition of ten per cent for constitutional amendments. Ohio provides for an indirect initiative upon ordinary legislation with an original petition of three per cent and a supplemental petition of